James Madison Lied in Federalist Paper #45— or Maybe He Just Understood the Adage, “The Devil Is in The Details.” Insight into the Day After January 6th

American Eclectic

March 1, 2023

All told there are 85 essays that comprise The Federalist Papers written by James Madison, Alexander Hamilton, and John Jay—all written to get New Yorkers to support ratification of the U.S. Constitution to replace the Articles of Confederation and published between October 1787 and May 1788.  Various New York newspapers published these essays, and all used the pen name “Publius.”  The Constitutional Convention which met in Philadelphia ended about a month before the first essay appeared.  Publius refers to “of the public” and was a common Roman first name. Or was Publius a reference to Publius Valerius Poplicola, involved in the overthrow of the Roman monarchy which led to the establishment of the Roman Republic in 509 BC? It is not clear, so you pick. It is common to find various political organizations refer to various Federalist Papers to support whatever position they may take—usually from a position of political principle.  But then there are many political principles, it is probably not unusual to find competing political principles all referring to something in The Federalist Papers. 

This essay is not about using a Federalist Papers essay to support a particular political position, but to look at one (#45) and demonstrate that James Madison was a good politician.  Politics is often seen as a bad word and all those politicians running for office (usually again and again) like to say they are trying to stay in office or get into office to not practice politics.  It would be nice to see one, at least, say they understand that politics is what we need more of, not less.  There is a wonderful book, written by a British political science, Bernard Crick, In Defence of Politics (1972, British spelling) which makes the case that we do not really want the opposite of politics, which is, essentially, submission to authoritarianism or worse, totalitarianism.  Politics exists in an environment where no one individual, no group, no organization, no political party can get everything they want.  As a result of accepting and understanding the condition of limitations then compromise, give and take, are the logical path to getting some of what you may want but not all. 

Interestingly, the Texas Republican Party released its platform statement in June last year after their state convention and referenced the teaching of The Federalist Papers in a section titled, “Founding Documents in High School: We support a high school curriculum for the study of American history (pre-1877) that is heavily weighted toward the study of original founding documents.”  After reading this essay, it is safe to say, the way James Madison’s Federal Paper #45 is addressed in this essay will not be the approach expected to be used in Texas high schools by Texas Republicans. In other words, Texas Republicans are not really interested in understanding The Federalist Papers or the U.S. Constitution and the Constitutional Convention (I assume based on James Madison’s Notes on the Constitutional Convention), just something that looks like Main Street at Disney World.  In the minds of Texas Republicans, they want to escape from politics.  Their platform statement is a marvel to read in its pompousness and arrogance and almost complete removal from any reality.

Politics matters and Madison understood that and people who want to stand on their high horse and cite some principle where they can refuse to bend or modify their positions become useless or are nothing more than clogs in the system.  That is probably the appeal of Representatives Marjorie Taylor Greene (R, GA) a clog in the system who makes a lot of noise that masquerades as something approaching making-a-difference but is really nothing more than a noise maker. I wonder what the congresswoman is doing to specifically help people and businesses who need her assistance in her Congressional district, or are her theatrics aimed at some broader well-off-center audience is the sole purpose for her reason to be in Congress?

Federalist Paper #45 starts off by stating:

Having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States.

Those words “unnecessary or improper” are interesting.  This is where the Devil Is in The Details that matters.  In the U.S. Constitution, Article 1, Section 8 is titled “Powers of Congress,” and has 18 clauses—it is the 18th clause which is where the Devil resides and the words “necessary and proper” appear—so the inverted from “unnecessary and improper.”  The full 18th clause states:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Good luck trying to figure out what that says precisely.  Texas Republicans probably made up their collective mind to use the Rorschach test approach where they fail to see the existence of ambiguity but, instead, decided to create specificity where there is none—inkblots are always useful to supporting one’s hard and fast political principles.

It is true that the following very comforting sentence is in #45, “The powers delegated by the proposed Constitution to the federal government are few and defined.”  Numerous individuals and organizations, love citing that sentence, but there is a but: Those words “unnecessary or improper” in #45 and “necessary and proper” in the U.S. Constitution.  James Madison was a good politician because of what he failed to address—which if he were completely honest should have been addressed in #45.  But, then again, his aim was to get New Yorkers to support the ratification of the U.S. Constitution—messy issues could be tackled later.

Remember, we had a constitution of sorts: The Articles of Confederation.  The aim was to replace it with the U.S. Constitution.  The fear was that keeping the Articles of Confederation would not be good for the future stability of the country: A weak central government had been created by this document and the future for the country looked bleak.  Article 2 of the Articles of Confederation states:

Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. 

Article 1, Section 1, in the U.S. Constitution states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 8 with those words “necessary and proper” are within Section 1.  The word EXPRESSLY (highlighted here) which is in Article 2 of the Articles of Confederation is not in Article 1 of the U.S. Constitution which contains Section 8 titled “Powers of Congress.”  Madison, ever the politician understood that the Devil is in the details and those details he failed to explain in #45.

Perhaps a good way to understand the word “expressly” is the difference between i.e. and e.g..  Article 2 of the Articles of Confederation is i.e.—essentially these and only these are the powers of Congress that are spelled out and nothing more.  Article 1, Section 1 of the U.S. Constitution where the word expressly does not exist—here are some examples (e.g.) of the powers of Congress, implying there might be more.

Madison addressed the word “expressly” in Federalist Paper #44. He wrote:

Had the [Constitutional] convention taken the…method of adopting the second article of [the Articles of] Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “expressly” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.

It is interesting that Madison addressed the word “expressly” in one Federalist Papers essay (#44), but then in the next one he does not refer to it but sort of addresses the issue of “necessary and proper” and adds that fine sentence, “The powers delegated by the proposed Constitution to the federal government are few and defined.” Madison was a good politician who understood how not to be explicitly clear but, sort of, say what needed to be said and yet sugar-coat it.

In the Supreme Court case, McCulloch v Maryland (1819) the issue was could “Congress [incorporate] a federal Bank of the United States through a legislative act.”  Read, Article 1, Section 8, clauses 1-17 (put the 18th clause aside for a moment) nothing is in there about Congress having the power to create a bank.  John Marshall, Chief Justice of the Supreme Court, wrote the Court’s opinion—and addressed that 18th clause: The Devil:

It is agreed, that no such power is expressly granted by the constitution. It has been obtained by implication… Congress is authorized to pass all laws 'necessary and proper' to carry into execution the powers conferred on it. These words, 'necessary and proper,' in such an instrument, are probably to be considered as synonymous. Necessarily, powers must here intend such powers as are suitable and fitted to the object.

… Among the enumerated [specified] powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument [U.S. Constitution] which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.

… The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word [expressly] in the articles of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity [wordiness] of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language.

The U.S. Constitution is not a blueprint but a vague outline—Supreme Court cases give substance to the Constitution, not the words all by themselves in the Constitution.  Imagine if Madison had been honest and written #45 so that he explained why the word expressly was not in the Constitution.  What would have been the chances of the Constitution being accepted by New York state?  The parents of both James Madison and John Marshall were close, so we might assume that Marshall had some insight into why the word expressly was not in the U.S. Constitution since he personally interacted with those that wrote the Constitution and had a long relationship with some of them.  By the time you reach this part of my essay, do not suddenly assume it is open season and Congress can do whatever it wants.  The idea is to grasp that Madison was a good politician and the Devil matters.  Also realize when you see someone on a cable TV news show do that nonsense where they say, “I read the Constitution,” and display a strong resolve, all they are doing is looking at inkblots.

Madison and his deception were based on an understanding that there were limitations of what he could achieve, and he understood being completely honest would not be a good thing.  He looked around him and saw an environment where he needed to be a good politician. When Machiavelli wrote, “Politics have no relation to morals,” Madison could understand that quote.  Was Madison morally bound to be as honest as possible or simply make the case that the U.S. Constitution could be acceptable to the public? 

Politics can provide stability.  Politics can provide order so we can move on.  I wonder what “the day after” scenario would have looked like if Donald Trump got his way and through some convoluted process, maybe involving his Vice President, Mike Pence, waiting or questioning the Electoral College votes and, maybe, accepting the phony Republican Electoral College votes from specific states, would there actually be political stability and everything would be just fine and Trump would be in the White House today eventually getting ready for the annual Easter Egg Roll?  Trump and others around him could create the illusion for themselves and some set of followers that they would just get their way and that would be it—everything would be fine. What was Trump thinking, that the Democrat and maybe some group of normal Republicans, would simply rollover and play dead and simply accept him as President for the next four years? Did he assume there would be no court cases that challenged Trump somehow miraculously back in the White House? Did he assume that the business of Congress would just somehow return to normal as though everything was the way it should be, let bygones be bygones? There seemed to be a great deal of fantasy thinking that was associated with what Trump and his followers thought would happen.

Politics, as understood by Madison, recognized limitations.  January 6th is seen as chaos focused on one building, the day after scenario imagines chaos on a broader level.  Saying that Trump tried to get his way and failed is different from saying Trump got his way and succeeded (maybe only temporarily).  Madison saw the need to have the U.S. Constitution replace the Articles of Confederation so stability and order could follow: The ends justify the means; the country could not continue under the Articles of Confederation. Madison’s artfully written essay #45 was written with the thought of a way out of potential chaos.  Trump as the “man-child” (a good description from a member of Congress) did his best to dishonor the office he held.  We avoided prolonged instability by Trump and his followers not being successful on January 6th.  Politics matters.

Notes

Matthew Flinders, “In Defense of Politics,” The Political Quarterly, Vol. 81, No. 3 (July-September 2010): https://www.researchgate.net/publication/229443233_In_Defence_Of_Politics.  This is not the Bernard Crick book but a good article in support of politics.

John P. Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review, Vol. 55, Issue 4 (December 1961): https://www.cambridge.org/core/journals/american-political-science-review/arrticle/abs/founding-fathers-a-reform-caucus-in-action/ CE50156024A1189BFA965DBBE1094B3A.  Good luck using this link unless you have access to Cambridge University Press.  A wonderful Roche quote, “They were practical politicians in a democratic society.” Try this link: https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.houstonisd.org%2Fcm s%2Flib2%2FTX01001591%2FCentricity%2FDomain%2F29885%2Froche.reading.doc&wdOrigin=BROWSELINK

Report of the Permanent 2022 Platform & Resolutions Committee: https://texasgop.org/wp-content/uploads/2022/06/6-Permanent-Platform-Committee-FINAL-REPORT-6-16-2022.pdf