Taped July 7, 2021
Table of Contents
I: Lessons of the Federalist (00:15 – 30:30)
II: Thinking Politically (30:30 – 1:18:19)
I: Lessons of the Federalist (00:15 – 30:30)
KRISTOL: Hi, I’m Bill Kristol. Welcome to CONVERSATIONS. I’m very pleased to be joined today by my old friend, David Epstein and we’re going to discuss The Federalist. An important book about which David wrote an important book. I think the best book written on The Federalist. It came out almost —it was your dissertation and we were in grad school together — and it came out almost 40 years ago and stands up very well. And it’s still in print. That’s pretty amazing, David. I don’t know if that’s a self attribute. I’m sure.
EPSTEIN: I’m hoping this will spike sales.
KRISTOL: Totally. People need to order it. That’s the first thing I needed to say. [Laughter]. This conversation does not replace your obligation to read the whole book and study it. The book’s called The Political Theory of The Federalist published by the University of Chicago in ’84. David and I both got our PhDs from Harvard, both taught a little bit and left the academy. David went on to actual serious work in the Defense Department and did some good for the country, and I went on to whatever. And but obviously, David speaks today as an individual and does not represent the US government in all of its different tributaries and whatever. Right?
EPSTEIN: Right.
KRISTOL: You’re speaking as an individual. Let’s talk about The Federalist and maybe a little less on the political theory of The Federalist, which the book is really excellent on, and more on kind of political lessons from The Federalist. But I’m sure our viewers of course have read The Federalist, I’m sure studied it but in case they haven’t, give a quick reminder about The Federalist Papers.
EPSTEIN: Okay. Thank you. It’s great to be here. I’m a big fan of the show so it’s a pleasure to join you.
After the Philadelphia Convention of 1787, the constitution as drafted was submitted for ratification by each state in popular conventions. And as soon as it was released publicly after the secret meeting all summer there began a big debate, started out I think mostly by the opponents joined by the proponents. And Alexander Hamilton thought the debate was a little bit crude and maybe not going quite his way. And he thought what was needed was a more comprehensive treatment that would defend the constitution as a whole, not just attack individual anti-federalists for their criticisms. He recruited other people to help him. He planned out a long series of essays. The book is called The Federalist it’s a collection of 85 essays.
I think it’s probably better not to think of it as like op-ed columns that have been collected together after they were written, and more like say Dickens writing a novel and publishing pieces of it as he goes along, because in Federalist One, Hamilton lays out this rather elaborate plan of what’s going to be discussed and pretty much sticks to it. The co-authors John Jay, James Madison — Hamilton had invited a couple of other people one of whom said, no, one of whom wrote something and then Hamilton, I guess, politely told him it didn’t quite meet Hamilton’s needs. In the musical version, Hamilton invites Aaron Burr to help and Burr says no, which is apocryphal but correct in that Burr himself was ambivalent and kind of joined the pro-constitution people rather late.
The project was to recommend this form of government to both the people who were electing delegates to these conventions also to the delegates themselves, some of which were undecided or actually changed their minds, and to contribute to the debate.
KRISTOL: And they had in mind that it would last beyond perhaps the immediate moment, right? There’s some indications of that and guide us in the future too.
EPSTEIN: Yes. And then there’s actually a passage I think where Hamilton says, “If certain political principles espoused by the anti-Federalists became the political creed of the country, it would unfit us for any government whatsoever.” It makes you wonder what kind of political creed is necessary for the country. What kind of instruction The Federalist was trying to give us?
I think it’s both an explanation of the institutions, which say they have a kind of life of their own, but also an attempt to educate and instruct the people who will obviously have some say over how the institutions develop. I mean as citizens we have that, we also have the right to amend the constitution so it’s kind of important what we believe about it. But also to instruct, say politicians, as to what’s their role.
KRISTOL: Yeah and how they should think about this system that would be set up, I guess. I was just struck listening to you. I hadn’t really thought about this. That the Constitutional Convention was in private so if you’re a normal, interested in politics, well-informed citizen but you were not personally one of the — How many people were there at the Constitutional Convention?
EPSTEIN: 56 something like that.
KRISTOL: Was it at 55? I think, I don’t know. Maybe I’m confusing the Declaration, whatever. But several dozen people who were there. That was in secret. There weren’t many reports that even I think about what they were discussing, right? And then suddenly this constitution is sort of delivered up to be debated and ratified to state conventions.
I think the extent to which they were sort of painting on a tabula rasa is probably something one doesn’t — I mean of course, America, there had already been the Declaration, and the war, and the Confederation so it wasn’t quite a tabula rasa, but the degree to which they were able to impress that this was a chance to impress upon the country, this particular understanding of what underlay the constitution and informed it, I sort of hadn’t quite focused on perhaps.
EPSTEIN: Yeah. Although, I mean I don’t think they’re speaking for the convention exactly. I mean, Jay in fact was not at the Convention. So it’s more like whoever we are, I mean it’s published anonymously, have assessed this document that was released to us.
I mean I think it’s obviously very interesting also to read the Convention debates based on notes that people took, although this was not published for quite a while afterwards, but there’s a kind of different character. I mean at the Convention it’s sort of, “why are we choosing this individual provision rather than that?” And “why should the president be appointed this way or have a four year term?” In The Federalist it’s really not about the individual provisions. It’s sort of a take it or leave it. I mean the argument is this is what we have available to us, and it’s a better option than an implausible alternative. It’s really what’s the merit of the system as a whole?
KRISTOL: It gives us a real view of it as a whole, in a way you don’t get from the debates. And that’s why you could write a book on the political theory of The Federalists and probably not on the political theory of the Convention so to speak. It’s less of a whole.
EPSTEIN: Well, The Federalist tries to make the Constitution coherent.
KRISTOL: Maybe more coherent than it was in the practice of these conferences.
EPSTEIN: I guess they admit points on which it could have been better.
KRISTOL: But that’s also an important teaching lesson I think in a way, right? That the limits of what one should expect, that’s pretty explicitly discussed in The Federalist from politics and from constitution making and so forth. Right?
EPSTEIN: Yes. I mean I think that’s part of sort of the educational role of the book is it gives us an idea of what standards we should apply when we’re thinking about government. I think this is applicable not only to Americans. What can you expect?
And I think there’s a little bit of, I would say a caricature that says they have this great optimism about what the science of politics could do and sort of solve the problem. I mean they really present it much more experimentally and say, what we’re trying to do is improve the probabilities of a good outcome and really that’s the best we can offer.
KRISTOL: It is important that citizens, but as you say political leaders as well, think in a sense that way. I guess that’s what struck me skimming back through it and your book as well preparing for this, that we just celebrated, tell me what you think of this, that we just celebrated July 4th, we’re speaking on whatever is, July 7th and the declaration and the rigging sentences and assertions of the declaration and then the subsequent reassertions of it by Jefferson in his great last letter almost 50 years later. It’s so interesting The Federalists —
I don’t buy the argument that The Federalist was fundamentally a departure from the declaration the way old-fashioned historians used to argue as a conservative reaction to the radicalist of the declaration but it’s certainly a different kind of document. One of its main purposes the declaration is an assertion of certain, fairly simple truths and The Federalist is a education and the complexities of politics that have institutions, right. It’s sort of the other side of the declaration or something like that.
EPSTEIN: Yes. And I think there’s sort of this tension between let’s say describing the noble possibilities and how people really ought to think of things on the one hand and this sort of realistic view of what’s actually likely on the other. I mean I think sometimes you read The Federalist and you have this sort of view that not that much is expected of politicians because men are rapacious and selfish and so on. And it says enlightened statesmen will not always be at the helm but that doesn’t mean they’re never at the helm or that they couldn’t be. And so it seems The Federalist tries to maybe model good behavior or show us what it’s like to be a good democratic politician even while warning us and trying to guard us against the danger that enlightened statesmen will not always be at the helm.
KRISTOL: And I noticed that only sites the declaration I think this is right I looked in the index once in the entire Federalist papers and it’s in Federalist 49 a very important paper and it slightly cuts against too strong maybe the declaration but that’s the paper that I use for reverence for the constitution. It’s sort of, is not like let’s have a revolution every year or 25 years or whatever that says.
EPSTEIN: The declaration didn’t really urge a revolution every 25 years either. I mean it says, you don’t want to do anything for light and transient causes or —
KRISTOL: Fair enough. Yeah.
EPSTEIN: I mean right, the declaration is actually I would say more tolerant of kind of tacit consent and that a government that has the consent of the people doesn’t actually have to be instituted by consent of the people. In The Federalist we’re talking about actually instituting government by consent. You’re not just inheriting an old government and deciding that’s close enough, we’re okay with it. But we’re in a position where we actually are choosing a new government. I think they present this as sort of the test case of the whole social contract theory that John Locke famously said, “I’ve refuted divine rights. All that’s left is the rule of beasts and whoever is strongest wins it unless I can establish this principle that government by consent of the governed is the legitimate foundation of government.”
And in Federalist 1, Hamilton says, “We Americans are in the position —” Or he says, “It’s been said that we Americans are in a position to establish whether that’s true or not. This is a great experiment in whether government by consent of the governed actually could be the origin of government.” What do you think?
KRISTOL: You stress in the book that how important that The Federalist stress —The Federalist, the author, or the pseudonymous author Federalist — stresses, that the government is and has to be really wholly elective in its sources. I mean second, it can be indirect at times but that there is no other principle but rule of the choice of the people.
EPSTEIN: Yes, I mean this is I guess related to the question that something was big in my mind when writing the book which is why are we so sure we want a wholly popular government or what’s also called a wholly elective government? Because if you start from the beginning of the book there’s a kind of I would say almost syllogism or debaters case that says sort of deduces what we need for the US. It’s kind of, there’s three sections of the beginning. It says, “We need the union. The Articles of Confederation are not going to preserve the union. Third point to preserve the union, we need a government at least as energetic as the proposal.” That structure doesn’t really say anything about popular government. It says what we’re trying to do is Institute a good government or in this formulation a sufficiently energetic government.
And in fact, the way he puts it, the third part is at least as energetic as the proposal, maybe the proposal’s not quite energetic enough. There you don’t really get a clear argument for popular government but volume two is officially on this is starting at number 37 the official subject is the conformity of the proposal to the true principles of Republican government. And Madison discusses what he calls the genius of Republican Liberty, which he says includes the idea that government should buy many hands for short terms. And then he says, this is kind of conflicts with the requirement of energy which requires a certain duration of power and a single hand. You can say the most energetic government would be something like Thomas Hobbes recommended is an absolute Monarch. And clearly that’s not wholly Republican or not even partly Republican but why is it that we want to have a popular government, even though the sort of syllogism of volume one didn’t really point that way?
And part of it is clearly you could say you could derive popular government from the ends of government. We want a government that serves the public good and having representatives of the people elected by the people, gives us a way of making sure that they’re not simply in it for themselves and they’re serving the public good but it doesn’t quite answer the question because England has this very respectable government where there is this role of representatives but there’s also a King. There’s also a house of Lords. Those are what Madison calls self appointed authorities. And from the standpoint of the purposes of government or the public good, there’s a certain argument to be made for them but Madison’s claim is we don’t accept that. It’s indefensible to have a government that’s not wholly elective. And I think the argument I think ultimately boils down to something more like human pride or the passion of human beings who want to rule or do not want to accept the idea that they need some other authority than the one they can supply themselves.
KRISTOL: No, that’s good. No, and that’s developed beside just wondering, I think one of the distinctive arguments in your book and I think you maybe thought it to be and it’s worth elaborating which is it’s not the quality it’s not just a kind of negative or the desire to have Republican government. Let’s just say it’s safer because they’re less likely to be oppressed or more likely to even preserve our rights. That is argued as well, of course but a kind of the dignity almost of self-government is also really stressed more than one — This is not captured I think by the normal accounts of The Federalist focused on Federalist 10 and 51 and ambition counteracting ambition, and interest checking in interests being spread over the whole country and so forth. But that part of it is visible when you look at the work as a whole.
EPSTEIN: Yes. I mean guess I actually began my work by contemplating Federalist 10. I would say the traditional interpretations all have a kind of economic cast starting with say Charles Beard in the early 20th century, he wrote The Economic Interpretation of the Constitution and then famous political scientist Robert Dahl wrote about pluralism and he thought Federalist 10 is a kind of prototype of pluralism which means interest group politics. Martin Diamond, who wrote I think the best work that I had read on the political theory of The Federalist also emphasized a certain economic aspect that this was a kind of anti Marxian analysis before Marx. Were if you have a variety of interests you’re not limited to the division between the bourgeoisie and the proletarians.
And one day in graduate school, when I was reading Federalist 10 for maybe the 10th time I noticed this the official definition of faction which mentions not only interest but passion it says a faction is a number of citizens, whether a majority or minority moved by some impulse of passion or interest adverse to the rights of others or to the permanent aggregate interests of the community.
I sort of wondered what’s this passion? Are people passionate about their interests? It’s clearly not erotic passion. It’s some sort of anger or spirit and as I read Federalist 10 more carefully, I noticed Madison really distinguishes between passion and interest and there’s a certain kind of faction that’s moved by passion there’s a faction attached to a certain popular leader or attached to a certain opinion. And then that’s distinct from the factions that are moved by interest which he says that’s the most common and durable case.
But in a way the factions moved by passion are more dangerous and more antagonistic whereas you have a difference of interest with somebody you try and work it out. I think this passion is I mean I sort of began to look at this theme more carefully and I think it’s related not only to partisanship among the people but ambition among the rulers and it’s this sort of political spirit that explains why as he says in Federalist 39, “We have this honorable determination to base all our political experiments on the capacity of mankind for self-government.”
It’s that political spirit and it seems to be different from a kind of liberal view which says from — If you look at Locke in the state of nature, we have these desires that were thwarted by the fact that it’s a very violent place and so we need a government that’s going to protect our individual rights. And I mean Locke sort of goes into the direction of representative government but it’s really a kind of deduction from the end. Whereas in The Federalist, it seems there’s interest in this end, obviously but there’s also this separate route of the attachment to popular government. And without suggesting that The Federalist is Aristotelian I would just notice in our style of politics, he says, “Man is a political animal.” This is because we have reason.
I mean that’s kind of the usual summary of it but it’s not quite reason. It’s we have enough reason to argue. People have opinions about what’s good and what’s just, what’s advantageous and they dispute those opinions. That’s kind of built into our nature. And I think this disputatious character of human beings is very much evident in The Federalist once you start looking for it. Today I think people have suddenly discovered affective polarization where everyone is very angry at people in the other party but this is really something that The Federalists noticed as well.
KRISTOL: Oh, very much so. And I was struck by this the last few years, Federalist 1 goes out of its way almost unnecessarily in a certain way, Hamilton to say. This will be like every other occasion where something important is being debated. People will be making false assertions they’ll be all wrapped up in it. They’ll love their own leader. Right. It’s a version of-
EPSTEIN: And then they will get angry at each other and indulge in vituperation of the opponents even though he says that’s improved because you can’t really convince anybody by attacking their motives. But that’s what’s going to happen, he says. He says, “What would be great is if we could have a calm discussion of what’s most advantageous for the country.” But he says, “That is more seriously, more ardently to be wished than seriously to be expected.”
KRISTOL: Right. Right. Go ahead.
EPSTEIN: This reminds me of president Johnson used to say, “Come let us reason together.” Because it’s a biblical verse where I think in the original, it doesn’t quite have Johnson’s meaning. I think that’s what this ideal deliberation would be but we don’t quite reason because as Madison says in Federalist 10 our reason is mixed with our self-love which I guess it seems very obvious to us. But why do we love our own opinions so much? Madison says we have fallible reason so why don’t we just say, ” I mean here’s my best opinion but if we disagree well, that’s okay. Or even if I’m out voted that’s okay.” But that’s not the way people feel.
KRISTOL: Especially not about politics. Right? Other things people might have more of that attitude of what’s the phrase I’m looking for, it’s a matter of taste or don’t dispute. I mean people don’t even they’re they get all passionate about art or music and stuff. But somehow politics particularly, involves-
EPSTEIN: There’s this interesting thing I was noticing and I think it’s in Federalist 70 where Hamilton is recommending a single executive rather than having two people because he says, “Whenever two people try to do anything together, there is danger of disagreement.” It sort of makes you wonder how marriage is ever possible. Anything you try to do there will be disagreement. He says, “If you are not consulted, you are very upset.” And he says, “If you are consulted, you’re even more upset if they don’t do what you want.” And this is particularly true. He says, whereas he was kind of blaming for having two presidents is particularly if you have two people who have equal authority. Well, this is exactly the situation of all citizens that we have equal authority with everybody else and yet we have this danger of disagreement and so reason to be distressed.
KRISTOL: I mean I want to get to the institutions in a second, which is one of the major ways obviously that these twin desires or requirements of fulfilling the requirements of popular government and that of good government get worked out so to speak or those two get reconciled to the degree they can be or anything wherever you can never ensure you can’t really ensure a good government but to the degree, you can make it more likely. But just on this one, more on this point of the — So would you say then that The Federalist solution in a way to this passionate level of one’s own opinions and overestimation of it isn’t simply a kind of let’s have a big country and let’s have separation of powers but it is a kind of building up of a kind of pride in what we’re doing here in America, in the United States in terms of self government that you sort of channel that feeling in a different way that would explain a little bit maybe the claims of Federalist 1 and some of the elsewhere in The Federalist as well.
There’s not a kind of debunking of this is a noble — One way to go would be to say calm down, politics is always a mess, complicated. Don’t overstate what we’re doing here but they go the opposite direction really.
EPSTEIN: Yeah. I mean you could say Hobbs’ argument is essentially calm down, suppress those passionate opinions. I’m not sure I fully worked out the relationship between individuals having this passionate love of their own opinions and then the people as a whole having an honorable determination for popular government. I mean it’s as if somehow the whole people recognizes that each individual can’t really be talked out of having his own opinion count in this whole.
KRISTOL: But together and if we follow Federalist 1 and it is that kind of carefully qualified statement by Hamilton, that it seems to be reserved to the people of this country to whatever vindicate once and for all in a sense the possibility of government by reflection and choice. I mean I’ve always thought that was on the one hand it can’t quite be true. It’d be unlikely if one particular instance could prove or disprove something that it could just go wrong. Right and we could have had some bad luck and someone else could do it but it’s important. He seems to turn that desire for a kind of we’re special let’s say and the individuals that become part of a collective body politic that feels kind of pride in what this whole experiment and maybe that then helps suppress a little bit the tendency to just think your own individual opinion is the only one worth having.
This is why in moments of crisis people put aside their own petty partisanship presumably let’s say enjoying and fighting world war II or something, right. We’re all proud of what we’re doing there and we forget a little bit that we’re liberals or conservatives or big government or small government or we didn’t like parts of the due deal or something. D-Day kind of tramps that. That seems to be sort of anticipated don’t you think?
EPSTEIN: Yes. I mean I think there’s certain arguments for moderation. I mean Madison says you won’t have parties if there’s a universal alarm for the public safety. Once the American revolution began there was not division although they do say before it began, there was division because there was not universal alarm. It was only after we declared independence and we’re at war that there was this universal alarm but there’s also the argument that given certain necessities making themselves apparent — and this is kind of the argument made to the people of 1787, which is we’re in a situation where we need to moderate our own individual opinions. This is again a case of kind of urging better behavior while noticing and being able to take account of worst behavior.
KRISTOL: But just to finish this point about moderate your opinions but the kind of reward you get for a little bit of moderation or suppression of your own particular preference for this kind of legislature or that kind of Supreme court new terms or something or more Federalism or less Federalism, the reward you get is this pride in a successful enterprise, a successful effort at self-government which is of universal importance. It’s not simply a kind of give up on your opinions.
EPSTEIN: Yeah, I think that’s fair.
II: Thinking Politically (30:30 – 1:18:19)
KRISTOL: Yeah. But let’s say maybe more famous that says I think that part is very interesting and I think you really bring that out well and kind of a neglected aspect of The Federalist but also the founding as a whole and of maybe even of American history as a whole. That’s the degree to which it’s about more than kind of interest group pluralism but also makes very important to have that pluralism and that interest group arrangements and separation of powers to make the thing work. I mean it’s such an interesting combination in that respect of a grand ambition and a very hard-headed organization of the institutions and attitude towards the kinds of people who are going to be there and so forth. But let’s say what are the key popular — You’ve got popular government, you’ve got the good government. Which particular parts do you think are most important or most striking or most destructive I guess and the ways that The Federalists defends them?
EPSTEIN: I mean I guess the big question of volume two is how do you make a popular government, a good government. And I guess I would emphasize maybe separation of powers, representation, and then sort of the more permanent branches which are the Senate, the president, and the court. I mean maybe we should talk a little about separation of powers because I think that brings out a little bit this difficulty between good government and popular government.
KRISTOL: And the parts that say, we’re also at the parts of good government that seem particularly difficult to achieve in a Republic to say. They seem to stress that.
EPSTEIN: I mean that kind of comes out I think later. The separation of powers I think is sometimes described as a hard to understand or a confusing doctrine. I think there’s sort of a narrow version of it that’s I would say very clear that you can read and Locke and Montesquieu in The Federalist 47 which is simply separation of powers is a way of having rule by law. You don’t have decrees, it’s better to have rule by law because everybody knows what they’re allowed to do. You don’t suddenly get punished for something you did. And by having a separation of powers you separate the executive from the legislature and that’s a way of improving the laws by making sure that the executive can enforce the law against the legislators because if they could make the law and enforce it, they might not obey it themselves.
And so this is an improvement of the law and then Montesquieu adds the separation of the judiciary which is a further improvement because instead of having the executive enforce the law on you get to question it. I mean if you don’t want to accept the executives decision, his judgment of you, you got to appeal to a neutral outsider who hears it as a dispute. That’s the idea. I would say Madison points out a couple of limitations. I mean it’s a good idea but for one thing rule of law is not a complete solution because you could still have laws themselves that are not just. In Federalist 10 he says, “What are many acts of legislation except judging the rights of large groups of people.” Really neutrality is not guaranteed by the fact that something’s a law because there are different interests, different people in different situations.
A tariff hurts one guy and it helps another guy. Law is not a complete solution even though it’s a very good idea. And then the second point is Madison emphasizes is that this separation is not self-enforcing. That is you can distinguish these three powers but there’s a danger that if you specify that they should all exist, they don’t get to preserve themselves. And in this run of papers between 47 and 51 the relation between this and popular government comes out when Madison quotes Jefferson’s notes on Virginia. Jefferson had some scheme of a kind of constitutional revision system designed to enforce the constitution by appealing to popular conventions. It’s very strange that Madison even brings this up because it doesn’t say anything about separation of powers. This book is like 11 years before it’s not like it was on anyone’s mind but it seems as though Madison wants to make a point.
And I think the point is the people are not going to be the ones who enforced the separation of powers. Jefferson’s convention idea said, “Just go to the people and let them decide whether the constitution has been properly obeyed.” Madison makes a lot of objections the main one is the people are going to be partisan. They’re going to have their own opinions about this that are not neutral. They’re based on the people’s prior attachment to the president or the Congress who were having this dispute. The overall conclusion is separation of powers can only be enforced by the interior structure of the government. This is the kind of climax in Federalist 51 where he says, “Independence on the people is no doubt the primary precaution for keeping the government under control but experience has shown mankind the necessity of auxiliary precautions.”
Things like the presidential veto, the bicameral legislature that’s the government being kept in check but not directly by the people I mean partly because the people care too much. They’re too involved. In a way it seems like it would be handy if the people could be neutral observers and kind of judge how the government’s doing. And there is discussion like that. There are Federalist the whole idea of responsibility that the politicians do something and then the people judge it but it’s not a neutral judging. The people get involved in the dispute to begin with.
KRISTOL: And Madison does stress I think in Federalist 49 or stress isn’t quite the right word. He allows us to how of course, in some sense it’s the more logical way of thinking about it. All power comes from the people, it goes to these three branches, they have a dispute well, you come back to the people to resolve it. And in normal life, lots of things kind of work that way incidentally if you think about it for a minute. The delegating authority kind of makes the decision about the people to whom it’s delegated or arguing in a sense but that doesn’t work for various reasons including they wouldn’t be reverence for the constitution.
I think it is a wonderful example of how much more complicated The Federalist‘s understanding of how popular self-government could work is than just let’s hope the people are reasonable or let’s even try to have a lot of civic education so they are reasonable or something like that. And that the internal work of the separation of powers can both preserve liberty better but also produce better government to actually right. More energy, more safety, less whimsicalness, so to speak.
EPSTEIN: Yes. I mean on the people’s role — Madison says on very rare occasions, constitutional amendment that’s okay. You just don’t want to be doing this all the time. And he’s particularly critical of doing it sort of ad hoc. Say when someone has a complaint, it would really be better to do it periodically because if you do it every time someone complains you’re leading the people to think this constitution is just temporary and flawed. What you need to do is develop a certain reverence.
The principle of the people choosing the constitution in the first place is very fundamental and is not denied. You have to allow it. I would say after a Federalist 51 a sort of more elaborate view of these different branches is developed and you see their individual merits. It’s not just that they’re checking each other and can keep each one from usurping power. It’s that they divide up the legislative power. You create institutions that have different characters and different qualities. The concept of energy and stability are what define respectively I guess, the executive and the Senate.
Those are qualities that don’t come naturally to a government by the people. But I guess I also wanted to just mention representation because — The anti-federalists I think had a view of representation that’s really more like tends to be assumed today, which is you want representatives who look like the people who are really samples of the people or a kind of common like the guy next door could be your representative. Almost as if they were drawn at random. And the anti-federalists, I mean one of their complaints is with this national government, you’re not going to have enough representatives. You’re not going to have enough of a minute reproduction of the qualities of the people. The Federalist gives a rather different account and you could say at the most elevated view of what a representative is Hamilton describes what a representative does is he conveys information to the legislative body.
It’s not that he’s going as a lobbyist for his district. He’s going to tell the other people about his district so that they can collectively decide what’s advantageous for the whole. This sounds a little bit like what I said in Federalist 1 was more ardently to be wished than seriously to be expected. Then clearly, there’s also the possibility that representatives have a kind of partiality and will push the views of their constituents. But I think this more elevated view is developed and also that having a minute representative of each person doesn’t really help you in the end because if you have a representative who only represents you, he’s just going to get outvoted. And so what you need is representatives who can combine the interests and sentiments of not only their constituents but others. And this is I’d say one of the merits of a representative is that he himself is not simply going to present his own views. He’s already kind of aware of the diversity of views of his constituents.
And then just one more kind of general concept, responsibility which is the people get to judge how the government has done without having to decide what the government should do. In other words, we don’t prescribe policy. We judge the policies that have been invented by the politicians or in some cases we judge the results of those policies. This reminds me of what was of Ronald Reagan’s famous, are you better off than you were four years ago? That’s what it means to judge the results of policy and so each citizen doesn’t necessarily have to understand why he’s better or worse off but you give the rulers the opportunity to exert their own judgment and then the voter gets to judge how they do. And this also improves the quality of the citizens because if we were all assembled in person as in an ancient direct democracy we would be more likely to be carried away by some orator who would exert his spell on us whereas at a distance judging with a certain lapse of time we can be more judicious.
KRISTOL: It is striking I mean how much The Federalist is concerned though it doesn’t highlight this concern I would say it’s somewhat, almost, you could almost say it’s smuggles in it with a quality of the legislators, the quality of the president. There’s not a whole lot of exhortation of the way we sort of see these days of a kind of civic virtue, Republican people should be wise and thoughtful. But the system is somehow set up to at least increase the odds of people of some wisdom and some thought and people who are open to that at least becoming representatives or the system it would make them a little more thoughtful.
I do think when sees that in America you get Harry Truman gets this presumably I don’t know a functionary of the machine in Missouri and comes to the Senate and his vision is widened and that of course becomes vice-president of presidents and further yet. And it’s sort of a cliche and maybe a little bit of a story almost look this ordinary man reaches becomes much more impressive than people thought he would be. But I think there’s something about the system that at its best allows that. The same with president, others, and members of Congress, and justices.
EPSTEIN: I mean, I guess one thing I didn’t mention is this determination for wholly popular government is not just a matter of everybody voting. It’s a matter of everybody having an opportunity to run for office.
KRISTOL: Yeah. We’ll talk a little bit about that because ambition is so important.
EPSTEIN: I think we’re all political but we’re not all equally political but generally people are partisan but not necessarily ambitious. And the ambitious people are the ones who become the politicians. Hamilton, I think somewhere refers to discussing impeachment your right to hold office is really your most valuable right as a citizen which makes you wonder what about the right to vote. But somehow this opportunity, which also is something that when Abraham Lincoln had his famous statement to the soldiers any one of your sons could grow up to be president. I mean that’s part of this honorable determination that we are arresting our experiment on self-government that ambition is allowed. There’s another word that’s used is government should be impartial to the pretensions of human beings. And I think a pretension is something like a claim to rule.
If you want to rule you’re allowed to try. Ideally that goes along with a certain thoughtfulness. I mean there’s some talk about experience that you get in office. There’s also a case for citizen virtue. I mean I don’t think they completely discount that, you’ll have to be attentive. I mean part of I think the rhetoric insisting on wholly popular government is to encourage the people to maintain this sense of vigilance. For example, he says, “If the legislature passes a law that says this law does not apply to the legislature sort of trying to circumvent the separation of powers, say what’s going to prevent that?” The answer is the vigilant and manly spirit of the population who would simply be outraged by such a thing because that denies equality, that asserts self appointed rulers rather than rulers derived from the equality of the people
KRISTOL: Yeah, you quote, I think that those wonderful Lincoln remarks which I think were genuinely a brief and extemporaneous to the Ohio regiment, I think it is an 1864. They’re coming back from Washington as they’re being I guess, discharged or something. And they’re pretty famous and very beautiful remarks about what they’re fighting for. But yes, it is striking how much he stresses the, of course they’re fighting for equality and a new birth to freedom and opportunities for all but he does also say that, yes, each of you can hope reasonably hope I think that your sons fight as let’s say, sons and daughters could be in live in this great — He’s speaking for the white house I think so living in this great white house, as I do or I have been able to achieve or something like that.
The ambition Lincoln was of course, very interested in this and attuned to this but the importance of representative government not being a flattening of ambition but really almost allowing for a very grand ambition on the part of the citizens is and Hamilton very much says this too right, in The Federalist. The demagogue they’re very concerned also about — Like everyone else, the Trump years we’ve read the executive section 67 to 77 paper, 67 to 77 more than the others following. The concern with demagogues is really striking. I’d say I had sort of forgotten how much of it is about — Yeah it could be probably be a big problem if this can be this one person and we really want to think of different ways to prevent him from being likely to be as capable as possible thoughtful and whatever experience but also we really don’t want him to be some kind of a terrible demagogue. And so maybe say a word about that and I don’t know those precautions.
EPSTEIN: I mean in Federalist one, it seems as though a demagogue is described as what might happen if we don’t adopt the constitution. That’s sort of where we’re in a situation without institutions. That’s one of the kind of, I guess, natural results of anarchy is uniting behind some person who can win the sort of support. I think a demagogue also is especially to be found in pure democracy, direct democracy where the people are assembled and are he says the demagogue rules as if he were holding a scepter and sort of has the people in his throttle. One thing I noticed it is striking how much of the discussion of The Federalists concerns a very simple requirement of government which is avoiding usurpation. We tend to think of these checks and balances as trying to result in better policy or prevent injustices in someway but simply preserving elective governance was not taken for granted.
One of the ideas of having these multiple institutions is to try and prevent usurpation. I mean the idea that someone would cancel the election or simply seize power. I mean this was not outside of their vision. And you can see when the government has not existed for 200 years that seems like a more live concern and maybe one of the successes of the government that we can see is that elective government has in fact been preserved.
When Hamilton is defending the provisions by which the national government can adjust the election regulations of the state governments for congressional elections, he takes on the objection that says, well any Federalist say, “Well, what if Congress tells everybody they have to go vote in one specific place and that means that most people aren’t able to vote and this will deprive them of their popular government.” Hamilton says, “If we have some usurper who wants to take over he’s not going to amuse himself with these clever schemes. He’s just going to boldly announce I’m in charge and cancel the election.” This was an idea that was known to them and that they were trying to guard against by creating these institutions.
KRISTOL: I do think kind of this is where I think your book can help this conversation so helpful that whatever — There’s a ton of interesting things to be learned from The Federalist on particular institutions, the fundamental branches of government which they discussed but there are many things that have developed over the years in America and that could be judged by the way of thinking about politics that The Federalist encourages and helps educate us to whether it’s civil-military relations. How do you have a military that’s not going to make usurpation easy? Whether it’s the bureaucracy, how much do you want to have civil servants but you don’t want to simply have civil servants?
You want to have political control. Administrative law. I mean I’m not saying all these, some of these things could be criticized probably as not optimal so to speak from the point of view of The Federalists. They give too much weight to I don’t know efficiency and not enough to responsiveness or to democratic control or the opposite, or thinking about the executive or the so much of an emphasis is put on the electoral college, the original electoral college which quickly went away but as a way of preventing a unfit character from becoming president because you’re going to actually have these people who are senior statesman so to speak in their communities selecting the president and they’re not going to select some terrible demagogue and that goes away pretty quickly.
But it’s replaced by the party system which has its pluses and minuses but also as a kind of way of tempering the ability presumably of a demagogue to simply sweep over the country and stampede everything and in his or her his in those days direction and one can think of other institutions that maybe continue to do it or not do it in the case of the party system which was not much anticipated by The Federalist. I guess I’m struck thinking about it more yet, how helpful it is to take The Federalist seriously even if what is taken in by institutions that aren’t specifically discussed in The Federalist or those institutions have changed quite a lot.
EPSTEIN: Yeah. I think the general question that maybe I would commend to your audience is how has this plan worked out? What of it has worked as intended and to what extent do changes really amount to very large differences from the intention? I mean I think there is a kind of, I would call say nostalgic patriotism that says the founders were great and if they could see what we’ve come to today, they would just roll in their graves. I mean there’s something to this view but it doesn’t quite capture I think the founders’ self-understanding. I mean they don’t present themselves as idealists who are creating some utopian system and then will be distressed when people don’t live up to their standards. They think of themselves as very practical hard-headed people trying to create a long lived system. If something has gone wrong, you’d have to ask the question well, what did The Federalists, what did the founders get wrong? What did they not see? Or did they make some mistake?
KRISTOL: I would ask you to give us some guidance on that but I would also say, don’t you think they also understand that the system is not going to run of itself forever and it requires people maybe not quite at their level but at a high level to be able to think in a broad way and therefore shepherd in reforms or amendments or other institutions that help accomplish some of the goals of the broad goals of The Federalist in reconciling the aspects of good government with popular government? This is a once and for all, and everyone just gets to go about now doing their own thing. And in this system they’ve magically set up and they’re just going to chug along without anyone attending to it.
EPSTEIN: Right. It’s not automatic but they thought their system would or they intended their system to encourage the sort of thoughtful contributions you’re just suggesting. And so you’d have to ask, has that happened sufficiently or if it hasn’t happened, is there something about human nature they didn’t quite get or has human nature changed in some way? And I think it’s very hard to sort of assess the overall say success of the regime. I mean by The Federalists own standards, we’d have to judge has this regime in fact served justice and the public good? Has it shown the right amount of energy and stability? You’d have to think about all of American history and you’d have to think about kind of the coder factual. What are we comparing this to? You’d have to think about things that maybe were quietly discouraged by the institutions.
An example is a historian said that impeachment has been practically useless because it’s hardly ever used but that’s not a clear finding because if it deterred bad behavior and you never saw that, that would be an important contribution. This is a very big question. Or how has it worked? What do we think of it? I think it is possible to look at some more specific aspects and observe that either they’ve worked as planned or there’ve been departures. I guess, I don’t know, I’m not sure I quite agree with you about the electoral college where I would say Federalist is a little bit brief on the electoral college and not entirely clear on whether the electors should simply transmit the people’s view or should have a view of their own.
Hamilton summarized it as several times he says, “This is an election by the people.” Now, maybe that’s just a rhetorical coding on this elitist mechanism. I mean the electoral college is an interesting thing in itself because it was kind of put together at the last minute at the convention and exactly what it was supposed to do is not, I would say entirely clear. It seems to have been partly have in mind this problem of nomination that is how do you get the field down to two and in the old days there was this each electoral votes for two people which has a different effect because if one person is not the favorite of a majority, maybe the second choice will be.
KRISTOL: Their version of rank choice voting there almost addresses it all in a way, in a mild way. Yeah.
EPSTEIN: Although even with rank choice voting I don’t think it quite solves the problem because you could still have number three in the rankings would actually be the second choice of the people voting for number one and number two and number three gets eliminated when you get to that round of the county. I would say in general, this problem of nomination is sort of a case where you rely on voluntary human ingenuity. I mean whatever system you have you create an opportunity for people to try to figure out say how to promote a certain candidate.
For the founders themselves, there’s this description of the necessity for some respectable set of citizens to take the lead in creating this proposed constitutional convention and the constitution itself because the people can’t spontaneously unanimously decide on anything and the same sort of problem arises when you’re trying to settle on a political candidate, you really have to narrow down the field. I mean they are the problems the electoral college was designed to solve is that different states may not all have the same idea of who the plausible candidates are. It remains a sort of strikingly sort of informal process which I think is reflected in today’s primary systems where it’s really not a kind of clean institution with a clear structure. It’s more like each state has these its own calendar and its own procedures and somehow a candidate emerges. That’s part of the informal aspect of government.
KRISTOL: I suppose if one were to try to reform that system, yeah The Federalist gives guidance in how to think about those reforms. It’s one national primary day at each party and the people were democratic. Every vote would count the same, whether you live in Iowa or in a late state, so to speak but that wouldn’t necessarily merely being more democratic isn’t enough but certainly being undemocratic isn’t a good idea either. And how do you mix in a sense these you want to allow people to — I think the way we think about it is shaped much, you sort of suggested this indirectly what we’re thinking well, the way we think about politics is much more shaped by The Federalist and by the experience that then grew up in this country and in other liberal democracies then we realize that as we sort of do instinctively know, you sort of want to balance what we call name ID now but let’s just call it experience.
You know that it’s legitimate that someone much more experienced should have some edge. On the other hand, you don’t want to preclude Barack Obama from beating Hillary Clinton so you want to have a system that somehow allows also for some the rise of an ambitious and talented person and so how do you balance those? I’m not saying our system’s at all perfect or that anyone would tally up many ways it could be improved. The less of The Federalist would also be to be a little wary of swimming in a facile way that these improvements are easy though so if it’s worked over time maybe leave it if it’s okay, leave it if it hasn’t worked. That’d be interesting changing it. I guess I’ve been struck recently just thinking about this that it seems to be the two things that aren’t in the spirit of The Federalist are kind of facile progressivism, let’s call it where you assume that because of science or whatever technology or just political science or economics, we just don’t need to think in this complex way about politics anymore and it’s all being taken care of so to speak.
On the one hand or a kind of facile, what’s the word, nostalgia let’s say reactionary nostalgia that this has been this way for X amount of time and we’re not even going to think hard about whether it is re — With new conditions do we need to rethink certain things, whether it’s obviously the tax code or the elections electoral system, or more guards at the federal level for state officials being able to keep the election results against populist against demagogic appeals to the people to overturn them if they don’t like them and so forth. There’s a kind of, I don’t know, mix of flexibility and principles and quite the right word but ways of thinking about politics that The Federalist seems to embody more than almost anything else because it is a practical work but it’s also more than just a practical work.
EPSTEIN: Yeah. I mean I wanted to say about the sort of subsequent development. I mean one of the striking things of course is the much increased size and scope of the federal government. There’s a case where it seems as though something like the intention of the founders has been eclipsed. But The Federalist does not have a kind of legalistic view of the constitution or let’s say that’s not the main point of a constitution. That we’re not creating a constitution that sets very clear limits on what government may or may not do. I mean you can try but this was sort of their claim against the bill of rights is that you can’t really specify things and that unequivocally and they described that as parchment barriers. What you really rely on instead is the struggle between institutions.
And if you think of the growth of the federal government there was the suggestion that as the federal government shows itself to be more trustworthy, the people will tend to want it to do more so that the boundary between the state and the federal governments is set by this sort of political process. And also that The Federalist‘s view, I would say that the cool and deliberate sense of the people should ultimately prevail over the views of the rulers. It sort of implies if the cool and deliberate sense of the people is say the new deal was a good idea and we need these kinds of social insurance schemes I don’t think The Federalists would say sorry, that’s contrary to our principles of protecting individual rights. I think that’s part of what it means to have a wholly popular government. You don’t just do whatever the people think of at any one time but I sort of settled popular opinion needs to be deferred to. And so I think The Federalists would probably accept even some policies that they themselves would not have recommended.
KRISTOL: As they accept some, I think some almost explicitly in The Federalist rights so aspects of the constitution that they kind of make clear they’re not really thrilled about. I mean, this sort of very half-hearted defense of a couple of them as I recall.
EPSTEIN: Yes. Well I say the equal vote of each state in the Senate was kind of bugaboo for Madison. I mean this is of course called the great compromise but Madison was sort of steaming about it and never really reconciled himself to the idea that this was reasonable. In The Federalist, he just says, “Well, it’s superfluous to evaluate by any theoretical argument the reasonableness of this. We just have to realize that it was a compromise and try to think of reasons that it might be good.”
KRISTOL: And then how to make it not damaging as well, I suppose at some point. And if I were actually-
EPSTEIN: It is the unamendable or one unamendable — The argument for the ticklish nature of revising constitution kicks in in favor of that institution. I mean you could say the whole idea of instituting a government by consent actually, rather than theoretically in practice it means you have to get the consent of some unreasonable people who want extra senators for their small state. Or say in the case of the three-fifths clause, they had to get the consent of the southerners who wanted extra representation for slaves. And the unreasonableness of these claims doesn’t mean you can simply ignore them. I mean if you are Lenin, you can have a Vanguard that imposes what’s right but if you want to have government instituted by consent you have to work more I’d say gradually and start by getting consent of the actual people with power and look toward future improvement.
KRISTOL: And the people are already organized in these states. And maybe that wouldn’t be the case in every founding or maybe you’d have just people in a nation after a war or something able to be reorganized more easily. On the other hand you want to take advantage of the fact that they’re organized the states, obviously. I mean it’s a huge advantage to having the — And so I think it’s a very good lesson and The Federalist understands that it’s both an annoyance at times that we are stuck with certain institutions, compromises, limitations on the ability to kind of for what time explains for me I would start to form the world and you were something like that. That’s not the way it is in real government by consent. In Locke’s theory, you could have a state of nature and you should use that to inform your thinking in certain ways but in practice it’s a good lesson for today reformers and with whom I’m sympathetic in some ways about the frustrations of the Senate and even the electoral college of think hard about ways to work around things that you can’t change.
And they’re maybe even good things about the fact that you can’t change them. It’s not that nothing that we have a certain same system for the last two centuries and the same rules. And I think it gives us real stability and so forth to people, citizens, perception of the government on the end, there is a little odd to have Wyoming have the same number of senators as California but maybe that should affect the way we think about the rules of the Senate and other ways of distributing power and so forth. Right. I mean at least we’re kind of complexifying the people’s thinking about politics, I guess that’s what I come back to rereading the book and talking to you as opposed to a kind of cutting the Gordian knot kind of simplification.
EPSTEIN: Yeah. I mean one thing that struck me in thinking back about the book is I think there’s a kind of changed intellectual atmosphere. In 1984, I think I was at some pains to try to persuade people that this was worth thinking about because people had a certain complacency and thought this is our constitution, it’s working okay and so why would we need to really pry into it or understand it? And I think since then there’s a lot of discussion of how our government is dysfunctional and decaying. People talk about veto points instead of appreciating checks and balances. There’s something called the World Values Survey where every few years they ask people a lot of different questions. And one of them is what’s the best form of government? And, still the winner in the US and in a lot of other places is a representative government but the margins have been shrinking and especially among young people. I think maybe a return to the arguments for this form of government is more necessary than it seemed when I first took an interest.
KRISTOL: But also perhaps using the kind of thinking that The Federalist embodies to reform certain aspects of our government as well, too. Right. Because they were pretty big performers. One forgets that sometimes in the talk about the founders. Any last thoughts on this has been I think, very interesting and educational for me and I trust for our audience. Any last things you would urge people to think about as they go reread the book The Federalist, and then of course, reread your book as well but any — I am curious about yeah, other things you’ve mentioned the current intellectual climate, political climate, would they be surprised? You mentioned effective polarization in passing and I discussed that with Jonathan Rauch and it is very striking when you think about it how powerful it is today and maybe made more powerful by social media and stuff. But on the other hand, it’s not something that they would have been entirely unaware of to say the least, right?
EPSTEIN: Yeah. I think it’s an interesting question. Say, how does communications technology change this? I mean that in Federalist 10 there’s the fact that in a large country you can’t that easily get together with other people in your faction is an important restraint on say majority faction, meaning attacks on the rights of others or the public good. Communications seems to have changed that made it easier. Does that change things? Do people’s just the whole psychology assumed by The Federalists change as a result of modern conditions? I mean I sometimes wonder, they say ambition must be made to counteract ambition our policies are still quite as ambitious as they were in The Federalist‘s view. The prosperity and opportunities of modern life seem to open up other possibilities. And then maybe ambitious people would rather be Michael Jordan or Tom Hanks or something rather than a Senator.
KRISTOL: A billionaire may be much more handsome.
EPSTEIN: A millionaire.
KRISTOL: Yeah. Those are both. Yeah. But I mean they would have been on the whole, of course they were friendly to technological progress so they probably wouldn’t have thought one could stand in the way of communications technology or certainly didn’t want to stand in the way of prosperity. And but you’re right. There’s that those raised their own challenges to south government, right?
EPSTEIN: Yeah, no, they were definitely all in favor of promoting commerce and enterprise and prosperity.
KRISTOL: They also understood it was — There’s the new challenges for us because final point, I guess I would ask you to think of a comment on this because one part of they want to settle certain things. They want to set up the basic form so in some ways they would like the fact that we look up to the founders and don’t think we can or should, most of us don’t think we can or should change anything but they did respect ambition and they wouldn’t have wanted subsequent generations to just feel utterly constrained and beaten down, so to speak by these institutions they had inherited and unable to vindicates the determination to show that this generation too can do something good for self-government. It’s a funny — I think they wouldn’t have minded a certain amount of reforming ambition if it were well-informed.
EPSTEIN: I think that’s right. I guess that’s why I was urging attention to the question of how their system has worked out and to what extent it was fully adapted to or promoted the changes that have happened.
KRISTOL: That should be the subject of our next conversation and a comprehensive look at the whole system and how it’s worked out or maybe if your next book sort of informed by the perspective of The Federalist that would be good, actually.
EPSTEIN: I think it’s too big a topic for one person so I urge it on your audience.
KRISTOL: Yes so we’ll have multiple conversations about it. That’s even better. Right. David Epstein, thank you very much for this I think very interesting and genuinely thought provoking conversation on The Federalist and thanks really for joining me today.
EPSTEIN: My pleasure.
KRISTOL: And thank you for joining us on CONVERSATIONS.
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