Teaching Federalist # 10
A Student-Led Lesson
A Student - Led Lesson.
by Jeff Schneider
When I picked up my copy of Federalist #10 to begin writing this article, I was stunned by the subtitle:"The Union as a Safeguard Against Domestic Faction and Insurrection." Despite my 30 years of teaching this document, the emotions that welled up in me upon reading "Insurrection" were a shock. These are hard times. That the present shapes our understanding of the history we study was brought home to me with new force.
Knowing that Shays' Rebellion was a cause of the calling of and the high attendance at the Constitutional Convention and the prominence of the phrase "to insure Domestic Tranquility" in the preamble helps explain what the framers thought was at stake in 1787. I always spent 10 or 15 minutes parsing the the meanings of the preamble, but even though I taught the Constitution many times over the years, I never felt the depth of those words as I do today. The insurrection by the followers of Donald Trump puts us in a situation James Madison would recognize. Donald Trump and his minions have been frightening us every day for years now. It is time to analyze the most famous of Madison's essays: "Federalist # 10."
This essay is addressed to the teacher. When I assigned Federalist #10 I asked the students to download and read the document which you can find at the Avalon website at Yale (1) and then place letters next to each paragraph for easy navigation. I asked them to write three capital letters for each paragraph from AAA to XXX. It is easier to see three capital letters than only one. They were required to choose two sentences from the beginning, three from the middle and two from the end of the document. As I have explained in detail in "The Tarzan Theory of Reading,"(2) elsewhere on this site, the students were to single out sentences with which they agreed or disagreed strongly or those that they thought were key to understanding the article. If they like the phrasing, they could choose those also. They would underline the sentence and then copy them on a separate sheet of paper, making a comment for each one about why they chose it. This sheet would be handed in as homework or sent to Turnitin.com in my AP classes for homework credit. A 50% plagiarism rate was acceptable for this assignment, because they had copied the sentence from the document. In addition I asked them to identify the sentence that was at the logical center of the argument.
When I began the class, I asked for questions or comments. Students often made comments on the structure of the essay, which we will discuss in greater depth at the end of this article, or the definitions of faction or insurrection, which is now a term many students will encounter in the news. The definition of faction is "a majority or minority ... opposed to the permanent and aggregate interests of the community." The students will come up with the common term special interest, but how can that be a majority? This is a very interesting problem since Madison's' understanding of the term faction is not easy to grasp. The Constitution describes a democracy: Does the majority not rule? You should put that idea in a separate list on the board and leave it until the end of the discussion. An insurrection is an attempt at the violent overthrow of a government.The students know that Shays' Rebellion, 1786 - 1787 was an insurrection.
The main topics are Disorder in the Country, The Defining Factions, Eliminating Factions, Controlling Factions, and then a special section: Sentences We Have not Analyzed in Depth.You can put these notes from the students on the board in these categories, but wait until the end of the lesson for the students to label them or ask them to group.
Disorder in the Country is the introductory topic. Madison describes how the public good was being ignored. "The friend of popular governments" opposes the "violence of faction" which causes "instability, injustice and confusion." There are "overbearing"majorities that cause " governments" to be "too unstable" because they do not respect the "rights of the minority," and governments controlled by "specious (unsupportable) arguments" causing "mortal diseases under which popular governments have everywhere perished." He blames the "factious spirit that has tainted our public administrations."
Shays' Rebellion was a factor in Madison's concerns. The students will know that indebted farmers in western Massachusetts denounced unaffordable taxes and complained that they were losing their mortgages to foreclosure. Daniel Shays was a Revolutionary War captain who led his followers to attempt to close the courts to prevent the foreclosures. In addition, they demanded representation equal to the proportional per capita representation in the east close to Boston. After the rebellion was quashed, Shaysites were elected to the Massachusetts legislature. That presented further problems for the government of Massachusetts. Another problem was that the rebellion was a protest against unfair taxation reminiscent of the protests in the 1760s. It reminded many members of the government of the lead up to 1776. (Similarly some of the insurrectionists in 2022 used 1776 as a threatening slogan.) This armed insurrection was a major cause of the convening of the Constitutional Convention in Philadelphia, because the Articles Congress had no power to raise an army directly: the state had to defend itself along with any allies it could muster.
Madison's Definition of Faction
"By faction I understand a number of citizens whether amounting to a majority or a minority of the whole who are united and actuated by some common impulse or passion or of interest adversed (sic) to the rights of other citizens or the permanent and aggregate interests of the community." If a student chooses this sentence, you have to be careful to explain each part of the definition. How do you explain this definition, I ask. Eventually the students come to the realize that Madison expected that the people should come to particular conclusions. How do "the permanent and aggregate interests of the community" fit into the ideas here? This should also go in the In Depth section for discussion. The rest of the article discusses how to eliminate factions or how to control them.
Eliminating Factions
This is the first of the methods to secure the government against the "mischief of faction." There are two methods to eliminate factions: destroying liberty or giving everyone the same opinions. The first method is dangerous since liberty is the essence of democracy. Someone will choose the analogy "liberty is to faction as air is to fire." The students will come to the conclusion that restricting liberty is not possible in a democratic government because we depend on freedom of thought and action to maintain democracy.
The second method, giving "everyone the same opinions," is also an impossible solution because "as long as man continues fallible, and he is at liberty to exercise it, different opinions will be formed." How do you understand that, I ask. How can that be determined? Opinions can be based on "self-love," and "reason is connected to passion." "Diversity in the faculties of man" can play a part. Madison describes it thus:
"The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties."
How can you understand those sentences? Faculty seems to be an ability the students will conclude. The rights of property and the ownership of different kinds of property and the faculties to obtain those kinds of property all cause divisions. "But the most common and durable source of factions has been the unequal distribution of property." Madison lists the kinds of property from landed to mercantile and creditors and debtors. So, (t)he latent (underlying) causes of faction are thus sown in the nature of man." Inflamed men tend to "vex" each other "instead of cooperating for their common good." How do you understand that, I ask. It soon becomes clear that that Madison was not making an argument for the change in distribution or the control of production of property or goods in the US. Madison was not a Marxist! Instead, the students will conclude that Madison was attempting to find ways to manage the political effects of that inequality or those differences.
He points to the difficulty in raising taxes, which, we should point out, was a cause of Shays' Rebellion: "No man is allowed to be judge in his own cause because his interest would certainly bias his judgement...." The overrepresented east in the Massachusetts legislature taxed the farmers in the west at a higher rate to pay off debts they had encurred during the Revolution. "Every shilling with which they overburdened the fewer number is a shilling saved to their own pockets." "Enlightened statesmen will not always be at the helm." The latter sentence is another candidate for the separate discussion at the end.
Controlling the Effects of Faction
"The inference to which we are brought is, that the CAUSES of faction cannot be removed and that relief is only to be sought in controlling its EFFECTS." How do you interpret this, I ask. The students will come to the conclusion that this sentence begins the second half of the argument.
"If the faction consists of less than a majority" voting, the "republican principle," is the remedy. There might be disagreements, but majority rule does offer a solution.Therefore what to do about a majority faction is the most "intractable" problem. Someone is likely to pick the sentence: "To secure the public good and private rights against the danger of such a (majority) faction, and at the same time to preserve the spirit and the form of popular government is then the great object to which our inquiries are directed," how do you interpret that, I ask. The ensuing discussion can conclude that it is a thesis sentence pointing to the chief point of the whole article.
The "existence of the same passion in the factional majority" must be prevented or "the majority must be rendered unable to concert." In a pure (direct) democracy in which the citizens are the legislature "can admit of no cure" for "the mischiefs of faction" because "the common passion or interest will in almost every case be felt by a majority of the whole and there is nothing to check...an obnoxious individual." or group from influencing everyone. When people concert they work together How do you explain that, I ask. The students can find that the influence of overbearing people in the room and the pressure of all your neighbors can skew the result in a pure democracy. The alternative method of governance is the republic or the representative democracy which "promises the cure for which we are seeking." The government is delegated to a smaller number of representatives and can be spread over a much larger area.
The terms republic and democracy must be clear to the students. How do you understand these terms, I ask. The example of ancient Athens in which the citizens all could vote as a legislature is a direct or "pure" democracy. A republic is a representative democracy in which the citizens vote for representatives and those citizens, like the Roman senate, form the ruling body. The theories of republicanism are based on the ideas that call for the people to rule: Res Publica means things of the people. All these terms constitute an assumed background to Madison's argument.
In a republic "the representatives refine and enlarge the public views by passing through a medium of a chosen body of citizens whose wisdom may best discern the true interest of their country." He added the "public voice pronounced by the representatives of the people might be more consonant to the public good than if pronounced by the people themselves." We must define "consonant"which means consistent with supports or harmonizes with. How do you understand that, I ask. He also considers the possibility that a cabal may take over electing representatives which will include "men of factious tempers" who may arrange to get elected thus threatening to betray the interests of the people" Which, he asks, is better proof against such a scheme: a "small or an extensive republic?" How do you think about this and his answer that "there is a mean on both sides of which inconveniences will be found to lie." Similarly, " the federal Constitution forms a happy combination" of closeness and distance: "the great and aggregate interests being referred to the national, the local and particular to the state legislatures." How do you understand these? The students will eventually see that these arguments are quite similar to each other. They will come to see that Madison's method places distances between the voters at the core of the republic and the representatives and then even more distances between the voters and the representatives when the size of the republic is extended. The conclusion of this part of the argument can lead to a choice of more and more famous or experienced statesmen who are the enlightened representatives whom Madison is depending on to "be at the helm."
Madison suggests that "Extend(ing) the sphere ...you take in a greater variety of parties and interests you make it less possible they will concert...." What do you think of his next comment: "It clearly appears that the same advantage which a republic has over a democracy in controlling the effects of faction is enjoyed by a large over a small republic." How can you characterize the statements in this last paragraph, I ask. The students will see that Madison is summarizing and and looking at the same concepts from different angles to find solutions to the mischiefs of faction.
Finally, "The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states." He uses religious sects, a rage for paper money, an abolition of debts as examples that are more likely to "taint a particular county or or district than an entire State" These are some of Madison's most famous statements. The students will see that the purpose of representation and extending the area of the republic was to elect "enlightened statesmen." The factions may cancel each other out or the "Enlightened statesmen" will convince the other legislators to follow the "true ideas" of the public good.
These are coupled with the final words of the piece:
"In the extent and proper structure of the Union, therefore we behold a republican remedy for the diseases most incident (subject) to republican government. And according to the degree of pleasure and pride we feel in being republicans ought to be our zeal in cherishing the spirit in supporting the character of Federalists."
The structure of the Constitution includes the House of Representatives who are chosen directly by the people and the Senate who at that time were chosen by the state legislatures. not the people of the states, as we do now. Therefore the medium through which the proposed legislation will pass consists of a series of layers that will aid in discerning "the true interest of their country."
So Madison has concluded his essay. If you have not elicited the structure from the students then do it now. How would you describe the structure of the argument, I ask. Eventually the students will find the center point that gives away the logic behind Federalist #10. See above : "The inference we have come to..."
Madison's essay seems clear as a the ringing of two groups of bells: There are two groups of opposing solutions:
Eliminating Factions or Controlling its Effects. Each has two methods of solution: He moves through the ideas with alacrity going from one solution to another. The logic is stunning and elegant, like a mathematical proof.
Sentences We Have Not Analyzed in Depth
But now we have to confront the sentences we have put aside or left without exploring thoroughly. Let us analyze them as a group. First,
"By faction I understand a number of citizens whether amounting to a majority or a minority of the whole who are united and actuated by some common impulse or passion or of interest adversed (sic) to the rights of other citizens or the permanent and aggregate interests of the community." How do you understand that definition, I ask. Eventually the students will conclude that a majority vote is not what Madison is seeking as a solution to the problem of the majority faction. Somehow the government must override the majority.
Another example of Madison's majority problem: The "public voice pronounced by the representatives of the people" might be more consonant "to the public good than if pronounced by the people themselves." How do we understand that sentence? The students will determine that Madison is counterposing the representatives to "the people themselves" Representatives certainly do not have to vote by taking instructions from their constituents, but it is clear that Madison is trying to circumvent the majority.
"Man is fallible "-- people do not always reach the same conclusions. This is certainly true, but now we are back in the same territory with "permanent aggregate interests." How do you interpret that, I ask. The real question, the students will conclude is only Madison knows what is correct but how or can he tell?
"To secure the public good and private rights against the danger of such a (majority) faction, and at the same time to preserve the spirit and the form of popular government is then the great object to which our inquiries are directed," you can clear up many important points. If you have not yet discussed "public good," it is an opportunity to discuss a major pre-capitalist conundrum. When the students analyze this you are not done until ideas such as general welfare, and the benefit of all of the people are in the mix. However you must square the definition with the idea of a faction and that there is only one public good: the public good or "the permanent and aggregate interests of the community" What questions can you ask about that, I say.
Eventually the students reach the conclusion that everyone does not have the same interests in society or the public good may change. So it is not clear how to reach the public good, or that the public good can be expressed as a singular rather than a series of public goods. Madison believed, however that the public good was not only attainable, but a key factor in overcoming the mischiefs of the majority faction. A related question is how do you understand the idea that a faction "adversed to the permanent interests of the community" can be a majority?
Now we are in a realm of ambiguity and contradiction. Madison's elegant proof, which seemed so clear becomes murky, and most importantly, unreachable by the majority of ordinary men -- or women!! How do you understand this "public good" now, I ask.The students will determine that not all people under the Constitution have the same interests as propertied white men: there are women and Black people and poor and rich. In 1787 these citizens were not part of political or social community. The First Peoples "not taxed" were thus excluded by the clause on taxing and representation in Article I after the 3/5 clause. After all, the US only discovered black people on May 25, 2020 the day of George Floyd's murder.
The students will eventually remember the "enlightened statesmen." These men must convince the representatives and the senators that they know best. Are these people philosopher kings who see the reality in Plato's cave? Or are they discerning the general will in the theory of Rousseau? The general will is discerned outside of debate, and expresses the "true will" of the people. It is a "faculty" (!) of enlightened statesmen.. It depends not on majority vote but on "the permanent aggregate interests of the community" or the"public good," or the men "whose wisdom may best discern the true interest of their country" in Madison's phrase. These men of the "better sort" must convince the legislators to follow their lead.(4) What in Madison's argument places these statesmen in power, I ask. The students eventually identify the layering that takes the decisions out of the hands of the direct voters who have elected men of deeper perception or who represent more conservative interests that protect the government from the " vexed," the poor or the enslaved, in other words, the factions born of ambition race, and class.
Up until the Civil War Madison's structures of the small population states controlled the Senate, and the 3/5 Compromise ruled the House of Representatives until 1820 when the large population of the North overwhelmed the slave holders' advantages. In addition,the large areas of representation in the populous areas worked very well for the white people in power. These all acted together to repress the democratic solutions to slavery and keep the the women, the poor and the First Peoples in shackles and chains.
When the slave power was overthrown and the Reconstruction Amendments were passed after the Civil War, there was a brief period from 1866 to 77 when an interracial democracy existed in the South which for a time kept the still reformist Republicans in power. But then violent mobs attacked and killed Black Republican voters, overturned that hard won peace between the races and Blacks lost the vote in the South.White supremacy ruled again until the Civil Rights Revolution capped by the Voting Rights Act of 1965 produced a second period of Black and minority participation.
Now we are in a different era in which our political life has been commandeered by white supremacy in the form of Republican re-districting in the states so despite the large populations in the Democratic controlled states the Democrats have only bare majorities in the House and a one vote majority in the Senate, if there is a tie vote. Truth be told Demoractic Senators represent 41.5 million more Americans than the Republicans. (5) These are problems quite different from Madison's majority factions. It is a minority rule that the majority cannot use the "republican principle" to "cure." It is a deadlock caused by the filibuster and the small population states which have controlled the Senate since they were born in the Great Compromise. Madison's "Machine that Would Go of Itself" has been hijacked again.(6) There is a fascist threat to democracy led by the followers of the former President. Madison's governmental structure has been under threat by these insurrectionists and the the democratic traditions have been threatened to the breaking point. It is unclear whether democracy shall survive the next election let alone the ones after.
The call in Federalist #10 for the protection of the public good and for the permanent and aggregate interests of the community was based on the will and experience of the minority Madison called the "enlightened statesmen" who protected slavery for the white majority. The white majority in the country is now disappearing and the movements to defend the "historical white republic" are threatening the lives of workers, women and all minorities This is our problem now and it is rooted in the pre-capitalist ideal of the public good which Madison believed he and other enlightened statesmen could find to protect the true interests of the whole community. There was no working compromise between slavery and freedom which caused the Civil War or between women's rights and the Evangelical Radicals opposed to abortion or the historically unrecognized rights of the poor to health care and medicare for all or the right to air, water and food and the Green New Deal. The Electoral College and the unrepresentative Senate must not control our politics. We are at a crossroads. The myth of the "divinely inspired" Constitution has sustained Madison's infallibility, but the flaws in his reasoning, as we have pointed out have come to haunt us and brought us to the brink of losing our democracy. What, after all, is the Public Good if it does not represent a clear majority of the US population? We are still being ruled by the magical thinking of former centuries from ancient Greece to the early modern concepts of the virtue of the white landed aristocracy in the persons of senators who in their leisure could supposedly "discern the true interests of their country."
(1) You can find Federalist #10 at:
https://avalon.law.yale.edu/18th_century/fed10.asp
(2) See the "The Tarzan Theory of Reading" at this url on Substack:
(3) See the discussion of Article 7 in "The Tarzan Theory of Reading" elsewhere in this site.Written in the months after the Convention finished its work, the "Federalist Papers" were addressed "To the People of the State of New York" to convince them to elect delegates to their state convention to ratify the Constitution. When you read Article 7 of the Constitution, you will see that it was the "Conventions of nine states" that were required to vote in favor of the Constitution for it to go into effect. So the people of each state elected delegates to 13 separate conventions. It was not the state legislatures that ratified the Constitution because Madison wanted the people to be bound directly to the document as a way of avoiding the conflict of interest with the state legislatures that had a vested interest in the Aritcles: The Articles Congress was based on the states, there were 13 votes total. As a result, the state legislatures were much less likely to vote for the Constitution. It was also a tenet of the theory of republicanism that only the "People out of doors" of the previous governmental bodies could represent the people as a whole. The old governmental bodies could not over throw themselves.These are the origins of the phrase, "We the People" who met in convention in Philadelphia to create a new social contract.
(4) For example see
https://www.britannica.com/topic/general-will
"Thus, in an ideal state, laws express the general will. While citizens may be wrong and deceived, according to Rousseau, they will aim at justice as long as they pursue the interest of the people rather than follow their interests as individuals or as members of different groups."
Or
" (T)he public assembly does not debate so much as disclose the general will of the people. Rousseau argued that the general will is intrinsically right, ... On the one hand, the general will reflects the rational interest of the individual (as citizen) as well as that of the people as a whole. On the other hand, the general will is not purely rational because it emerges out of an attachment and even a love for one’s political community."
Or
https://www.britannica.com/topic/state-sovereign-political-entity
"Influenced by Plato, Rousseau recognized the state as the environment for the moral development of humanity. Man, though corrupted by his civilization, remained basically good and therefore capable of assuming the moral position of aiming at the general welfare. Because the result of aiming at individual purposes is disagreement, a healthy (noncorrupting) state can exist only when the common good is recognized as the goal."
Madison believed that "enlightened statesmen" would express the general will and convince the political bodies, even riven by factions, to follow them to control the "mischiefs of faction." The phrases we have been identifying refer to ideas similar to the general will eg. "the true interests of the country" the "public good" or the "permanent and aggregate interests" of the people.
(5) https://www.minnpost.com/eric-black-ink/2021/02/u-s-senate-representation-is-deeply-undemocratic-and-cannot-be-changed/
These are interesting questions, as you see. What we are experiencing today has occurred because our government has a party which controls the Senate, but it does not represent the majority of the citizens. Trump lost by 8 million votes and the Senate Republicans have 50% of the Senate but only represent states with 43% of the voters.
(6) The Machine that Would Go of Itself is a book about the Constitution by Michael Kammen published in 1986 which shows that the understanding of the Constitution is weak, but Americans believe it is inspired by God and unchangeable. Here is a paragraph from a review in the New York Times on September 14, 1986 by historian David Kennedy:
“It is hardly surprising, therefore, that the constitutional jubilee of 1837, the centennial of 1887 and the sesquicentennial of 1937 uniformly sparked blazes of apathy in the American public. Reinforcing this indifference, Mr. Kammen insists, was the deeply embedded cultural belief, as James Russell Lowell put it in 1888, that the Constitution has been ''a machine that would go of itself,'' a perpetual-motion device so perfectly crafted that it needed no further attention - despite the fact that it has been amended 26 times and that thousands of other amendments have been proposed over the years in Congress. To be sure, toward the end of the 19th century a counter-tradition developed that regarded the nation - as represented by its Constitution - as a ''living thing and not a machine,'' as Woodrow Wilson expressed it; but the view that Lowell described has had an awesome durability, as Attorney General Edwin Meese 3d's recent pronouncements on original intent remind us”