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THE Convention which framed the Federal Constitution completed its labors and the result was made public and submitted to the States for ratification in September, 1787. As yet no general discussion of the new proposals had been possible, the convention having done its work in strictest secrecy. A storm of denunciation and attack broke forthwith, reaching its climax in the pivotal state of New York where enemies were numerous and powerful. Governor George

Clinton, the most influential man politically in the State, voiced his hostility in an able series of papers published under the pseudonym "Cato." Judge Robert Yates of the State Supreme Court, who had been a delegate to the Constitutional Convention, joined in the attack with even abler essays signed "Brutus," and a host of lesser writers took up the cry. "Brutus," however, was not to hold his place among the disputants as the noblest Roman of them all, for at this critical pass "Publius" entered the lists. On October 27, 1787, there appeared in a New York newspaper the first of a notable series of papers supporting the new constitution and answering the arguments of "Cato" and "Brutus." Others followed in rapid succession during the next few months until the number totalled eighty-five. Each was addressed "To the People of the State of New York" and signed "Publius." These eightyfive essays, published later under their collective name "The Federalist,' were destined to become famous and to affect the course of political thought throughout the civilized world. John Fiske, the historian has in "The Critical Period of American History" characterized "The Federalist" as "perhaps the most famous of American books, and undoubtedly

the most profound and suggestive treatise on government that has ever been written."

The papers were the work of Alexander Hamilton, James Madison and John Jay. The chief credit belongs to Hamilton, who originated the idea and secured in its execution the cooperation of Madison and Jay. The importance of Madison's contribution, considerable from any viewpoint, was enhanced by the commanding part he had played in the work of the Constitutional Convention. Jay's share in the work, owing it is said to an illness, was less in both volume and value.

The extraordinary vitality of the Federalist papers, attested by the continuing demand after one hundred and thirty-five years for new editions, demonstrates that their value and appeal are not exclusively or even chiefly historical. Written in haste by young men (Hamilton was only thirty, Madison thirty-six) they took rank almost from the outset as a reasoned and authoritative commentary upon the scheme of government embodied in the Federal Constitution. Designed to meet a temporary exigency, they have proved a permanent reservoir of political wisdom, to be drawn upon as fresh problems arise. It is true that their prophetic vision was not unerring. For example they wholly failed to foresee the important rôle which was to be played by political parties in the working out of the constitutional scheme. But upon many of the governmental problems which have arisen to confront the American people these essays speak with an authority in nowise impaired by changed conditions or lapse of time. Militarism, pacifism, the referendum, legislative factions and blocs-on these and other questions they have a message for the men and women of today. Especially timely is their message upon two problems of exceptional menace for the future of American institutionsFederal encroachment upon State power, and an impatience with constitutional restraints which finds outlet in attacks upon the judiciary.

Federal encroachment upon State power, in other words the rapidly accelerating tendency to reduce the States to mere provinces and to centralize all governmental powers at Washington, is one of the most impressive phenomena of the time.

INTRODUCTION TO THE EDITION OF 1923.

xlix

The supreme achievement of the Federal Constitution was the duality of the system of government which it created, "an indestructible Union composed of indestructible States." The Constitution made an apportionment of governmental powers and functions between Nation and States, on the principle of local government for local affairs and general government for general affairs only, and to preserve the equilibrium thus established it created a Supreme Court. This duality thus safeguarded was the novel feature which, more than any other, differentiated the new system from previous experiments in popular government. It offered the most promising solution yet devised for the problem of building a nation without tearing down local self-government. In the early days of the Republic the dominating sentiment, carried over from colonial and State jealousies, was solicitude for State rights. It required all the genius and courage of John Marshall, backed by the authority of the Supreme Court over which he presided, to uphold National power and preserve the Constitutional equilibrium. As time passed, however, the tide of popular sentiment turned. The Supreme Court, pursuing the even tenor of its way, came to be regarded less as a bulwark of National power than as the defender of the States against Federal aggression. That such aggression is going on is patent to anyone whose eyes are open. The Prohibition Amendment turning over to the Federal Government matters theretofore reserved to the States, the Woman Suffrage Amendment imposing a National policy in State elections, the encroachments upon local police power involved in Federal White Slave laws, Pure Food laws and the like these are illustrations of the tendency. Various causes have contributed, for example foreign wars, the growth of the element in our citizenry composed of later immigrants and their descendants, the temptation to barter State prerogatives for appropriations of Federal money. The Supreme Court is not strong enough, no governmental agency which could be devised would be strong enough, permanently to thwart the popular will. In a government by the people everything must yield sooner or later to the will of the majority. The battle for the preservation of American

political institutions must be fought out, not in the courts but in the forum of public opinion. In that forum "The Federalist" speaks with unrivaled authority. Originally addressed "To the People of the State of New York," its chief function remains today, as it has always been, not the guidance of courts but the shaping of public sentiment. True the tendency toward Federal encroachment did not exist at the time the Federalist papers were written. The popular impulse then was all the other way. The writers foresaw however that such a tendency might arise and discussed the possibility with anxious care. In one form or another they reiterated again and again the warning "to guard, by every possible expedient, against an improper consolidation of the States into one simple republic" (LXII). Hamilton, summing up the whole matter, conceded that it "must be left to the prudence and firmness of the people" but expressed the confident hope that the people "will always take care to preserve the constitutional equilibrium between the general and the State governments" (XXXI). If that hope shall finally prove illusive "The Federalist," and the Constitution which it interprets, will have been written largely in vain.

Attacks upon the judiciary and especially upon the power of the Supreme Court to declare legislative acts unconstitutional are not a new phenomenon. That power, which De Tocqueville declared "one of the strongest barriers ever devised against the tyrannies of political assemblies," has been bitterly assailed at various periods in American history by parties or groups whose purposes it thwarted. At present however the movement seems peculiarly menacing. A few years ago a formidable effort to subject judicial decisions to recall by direct vote of the people was championed by a man who had served two terms as President and who held to an extraordinary degree the confidence and love of his countrymen. While that particular proposal has lost ground, the assault is being renewed by fresh forces along other lines. Here and there men are being elected to office on platforms demanding that final authority concerning the validity of Congressional legislation be left with the legislators. Powerful organizations are proclaiming

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