Constitutional Convention of 1787

The Constitutional Convention of 1787 proposed a new constitutional arrangement whose defining feature, in Publius’s account, was its mixed character: federal in some foundations and powers, national in its ordinary operation, and neither wholly one nor the other overall. The defense of the proposal answers objections about state sovereignty, the reach of federal authority, and the separation of powers by insisting that the government’s legitimacy rests on the people and that its powers remain bounded by the Constitution.

Background and the case for a stronger Union

Publius frames the proposed Constitution against the question of what kind of government can secure the people’s welfare. The Union, he argues, is essential to protection from foreign danger, conflict among the states, oppressive factions, and the military establishments such conflict may foster. The proposal’s value is therefore not measured by how much dignity or authority it leaves to state institutions in isolation, but by whether it serves peace, liberty, safety, and the public good. If the plan were adverse to public happiness, it should be rejected; if the Union itself were incompatible with that happiness, it should be abolished. State sovereignty, in this reasoning, is important but not an end that can supersede the people’s welfare.

The argument for a larger political union also answers the claim that republican government can survive only within a small territory. Publius notes that the states commonly invoked in the dispute—including Virginia, Massachusetts, Pennsylvania, New York, North Carolina, and Georgia—were already much larger than the small republics used as models in that argument. Applying the small-republic principle without qualification would leave a stark choice between monarchy and a multitude of jealous, contentious small communities. Dividing the larger states, he warns, might multiply minor offices and suit narrow personal intrigue, but would not promote the greatness or happiness of the American people.

A mixed federal and national design

To define the proposed government, Publius examines its foundation, the sources of its ordinary powers, the way those powers operate, their extent, and the process for constitutional change. The foundation is federal: the Constitution is to be ratified by the people acting through their separate states, not by a majority of the entire American population acting as one consolidated nation. In the ordinary legislature, however, the design combines principles. The House of Representatives derives authority from the people and represents them proportionally, while the Senate derives authority from the states as political societies and represents them equally. The presidency likewise has a compound source, with state-based participation in the initial election and a distinct procedure for an eventual election.

The government’s operation is principally national because its powers ordinarily act on citizens as individuals rather than only on state governments in their collective capacities. Yet its extent is federal: the proposed arrangement does not give the central legislature indefinite supremacy over every lawful subject. State authorities retain a distinct sphere, rather than standing as subordinate bodies that the central government may control, direct, or abolish at pleasure. The amendment rule also combines the two principles. It requires more than a national majority and counts support by states, but does not require every state to concur. Publius’s conclusion is precise: the Constitution is federal in its foundation, partly federal and partly national in the sources of ordinary powers, national in their operation, federal in the extent of those powers, and mixed in its amendment procedure.

Federal authority, limits, and constitutional interpretation

The proposed Constitution expressly authorizes Congress to make laws necessary and proper for carrying its enumerated powers into execution, and declares the Constitution, laws made pursuant to it, and authorized treaties to be the supreme law of the land. Publius treats these clauses not as grants of unlimited authority, but as declarations of implications inherent in establishing a government with specified powers. A law’s propriety depends on the constitutional power on which it rests; the necessary-and-proper provision cannot make an unrelated subject federal merely by labeling legislation useful.

Publius assigns the federal government the initial responsibility to judge how to exercise its powers, while the people remain the ultimate judges. If the government exceeds its constitutional bounds or uses its powers tyrannically, the people may take measures to redress the injury, as the circumstances and prudence warrant. Examples make the claimed boundary concrete: changing a state’s law of descent would exceed federal jurisdiction, as would abrogating a state land tax on the pretext that it interfered with federal revenue. Such acts would invade authority the Constitution leaves with the states.

Supremacy, in this account, applies only to federal laws made pursuant to the Constitution. A law must be supreme within the authority entrusted to the government, or the arrangement would amount merely to a treaty dependent on the parties’ good faith rather than a government possessing political power. But an act outside the constitutional grant is usurpation, not supreme law. The distinction between authorized national power and state authority is thus not erased by the supremacy clause; it is built into the clause’s limitation to laws made pursuant to the Constitution.

Courts and the preservation of constitutional limits

Publius connects the proposed distribution of powers to the need for independent courts. In a limited Constitution, legislative authority is subject to specified prohibitions, including bans on bills of attainder and ex post facto laws. Those limits would be ineffective in practice without courts able to declare unconstitutional legislative acts void. Judicial review, as presented in the argument, does not make judges superior to the legislature: it follows from the principle that an agent cannot validly act beyond the authority delegated by its principal. The representatives of the people cannot possess powers that the people’s Constitution withholds.

The judiciary is described as the weakest of the three departments and therefore especially vulnerable to pressure from the others. Its independence depends substantially on permanence in office, which Publius presents as a safeguard of public justice and security. Courts may sometimes cause individual oppression, but an independent judiciary alone cannot endanger the people’s general liberty; the danger arises if judicial power is joined to legislative or executive power, or if courts become dependent on those branches. Independence is therefore not a privilege detached from constitutional limits, but a means of enforcing them.

Public argument and historical comparison

The defense places the new proposal beside earlier political forms without treating their lessons as interchangeable. Publius invokes the ancient confederacy of the Greek republics under the Amphictyonic council as an instructive analogy to the American Confederation. Its members remained independent and sovereign, and had equal votes in the federal council; that council could address common welfare, conduct war, settle disputes, punish an aggressor, use the confederacy’s force against disobedient members, and admit new members. The comparison highlights the reach and institutional character of confederal authority, while the broader argument warns that historical examples must be judged in light of their differences from the proposed Constitution.

The essays also recast the dispute over the convention’s work. Opponents call the plan a radical shift from a confederacy of sovereign states to a consolidated national government. Publius answers by testing the distinction across the government’s foundation, powers, operation, extent, and amendment procedure, rather than allowing either label to settle the question. The result is a defense of constitutional design through distinctions: popular authority does not require a single undifferentiated national electorate; federal supremacy does not authorize usurpation; and state sovereignty does not outweigh the public welfare. Together, those distinctions present the Convention’s proposal as an attempt to make union effective without making central authority unlimited.