Introduction
In the continuous struggle of a nation (or nations), to be independent and progressive we go through a process we call evolution and metamorphosis, to be able to reach something; and when this could be attained, somehow you cannot tell whence it came from. Such happened to a great nation, the United States of America, known for its former evolutionary name as the “American Union”. This great country, like any other creation of man (or God), did not become a great one in its beginning. She struggled, became weak, and became strong in the process. Her successes in the complex areas of spiritual and material things can be traced back to what every creature has – the roots or the struggle of the roots.
Main body
The roots can be traced again to the very soul of a nation, which is the constitution. The inspiration for this constitution, the framework, the framers, and the people who opted to choose the right path and inspiration, is the subject for this paper. More specifically, we will talk of The Federalist Papers, a seminal work composed of 85 essays, authored by a pseudonymous Plubius, an ancient Roman statesman. The Federalist Papers have been the subject of controversies, but also of praises and inspiration from justices and statesmen of our time.
Why is it that The Federalist Papers are controversial up to this day when it is undeniable that it is linked to the Constitution, that it is a document that embodies the ideals and destinies of a people? Why cannot some or many of us accept the fact that without The Federalist Papers, we couldn’t find any other basis for constitutional interpretations?
Strong argument by Philip Abbott of Wayne State University state: Publius’s storytelling abilities were “a kind of artillery for surrender to his theoretical innovations”. This means that Publius was able to convince the American people with his regime principles by his skillful use of language. Language can play a role in shaping public opinion. Publius used such beautiful language and metaphor that he was able to convince the people and vote on the Constitution.
The question remains as to whether Publius’s work is a “valuable resource in addressing contemporary problems of law and justice.” The essays are mostly abstract principles that are hard or difficult to apply to concrete legal rules of today. The article also states recurring federalism questions on matters of interpreting certain statutes and laws of today. As early as 1831, Justice Henry Baldwin “expressed concern about citing philosophical and rhetorical principles to resolve matters of positivist law”1.
Examples of cases that involved controversial statutes are hazardous waste management and crime, and a constitutional doctrine announced by the U.S. Supreme Court, at a time when the judiciary became considerably more activist. The Federalist Papers could not be cited as “controlling authority” on these situations because more questions of federalism could have arisen out of those cases.
Hazardous waste management and crime statutes also involved questions of federalism that a conflict could occur because of questions of jurisdiction. Is the article right in pointing the fact that the federal government of the U.S. is loosening or trying to lose its grip, and the states are gaining control? With these environmental laws, questions of jurisdiction always occur, and the federal government instead of passing on to the states the prosecution of crimes, now have become federal crimes. Examples of these are the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund). CERCLA is as controversial as ever. It affects property rights, and with this, “a judge would receive little practical guidance in consulting The Federalist Papers.” (321)
The writers of the essays could not have known what would be the present situation, the technological age, the advancement in commerce and trade. They wouldn’t have known any opinion on electronic bugging devices or similar ruminations on modern technological innovations, or any recent legal development.
Moreover, Publius’s essays are important to the study of the American government. The essays shaped public opinion at that time; it was the start of a legitimate and lasting government. Chief Justice Samuel Case praised The Federalist Papers “for [its] extensive and accurate knowledge of the true principles of Government” (312).
Publius’s essays are linked to the Constitution; they are an explanation and an inspiration to the Constitution. They were written at a time when the Founders were thinking of a long and lasting solution for a regime that could be acceptable to everyone. The American people were promulgating a Constitution and a government. The Framers thought it wise that the time was a milestone for every American to make the correct choice, if not, they would have to regret it, the nation would be fragmented once again, and never to rise up in glory. The American Constitution was created in accordance with those principles.
The U.S. Supreme Court has recognized the value of The Federalist Papers as a tool for discerning the meaning of principles embedded in the Constitution for precisely this reason – “because Publius’s letters arguably explain the thinking behind the Constitution’s aphoristic pronouncements”.
Despite its flaws, The Federalist Papers continue to earn praise from students and scholars of politics and laws because the essays bear the principles and ideals set forth by the founders and the American people. It was written at a time when the destiny of the American nation was still to be decided. Nobody knew and nobody felt that they would belong to the great and prosperous nation that they are today. But everyone felt and dreamt the American dream. Everyone felt that they should be united and so should have the right move – a one and united stand. But they knew they were going somewhere, and like any other people, they had to have a tool, an instrument to carry along their journey; this was the Constitution. The Federalist Papers served its purpose.
Philosophical ideas and principles are those principles that guided the Founding Fathers in shaping the Constitution and the basic fundamentals for the American government to flourish and further go on. But the fact remains, The Federalist Papers cannot be used for legal interpretation, or for applying specific rules in legal cases and controversies.
The article explains it clearly: that the Framers of the Constitution were not born in our time so that they do not know that the American nation could have come into this great time of advancement and high technology. Yet, our justices and writers still look up to that piece of document for inspiration, but most of all to consult on matters of interpreting the Constitution and on questions of federalism.
Evidence suggests that the U.S. Supreme Court has recognized the value of The Federalist Papers as a tool for discerning the meaning of principles embedded in the Constitution for precisely this reason – because Publius’s letters arguably explain the thinking behind the Constitution’s aphoristic pronouncements. (316)
However, justices continue to cite The Federalist Papers in deciding cases. Justice Antonin Scalia “cited The Federalist Papers extensively in his majority opinion, which struck down a portion of the Brady Handgun Violence Prevention Act that required local law enforcement officers to perform background checks on prospective handgun purchasers” (cited in the article, p. 314).
“The literature in political science, history and law is filled with theories and methods for judges and policymakers to decide cases based on positivist legal principles.”( 311)
Most of the judges quoted the essays, but the demands of postmodernism pointed to some more creative approaches. There could be some other ways of interpreting legal cases aside from looking at The Federalist Papers. This is with the aim of giving opportunities to other groups who’ve been deprived of justice. The essays however were such, only bearing principles and philosophical ideas that could not be used to interpret legal contexts.
On the other hand, The Federalist Papers talk of faction, which is specifically discussed in Federalist Paper No. 51. A faction can arise because of the people’s quest for materials things. From the very beginning, we long and fight for property. This is human nature. Publius tries to explain that since our opinions and passions are influenced by materials possessions, we cannot prohibit competition; consequently, it has to be encouraged.
Out of this competition and the acquiring of property, which has become unequal, factions evolve. The emergence of different and numerous factions in society cannot henceforth be avoided because of competition and the quest for more and more property. Furthermore, the government has the task of controlling the emergence of a majority faction that may someday control or enforce its interested will upon the minority.
In this subject of faction in the article (and in The Federalist Paper No. 51), we can read the minds of the brilliant writers behind Publius. One might say, “They must be joking!” But no, Publius was simply serious. They were avoiding despotism. Or they were advanced in thinking: they were avoiding something more if socialism or communism was already present at that time. The main point of encouraging the formation of a faction was to control or discourage the formation of a majority faction.
The question now is: is this happening in the present situation in the United States? Certainly not. Though Publius was right, i.e. having a forward mind, in encouraging these different factions to control a majority faction, what is happening now is that there are countless majority factions in industries and on the political battlefield. Business cartels proliferate everywhere. Some politicians control our own government. You don’t need evidence for this last statement. But for example, have you heard of a vice-president being prosecuted for mistaking a human being for a bird?
Conclusion
In conclusion, there is no doubt in our minds the purposes and objectives of The Federalist Papers, and the mission it has attained. It is forever instilled in the psyche of every American. This document is as important as the Constitution itself. But we have to look for more concrete texts to support our daily questions of law.
End Notes
Philip Abbott, What’s New in The Federalist Papers?, 49 POLITICAL RESEARCH QUARTERLY 525 (1996), cited in Martinez and Richardson (2000), p. 313.
Works Cited
Martinez, M. J. & Richardson, W. D., 2000. The Federalist Papers and Legal Interpretation, South Dakota Law Review, Volume 45, Number 2, pp. 307-333.
FoundingFathers.com. The Federalist Papers: Essays 1 – 85. 2008. Web.