FReeper Book Club: The Debate over the Constitution, Federalist #39

Madison begins by comparing the new Constitution to the various state constitutions, and then examines aspects of the Constitution as they may be “federal” or “national” in character.

² The last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the Convention, we now proceed to the execution of that part of our undertaking.

³ The first question that offers itself is whether the general form and aspect of the government be strictly republican.

⁴ It is evident that no other form would be reconcilable with the genius of the people of America, with the fundamental principles of the Revolution, or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.

⁵ If the plan of the Convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

⁷ Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers to the constitution of different states, no satisfactory one would ever be found.

⁸ Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic.

⁹ The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised in the most absolute manner by a small body of hereditary nobles.

¹⁰ Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation.

¹¹ The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has with equal impropriety been frequently placed on the list of republics.

¹² These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

¹³ If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.

¹⁴ It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic.

¹⁵ It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people, and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

¹⁶ According to the constitution of every state in the Union, some or other of the officers of government are appointed indirectly only by the people.

¹⁸ And according to one, this mode of appointment is extended to one of the coordinate branches of the legislature.

¹⁹ According to all the constitutions also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years.

²⁰ According to the provisions of most of the constitutions again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.

²¹ On comparing the Constitution planned by the Convention with the standard here fixed, we perceive at once that it is in the most rigid sense conformable to it.

²² The House of Representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people.

²³ The Senate, like the present Congress and the senate of Maryland, derives its appointment indirectly from the people.

²⁴ The President is indirectly derived from the choice of the people according to the example in most of the states.

²⁵ Even the judges, with all other officers of the Union, will, as in the several states, be the choice, though a remote choice, of the people themselves; the duration of the appointments is equally conformable to the republican standard and to the model of state constitutions.

²⁶ The House of Representatives is periodically elective, as in all the states, and for the period of two years, as in the state of South Carolina.

²⁷ The Senate is elective for the period of six years, which is but one year more than the period of the senate of Maryland, and but two more than that of the senates of New York and Virginia.

²⁸ The President is to continue in office for the period of four years; as in New York and Delaware the chief magistrate is elected for three years, and in South Carolina for two years.

³⁰ In several of the states, however, no constitutional provision is made for the impeachment of the chief magistrate.

³² The President of the United States is impeachable at any time during his continuance in office.

³³ The tenure by which the judges are to hold their places is, as it unquestionably ought to be, that of good behavior.

³⁴ The tenure of the ministerial offices, generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the state constitutions.

³⁵ Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments, and in its express guaranty of the republican form to each of the latter.

³⁶ “But it was not sufficient,” say the adversaries of the proposed Constitution, “for the Convention to adhere to the republican form. They ought with equal care to have preserved the federal form, which regards the Union as a confederacy of sovereign states, instead of which they have framed a national government, which regards the Union as a consolidation of the states.”

³⁷ And it is asked by what authority this bold and radical innovation was undertaken?

³⁸ The handle which has been made of this objection requires that it should be examined with some precision.

³⁹ Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force: first, to ascertain the real character of the government in question; secondly, to inquire how far the Convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority.

⁴⁰ First: In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established, to the sources from which its ordinary powers are to be drawn, to the operation of those powers, to the extent of them, and to the authority by which future changes in the government are to be introduced.

⁴¹ On examining the first relation, it appears on one hand that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose, but on the other that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong.

⁴² It is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves.

⁴³ The act, therefore, establishing the Constitution, will not be a national, but a federal act.

⁴⁴ That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the states.

⁴⁵ It must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves.

⁴⁶ Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority in the same manner as the majority in each state must bind the minority, and the will of the majority must be determined either by a comparison of the individual votes or by considering the will of the majority of the states as evidence of the will of a majority of the people of the United States.

⁴⁸ Each state in ratifying the Constitution is considered as a sovereign body independent of all others and only to be bound by its own voluntary act.

⁴⁹ In this relation then, the new Constitution will, if established, be a federal and not a national constitution.

⁵⁰ The next relation is to the sources from which the ordinary powers of government are to be derived.

⁵¹ The House of Representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state.

⁵³ The Senate, on the other hand, will derive its powers from the states as political and coequal societies, and these will be represented on the principle of equality in the Senate as they now are in the existing Congress.

⁵⁶ The immediate election of the President is to be made by the states in their political characters.

⁵⁷ The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society.

⁵⁸ The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives, but in this particular act they are to be thrown into the form of individual delegations from so many distinct and coequal bodies politic.

⁵⁹ From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features.

⁶⁰ The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this: that in the former the powers operate on the political bodies composing the Confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities.

⁶¹ On trying the Constitution by this criterion, it falls under the national, not the federal, character, though perhaps not so completely as has been understood.

⁶² In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only.

⁶³ So far, the national countenance of the government on this side seems to be disfigured by a few federal features.

⁶⁴ But this blemish is perhaps unavoidable in any plan, and the operation of the government on the people in their individual capacities, in its ordinary and most essential proceedings, may on the whole designate it in this relation a national government.

⁶⁵ But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers.

⁶⁶ The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things so far as they are objects of lawful government.

⁶⁷ Among a people consolidated into one nation, this supremacy is completely vested in the National Legislature.

⁶⁸ Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures.

⁶⁹ In the former case, all local authorities are subordinate to the supreme and may be controlled, directed, or abolished by it at pleasure.

⁷⁰ In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority than the general authority is subject to them within its own sphere.

⁷¹ In this relation then, the proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only and leaves to the several states a residuary and inviolable sovereignty over all other objects.

⁷² It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.

⁷⁴ The decision is to be impartially made according to the rules of the Constitution, and all the usual and most effectual precautions are taken to secure this impartiality.

⁷⁵ Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact, and that it ought to be established under the general rather than under the local governments or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

⁷⁶ If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal.

⁷⁷ Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union, and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.

⁷⁸ Were it wholly federal, on the other hand, the concurrence of each state in the Union would be essential to every alteration that would be binding on all.

⁷⁹ The mode provided by the plan of the Convention is not founded on either of these principles.

⁸⁰ In requiring more than a majority, and principles; in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal and partakes of the national character.

⁸¹ The proposed Constitution, therefore, is in strictness neither a national nor a federal Constitution, but a composition of both.

⁸² In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

It is mid-January 1788. By this time it is apparent to the proponents of the new Constitution that it is likely not to be an easy road to ratification, that it is ground that will be contested bitterly, especially in swing states such as New York. The proposed Constitution has been published, but its deceptive brevity has led to a chorus of mis-characterization, at least in Madison's estimation, and this he resolves to address directly by describing the plan inked in his own hand in terms his opponents have already used. It is an interesting approach. Successful, it must take the wind from their sails; less so and it will serve simply to validate their objections.

It is, he affirms at 4, a republican form; indeed, only a republican form of government was both worthy of the new nation and likely to succeed. But what does that mean? It isn't the sort of thing that might be exemplified elsewhere. Like Hamilton, Madison was dismissive of foreign attempts to form their own governments around the same principles. Holland – more properly the Netherlands – Venice, Poland and England are cited successively, and each of these displays features markedly dissimilar to that of the proposed Constitution. It is not by any foreign example that Madison proposes to describe a republican form of government. Rather, it is by application of a few basic principles.

That is a rather broad definition to be sure, but within is contained the topic of this essay and its immediate successor: does this new government derive its powers from the people, and is it in a practical fashion subject to their preferences? What is, in simple terms, the form of this new government?

But it turns out that Madison has not let go of precedent at all. The answer, says Madison, is in both the principles and the precedents, but not the precedents found in Venice, Geneva or London; both principle and precedent are to be found within the already written constitutions of the states.

²¹ On comparing the Constitution planned by the Convention with the standard here fixed, we perceive at once that it is in the most rigid sense conformable to it.

The House of Representatives is patterned after a body present in all the states (22); the Senate, after Congress under the Articles of Confederation and the similar body found in the constitution of Maryland (23); the President after the chief executive in most of the states (24); the judiciary as well (25). Terms of office for House, Senate and President find their precedents in South Carolina (26); Maryland, New York and Virginia (27); and Delaware, New York and South Carolina respectively. In fact, the federal constitutional government finds its roots not in foreign soil, but in that of America.

Madison moves on to address the arguments set forth in Bryan's “Address to the Pennsylvania Minority” concerning the notion that the delegates to the Constitutional Convention had overstepped their bounds.

³⁶ “But it was not sufficient,” say the adversaries of the proposed Constitution, “for the Convention to adhere to the republican form. They ought with equal care to have preserved the federal form, which regards the Union as a confederacy of sovereign states, instead of which they have framed a national government, which regards the Union as a consolidation of the states.”

In the previous essay, Madison has used the term “general” to describe the proposed government, but the term “national” is the one he uses to contrast with the “federal” that the anti-Federalists insist derive from the present Confederation. Will this new government subordinate or absorb the states? Is it clearinghouse or master? Does it derive its form directly from the people or from their representatives in the state governments?

Both, says Madison, and he proceeds to dissect the proposed government, describing each of its constituent pieces by the terms “national” and “federal”. It is the skeletal model of the new government described by the man who had set days of debate, controversy, and in the end, compromise, onto paper. The House, for example, is elected directly by the people and therefore national in nature (51); the Senate, being named by the various state governments – at least until 1913, when the Seventeenth Amendment altered that – by nature federal (53). The Executive is both, even today leaning federal in Madison's terms through the Electoral College.

The very ratification of the Constitution is, by these terms, federal inasmuch as its adoption will be tallied by state (44). And the Constitution itself? Broadly national, but “disfigured by a few federal features.” One suspects Madison of being deliberately provocative in this particular formulation. Clearly he, and even more emphatically Hamilton, intended for the new government to be national and accountable directly to the voters. It is, then, national in its very structure. But what of its extent? That is federal, according to Madison.

⁷¹ In this relation then, the proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only and leaves to the several states a residuary and inviolable sovereignty over all other objects.

It is a clever answer to the insistence that the states must be digested under the new plan. Nonsense, says Madison, they'll be sovereign everywhere except for those powers specifically enumerated under the Constitution as federal. Despite two centuries of relentless expansion of federal power, this distinction still carries weight; its keeper was anticipated by Madison fifteen years before the case that would establish it.

⁷² It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general [federal] government.

⁷⁴ The decision is to be impartially made according to the rules of the Constitution, and all the usual and most effectual precautions are taken to secure this impartiality.

In fact, it was far more than disputes between state and federal courts that would be adjudicated in the Supreme Court, but disputes concerning the very validity of the law as passed by Congress, measured against the standard of the Constitution. The anti-Federalists were correct in viewing the potential power of the Judicial branch with alarm, a topic that will be taken up by Hamilton in Federalist #78. It is a case of cosmic irony, or justice depending on one's point of view, that the case establishing the principle of judicial review would be named Marbury v. Madison.

Last of all, Madison addresses the process for amending the Constitution. It is principally federal, he judges, because it is a majority of states and not of the popular vote that will pass amendments. But national as well, because unanimity is not a requirement. It too is a hybrid, a compromise. Thus the Constitution itself.

⁸¹ The proposed Constitution, therefore, is in strictness neither a national nor a federal Constitution, but a composition of both.

This answer would not satisfy those who insisted on keeping the purity of state sovereignty, nor would it prove an unshakeable barrier against the encroachment of the federal government. Madison states that it could not be perfect, nor should it be judged by its perfection, but by its strength as a compromise. More of that he will develop in the following papers.

Beginning at 41, Madison lays out his constitutional theology, parsing the differences between the roles of the states and the roles of the people. This will form the heart of the competing concepts of whether the Constitution is a treaty or a contract, and the ramifications thereof. More will come on this in the next few papers.

Madison is attempting to balance the two concepts. How have the standing army, the federal bureaucracy, and the presidency and federal court system perverted this balance? What possible solutions are there to redress the balance?

* - Original post
+ - My comment

*66 The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things so far as they are objects of lawful government.

+The founding fathers had foresight into today’s problems. A national government, which we (almost, since the Seventeenth Amendment) have today has infinite power over it’s citizens. That is, while the staggered election of the House, Senate and President slows down the process, they can contrive together, with the appointed (and therefore supplicant) supreme court, “to do almost anything”. It was the president, oddly enough, elected popularly but in parallel with the popular legislature, who was supposed to be a check on the congress in defense of individual rights.

*13 If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.

*That is a rather broad definition to be sure, but within is contained the topic of this essay and its immediate successor: does this new government derive its powers from the people, and is it in a practical fashion subject to their preferences? What is, in simple terms, the form of this new government?

*But it turns out that Madison has not let go of precedent at all. The answer, says Madison, is in both the principles and the precedents, but not the precedents found in Venice, Geneva or London; both principle and precedent are to be found within the already written constitutions of the states.

+I forget who, maybe it was Madison, who said that we had 13x11 = 143 years of experience with representative government and the constitution was derived from that experience. The problem of course was that the experience was too short. No one would have imagined one party rule from 1933 to 1994 in the popular legislature and the effect that would have.

*Questions:
*How have the standing army, the federal bureaucracy, and the presidency and federal court system perverted this balance? What possible solutions are there to redress the balance?

+Well the founders found the solution, didn’t they? There is no possible solution to a people that choose one party rule unless they are able to also choose a parallel government that counters that one party. They have done just that in the presidency. Republican Presidents have come along and chosen Justices that counter the Democratic Party’s legislature. Unfortunately, those choices have been tempered by the Senate which is now directly chosen by the people. The best (or worst) example of this is Justice Souter. He never should have been appointed per the intents of the framers of the constitution.

You bring up a good point. It was discussed early at the constitutional convention whether ratification of the constitution for a national government should be by popular vote or done in a federal (state by state) manner. On one hand the argument was that a national government should be established based solely on the national vote. A national government would have more legitimacy if it was based on the popular opinion alone. It would be hard to justify the national government if a majority of the voters rejected it but a majority of the states agreed to it.

On the other hand, the federal argument for ratification was made and it eventually won out, of course. The smaller states also won the argument over the arrangement about the makeup of the Senate. Once the argument over the Senate was lost by the “nationalists” it was hard to argue for a national ratification of the constitution.

The federal makeup of the Senate has become less important since the ratification of the 17th amendment. The state legislatures lost most of their influence at that point. They could no longer threaten a Senator with removal.

I also think it’s interesting to note that there are two national parts to the federal government, the house and the presidency. The Supreme Court it is mixed as it is derived from a presidential (national) nomination and federal (Senate) consent.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.