March 1, 2016

Why ‘The Federalist’ Is Worth Reading in the 21st Century

by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

Early in my new book, An Argument Open to All: Reading "The Federalist" in the 21st Century, I refer to the set of essays published in 1787-1788 as “the best known, most widely read and analyzed extended work of American political thought.” I now believe, from talking to many colleagues and students, that the reference to “widely read” is almost certainly wrong. Many people have no doubt read Federalists No. 10, 47, 51, and 78, but there are 81 additional essays, most of which languish in obscurity.

So the central question is whether there is good reason for a 21st century reader in fact to read The Federalist beyond the few “greatest hits.” It is obvious why someone interested in the formation of the Constitution would be interested in the entire corpus. Interestingly, it is less obvious why anyone with a particular interest in interpreting the Constitution would have to read it; very few of the 85 essays actually relate to the controversies that come before the judiciary or other constitutional interpreters in the 21st century. Most of them are devoted to explaining why the system established by the Articles of Confederation was “imbecilic;” why unifying behind a new constitution was essential to defense against what we would today call threats to our national security; and broad discussions of the institutions that comprise our political system (and which, being “hard wired,” are almost never the subjects of litigation).

My book consists of 85 separate essays, each one corresponding to the respective original essay. They offer not so much an exegesis of the original as an inquiry whether it still has anything to tell us about constitutionalism in the 21st century. Underscoring the “presentism” of the essays is the fact that I refer exclusively to Publius, the notional author, and not to the actual historical authors Alexander Hamilton, John Jay, or James Madison. One of the consequences of adopting that approach is that I don’t have to concern myself with the question of the authors’ “sincerity” or genuine belief in their own arguments, shaped to elicit the votes of ratifiers at the state ratification conventions in 1788. My audience is persons interested in the Constitution in 2016 (or in 2020). Should they (you) make time at least to read my book and perhaps even return to The Federalist itself? To a degree that genuinely surprises even me, given my own doubts when I embarked on this project, I think the answer is yes.

There is obviously not time to summarize even a fraction of the 85 essays. But let me mention a few (outside the “greatest hits”). Publius begins Federalist No. 1 by emphasizing the importance of Americans engaging in “reflection and choice” about how we wish to be governed. For me the central question in 2016 is whether we genuinely believe in the capacity of our fellow citizens to engage in such “reflection and choice” about fundamentals. I strongly believe that we need a new constitutional convention in order to discuss the degree to which the obvious dysfunctionalities of the American political system are traceable to the Constitution itself. Most of my friends and colleagues disagree with me; many in fact agree with my basic analysis, but they have no faith in the capacity of the collective citizenry to address basic questions of constitutional design. If we really believe that, then I think the entire democratic enterprise is doomed. What could be more worth talking about?

Federalist No. 8 helps to explain the rise of our militaristic culture; No. 11 suggests why the Chinese are busy building a navy to defend against American hegemony in the Pacific (trust me). Federalists No. 18-20, about political confederations from ancient times through the 17th century, helps to explain why the project of a truly united Europe may be imploding before our very eyes. And No. 41 offers a terrifying hint as to why the national government will feel empowered to do “whatever it takes” to fight anything that can be labeled “terrorism.” And so on.

I certainly do not treat The Federalist as “wisdom literature” that we are obliged to follow. Indeed, what is most inspiring about Publius is his constant reminder that we must be guided by the “lessons of experience” and not by outmoded traditions or the authority of “names” (presumably including the Founders themselves). His constant lesson is that we must have the courage to think for ourselves, which means grappling with, rather than blindly following, the arguments made in the 85 essays. That was the challenge in 1787-1788. It remains all too relevant today.