When Supreme Court Justice Antonin Scalia addressed the House Tea Party Caucus, law professor A.E. Dick Howard of the University of Virginia suggested, “The tea party members may learn something from hearing a justice talk about the Constitution.”
Maybe not.
Scalia possibly misled 50 members of the U.S. House of Representatives and their staffers when he addressed the caucus in a closed session Monday night, Jan. 24. He faced criticism for appearing before the caucus due to the appearance of bias because of the tea party's conservative leanings.
“He said we should all get a copy of the Federalist Papers and read it, underline it, and dog-ear it,” Rep. Jan Schakowsky, who represents a Chicago suburb, told the Associated Press. She was among a few liberal members of Congress who attended.
We should hope that Scalia was joking. Granted that the Federalist Papers are reputed to offer valuable insights about what went into the Constitution, which was signed by its framers in Philadelphia on Sept. 17, 1787, and subsequently ratified by the original 13 states.
As part of a research project, I read at most a half-dozen of the 85 essays and found myself griping, “For a great man, Mr. Madison, why can’t you get to the point?” I soon placed the papers low on my priority list for exploring constitutional issues. James Madison, later elected president of the United States, was a driving force in the framing of the Constitution and one of three authors of the Federalist Papers.
Aside from this being dense reading, the Federalist Papers served as an early form of political advertising, as concluded by three scholars who authored books on the Constitution.
From Richard Beeman’s “Plain, Honest Men: The History of The American Constitution”: “However much the essays may on some occasions rise to the level of high-minded political theory, they were, first and foremost, political propaganda aimed at persuading undecided voters to support the Constitution.”
Beeman is a history professor at the University of Pennsylvania.
Writes American history professor Pauline Maier of MIT in “Ratification: The People Debate the Constitution, 1787-1788”: “The ambitious scope of the series and the authors’ technique of answering opponents without acknowledging their existence (with a few exceptions) can easily mislead readers into thinking The Federalist is a dispassionate analysis of the Constitution, far removed from the political background, which was for ’Publius’ first and foremost New York.”
She added, “It (the first essay) also described the Constitution’s critics as acting from selfish motives and said some of them supported dividing the country into separate confederacies, which signaled that ‘Publius’ was hardly dispassionate or apolitical.”
History and American Studies Professor Jack N. Rakove of Stanford University writes in “Original Meanings: Politics and Ideas in the Making of the Constitution”: “The intellectual properties of complexity, breadth and nuance that have turned the study of The Federalist into a growth industry of scholarship may well have detracted from its appeal to ordinary readers of 1787-88.
“Few of them knew or guessed the identity of its authors; nor could many readers have found the patience to wade through essay after essay with the ambition of mastering all its arguments or synthesizing its diverse themes. Nor did they know anything of the doubts that left both men privately convinced that the Constitution might prove seriously, even fatally, flawed because it lacked key provisions each respectively favored.
“All of these qualifications need to be pondered before the Federalist is uncritically exalted as the definitive exposition of the original meaning of the Constitution.”
The Federalist essays were hurriedly written by Madison, Alexander Hamilton and John Jay, and each essay was published anonymously under the name “Publius.” The papers were mainly published at the time in newspapers in downstate New York, a hot battleground over ratification.
Scalia is fond of following the “original intent” of the framers. Whose original intent? Some delegates to the Constitutional Convention wanted to abolish slavery and others insisted on retaining it. Delegates from the large states favored proportionate representation in Congress and those from small states persisted on equal representation for each state, and two of those small states are now large states.
Madison fought intensely for proportionate representation in both chambers, yet he promoted equal representation in the Senate in one of his Federalist essays.
The original intent of all the framers was to establish a viable system of government. Very little was indicated about civil rights in the Constitution. Civil rights issues were addressed in the Bill of Rights, the first 10 amendments, but that was taken up by Congress in 1791 and subsequently ratified by the states.
Madison advocated for the Senate’s composition not because he liked it. If Madison and other delegates did not sign the Constitution as formulated, there would be no Constitution. Most delegates concurred that the finished product was far more preferable to the Articles of Confederation.
There was another original intent: By September, the delegates wanted to get it over with and return to their families. After all these years of hearing Scalia and his pals carp about “original intent,” we should know how the framers felt.
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