the Federalist ( The Federalist Papers ) is a collection of articles, written by James Madison, Alexander Hamilton and John Jay, published for a promotion of the news Constitution of the the United States of America. He is been published in the years 1787 - 1788 in several States of America and contained 85 articles published under the name of “Publius”, pseudonym in the honor of the Roman consul Publius Valerius Publicola. These articles underlined how this new Gouvernement was going to operate and how this type of government was the best choice for the United States of America.

This collection constituted an important source concerning the interpretation of the new Constitution and mainly the motivations of this governmental system suggested. These articles answered criticisms of the newspapers vis-a-vis the new US government. They were thus an excellent reference to include/understand the new American Constitution that the people had to ratify.

Historical context

Towards 1750, the American continent is a colony of the Great Britain. The inhabitants of these thirteen colonies are particularly attached to their fatherland. They have a great political freedom (British administration quasi-absent, colonies directed by an assembly elected by colonists, decisions of the seldom disputed colonies, etc). But of a weak economic freedom (they can trade only with Great Britain, the colonies must sell the raw materials and buy the manufactured goods). The latter point causes a great dissatisfaction, but it is not the element release of the war, because the colonists know that they need the country, because they are not able to coordinate the decisions between the colonies.

But after the War Seven Year old, England, ruined, raises new taxes. The colonists reject these new taxes, because it is Parliament of London which they come. However, no representative of the colonies is present there. England yields except for the tax on the. It is an awakening for the Americans; the disputes multiply with the Boston Tea Party (of the Americans throw to the sea the cargo of the) and the boycott of the English goods. At the conclusion of that, the king Georges III declares the war in 1775. July 4th, 1776, the Declaration of Independence is not written, it but does not remain any more to gain it. But the Americans have two big problems: they have only one little trained militia and do not have a government between the colonies. There is only the continental Congrès, an assembly between the colonies, but which does not have almost any capacity. It should be waited until 1781 so that it is invested of a capacity. It is by this reorganization and alliance with France that the United States gains the war. But the situation is hardly better, because the debts are important and the opinion worries. The delegates of the States find themselves in Philadelphia to write a Constitution. It does not remain any more that to make it accept, and it is the goal even of the Federalist.

The federalistic debate and anti-federalist

As we mentioned above, the goal of the Federalists is that the new Constitution is accepted, but like any change in the policy, there are contradictors, and they are these even as the Anti-Federalists are named. The debate was sharp and rested on two aspects: will of the Federalists to create a central capacity more extremely and the interaction of the capacities which they preached. Let us start by seeing the first point by developing the advanced arguments by the two opposite camps.

There are five principal arguments of the Federalists to centralize the capacity. First of all, those preach patriotism. The inhabitants of America share the same culture, the same language, the same religion. Thus rather than to separate, it is necessary to be linked. That also makes it possible to decrease the jealousies about the natural resources unequally shared between the States, to even reduce the risks of civil wars. The only solution is thus to have a capacity centralized more extremely. The second argument relates to the exterior security. A plain State is better than several particular States which would be dispersed. In addition, that would make it possible to have a national marine much more powerful, because having of more than resources and financing. Thirdly, the domestic trade would be better, because the customs duties harm the economy. Fourthly, that will make it possible to reduce the costs of the administration, because there would not be more thirteen, but one of them. Lastly, that will make it possible to apply protectionism in the event of conflict with Europe.

As for the Anti-federalists, they advance four critics which the Federalists answer. The first is the absence of “Bill off Rights”, i.e. a “charter of the basic rights of the citizens”. The answer of the Federalists is that first of all, contrary to Great Britain which has a “Bill Rights off”, the United States is a republic. The political regime is thus not the same one. Then, the majority of the particular States off do not have a “Bill Rights”, therefore to criticize the new Constitution on this point does not have any more a direction. Lastly, certain rights are already in the Constitution, it is thus not necessary to add a “Bill Rights off”. Despite everything, Madison will write off a “Bill Rights” a few years later.

The second criticism is that the republic is inapplicable on such a large territory. The answer of the Federalists is that one should not confuse republic and democracy. If the second is indeed inapplicable on such a large territory, it is not the case of the first, because there is the principle of the representativeness. The third criticism is that there is an insufficient representation of the people. The Federalists answer that if each association and groups individuals sharing an shared interest are represented, their too great number makes impossible the direction of the country.

Lastly, the last criticism of the Anti-federalists is that the particular States will lose capacity. The answer of the Federalists is that it is a question of the nature even of a federal Constitution of reducing the capacity of the particular States.

As we mentioned above, these criticisms refer to the federalistic principle. But there is also a whole debate on the separation of the capacities. The Federalists preach an interaction of the capacity through the “checks and balances”, while the anti-federalists want a strict separation of the capacities. In the following points, we will develop this point which constitutes the heart of our problems, namely how the Federalists justify a necessary interaction of the capacities to maintain the Rule of law.

Interaction of the capacities

It is known that the absence of separation of the capacities is dangerous for the Rule of law, because it carries out straight to tyranny, like clarifies it Montesquieu: “When, in the same person or the same Body of magistrature, the legislative power is joined together with the power executer, there is freedom, because one can fear that the same monarch or the same Senate does not make tyrannical laws to carry out them tyrannically. ” However, so in the theory, one requires a strict separation of the capacities, in the facts, that appears impossible. Let us start by seeing in what, in the example of the British Constitution, the capacities are overlapping. We then will show why the legislature tends to take the top and why the interaction of the capacities is necessary to resist the usurpation of the capacity by the legislature.

Tendency to catch to be able by the legislature

The first reason is that the legislature profits from the confidence of the people. He lives among this one and he is close to the influential personalities; it is known that to be as regards people in a democracy is an essential component of the acquisition of the capacity. Contrary, the legal one has often bad reputation and the executive is seen like too far away from the people.

Then, these capacities are wider and the limits of this one are fuzzier than the legislature, which enables him “to veil, under complicated and indirect measurements, the usurpations which it makes with the costs of the other coordinated departments. ”

Lastly, it has “a dominating influence on the pecuniary remunerations of the agents of the other departments”, which can involve a dependence of those towards the legislature.

To prevent that one of the bodies does not take the top on the others

The first argument suggested is that the establishment of a Constitution is enough to limit the phenomenon. The problem is of knowing which will profit from the capacity to modify it. The first possibility is to give it to the people. But the problem is that the legal one is often unpopular near the people and the executive too far away from the people; the advantage would thus go to the legislature, whereas most of the time, it is because of its invading capacity that the Constitution will have to be modified. In addition, to make a systematic call to the people would contribute to discredit the government. The second possibility is to call upon a convention charged to modify the Constitution. But in this case, there will be nothing above this one which can control it.

The criticism addressed to the federalists is that there is not a strict separation of the capacities. The latter answer that the legislative power tends to take the top when one has a strict separation of the capacities. It is thus necessary to introduce an interaction by the principle of the " checks and balances".

The principle " Checks and Balances"

The theory of the separation of the capacities inspired very strongly the writers of the American Constitution. Those instituted a mode known as " présidentiel" organizing a very strict separation of the three capacities, moderated by means of control and actions in accordance with the doctrines of the “checks and balances”. This system contributes to control and balance these three capacities.

Thus the president will select the candidates for the governmental stations, the executive body. But their nomination will depend on the Senate, the legislative body. What is identical for the judges of the Supreme court, the legal body.