The author wishes to thank Michael Libonati, whose enthusiasm for Federalist 37 inspired this article and who assisted with research and review. Gratitude is also expressed to Andy Belli who provided comments following multiple readings and to Harold Godsoe at the Canadian Journal of Law and Jurisprudence for working on an extensive editing process which greatly added to the article. As always, the author thanks Laura Lee Swan-O'Hanlon, Julien O'Hanlon, and Ali O'Hanlon.

1. This section explores the key ideas in Federalist 37 but also draws on arguments from other Federalist Papers in order to expand upon and explain the key ideas enunciated in Federalist 37. This should not be seen to detract from the importance of Federalist 37 itself. Instead, Federalist 37 can be seen to be pivotally important as succinctly enunciating key themes discussed in other Federalist Papers and central to the constitutional project as a whole.

2. Madison, James, “The Federalist No 57” in The Federalist Papers Benjamin Fletcher Wright, ed, (New York, NY: Metro Books, 1961) at 385 Google Scholar [Madison “57”].

3. James Madison, “The Federalist No 37” in Wright, supra note 2 at 271 [Madison “37”] [emphasis added].

4. Wright, Benjamin F, “The Federalist on the Nature of Political Man” (1949) 59(2) Ethics 1 at 20.CrossRefGoogle Scholar

5. James Madison, “The Federalist No 10” in Wright, supra note 2 at 130-31 [Madison “10”].

6. Hobbes, Thomas, Leviathan, Gaskin, JCA, ed (Oxford: Oxford University Press, 1996) at Pt 2.Google Scholar

7. Ibid at 146, 176.

8. Ibid at 111.

9. See generally Johnson, Paul, A History of the American People (London: Phoenix, 1998).Google Scholar

10. McDowell, Gary L, “Private Conscience & Public Order: Hobbes and The Federalist” (1993) 25(3) Polity 421 at 437.CrossRefGoogle Scholar

11. Alexander Hamilton, “The Federalist No 6” in Wright, supra note 2 at 108.

12. Madison “10”, supra note 5 at 132.

13. Ibid at 134.

14. Madison “37”, supra note 3 at 267.

15. Ibid.

16. Ibid at 268.

17. Zuckert, Michael P, “The Virtuous Polity, the Accountable Polity: Liberty and Responsibility in The Federalist” (1992) 22(1) Publius 123 at 132.Google Scholar

18. Ibid at 133.

19. Madison “37”, supra note 3.

20. James Madison, “The Federalist No 51” in Wright, supra note 2 at 356 [Madison “51”].

21. See, e.g., James Madison, “The Federalist No 47” in Wright, supra note 2 at 356 [Madison “47”]; James Madison, “The Federalist No 48” in Wright, supra note 2 at 343-46.

22. Madison “51”, supra note 20 at 356.

23. Madison “47”, supra note 21 at 336.

24. Wright, supra note 4 at 10.

25. Madison “37”, supra note 3 at 270.

26. Ibid at 270-71.

27. Galbraith, John Kenneth, The Affluent Society 40th Anniversary edition (Boston, MA: Houghton Mifflin, 1998) at 108.Google Scholar

28. Madison “51”, supra note 20 at 358-59.

29. Scanlan, James P, “The Federalist and Human Nature” (1959) 21(4) Rev Politics 657 at 673-74 [emphasis in original].CrossRefGoogle Scholar

30. Alexander Hamilton, “The Federalist No 72” in Wright, supra note 2 at 464.

31. Madison “57”, supra note 2 at 385.

32. Madison “37”, supra note 3 at 267-68, 271.

33. Ibid at 268.

34. Madison “51”, supra note 20 at 356.

35. Madison “57”, supra note 2 at 385.

36. Wright, supra note 4 at 29.

37. For a discussion of the initial role of state constitutions prior to the enactment of the federal document, see Wood, Gordon S, The Creation of the American Republic 1776-1787 (Chapel Hill: University of North Carolina Press, 1969).Google Scholar

38. Zuckert, supra note 17 at 131.

39. US Const art I, § 7, cl 2.

40. See, e.g., Marbury v Madison, 5 US (1 Cranch) 137 (1803)Google ScholarPubMed (holding that the judicial branch has the final say on issues of law); Youngstown Sheet & Tube Co v Sawyer, 343 US 579 (1952)Google ScholarPubMed (holding that the executive branch could not seize private enterprise’s steel to aid the Korean War effort); Clinton v City of New York, 524 US 417 (1998)Google ScholarPubMed (holding that the president did not have authority to veto and amend parts of bills presented to him); Hamdan v Rumsfeld, 548 US 557 (2006)Google ScholarPubMed (requiring the executive branch of government to provide Guantanamo Bay detainees with certain due process procedures); but see Korematsu v United States, 323 US 214 (1944)Google ScholarPubMed (upholding an executive order to intern Japanese-Americans on the basis of spurious military information which stated that they were a threat to national security).

41. Walzer, Michael, Spheres of Justice: A Defence of Pluralism and Equality (New York: Basic Books, 1983) at 22.Google Scholar

42. Madison “10”, supra note 5 at 136.

43. Ibid at 131.

44. Ibid at 136.

45. Beard, Charles A, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913) at 56.Google Scholar

46. Madison “47”, supra note 21 at 342.

47. Wright, supra note 4 at 10.

48. Waldron, Jeremy, “Is the Rule of Law an Essentially Contested Concept (in Florida)?” (2002) 21(2) Law & Phil 137 at 146.Google Scholar

49. For a more detailed discussion of separation of power issues, see Vile, MJC, Constitutionalism and the Separation of Powers (Indianapolis, ID: Liberty Fund, 1998).Google Scholar

50. Madison “37”, supra note 3 at 270.

51. However, circularity may not be problematic if it is the best available solution to a particular problem. This theoretically imperfect position provides John Rawls with a potential response to a criticism formulated by Thomas Nagel. Nagel argued that Rawls’ theory was circular because it assumed neutrality and implemented a political philosophy that embodied neutrality. Nagel, Thomas, “Rawls on Justice” in Reading Rawls: Critical Studies of Rawls’ A Theory of Justice Daniels, Norman, ed (Stanford, CA: Stanford University Press, 1989) at 7–16.Google Scholar However, Rawls accepts certain inherent circularity when he endorses “reflective equilibrium” in political theory. Thus, Rawls states that at a particular moment “everything is in order. But this equilibrium is not necessarily stable. It is liable to be upset by further examination of the conditions which should be imposed on the contractual situation and by particular cases which may lead us to revise our judgments….” Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1971) at 20–21.Google Scholar Rawls borrows this notion of reflective equilibrium from Nelson Goodman who suggests that when we consider how to justify deduction we do so “by showing that it conforms to the general rules of deductive inference.” However, these rules, in turn, are justified by their conformity with accepted deductive practice. Their validity depends upon accordance with the particular deductive inferences we actually make and sanction…. This looks flagrantly circular…. But this circle is a virtuous one. The point is that rules and particular inferences alike are justified by being brought into agreement with each other. [I]n the agreement achieved lies the only justification needed for either.” Goodman, Nelson, Fact, Fiction, and Forecast (London: University of London, 1954) at 65–68.Google Scholar I am not suggesting that Nagel’s criticism is without merit or that Rawls’ position is immune from other criticism. I am merely stating that circularity, of a similar type displayed by Madison, may not be terminally flawed if circularity (and a degree of openness) is the best (or only) available method for considering complex issues. This methodology may make certain theories seem consistent at a given time but can be susceptible to change given changing experience which can, in turn, lead to alternative underlying theoretical assumption. For a much fuller discussion of reflective equilibrium in legal discourse, see Raz, Joseph, “The Relevance of Coherence” in Raz, Joseph, Ethics in the Public Domain: Essays in the Morality of Law and Politics, revised ed (Oxford: Oxford University Press, 1994) at 277–325.Google Scholar

52. Madison “37”, supra note 3 at 266-67.

53. Ibid at 267.

54. Ibid.

55. Ibid at 269.

56. Ibid.

57. Ibid at 270.

58. Ibid.

59. Gallie, WB, “Essentially Contested Concepts” in The Importance of Language, Black, Max, ed, (Englewood Cliffs, NJ: Prentice-Hall, 1962) at 121.Google Scholar

60. Ibid at 123.

61. Ibid at 122.

62. Ibid at 123.

63. Ibid at 125.

64. Waldron, Jeremy, “Vagueness in Law and Language: Some Philosophical Issues” (1994) 82(3) Cal L Rev 509 at 512-13.CrossRefGoogle Scholar

65. Ibid at 535.

66. Ibid at 535.

67. Rappaport, Michael B, “The Original Meaning of the Recess Appointments Clause” (2005) 52 UCLA L Rev 1487 at 1493-44.Google Scholar

68. Scalia, Antonin, “Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation” (18 Oct 1996)Google Scholar, online: http://www.proconservative.net/PCVol5Is225ScaliaTheoryConstlInterpretation.shtml

69. Madison “37”, supra note 3 at 270.

70. See Popper, Karl R, The Open Society and Its Enemies, vol 2: The High Tide of Prophecy: Hegel, Marx and the Aftermath, 5th ed (Princeton, NJ: Princeton University Press, 1966) at 215.Google Scholar (“…if contradictions need not be avoided, then any criticism and any discussion becomes impossible since criticism always consists in pointing out contradictions either within the theory to be criticized, or between it and some facts of experience.”)

71. Supra note 59 at 123.

72. See ibid at 125, 131.

73. This is analogous to Locke’s position that men are partial to disputes in their favor when they are involved in disputes. See generally Locke, John, Two Treatises of Government, Second Treatise, 2nd ed, Laslett, Peter, ed (Cambridge: Cambridge University Press, 1967).Google Scholar Whereas this partisanship could be considered a negative characteristic, it is primarily a characteristic of human nature and it could also be considered a positive characteristic for an attorney if he is to provide the kind of zealous advocacy that his client expects and ethical rules require.

74. See, e.g., American Bar Association, Model Rules of Professional Conduct (Chicago, IL: American Bar Association, 2007) Rules 1.7–1.13.Google Scholar

75. In reality, almost any statement can be justified by altering the underlying logical structure. Thus:

Quine, WV, “Main Trends in Recent Philosophy: Two Dogmas of Empiricism” (1951) 60(1) Phil Rev1 20 at 39-40.CrossRefGoogle Scholar

Thus, if a statement A=B seems to be logically inconsistent, it can be made to be consistent by reevaluating the logical structure underlying the statement in order to make it consistent. Thus, it is not always “clear when linguistic forms should be regarded as synonymous, or alike in meaning and when they should not.” Ibid at 22. An individual could argue that his statements are not inconsistent by stating that, despite appearances, A=A. Thus, it is possible to have chains of contestation regarding the consistency of various uses of essentially contested concepts. And, more problematically, there is psychological evidence that people engage in this kind of remodeling of opinion to make original statements adaptive to criticism. And, to make the problem more complicated, there is further evidence that people expect this kind of adaptive reasoning to avoid responsibility by political and legal actors. See generally Tavris, Carol & Asonson, Elliot, Mistakes Were Made (But Not By Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts (Orlando, FL: Harcourt, 2007).Google Scholar But, even if all of the above is the case, accusations of inconsistency are justified. And, the process of squaring inconsistencies at least involves some form of rationalization or accountability. Furthermore, this section seeks to address inconsistencies regarding relatively simple statements. These kinds of justificatory methods can be used for even such simple statements but, at the same time, there is likely some kind of general understanding of statements which will point out inconsistencies even if this will only serve to trigger justification of inconsistencies which may lead to further contestation.

76. These examples of President Ronald Reagan are perhaps illuminating in this context:

On Civil Rights

• 1.

  1. I favor the Civil Rights Act of 1964 and it must be enforced at the point of the bayonet, if necessary. (October 19, 1965)

• 2.

  2. I would have voted against the Civil Rights Act of 1964. (June 16, 1966)

On Redwood National Park

• 1.

  1. I believe our country can and should have a Redwood National Park in California. (April 17, 1967)

• 2.

  2. There can be no proof given that a national park is necessary to preserve the red-woods. The state of California has already maintained a great conservation pro-gram. (April 18, 1967—the next day)

On the Soft Grain Embargo

• 1.

  1. I just don’t believe the farmers should be made to pay a special price for our diplomacy, and I’m opposed to [the Soviet grain embargo]. (January 7, 1980)

• 2.

  2. If we are going to do such a thing to the Soviet Union as a full grain embargo, which I support, first we have to be sure our allies will join us on this. (January 8, 1980— the next day).

Pojman, Louis P & Fieser, James, Introduction to Philosophy: Classical and Contemporary Readings, 4th ed (New York, NY: Oxford University Press, 2008) at 678.Google Scholar Quoting President Ronald Reagan.

77. Connolly, William E, The Terms of Political Discourse 3rd ed (Oxford: Blackwell, 1993).Google Scholar

78. Waldron, note 48 at 151.

79. Cf Linda Greenhouse, “High Court Justice Supports Bar Plan to Ease Sentencing”, The New York Times (24 June 2004) A14 (quoting Justice Anthony Kennedy stating that political populism relating to the “tough on crime [issue] should not be a substitute for thoughtful reflection or lead us into moral blindness”).

80. See James Madison, “The Federalist No 55” in Wright, supra note 2, at 376. (“Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob”).

81. Hamilton, supra note 11 at 132.

82. Madison, however, is considered to be the first graduate student in America because he continued his studies beyond the normal four-year period at the College of New Jersey, now Princeton University. Dennis F Thompson, “The Education of a Founding Father: The Reading List for Witherspoon, John’s Course in Political Theory, as Taken by Madison, James” (1976) 4(4) Political Theory 523.Google Scholar

83. Parrington, Vernon Louis, Main Currents in American Thought I (New York: Harcourt, Brace & World, 1927) at 279.Google Scholar

84. Beard, supra note 44.

85. Madison “37”, supra note 3 at 270.

86. See generally Popper, Karl, Conjectures and Refutations: The Growth of Scientific Knowledge (London: Routledge & Paul, 1963).Google Scholar

87. See ibid.

88. Kolakowski, Leszek, Husserl and the Search for Certitude (South Bend, IN: St Augustine’s Press, 2001) at 28–29.Google Scholar

89. Michelman, Frank, “Law’s Republic” (1988) 97(8) Yale LJ 1493 at 1519.CrossRefGoogle Scholar

90. Madison “37”, supra note 3 at 267.

91. Cf Strauss, Leo, “The Mutual Influence of Theology and Philosophy” (1979) 3 Indep J Phil 111 Google Scholar (arguing that the intellectual gap between Athens and Jerusalem is not so great because religion must justify itself through reason and reason requires a degree of faith that reason is capable of responding to complex questions).

92. Cf Mueller, John E, Capitalism, Democracy, and Ralph’s Pretty Good Grocery (Princeton, NJ: Princeton University Press, 1999).Google Scholar

93. Madison “37”, supra note 3 at 268, 270.

94. Hamilton, supra note 11 at 111.

95. Madison “37”, supra note 3.

96. Rawls, John, “Justice as Fairness: Political not Metaphysical” (1985) 14(3) Phil & Pub Affairs 223 at 227.Google Scholar

97. Ibid at 226.

98. Hobbes, Locke, and Hume immediately come to mind but there are others.