Modification de The Federalist and American political theory

{{Infobox Lecture
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 | cours = [[History of Legal and Political Thought: The Foundations of Modern Legal and Political Thought 1500 - 1850]]
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 | professeurs = [[Alexis Keller]]<ref>[https://en.wikipedia.org/wiki/Alexis_Keller Alexis Keller - Wikipedia]</ref><ref>[https://www.unige.ch/droit/collaborateur/professeurs/keller-alexis/ Alexis Keller - Faculté de droit - UNIGE]</ref><ref>[https://www.ictj.org/about/alexis-keller Alexis Keller | International Center for Transitional Justice]</ref>
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* [[Machiavelli and the Italian Renaissance]]
* [[The era of the Reformation]]
* [[The birth of the modern concept of the state]]
* [[John Locke and the Civil Government Debate]]
* [[Montesquieu and the definition of the Free State]]
* [[Jean-Jacques Rousseau and the new social contract]]
* [[The Federalist and American political theory]]
* [[John Stuart Mill, Democracy and the Limits of the Liberal State]]
}}

This Machiavellian moment, this reflection on the State beginning with Machiavelli, ended a little before the French Revolution with the last reflection which was that of the American constituents. From Machiavelli to the American Constituents, the reflection on the model of the State takes shape and comes to an end.

What became of the definition of the modern state? It is up to the constituents to propose it, it is the end of the Machiavellian moment, they will propose a vision synthesising the previous definitions.

{{Translations
| fr = Le Fédéraliste et la théorie politique américaine
| es = 
}} 

= The American Revolution 1776-1787 - Chronological reference points =
{{Article détaillé|L’indépendance des États-Unis}}
4 July 1776: Declaration of Independence.

March 1781: union of the American States in the form of a confederation.

September 1783: end of the conflict with Great Britain (Treaty of Paris).
*recognition of the independence of the new American States.
* paralysed system, impotence and instabilité́ in the political and commercial order

1786 - 1787: revolt of the indebted peasants.

May - September 1787: Convention of Philadelphia.
*Drafting of a draft constitution whose adoption requires the agreement of 9 out of 13 States.
*Between October 1787 and April 1788, under the pseudonym PUBLIUS, three famous characters MADISON, HAMILTON and JAY write a series of 85 articles. They are the Federalist Papers whose aim is both political (to convince) and theoretical (to rethink the modern republic).
*The American motto is E pluribus unum (to make many one).

= The thinking of the American constituents =
The American constituents inherited a rich and complex thought process, they themselves faced a series of questions trying to answer these questions by drawing inspiration from Locke, Montesquieu and others.

They asked themselves four major questions:
#How to re-articulate, redefine the ideas of republic and democracy? The question is: who of Rousseau, Montesquieu, Machiavelli is right, or how can a new state that has been independent for barely 10 years in 1786 become a modern state, what form of state is needed? 
#How to combine the necessary plurality existing in American society with the unity necessary for the proper functioning of a modern republic or state? How can diversity be framed? How can we build a state that manages to respect diversity while being unitary, united and centralised? We find this problem on the E dollar note pluribus unum.
#How can the principle of the sovereignty of the people be introduced and made operational? They are all in favour of the principle of the sovereignty of the people, they are all followers of Rousseau, but they are all afraid of it too, what to do, how to unite while limiting the sovereignty of the people?
#which model of republic is desirable for what is now called the United States of America? Is it to be a commercial republic or is it to be an agrarian republic made up of small landowners, is it to be a centralized or decentralized republic? is it to be an imperial republic?

The answers to these questions are very comprehensive. 

== Federalists ==
The first remark is that when one follows the federalists' reasoning as to which of democracy or republic is the preferable regime, they start from the distressing observation that the democracies of the ancient cities were divided by quarrels. For all federalists without exception, democracy as practised by the old ones is simply impracticable, the democracies of the past failed to bring about a certain stability in politics.

The second remark is that what works is the republican regime: what allows the management and control of factions, the instability of the old cities can be contained and transformed in the republican regime; in other words, democracy is the regime of the past, it is necessary to build a new type of republic with a precise legal and political order in order to control the factions. 

Factions are a necessity and an inescapable fact, divergent opinions cannot be avoided, the question is not how to use them, but how to use them so that freedom is guaranteed? A regime allows these factions to coexist, to fight each other: this is the republican regime. However, it does not say how it can be detected and how it is structured.

The third point is that federalists build a political and legal system in which no one faction can win because it is a political system based on a few key principles. The question becomes: what are these inescapable principles? There are essentially three, showing that the American constituents are the followers of Rousseau, Montesquieu, Machiavelli and a bit of Hobbes. 
*principle of political representation: basically against Rousseau, the American constituents, the federalists in particular, establish the link between the sovereignty of the people and political representation. The principle of representation and sovereignty of the people are not incompatible. For the federalists, we can affirm that the people are sovereign, but in political practice we can make this principle operational differently than the Athenians or the Spartans: we are sovereign, but we need representatives, especially over a large territory. From this point of view, the American constituents are followers of Rousseau, while at the same time distancing themselves from him. The first criterion of the modern republic is the principle of political representation, which is not incompatible with the principle of the sovereignty of the people.
*a modern republic based on representation and the principle of sovereignty of the people must be a republic that enshrines and establishes the separation of powers: it is a question of establishing very distinct powers by establishing an extremely strong and autonomous judiciary; the American Supreme Court has played an essential role in American history as an arbiter, a power above powers. 
*the republic must be federal: it is the birth of the American federal state that is to be distinguished from the idea of state confederation. A federal state is much more centralised, whereas in a state confederation, power rests with the contracting states, there is a shift in power from the American states to what will become the federal state. 

There is no modern republic based on representation, sovereignty of the people, separation of powers with a strong judiciary if this republic is not federal; it is Montesquieu who defines the federal republic.

These four criteria represent the basis of the modern republic defended by the federalists.

== Antifederalists ==
This vision of the republic of the federalists has of course been contested, the antifederalists will oppose a radically different vision based on refusal, on a sort of counter-model. 

The viable republic is not based on trade, not imperial, it must not have a policy of power, it must not be commercial, it must not have the vocation of being an empire.

The great denunciation of the antifederalists during the debates in Philadelphia was based on a very important fear, which was to see the law of the states unified. They are going to denounce the centralising and unifying vision of the federalists.

In other words, the antifederalists have a much more particularist vision of the republic; these two visions of the republic are opposed to each other and very strongly during the Philadelphia convention, the defeated will have the rhetoric for them, but will not win the fight.

Other issues between federalists and antifederalists call into question, there is the centralised state vs. the decentralised state, universalisation, but also the question of the army.

The antifederalists defended an almost modern conception of the army, the army had to be a militia army, we are in a Machiavellian vision. The federalists would defend the idea of a modern professional army.

The republic must be based on a strong, permanent army, capable of defending the borders of this republic which has the vocation to conquer large areas.

The federalists have a permanent vision of the army and want to emphasise a powerful navy, because when you have a powerful fleet you control the seas and you can protect and expand.

[[Image:Patrick Henry Rothermel.jpg|thumb|250px|Speech by Patrick Henry against the Stamp Act in 1765 before the Virginia House of Burghers.]]

The federalists sought to establish a modern imperial republic. The anti-federalists reacted strongly.

{{citation bloc|You should not seek to strengthen your trade, nor to become a great and powerful people, but to ensure freedom; for freedom should be the essential aim of your government. (...) this new power will trample upon your fallen liberty: let my dear Americans beware of the fatal lethargy that has perverted the Universe; can we afford to resist disciplined armies when our only means of defence is in the hands of Congress? (...) Will we imitate the example of those nations that exchanged a modest government for a superb one? Are these nations worthy of our imitation? What compensation can they seek for the loss of their freedom? If we accept this consolidated government, it will be for love of the splendour and greatness of a formidable power. One way or another, we shall then have a great and powerful Empire; we shall have a navy, an army and many other things. When the American spirit was in its youth, the language of America was different; freedom, sir, was the supreme goal.|Speach of P. Henry dans : The anti-federalist papers and the constitutional debates, publ. Par R Ketchmam, New York 1986, p.200}}

= The debate =
The thinkers of this modern, commercial, imperial republic will counter-attack, the debates with the antifederalists will be stormy.

One of the angles of their attack is that the federalist conception of the republic will be based on the redefinition of two important words in the political order. In other words, the federalists will give a new definition of the idea of constitution and people.

What is the new meaning given by the federalists?

Basically, the idea of constitution can be essentially reduced to two different meanings:
*the term constitution as the federalists think it has an institutional meaning: the constitution is first of all a document that organises the public authorities, this is the classic institutional meaning that we know today.
*normative meaning of the constitution: federalists will give the constitution the meaning of supreme law, law above law; the constitution in this federalist perspective is defined as the supreme norm. This is a new dimension. 

Before the American federalists, the constitution had only one meaning among others, for Bodin these are the fundamental laws of the kingdom, a constitution is no longer just a document, but the articles of the constitution are sacred since they have a normative dimension.

The other contribution is the idea of the American people or nation; between all the institutional, constitutional, political, legal disagreements they had with their antifederalist opponents, there was in fact a second essential difference after the very meaning of the word constitution, which was the conception of the American nation, which was extremely different.

First of all, the definition of federalists is a fairly classic definition of the people as anyone who was born on American soil. The second dimension of the definition of the American people, the anti-federalists' differences will have and they will defend an exclusive definition, not everyone is part of the American nation, including blacks, Native Americans and indigenous peoples who were not considered part of the American nation.

The non-wasps are not included for the federalists in the American nation; to assert the sovereignty of the people is a nice thing, but if you define the people exclusively, things are more nuanced.

This exclusive and limited conception of the American people is found in the American Declaration of Independence.

{{citation bloc|[…] He abdicated the government of our country, declaring us out of his protection and making war on us. He has plundered our seas, ravaged our coasts, burned our cities and massacred our citizens. At this very moment he is transporting large armies of foreign mercenaries to carry out the work of death, desolation and tyranny that was begun under circumstances of cruelty and perfidy that would be hard to find examples of in the most barbaric centuries, and which are utterly unworthy of the leader of a civilised nation. He stirred up domestic insurrection among us, and sought to draw to the inhabitants of our frontiers the Indians, those merciless savages, whose well-known way of waging war is to massacre everything, without distinction of age, sex or condition.}}

This exclusive vision of American citizenship is very characteristic of the federalists Hamilton, Jay and Madison. 

<gallery mode=packed heights=200px>
Fichier:Alexander_Hamilton_portrait_by_John_Trumbull_1806.jpg|Portrait of Alexander Hamilton by John Trumbull.
Fichier:John_Jay_(Gilbert_Stuart_portrait).jpg|Portrait of John Jay by Gilbert Stuart.
Fichier:James_Madison.jpg|James Madison.
</gallery>

This is not an American specificity, in the French revolutionary writings, the conception defined by the French revolutionaries is a hierarchical vision of the European peoples. There is a whole list of the hierarchy of peoples according to the French revolutionaries: the French, the Swiss, the English, the Americans, the Spanish, the Russians, the Chinese, the Persians. The idea of universal fraternity conveyed by the American and French revolutions is undermined in fact by a vision of the hierarchy of peoples that challenges.

The federalists will defend an imperial vision of the modern republic. These are texts that synthesize the European enlightenment.

= Alexander Hamilton, John Jay, and James Madison, The Federalist, 1788 – Federalist IX =
{{citation bloc|A firm Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty Republics of Greece and Italy, without feeling sensations of horror and disgust, at the distractions with which they were continually agitated […]}}

It is clear that the democracies of the past are not the solution of the modern world; they were unstable and must be abandoned.

Can we therefore find a regime that combines order and freedom?

{{citation bloc|From the disorders that disfigure the annals of those Republics, the advocates of despotism have drawn arguments, not only against the forms of Republican Government, but against the very principles of civil liberty. They have decried all free Government as inconsistent with the order of society […]}}

They know their classics: 

{{citation bloc|The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times.}}

The democracies of the past are no longer imitable, they are beautiful models. We need to create a system that neutralizes factions:

{{citation bloc|When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States.}}

Montesquieu was wrong for Hamilton to equate republic and small territory, it is possible to equate large territories and republic:

{{citation bloc|So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.}}

For Hamilton, the federal republic is the regime that combines the advantages of a monarchy with the benefits of a republic.

{{citation bloc|I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection. }}

We have to find a system that represses and controls internal and external insurgencies.

= Alexander Hamilton, John Jay, and James Madison, The Federalist, 1788 – Federalist X =

{{citation bloc|By a 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 of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.}}

It is the definition of the faction that needs to be neutralised, the harmful power of factions needs to be fought. The explanation is detailed below:

{{citation bloc|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 the means of controlling its effects.}}

Federalists have a somewhat black conception of human nature. Federalists and anti-federalists alike are wary of human vices, man is a corruptible being, they are obsessed with man's capacity to corrupt himself.

They are not like their predecessors interested in constructing a reflection on man, what is important is to correct the effects, one has to accept that man is not necessarily a "saint" and the question is how to correct the effects of such a statement.

For Madison, power stops power, it is in the name of this saying that factions will be stopped:

{{citation bloc|By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority, at the same time, must be prevented; or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control […]}}

Human passions have to be contained, so they have to be controlled.

{{citation bloc|A Republic, by which I mean a Government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure Democracy, and we shall comprehend both the nature of the cure, and the efficacy which it must derive from the Union.

The two great points of difference, between a Democracy and a Republic, are, first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest: Secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.}}

= Alexander Hamilton, John Jay, and James Madison, The Federalist, 1788 – Federalist XI =
The principle of representation is affirmed in The Federalist XI : 

{{citation bloc|There are appearances to authorize a supposition, that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe […] They foresee the dangers, that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine [...]A further resource for influencing the conduct of European nations towards us, in this respect, would arise from the establishment of a Fœderal navy. There can be no doubt, that the continuance of the Union […]Our position is, in this respect, a most commanding one. And if, to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived, that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set, not only upon our friendship, but upon our neutrality. By a steady adherence to the Union, we may hope, erelong, to become the Arbiter of Europe in America; and to be able to incline the balance of European competitions in this part of the world, as our interest may dictate.}}

He thinks a strong navy capable of imposing his point of view and the theme of the imperial republic is extended.

{{citation bloc|I shall briefly observe, that our situation invites, and our interests prompt us, to aim at an ascendant in the system of American affairs. The world maypolitically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men, admired as profound philosophers, have, in direct terms, attributed to her inhabitants a physical superiority ; and have gravely asserted, that all animals, and with them the human species, degenerate in America — that even dogs cease to bark, after having breathed awhile in our atmosphere.[1] Facts have too long supported these arrogant pretensions of the European: It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation.}}

= Alexander Hamilton, John Jay, and James Madison, The Federalist, 1788 – Federalist XII =
It is the praise of commerce with two ideas that are in this text:
*praise trade
*Emphasis on fiscal and monetary union

There are two important ideas: trade softens morals, free trade allows states to grow and develop, and, as a corollary, there is strength in numbers.

= Alexander Hamilton, John Jay, and James Madison, The Federalist, 1788 – Federalist XIV =
Le gouvernement républicain peut être établi sur un grand territoire, c’est le contre-Rousseau et le contre-Montesquieu.

Le régime républicain, l’État que les États-Unis appellent la république moderne peut exister sur un grand territoire, il s’agit de trouver un équilibre entre un État fédéral et le pouvoir des États. Cette répartition de compétence ne sera tranchée qu’en 1806 dans un célèbre arrêt américain qui donnera la prééminence de l’État fédéral sur l’État confédéré.

{{citation bloc|Happily for America, happily we trust for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of Governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed.}}

= Alexander Hamilton, John Jay, and James Madison, The Federalist, 1788 – Federalist LI =
This chapter enshrines the separation of powers, which is stated very clearly. 

{{citation bloc|It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the Executive magistrate, or the Judges, not independent of the Legislature in this particular, their independence in every other would be merely nominal.}}

This text ends the outline of power. One sentence will be the great answer to all the principles we have seen, the federalists have described to us the vision of the modern commercial republic with an imperial vision.

= Herbet J. Soring, The Complete Anti-federalist, vol. 4, The University of Chicago Press, 1981 =

{{citation bloc|it is the opinion of the ablest writers on the subject, that no extensive empire can be governed upon republican principles.}}

For the antifederalists, what is being built is not a modern republic, but an empire; the federalists wanted to synthesise the model, but not in the right direction, they tried to found a republic that would become an empire.

= Que se passe-t-il après la Révolution américaine et la Révolution française ? =

Après la révolution industrielle, au fond la pensée politique fait émerger au XIXème siècle un autre débat ; on ne discute plus de la définition de l’État, on ne discute plus du débat des rapports entre l’État et les individus comme l’avaient fait Montesquieu et Locke ; la question qui se pose est de savoir quel État voulons-nous ? L’État doit-il être régulateur ?

L’État doit-il rester un simple régulateur garant de la sécurité publique ou doit-il se transformer en protecteur de plus faible parce que le XIXème siècle la révolution industrielle et ouvre les portes de comment gouverner la misère, les ouvriers qui se déversent dans les États européens.

Comment faire de l’État un État qui permet de préserver d’une certaine manière l’égalité et la fraternité, mais aussi une forme de justice et d’équité dans un monde transformé par la révolution industrielle ?

Si la philosophie de Mill et la philosophie contemporaine demeurent attentives aux problèmes soulevés par Mill, ce sont encore les questions que les philosophes se posent aujourd’hui ; en d’autres termes, l’État contemporain est repensé à la lumière de trois questions :
#l’État providence rêvé par les révolutionnaires américain et français a-t-il encore un avenir ?
#l’État est-il adapté au phénomène de la globalisation ?
#la mondialisation des échanges ne porte-t-elle pas atteinte à la vision de l’État-nation centrée sur le politique, centrée sur une vision interne du droit, sur une vision de la souveraineté essentiellement interne et peu ouverte sur le monde ?

La mauvaise nouvelle est qu’on n’a pas encore répondu à ces trois grandes questions, la bonne nouvelle est que nous devons prendre le relais et réfléchir à l’histoire de ce concept d’État qui nait au XVIIème siècle en se souvenant qu’on ne peut savoir où l’on va si on ne sait pas d’où l’on vient.

= Annexes =

= References =
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