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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
FEMALE_1: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your host, Nia Rodgers, Public Affairs Librarian, and D. R John Aughenbaugh, political science Professor.
N. Rodgers: Hey, Aughie?
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I was just thinking back to when I was 39.
J. Aughenbaugh: Thirty-nine years old?
N. Rodgers: It was a good year.
J. Aughenbaugh: I can't remember that far back [LAUGHTER].
N. Rodgers: Geezer. Lots of 39 are interesting. Lots of 39 steps, isn't that the movie?
J. Aughenbaugh: That's a classic Alfred Hitchcock movie. Yes.
N. Rodgers: Lots of things that are 39 or fabulous. But we're going to talk about the specific 39 today, which is the Federalist 39. Remember, folks that we were going to do all the Federalist papers, and then we got onto other topics. We're getting back to where you'll see one randomly drop for a while, while we keep up with adding them as we go. Maybe in a few seasons, we'll add another one.
J. Aughenbaugh: Listeners, Nia is making reference to the fact that a year or so ago, we got this crazy idea. It's not really crazy, but we thought we were going to do another series. Because we're fond of occasionally breaking up, the podcast seasons by doing series. We had a series about Federal Government Departments. We had a series about National Parks. We had a series about Favorite Movies.
N. Rodgers: We're going to do a series on Alphabetic Agencies.
J. Aughenbaugh: Yes. We're going to do a series about US territories. We decided we were going to do a series of the most prominent Federalist papers.
N. Rodgers: Then we did one, we did the main. We explained Federalist papers.
J. Aughenbaugh: We did the Federalist papers. Then we did Federalist Number 10. We also did Federals 51 already, correct?
N. Rodgers: No.
J. Aughenbaugh: We haven't.
N. Rodgers: You've foreshadowed.
J. Aughenbaugh: Yes.
N. Rodgers: Well done Aughie.
J. Aughenbaugh: Yes, I did. Please forgive me, listeners.
N. Rodgers: We're doing them in numerical order. 10, then 39,51.
J. Aughenbaugh: Then we are going to do 68. Then the last one we will do is Number 78. Both 51 and 78 are two of the more prominent ones.
N. Rodgers: It's probably not going to take more than 30 seasons to get that.
J. Aughenbaugh: Well, I hope not, in particular, because I do believe I'm the one of this partnership who was just like, we ought to do the Federalist papers.
N. Rodgers: I think I said, we should do founding document.
J. Aughenbaugh: Document.
N. Rodgers: You went and then you proceeded to name a bunch of them that we should talk about.
J. Aughenbaugh: Yes, so 39 listeners is the one written by James Madison. Again, listeners, just a brief refresher. Nia, how many of the framers actually wrote the Federalist papers?
N. Rodgers: Three.
J. Aughenbaugh: That's right. Three of the framers.
N. Rodgers: Madison, Jay.
J. Aughenbaugh: And?
N. Rodgers: Jefferson? No.
J. Aughenbaugh: Hamilton.
N. Rodgers: Hamilton. Thank you. Sorry.
J. Aughenbaugh: Now, John Jay wrote the fewest because while the ratification of the Constitution was taking place, he got sick. Then Hamilton wrote most of them. But James Madison wrote 39, and in 39.
N. Rodgers: He wrote Number 39. He wrote 29 essays.
J. Aughenbaugh: Yes.
N. Rodgers: But the ones he wrote was 39.
J. Aughenbaugh: Was Number 39, and Number 39 is the classic defense of the Republican form of government. When I say Republican, I'm talking about little R, not the Republican Party. It is a Republic.
N. Rodgers: Rather than what?
J. Aughenbaugh: Other than a pure democracy. Because a Republican form of democracy is where the source of government power comes from the people, but the people delegate their power to whom Nia?
N. Rodgers: Representatives.
J. Aughenbaugh: Representatives. But it's also in Number 39.
N. Rodgers: Because we can't all go to DC and vote in the house. That would get unmanageable quickly. We need people to represent groups of us to go there and vote for us.
J. Aughenbaugh: Because in a pure democracy, the government will not make any policy until they've consulted the people.
N. Rodgers: Which works if you've got about 10 people living in the United States. But once you get above that, it's unwieldy.
J. Aughenbaugh: If you're talking about a small village in Alaska or Maine, you could still possibly pull that off.
N. Rodgers: But 336 million of us is going to be a little tough.
J. Aughenbaugh: It gets a little unwieldy. But it's also in Number 39 Nia that James Madison defended the proposed government in the New Constitution because he emphasizes that it's not a national government that's being created, it's a federal government.
N. Rodgers: What's the difference between those?
J. Aughenbaugh: In terms of forms of democracy, on one hand or one end of the spectrum Nia, you have what's known as a national or unitary form of democracy, where almost all of the government's power delegated by the people rests with the national or Central Government.
N. Rodgers: Is there a modern example of that?
J. Aughenbaugh: Sure. Most of the governments in Western Europe have a unitary, if you will, form of democracy. If you think about, for instance, Great Britain, listeners, remember earlier this year in the spring, we had our colleague, Chris Burdett. Come on. He talked about the British form of democracy. It's a unitary form, almost all of the power of the government to act in Great Britain, rests with the National Parliament.
J. Aughenbaugh: But on the other end of the spectrum is what the United States had right after the Revolutionary War. A confederacy, which is basically a loose alliance with a very weak national government.
N. Rodgers: Which they had reasons for that. Hello. They just come out from under British monarchical rule, and they weren't interested in having another monarch. They weren't interested in having.
J. Aughenbaugh: Strong central government.
N. Rodgers: They wanted it to be broken up because they didn't want to be.
J. Aughenbaugh: Very decentralized. What Madison said was being proposed in the Constitution was something in the middle Nia, right?
N. Rodgers: Okay.
J. Aughenbaugh: On one hand, the national government, quite obviously, was given more expanded power in the then proposed Constitution, but it's not as strong as what the colonies experienced with what King George. He said, on the other hand, we know that a confederacy is too weak. It had too many defects.
N. Rodgers: Too easy for it to fall apart and become individual little countries. Europe, I'm looking at you where all the little states would be the country of New Hampshire and the country of Delaware, which would then require treaties and all issues.
J. Aughenbaugh: The first part of 39 is where he describes, two main characteristics of a Republican form of government. First, the government derives all its powers directly or indirectly from the public. Second, the power of the government will be administered by people holding offices during pleasure for a limited period or during good behavior.
N. Rodgers: As long as you're ethical and moral.
J. Aughenbaugh: Well he was trying to, how can I say this? He was trying to finesse the fact that the people only directly elected members of the House in the proposed constitution, indirectly picked senators and presidents, because in the original constitution, US Senators were picked by the people's elected representatives in their state legislatures, and the electoral college theoretically picks presidents based on popular vote in the states, but then you had the completely indirect selection of federal judges, because the people aren't involved at all.
N. Rodgers: They elect people who then go through that.
J. Aughenbaugh: He was trying to finesse that. He was trying to finesse it. As soon as he gets done talking about the selection of government officials in this Republican form of government, he then takes a broad side against those who had government positions, particularly in the colonies. Because they were typically members of the aristocratic class of wealthy individuals, usually appointed by the monarch in part, because those people paid financial tribute to the British crown for their positions.
N. Rodgers: You generally bought your position.
J. Aughenbaugh: Yes, and the only ones who could do that.
N. Rodgers: Were wealthy people.
J. Aughenbaugh: Wealthy elites.
N. Rodgers: But what's interesting to me about that is that he says we have to be very careful I think it was his phrase, a favored class, not be allowed to control the government because that's no different than a monarch, right?
J. Aughenbaugh: Yes.
N. Rodgers: In his mind, that's just one step away from being back where you were.
J. Aughenbaugh: That's correct yes.
N. Rodgers: Because those people will tend towards tyrannical rule, which I would argue we could see today that wealthy elites have a tendency to have more influence in federal government and in state government than poor people do.
J. Aughenbaugh: Well, you can go even one step further, Nia, with your critique of what we see with government officials today. Even if you were not born into wealthy families, it's only those who can operate within those social circles.
N. Rodgers: Because Justice Thomas was not born wealthy.
J. Aughenbaugh: But he quite obviously now.
N. Rodgers: Can navigate that.
J. Aughenbaugh: That world. If you think about, for instance.
N. Rodgers: Bill Clinton.
J. Aughenbaugh: Democratic presidential candidate, Vice President Kamala Harris, she may not have been born into a wealthy family, but.
N. Rodgers: She's there now.
J. Aughenbaugh: She's there now, and she has been for decades.
N. Rodgers: Bill Clinton, another perfect example. Born a poor boy from Hope, and then now he's in charge of the foundation that's got the a billion dollars.
J. Aughenbaugh: Again, notice what Madison is doing here, because Madison is trying to go ahead and send signals to the then proposed Constitution that we're moving away from.
N. Rodgers: Wealthy elite control.
J. Aughenbaugh: The government leadership we had with the colonies.
N. Rodgers: Which is a little rich coming from him because he was a little rich, but whatever.
J. Aughenbaugh: Well, as Charles Beard rather infamously pointed out in a journal article in the 1920s, if you looked at the demographic characteristics of the framers, we weren't talking about the poor unhuddled, unwashed masses here.
N. Rodgers: The only one who fit that category at birth was Hamilton.
J. Aughenbaugh: Yes. Then Hamilton ended up becoming one of the most prominent federals.
N. Rodgers: Exactly, and in charge of the banks and the treasury rather, so yeah.
J. Aughenbaugh: But after he gets done talking about that, then he starts addressing the idea that individual states must give up their identities to be a part of the new government.
N. Rodgers: If I may note for a moment, wasn't that the anti federalist Brutus position? Sorry, Brutus is the name of the writer of the anti federalist papers.
J. Aughenbaugh: Papers, that's right.
N. Rodgers: Brutus was also several people who were doing the writing.
J. Aughenbaugh: In our research guide listeners, we will have both the text of Federalist 39, but we'll also have the text or at least an excerpt of Brutus one, where he's writing to the people of the State of New York.
N. Rodgers: Basically saying, you can't trust this, because once people get power, their desire will be to continue to build power. Humans like power, and they want to stay in power, and wealthy people believe that their wealth entitles them to more power than non wealthy people.
J. Aughenbaugh: This is a theme that we're going to return to listeners whenever we get around to recording Federalist 51, because Madison actually responds to that particular argument in Federalist 51, but in regards to Federalist 39, Madison is responding to Brutus saying the national government as an institution will attempt to seek more power at the expense of who, Nia?
N. Rodgers: I assume the people.
J. Aughenbaugh: No, not the people, but the states.
N. Rodgers: Well, sorry. The people conglomerated. Brutus wanted more balance. Brutus was worried that we see a national government to be.
J. Aughenbaugh: I would go even further. Brutus, wanted to protect state sovereignty.
N. Rodgers: Individual states. Brutus worried constantly that if we had a federal or national government there would be this requirement that all the states fall into line and be similar. Brutus was worried that Georgia and New Hampshire were so disparate that they would never be able to do that. There would be conflict because of that.
J. Aughenbaugh: Madison's response, I think, is very telling. This is one of those times where I think a federalist paper was remarkably accurate in the prediction of what would happen. Because according to Madison, the anti federalist concern that the national government would subsume the states that you couldn't have individual differences between a Kentucky and a New York, a New York and a Montana. Madison was just like, no states will still maintain their own sovereignty.
N. Rodgers: Which they have done.
J. Aughenbaugh: Which they have done. Listeners, you don't have to look too far back to see this. Think about the number of states that have sued the Biden administration in federal court, for overreach by the federal government. Think about Nia, the number of states who sued the Trump administration for federal government overreach in federal court. Think about the number of states who sued the Obama administration in federal court. Why? For federal government overreach.
N. Rodgers: And who regularly win? Not just we brought suit, but we have won. It's one thing to complain about it, it's another thing entirely for the courts to say, you're right. They don't have the right to tell you to do that, or they don't have the right to make you do X thing or Y thing. So far, the states have maintained their independence relative
J. Aughenbaugh: Again, listeners, go back to the description I offered at the beginning of this episode. The United States occupies this mushy middle ground between a unitary form of democracy and a confederacy.
N. Rodgers: We're making a new thing.
J. Aughenbaugh: We're making a new thing and it maintains what Madison said in Federalist 39. But it causes all kinds of public policy complexity because we fight so many battles about which level of government has the authority to do X, right?
N. Rodgers: You're right. You bring up education to anybody. Is that a federal thing, is that a state thing, is that a local thing? Then you're getting even to neighborhood levels like getting down to school boards in a given spot. What's good about that is it keeps us discussing democracy. I think sometimes, and I'm not trying to tout the American horn necessarily except, I think that one of the things America does well is that, we keep wrestling with this philosophical question. What should the government be? What should the government do? What are the government's limitations? Between personal freedoms and the government, between state freedoms and the government. All of that questions still get wrestled with all the time because this question is not answered. We're constantly coming up with new instances that we have to think about. I think that's great because it keeps the democracy from becoming classified.
J. Aughenbaugh: Yes, being stagnant. Each successive generation gets to go ahead and wrestle with these questions.
N. Rodgers: The answers change over time.
J. Aughenbaugh: We're talking about a Republican federal form of democracy. What that means in 21st century America is different than in the 1950s when the federal government dominated, which is different than the 1850s when state governments dominated. That's different than right after the Articles of Confederation, where a whole bunch of states were like, we ain't going to last long as a country unless we go ahead and address some of these defects. But what's really interesting as Federalist 39 concludes, Nia, Madison also ends up writing words that are still debated today, which is, who or what ratify the Constitution? Because when he says that the states still have sovereignty, he then has a quote. Each state in ratifying the Constitution is considered as a sovereign body, independent of all others and only to be bound by its own voluntary act. Well, that would seemingly suggest that the states ratify the Constitution and not the people.
N. Rodgers: Although the front of the document says, we the people.
J. Aughenbaugh: Again, this is another point that keeps on getting debated in federal court cases, Supreme Court cases, etc.
N. Rodgers: Who are the people?
J. Aughenbaugh: Who are the people? Because the states, when challenging federal government policy, say, the federal government has violated state sovereignty. The Fed say, but we have power in the Constitution given to us by the people, and states say, no, we are the people. We gave you the power. The states need to sign off on how you use your power in the Constitution. The federal government's like, No we're doing this on behalf of all the people of all the states. Madison in Federalist 39, basically gives, if you will, ammunition to both sides of that debate. Again, he was trying to walk a very fine line here, because he's trying to sell the ratification of the Constitution.
N. Rodgers: To people who don't want it. People are like, this is a terrible idea. We should just go off and be individual States.
J. Aughenbaugh: Individual colonies.
N. Rodgers: What are you talking about this federal government thing? Who needs that crap?
J. Aughenbaugh: They were skeptical. They were concerned about consequences that they could not put their hands on right now.
N. Rodgers: This could get bad. We don't know how, but it could get bad.
J. Aughenbaugh: It could get bad, and we just fought a war to get out.
N. Rodgers: Typical action movie dialogue. This is going to get bad, which one is coming?
J. Aughenbaugh: It's like in a horror movie. You watch them go into the basement, and you know this.
N. Rodgers: Don't go into the basement. What if he comes out of the basement? They go anyway.
J. Aughenbaugh: Instead of running from the house, they go into the basement.
N. Rodgers: Then they separate, that's the other trope.
J. Aughenbaugh: They go into the attic.
N. Rodgers: Don't do that, there's nothing good in the attic.
J. Aughenbaugh: That's where ghosts hide. You know this.
N. Rodgers: Don't open closed doors or chests or whatever. Leave them alone. Madison had the right of it, I think, but can we briefly talk about something Brutus said that is also true in modern politics?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: Brutus says, in Brutus 1. In so extensive a republic, the great officers of government would soon become above the control of the people and abuse their power to the purpose of aggrandizing themselves and depressing them. I don't know if he knew who our modern politicians would be, but boy, did he tag that right? There is a lot of self aggrandizing, and I am not suggesting it is on one party. It is from both parties.
J. Aughenbaugh: This is actually, listeners, a segue alert to the next federalist paper that we will touch upon because Madison actually responds to that particular quote in Federalist 51. Because Madison argues Brutus might be correct that historically, people in government positions, will be greedy. They will be ambitious, they will want more power, they'll want more authority because they want to get more stuff done that makes who look good?
N. Rodgers: Them.
J. Aughenbaugh: But he said, don't fret, don't worry because we've set up a system of what and what?
N. Rodgers: Checks and balances.
J. Aughenbaugh: That's what we're going to cover in our next podcast episode when we look at Federalist 51.
N. Rodgers: Cool. I'm cynical about that because I think that Brutus was probably right.
J. Aughenbaugh: But again, what Nia is saying, listeners, is something that we wanted y'all to be aware of, which is, it's easy to go ahead and just read the Federalist papers because the federalists won the debate, the Constitution got ratified, so we should only pay attention to the winners. No, you need to pay attention to those who opposed a particular action, because they make a lot of good points. They make a lot of good points, and a lot of the points that Brutus makes in the anti federalist papers are still being made by states, interest groups, individuals.
N. Rodgers: It never ends.
J. Aughenbaugh: It never ends. Now, you can get frustrated with that because you're just like, this does never end. I feel as though I'm in groundhog day, and I'm experiencing this over and over again. Fine. On the other hand, if you view this as a glass half full, we get to continue to participate in this conversation about the meaning of what? How we govern ourselves, and to me, that's always been part of the attraction. Nia, you've made fun of me on this podcast episode about how much I talk about, read, and teach the Constitution, but for me, that's part of the fascination. I'm living in 21st century America, and I'm still participating in a conversation made by dudes like James Madison, Alexander Hamilton, John Jay, Brutus, etc. To me, that's pretty cool.
N. Rodgers: They leave, their work lives. It proves that dialogue is forever. You should be having as much discourse as you can have because these questions continue to be important. This is 200 years later, and we're still wrestling with all of these questions.
J. Aughenbaugh: Sure.
N. Rodgers: He was right. Because Americans love to be right.
J. Aughenbaugh: That's the other thing.
N. Rodgers: We like to win.
J. Aughenbaugh: Right. We only begrudgingly concede a good point from those that we're debating that we're competing against. You got that point, but overall, I won. I don't know what your prize is, but nevertheless.
N. Rodgers: But I want to win it, whatever it is.
J. Aughenbaugh: I want to win it. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
FEMALE_1: You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speakers zone and do not reflect the views or opinions of VCU or VCU libraries. Special thanks to the workshop for Technical Assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.