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FReeper Book Club: The Debate over the Constitution, Federalist #43
A Publius/Billthedrill Essay | 16 August 2010 | Publius & Billthedrill

Posted on 08/16/2010 7:47:48 AM PDT by Publius

Madison Tackles Some Miscellaneous but Controversial Issues

Madison may have thought that these issues were worth a brief mention for lack of controversy, but as it turned out, they would leads to issues that would blow up a few generations hence.

Federalist #43

The Powers to be Vested in the Union (Part 3 of 4)

James Madison, 22 January 1788

1 To the People of the State of New York:


2 The fourth class comprises the following miscellaneous powers:



4 The utility of this power will scarcely be questioned.

5 The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law.

6 The right to useful inventions seems with equal reason to belong to the inventors.

7 The public good fully coincides in both cases with the claims of individuals.

8 The states cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point by laws passed at the instance of Congress.



10 The indispensable necessity of complete authority at the seat of government carries its own evidence with it.

11 It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy.

12 Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the state comprehending the seat of the government for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.

13 This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single state, and would create so many obstacles to a removal of the government as still further to abridge its necessary independence.

14 The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature.

15 And as it is to be appropriated to this use with the consent of the state ceding it, as the state will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it, as the inhabitants will find sufficient inducements of interest to become willing parties to the cession, as they will have had their voice in the election of the government which is to exercise authority over them, as a municipal legislature for local purposes derived from their own suffrages will of course be allowed them, and as the authority of the legislature of the state and of the inhabitants of the ceded part of it to concur in the cession will be derived from the whole people of the state in their adoption of the Constitution, every imaginable objection seems to be obviated.


16 The necessity of a like authority over forts, magazines, etc., established by the general government is not less evident.

17 The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular state.

18 Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it.

19 All objections and scruples are here also obviated by requiring the concurrence of the states concerned in every such establishment.



21 As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it.

22 But as newfangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the Convention have, with great judgment, opposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.



24 In the Articles of Confederation, no provision is found on this important subject.

25 Canada was to be admitted of right on her joining in the measures of the United States and the other colonies, by which were evidently meant the other British colonies, at the discretion of nine states.

26 The eventual establishment of new states seems to have been overlooked by the compilers of that instrument.

27 We have seen the inconvenience of this omission and the assumption of power into which Congress have been led by it.

28 With great propriety, therefore, has the new system supplied the defect.

29 The general precaution that no new states shall be formed without the concurrence of the federal authority and that of the states concerned is consonant to the principles which ought to govern such transactions.

30 The particular precaution against the erection of new states by the partition of a state without its consent quiets the jealousy of the larger states, as that of the smaller is quieted by a like precaution against a junction of states without their consent.



32 This is a power of very great importance and required by considerations similar to those which show the propriety of the former.

33 The proviso annexed is proper in itself and was probably rendered absolutely necessary by jealousies and questions concerning the western territory sufficiently known to the public.



35 In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or [monarchic] innovations.

36 The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other, and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.

37 But a right implies a remedy, and where else could the remedy be deposited than where it is deposited by the Constitution?

38 Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort than those of a kindred nature.

39 “As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland.”

40 “Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphictyons.”

41 In the latter case, no doubt, the disproportionate force, as well as the [monarchic] form of the new confederate, had its share of influence on the events.

42 It may possibly be asked what need there could be of such a precaution, and whether it may not become a pretext for alterations in the state governments without the concurrence of the states themselves.

43 These questions admit of ready answers.

44 If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution.

45 But who can say what experiments may be produced by the caprice of particular states, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers?

46 To the second question it may be answered that if the general government should interpose by virtue of this constitutional authority, it will be of course bound to pursue the authority.

47 But the authority extends no further than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed.

48 As long, therefore, as the existing republican forms are continued by the states, they are guaranteed by the federal Constitution.

49 Whenever the states may choose to substitute other republican forms, they have a right to do so and to claim the federal guaranty for the latter.

50 The only restriction imposed on them is that they shall not exchange republican for anti-republican constitutions, a restriction which, it is presumed, will hardly be considered as a grievance.


51 A protection against invasion is due from every society to the parts composing it.

52 The latitude of the expression here used seems to secure each state not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors.

53 The history, both of ancient and modern confederacies, proves that the weaker members of the Union ought not to be insensible to the policy of this article.


54 Protection against domestic violence is added with equal propriety.

55 It has been remarked that even among the Swiss cantons, which properly speaking are not under one government, provision is made for this object, and the history of that league informs us that mutual aid is frequently claimed and afforded, and as well by the most democratic as the other cantons.

56 A recent and well known event among ourselves has warned us to be prepared for emergencies of a like nature.


57 At first view, it might seem not to square with the republican theory to suppose either that a majority have not the right, or that a minority will have the force, to subvert a government, and consequently that the federal interposition can never be required but when it would be improper.

58 But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice.

59 Why may not illicit combinations for purposes of violence be formed as well by a majority of a state, especially a small state as by a majority of a county or a district of the same state, and if the authority of the state ought in the latter case to protect the local magistracy, ought not the federal authority in the former to support the state authority?

60 Besides, there are certain parts of the state constitutions which are so interwoven with the federal Constitution that a violent blow cannot be given to the one without communicating the wound to the other.

61 Insurrections in a state will rarely induce a federal interposition unless the number concerned in them bear some proportion to the friends of government.

62 It will be much better that the violence in such cases should be repressed by the superintending power than that the majority should be left to maintain their cause by a bloody and obstinate contest.

63 The existence of a right to interpose will generally prevent the necessity of exerting it.


64 Is it true that force and right are necessarily on the same side in republican governments?

65 May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword?

66 May not a more compact and advantageous position turn the scale on the same side against a superior number so situated as to be less capable of a prompt and collected exertion of its strength?

67 Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election!

68 May it not happen in fine that the minority of citizens may become a majority of persons by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the state has not admitted to the rights of suffrage?

69 I take no notice of an unhappy species of population abounding in some of the states, who during the calm of regular government are sunk below the level of men, but who in the tempestuous scenes of civil violence may emerge into the human character and give a superiority of strength to any party with which they may associate themselves.


70 In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms and tearing a state to pieces, than the representatives of confederate states not heated by the local flame?

71 To the impartiality of judges they would unite the affection of friends.

72 Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments, if a project equally effectual could be established for the universal peace of mankind!


73 Should it be asked what is to be the redress for an insurrection pervading all the states and comprising a superiority of the entire force, though not a constitutional right, the answer must be that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability, and that it is a sufficient recommendation of the federal Constitution that it diminishes the risk of a calamity for which no possible constitution can provide a cure.


74 Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, “that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.”



76 This can only be considered as a declaratory proposition and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.


77 Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States as well as against them, and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights.

78 The authors of this discovery may be told what few others need to be informed of: that as engagements are in their nature reciprocal, an assertion of their validity on one side necessarily involves a validity on the other side, and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case.

79 They may be further told that every constitution must limit its precautions to dangers that are not altogether imaginary, and that no real danger can exist that the government would dare with, or even without, this constitutional declaration before it, to remit the debts justly due to the public on the pretext here condemned.



81 That useful alterations will be suggested by experience could not but be foreseen.

82 It was requisite, therefore, that a mode for introducing them should be provided.

83 The mode preferred by the Convention seems to be stamped with every mark of propriety.

84 It guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults.

85 It moreover equally enables the general and the state governments to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.

86 The exception in favor of the equality of suffrage in the Senate was probably meant as a palladium to the residuary sovereignty of the states, implied and secured by that principle of representation in one branch of the legislature, and was probably insisted on by the states particularly attached to that equality.

87 The other exception must have been admitted on the same considerations which produced the privilege defended by it.



89 This article speaks for itself.

90 The express authority of the people alone could give due validity to the Constitution.

91 To have required the unanimous ratification of the thirteen states would have subjected the essential interests of the whole to the caprice or corruption of a single member.

92 It would have marked a want of foresight in the Convention which our own experience would have rendered inexcusable.


93 Two questions of a very delicate nature present themselves on this occasion:


96 The first question is answered at once by recurring to the absolute necessity of the case: to the great principle of self-preservation, to the transcendent law of nature and of nature’s God which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.

97 Perhaps also an answer may be found without searching beyond the principles of the compact itself.

98 It has been heretofore noted among the defects of the Confederation that in many of the states it had received no higher sanction than a mere legislative ratification.

99 The principle of reciprocality seems to require that its obligation on the other states should be reduced to the same standard.

100 A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties.

101 It is an established doctrine on the subject of treaties that all the articles are mutually conditions of each other, that a breach of any one article is a breach of the whole treaty, and that a breach committed by either of the parties absolves the others and authorizes them, if they please, to pronounce the compact violated and void.

102 Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular states to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted?

103 The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits.

104 The scene is now changed and with it the part which the same motives dictate.


105 The second question is not less delicate, and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it.

106 It is one of those cases which must be left to provide for itself.

107 In general, it may be observed that although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled.

108 The claims of justice, both on one side and on the other, will be in force and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; [while] considerations of a common interest, and above all the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion will, it is hoped, not urge in vain moderation on one side and prudence on the other.

Madison’s Critique

Madison has made his methodical way through the issues presented in the first of these four papers. This, the third, addresses what he has categorized as “miscellaneous powers,” which gives the overall paper a somewhat disjointed feeling. Certain of these issues are not particularly controversial, others demand a separate treatment of their own, and some of those will receive it in the essays to come.

The first of these concerns patents and copyrights (3), a function subsumed under British Common Law and patterned after the primitive economic principle that a society gets what it rewards, and not necessarily what it states that it rewards. A society valuing innovation does well to protect and nurture that; one that places a premium on theft will find itself rife with theft of the most pervasive and ingenious nature, as certain socialist societies have learned to their dismay. It is, Madison states, a function that is best centralized.

The establishment of the District of Columbia is the next topic, that district “ten miles square” – Washington preferred that term to his own name – that holds the central government (9). The independence of that area from any state is a long-established principal within the states (12) and, for that matter, elsewhere in the world (11). Madison thinks that the influence the local citizens will derive from proximity offsets the loss of their own representation through state government (15), demonstrating that far from being a new-found issue, this consideration was within the plan from the outset.

Federal authority over federal forts and armories is an issue of a similar nature. It is of note that Madison feels that the states will have to concur in their placement, however (19).

Treason will not only be tried under the auspices of the federal government, it is to be defined there, a consequence of abusive special, “artificial” definitions in other political systems. Madison is not specific about where, but examples abound even in today’s politics – these he describes as “the great engines by which violent factions…have usually wreaked their alternate malignity on each other.” (22)

Miscellaneous does not connote unimportant. The following paragraphs deal with an issue fundamental enough for Madison to express astonishment that the Articles of Confederation did not cover it: the ability of the existing government to admit new states and the criteria under which they may be admitted. An existing state may not be partitioned into two or more without its consent, nor may two or more smaller states be forcibly conjoined (30).

The new state must have a republican form of government (34). This is a principle verified both in theory with reference to Montesquieu (39) and in practical experience in Germany and ancient Greece (40).

Protections against invasion (51) and domestic violence (54) are fundamental. The latter, in particular, places the federal government in the position of guaranteeing the continuation of a republican form of government in all the states, and obligates it to oppose the takeover of any particular state by elements within it which prefer monarchy, autarchy or anarchy.

A new Constitution will not enable the federal government to cancel existing debts (75). It carries within its body a mechanism for alteration by amendment (80), which is the same in proportion as the mechanism for ratification – approval by two-thirds of the states. That number, in Madison’s day, was nine.

Finally Madison poses two questions of a “very delicate nature”: first, how may the government under the Articles of Confederation, which requires unanimous consent of its constituent members for alteration, legally be superseded by one requiring the approval of only two-thirds of the states; and second, what happens to the states of the thirteen who do not approve of the new Constitution if at least nine of them do?

To the first, Madison makes a naked argument of exigency. It must be so for the good of the overall society, obviating the ability of a single holdout to threaten the whole by demanding unreasonable terms for its acquiescence, which Madison has already invoked (91). To the second, however, Madison has no answer at all. Certainly there is nothing within the proposed Constitution addressing the issue. It is, says Madison, a matter more of moral than political relations (107) and must be solved with an eye to these. In fact, the issue was avoided by the unanimous consent of all the states, although within the last of these, Rhode Island, the only state that had not sent a delegation to the Constitutional Convention, the matter would be decided by the margin of a mere two votes.

This latter indeterminacy contains the reason that a related question that would eventually tear the country apart could not be addressed either: what would happen if a state, or states, should decide to leave the Union? If nine of thirteen could compel the others to enter the Union, could not 22 of 33 deny the others the right to leave? And on what grounds? There is no answer here. Madison’s hope that such matters could be worked out with a consideration to the rights of humanity, mutual respect, common interest, and an eye to past comity would not, in the event, result in “moderation on one side and prudence on the other.” (108) The question would be settled by force of arms.

The Political Problem of the National Capital

At 10 through 15, Madison builds a case for a national capital in a neutral zone free from interference from the states, in which the federal government would reside and which it would control. He even sees the residents being fairly enfranchised in deciding local issues. Not anticipating the massive growth of the federal government, it is likely that Madison did not envisioned the great city that Washington became.

The idea of a neutral zone for the capital came from Alexander Hamilton’s unfortunate experience in Philadelphia in 1783 where unpaid troops had seized the city and powder magazines in an attempt to force payment from the Confederation Congress. At 16 through 19, Madison pointedly mentions the powder magazines and forts as a reason for federal control of the capital.

The selection of Washington City, as it was called in its early days, on the banks of the Potomac, was part of a compromise in 1790 over the federal assumption of state debts left over from the war. Land for the District of Columbia was ceded to the federal government by Maryland and Virginia.

Almost from the beginning, permanent residents of the District complained about being unrepresented in Congress. The possible solution of retrocession – or recission, as it is sometimes called – was floated, where Congress would return the residential areas of the District to Maryland and Virginia, while maintaining control of government buildings and military installations. In 1846, Congress agreed to hand the Virginia part of the District back to that state, but that was due more to the gathering storm over slavery than any sense of equity for its residents.

Washington’s expansion during the Civil War caused Congress to reorganize city government in 1871, appointing a board to modernize the city’s public works. After a mere three years, the board bankrupted Washington, and Congress took over direct control of the city and its inhabitants, a state of affairs that was not to change until 1973, when Congress gave residents control of the city government.

In 1961, the 23rd Amendment granted District residents the right to vote in presidential elections, but there is still no voting representation in Congress. One possible solution, suggested by political liberals, is to amend the Constitution to make the District a state. Another possible solution is recission of the residential neighborhoods to Maryland.

The Constitutional Problem of West Virginia

At 30, Madison speaks of the constitutional guarantee that new states would not be carved out of existing states without that state’s permission. This held until the case of West Virginia during the Civil War.

The counties of northwestern Virginia had no interest in secession, being of strong Union sentiment. While the state government in Richmond was pondering a decision to leave the Union, the political leaders of those counties met in Wheeling to discuss the formation of a new state. But as Virginia had not officially seceded, there was a reluctance to move forward. When the voters of Virginia gave their imprimatur to secession, the counties of the northwest voted strongly against it. A second convention in Wheeling in June 1861 declared the secessionist government of Virginia null and void, and the members of the convention elected their own government which was quickly recognized by the federal government. Now there were two state governments for Virginia, one Union and one Confederate.

The convention decreed a statehood election for October in which the residents of 16 northwestern counties voted overwhelmingly for statehood – in those areas occupied by federal troops. In other areas, the vote went against statehood, or there was no vote at all, as the county governments were loyal to the Confederacy. A state constitutional convention met in 1862 and asked for admission to the Union as a new state. Lincoln was willing to grant this provided West Virginia gradually abolish slavery. As to the constitutionality of creating this new state, Lincoln recognized the Union government of Virginia to be the state government that gave permission for the creation of West Virginia from its territory. In 1863, West Virginia became a state.

Following the Civil War, Virginia sued to undo the creation of West Virginia. Congress, at the same time, passed a joint resolution endorsing the creation of the state, and in 1870 the Supreme Court agreed. It was to become one of those odd legal exceptions to the rule.

The Dorr Rebelion

In States’ Rights and the Union, Forrest McDonald explains situations where Article IV, Section 4 could have been invoked by federal authorities but was not.

In neither case did the federal government intervene – until the strange events in Rhode Island.

During the Revolution, every state but Connecticut and Rhode Island adopted new constitutions to replace their colonial charters. By 1818, even Connecticut had changed its way of doing business. But Rhode Island held on to its colonial charter, whose property qualifications disenfranchised the overwhelming majority of its adult males. Because only voters meeting those property qualifications could call a convention to adopt a constitution, those desiring reform were powerless.

Thomas Dorr headed a reform movement demanding that the legislature call a state constitutional convention. The legislature authorized one to meet in 1834, but it retained the existing paradigm for representation, and with few people voting, the convention dissolved for lack of a quorum.

In 1840, the First Reform Society of New York City asked Rhode Islanders to go outside the framework of their colonial charter, hold a convention to draft a new state constitution, and submit it to ratification by referendum. If the existing state government accepted the results, all would be well. If not, Congress would intervene under Article IV, Section 4. Dorr and his people followed that advice, but the state legislature responded by enacting a treason law, making mass arrests and declaring martial law. Dorr did in fact make an attempt to seize the state government by force of arms, which failed.

Supporters of Dorr in New York and elsewhere asked the federal government to intervene and seat the new state government. The Rhode Island Supreme Court ruled that federal intervention would violate Article IV, Section 2, which prohibits the creation of a new state within the boundaries of an existing state. The Governor of Rhode Island asked President Tyler to intervene to suppress a domestic insurrection.

John Tyler, as a Southerner, accepted the idea that local laws must be enforced, with federal help if necessary, lest that inadvertently foment slave rebellions. But as a classic federalist, he wanted the federal government to stay out of it. He informed the Governor of Rhode Island that Congress would recognize the existing government by seating its congressional delegation, and the federal government would stay out of it unless a genuine armed insurrection broke out.

Tyler’s Secretary of War demanded that the rebels disperse, lest he authorize the governors of Massachusetts and Connecticut to mobilize their militias to invade Rhode Island. Dorr’s followers tried to take the local armory, but when that failed, they dispersed. Dorr himself was sentenced to life imprisonment, but was released a year later.

The legislature, to defuse the situation, called its own convention, which proposed to enact universal manhood suffrage.

The problem in Rhode Island lay in the definition of terms. That the old order in Rhode Island was undemocratic was beyond question. In an era of Jacksonian democracy, this was considered a denial of the people’s right to alter or abolish. But was it un-republican? That was the constitutional question.

The fallout was hard to evaluate.

This would have ramifications some two decades hence.

A Convention for Proposing Amendments

At 85, Madison explains that there are two ways for amendments to the Constitution to be proposed to the states for ratification. The first is for two-thirds of each House of Congress to propose them. The second is for the legislatures of two-thirds of the states to request Congress to call a Convention for Proposing Amendments. Often referred to as a “Constitutional Convention”, it is viewed as the “nuclear option”.

Over the centuries, Congress has considered requests for a Convention to be fixed to a “single subject” standard, and this has foundation in contract law. According to this standard, the Convention is the agent of the states, and an agent may not go outside the purview of his agency agreement. The purview of a Convention is determined by the petitioning language generated by the states, and any attempt to address extraneous issues is forbidden. This is the traditional position.

An alternative position asserts that the Convention is a sovereign body during its life, and it may address any issue it wishes, whether authorized by the states or not. This is a decidedly minority position.

The safety valve is the requirement that the legislatures, or ratifying conventions, of three-fourths of the states ratify amendment proposals produced by a Convention in order for them to be placed in the Constitution. This is what would rein in a “runaway” Convention.

In 1965, the American Bar Association appointed a commission to determine if the Supreme Court’s “One Man/One Vote“ ruling would affect a Convention for Proposing Amendments. One commissioner thought that the Convention was such a primal act of the Republic that it would not, but he was overruled by the other 19 commissioners. The commission also came up with a draft bill to codify the “single subject” rule, to set a standard for the “freshness” of state petitions, to define the procedure for election of state delegates to the Convention, and to define the Convention’s initial rules of procedure.

In 1968 Sen. Everett Dirksen of Illinois introduced legislation matching the ABA’s draft bill, but it did not pass. Upon his death, Sen. Sam Ervin of North Carolina picked up the torch, and upon his retirement Sen. Orrin Hatch of Utah sponsored the bill. Its last introduction in 1991 failed to pass the Senate Judiciary Committee.

Only once did petitions for a Convention for Proposing Amendments reach the two-thirds threshold, and Congress found wiggle room to weasel out of calling a Convention.

In the early 20th Century, one of highest priorities of the Progressive Movement was to end the practice of state legislatures electing senators and pass that to the people via direct election. This had been suggested at the Constitutional Convention of 1787 by James Wilson, and Andrew Jackson had pushed for it in 1829. With many state legislatures functioning as wholly-owned subsidiaries of railroads, mines and other corporate interests, senators were often better known for the company they represented than the state.

The House had often passed an amendment to change this, but the Senate always balked. Then the state legislatures began demanding a Convention to introduce a constitutional amendment to effect this change. When the two-thirds threshold was reached, the Senate reacted by passing the 17th Amendment to the states for ratification.

The Senate had feared that a Convention would come up with an amendment that required the election of the entire Senate all at once under the new paradigm. When the vote by the state legislatures pushed the Senate into action, it came up with wording that permitted the change to go into effect starting with the election of 1914, requiring no new election for the entire Senate.

How did Congress avoid calling a Convention, even when the two-thirds threshold had been reached? Some petitions for a Convention stated that their conditions would be met if Congress passed such an amendment on its own. Once Congress acted, the petition was considered discharged, and it no longer counted for the calling of a Convention. Had those state petitions been worded otherwise, Congress would have been caught in a ticklish situation.

In two Supreme Court decisions, Dillon v. Gloss (1921) and Coleman v. Miller (1939), the Court ruled that if the states met the two-thirds threshold, Congress had no choice but to set a time and place for the Convention; it was a purely ministerial function for Congress. However, as those cases did not pertain directly to this issue, it has been alleged that the statements of the Court were dicta and not law. In other words, Congress could refuse to call a Convention, no court could order it to do so, and only the people, through the political process, could force Congress to do its duty by altering the makeup of Congress.

Even today, there is a lot of uncharted territory.

Dissolution of the Union

Is the Constitution a treaty or a compact? This is the issue that creates the two constitutional theologies that defined the terms of political debate between the Revolution and the Civil War. Madison carefully skates between the two poles.

If ratification is effected by the states via their legislatures, then the Constitution is a treaty. If a treaty is broken, unilateral action is justified and legally acceptable.

If ratification is effected by the people via ratifying conventions, then the Constitution is a compact, or contract. A change to a contract would have to be approved by the other parties to the contract, and Madison hints that approval must be unanimous.

This is a major bone of contention and will be explored in detail in Federalist #47.

Discussion Topics

TOPICS: Constitution/Conservatism; Free Republic
KEYWORDS: federalistpapers; freeperbookclub

1 posted on 08/16/2010 7:47:52 AM PDT by Publius
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Earlier threads:

FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42

2 posted on 08/16/2010 7:49:30 AM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: Publius
“To guarantee to every State in the Union a republican form of government; to protect each of them against invasion

I am amazed the border states did not go ballistic years ago over the Mexican invasion. The very first business of government is public safety.

3 posted on 08/16/2010 9:17:22 AM PDT by Jacquerie (Get out of my face and get back in the closet.)
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To: Jacquerie

Mexican Immigrant Labor History

May be of interest...

We had no way to know what was going on in other parts of the country, people probably were Ballistic in the border states, as you so describe; but this knowledge did not reach us--thanks to mass transportation, informational technology, satellites, world wide access to news....we are better informed as a nation, as a world. Difficult to slip things past us as was once done before ;)

We are much better prepared to deal with the threats from within, as well as threats from the outside.

Knowledge is key.

4 posted on 08/16/2010 10:17:03 AM PDT by fight_truth_decay
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To: fight_truth_decay

Thanks for the link.

5 posted on 08/16/2010 11:15:49 AM PDT by Jacquerie (Get out of my face and get back in the closet.)
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To: Publius

* Madison’s concept of a national capital did not quite work out as he expected. Should the District remain as it is, become a state, or have its residential neighborhoods ceded to Maryland, with or without that state’s consent. Build a case.

+ DC is the most over represented area of the USA. They’ve done just fine. They don’t need to be a state and Maryland won’t accept them.

* At 76, Madison explores the idea that a change in the form of government may absolve a nation from servicing its sovereign debt. This is being seriously discussed in Belgium, where dissolution may be the preferred solution. What Madison sees as “pretended” may end up becoming real. Could this happen here in the event of a default? Why, or why not?

+ Any country can walk away from its debts. It doesn’t need to dissolve to do it. The effect on future credit is the same.

6 posted on 08/16/2010 5:31:00 PM PDT by MontaniSemperLiberi
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To: Jacquerie; Publius; Billthedrill

Reading this Paper riles me.

Early in the essay, we read of the government’s supremacy; this should have been a warning to even the federalists. Maybe what they had designed DID have the potential for the growth of tyranny. Yet, George Mason held out for a declaration of rights that restricted powers in only certain areas. We now see its faults.

Since there was no enumeration of State powers within the text of the Tenth Amendment, it now means little-to-nothing. It has been trumped by the interstate commerce clause.

Noah Webster pleaded for a national language, a move as wise then as it is today. Now we cannot even get a language for the government, opening the door to court cases in other languages.....and from there, what else?

7 posted on 08/19/2010 5:42:04 AM PDT by Loud Mime (Argue from the Constitution: Initialpoints.net1)
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To: Loud Mime
Early in the essay, we read of the government’s supremacy

In #43? Do you mean in regard to DC?

8 posted on 08/19/2010 8:42:21 AM PDT by Jacquerie (Democrats soil institutions.)
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