FReeper Book Club: The Debate over the Constitution, Federalist #45

Madison now works to assure the states that they have nothing to fear from the Union and the federal government.

² Having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is whether the whole mass of them will be dangerous to the portion of authority left in the several states.

³ The adversaries to the plan of the Convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular states.

⁴ But if the Union, as has been shown, be essential to the security of the people of America against foreign danger, if it be essential to their security against contentions and wars among the different states, if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty and against those military establishments which must gradually poison its very fountain, if in a word the Union be essential to the happiness of the people of America, is it not preposterous to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual states?

⁵ Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty and safety, but that the government of the individual states, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty?

⁶ We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people.

⁷ Is the same doctrine to be revived in the New, in another shape, that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?

⁸ It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued, and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.

⁹ Were the plan of the Convention adverse to the public happiness, my voice would be: Reject the plan.

¹⁰ Were the Union itself inconsistent with the public happiness, it would be: Abolish the Union.

¹¹ In like manner, as far as the sovereignty of the states cannot be reconciled to the happiness of the people, the voice of every good citizen must be: Let the former be sacrificed to the latter.

¹³ How far the un-sacrificed residue will be endangered is the question before us.

¹⁴ Several important considerations have been touched in the course of these papers which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the state governments.

¹⁵ The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.

¹⁶ We have seen in all the examples of ancient and modern confederacies the strongest tendency continually betraying itself in the members to despoil the general government of its authorities with a very ineffectual capacity in the latter to defend itself against the encroachments.

¹⁷ Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet as the states will retain under the proposed Constitution a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded.

¹⁸ In the Achaean League, it is probable that the federal head had a degree and species of power which gave it a considerable likeness to the government framed by the Convention.

¹⁹ The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it.

²⁰ Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government.

²¹ On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities.

²² These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case, and consequently less powerful ligaments within would be sufficient to bind the members to the head and to each other.

²⁴ Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the [rivalry] for encroachments.

²⁵ Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons.

²⁶ The state government will have the advantage of the federal government whether we compare them in respect to the immediate dependence of the one on the other: to the weight of personal influence which each side will possess, to the powers respectively vested in them, to the predilection and probable support of the people, to the disposition and faculty of resisting and frustrating the measures of each other.

²⁷ The state governments may be regarded as constituent and essential parts of the federal government, [while] the latter is nowise essential to the operation or organization of the former.

²⁸ Without the intervention of the state legislatures, the President of the United States cannot be elected at all.

²⁹ They must in all cases have a great share in his appointment and will, perhaps in most cases, of themselves determine it.

³⁰ The Senate will be elected absolutely and exclusively by the state legislatures.

³¹ Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men whose influence over the people obtains for themselves an election into the state legislatures.

³² Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.

³³ On the other side, the component parts of the state governments will in no instance be indebted for their appointment to the direct agency of the federal government and very little, if at all, to the local influence of its members.

³⁴ The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular states.

³⁵ There will consequently be less of personal influence on the side of the former than of the latter.

³⁶ The members of the legislative, executive and judiciary departments of thirteen and more states, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation and town officers, for three millions and more of people intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.

³⁷ Compare the members of the three great departments of the thirteen states, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the states to be decisive.

³⁸ If the federal government is to have collectors of revenue, the state governments will have theirs also.

³⁹ And as those of the former will be principally on the seacoast and not very numerous, [while] those of the latter will be spread over the face of the country and will be very numerous, the advantage in this view also lies on the same side.

⁴⁰ It is true that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states, but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers and according to the rules appointed by the several states.

⁴¹ Indeed it is extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the states will be clothed with the correspondent authority of the Union.

⁴² Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of state officers in the opposite scale.

⁴³ Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight whose influence would lie on the side of the state.

⁴⁴ The powers delegated by the proposed Constitution to the federal government are few and defined.

⁴⁵ Those which are to remain in the state governments are numerous and indefinite.

⁴⁶ The former will be exercised principally on external objects as war, peace, negotiation and foreign commerce, with which last the power of taxation will, for the most part, be connected.

⁴⁷ The powers reserved to the several states will extend to all the objects which in the ordinary course of affairs concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the state.

⁴⁸ The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments in times of peace and security.

⁴⁹ As the former periods will probably bear a small proportion to the latter, the state governments will here enjoy another advantage over the federal government.

⁵⁰ The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular states.

⁵¹ If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of new powers to the Union than in the invigoration of its original powers.

⁵² The regulation of commerce, it is true, is a new power, but that seems to be an addition which few oppose and from which no apprehensions are entertained.

⁵³ The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the Articles of Confederation.

⁵⁴ The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.

⁵⁵ The change relating to taxation may be regarded as the most important, and yet the present Congress have as complete authority to require of the states indefinite supplies of money for the common defense and general welfare as the future Congress will have to require them of individual citizens, and the latter will be no more bound than the states themselves have been to pay the quotas respectively taxed on them.

⁵⁶ Had the states complied punctually with the Articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion that the state governments would have lost their constitutional powers and have gradually undergone an entire consolidation.

⁵⁷ To maintain that such an event would have ensued would be to say at once that the existence of the state governments is incompatible with any system whatever that accomplishes the essential purposes of the Union.

Madison has spent four essays addressing the first of his two principle analytical points laid out in Federalist #41: that the powers granted to the federal government under the proposed Constitution are pertinent to the needs and adequate to meet them. His second point regards whether these powers are too dangerous to be granted in such form. Two essays follow that expound on this matter.

He begins this effort by noting that the opponents of ratification have scarcely addressed the challenges the new federal government is likely to face and whether the powers granted are adequate to meet them. Instead, he says, the focus has been on whether those powers in that form are dangerous (2, 3), specifically with respect to the state governments.

He meets this objection with a defiant “what of it?” The objective of governments in general, he states, is the welfare of the people, whether those governments be local, state or federal, and to attempt to promote any of those at the expense of the welfare of the people is to mis-prioritize (8). In fact, Madison states the his voice would be heard to reject or abolish the planned Constitution (9), the Union (10), or even the state governments themselves (11), should any of them promise to endanger the happiness of the people.

It is a ringing statement of principle, befogged somewhat by the supremely analytical Madison’s evasion of the obvious points in contention: what “happiness” and which “people”? That point will have to await later analysis, for Madison has moved on to a consideration of historical precedent in the political systems of ancient Greece. Do these offer any clue whether the Constitution is likely to imperil the well-being of its constituent state governments, as its opponents have suggested? Or even the opposite?

With respect to the Achaean and Lycian leagues, no evidence is shown that either was a case of a more centralized organization taking over its constituents (20). Rather the danger stemmed from an insufficient power of both leagues to centralize in the face of an external danger (21), in both cases Rome.

With respect to the feudal system that had formed around the Roman manors subsequent to its fall, once again the local sovereigns in the form of the heads of those manors enjoyed the principal loyalty of their people; only secondarily was that loyalty directed toward the king (23, 24). The Merovingians came, fragmented and faded; the Carolingians, the same, and yet the manors abided. Madison’s point is that it was the tip of the hierarchy in government that was more likely to be altered or replaced by its subordinates, and seldom the other way around.

“Feudatory”? Well, never mind, this is, after all, writing intended for the hurly-burly of newspaper debate and not any pedantic grammatical considerations some two centuries hence. Once again it is the invocation of external threat that welds nations together, a lesson that scarcely required emphasis in the America of the time. Indeed, where central authority was weak and external threat at its ebb for a few blessed years, as in the Holy Roman Empire of the moment, regional sovereigns and free cities still defied the control of the federation.

Madison now comes to a main point, which is that in the system the Convention has constructed, the federal government will depend on the state governments for its existence, but the reverse is not true. It is a point that subsequent actions such as the popular election of senators (17th Amendment, 1913) have largely served to obliterate, but under the original reading of Article I, Section 3, were there no state governments, there could be no Senate.

³⁰ The Senate will be elected absolutely and exclusively by the state legislatures.

In this context the 17th Amendment is a case of a taste for democracy that has resulted in the risk of despotism, hardly the first in history as the examples of the Greek leagues attest. Nor is it the last, as contemporary politics attests.

²⁸ Without the intervention of the state legislatures, the President of the United States cannot be elected at all...

Currently considered actions, such as the elimination of the Electoral College in favor of popular election of the President, continue this weakening of the dependency of the federal government on the states. One cannot help but feel the opponents of the Constitution vindicated in this respect, although one must simultaneously acknowledge Hamilton and Madison in that such steps are impossible without the alteration of the Constitution, not within its structure as presented by the Convention.

One effect of this hierarchical plan for government will be in government’s very population.

³⁴ The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular states...

It is, despite the remarkable growth of the federal government during the 20th Century, a point that still clings to validity. In 2008, 2.5 million federal employees are to be compared to 3.8 million state employees – there are, to be sure, 50 states now compared to the 13 of Madison’s day – and to roughly 11 million non-federal employees, that is, a combination of state, county and municipal. Madison appears vindicated with respect to number, but for influence? That appears to be quite another matter.

Such a thing would await the inception of a federal income tax, attempted first during the Civil War and later in the 1890's, but whose current form would await the passage of the 16th Amendment, again in 1913, a year that must go down as a watershed in the history of constitutional government in the United States. Any present day American citizen may compare the amount of his federal income tax to that of his state income tax for an accurate comparison of the relative “influence” of the two structures of taxation. For the citizens of the seven states that have no state income tax, the matter is so obvious it scarcely bears debate.

⁴⁴ The powers delegated by the proposed Constitution to the federal government are few and defined.

⁴⁵ Those which are to remain in the state governments are numerous and indefinite.

It bears emphasis that this is the structure of overall government in the United States as envisioned, not by the defenders of states’ rights, but by the principal and most ardent proponents of the federal system: a small, distant federal government and a present and active set of local and state governments. The former will be most influential in time of war, speculates Madison, and the latter in time of peace (48), the proportions of which everyone in the debate both expects and prays to lean heavily toward the latter (49).

In fact, the proposed Constitution is not so much a departure from the Articles of Confederation, says Madison, but a reinvigoration of its original powers (51), at least with the exception of the regulation of commerce (52). Had the states complied punctually with the legitimate demands of the Confederation Congress with regard to revenue, the entire discussion might be moot (56), and even had they done so it could hardly have resulted in the submergence of the state governments under the higher authority.

Madison breaks at this point, but the direction of the discussion is clear. In the next essay he will continue to address the apprehension that the Constitution is a threat to state governments.

²⁸ Without the intervention of the state legislatures, the President of the United States cannot be elected at all.

In The Summer of 1787, David Stewart explained the chaotic way in which the Electoral College was chosen as the solution to the problem of the Presidency.

James Wilson had earlier suggested to Madison that the President be chosen by direct popular vote regardless of state. Madison had explained how neither the States’ Men nor the chief Nationalist, Alexander Hamilton, would accept the idea. The States’ Men didn’t want anything to lessen the importance of the states, and Hamilton simply didn’t trust the people. Wilson invented the Electoral College on the spot.

Hamilton, a devotee of the British Parliamentary tradition, proposed that Congress elect the President. With Hamilton absent, States’ Man George Mason of Virginia surprisingly took up Hamilton’s cause. Elbridge Gerry of Massachusetts proposed something similar to the Electoral College, but was voted down. James Wilson cooked up a new scheme of having congressmen chosen by lottery who would pick the President. Madison even built a case for Wilson’s original plan of direct election by the people, but there were no takers.

By the time the Convention took up the subject again, some six weeks later, the weather was hot and humid, tempers were short, and people wanted to finish and go home. Daniel Carroll of Maryland suggested popular election and was voted down. John Rutledge of South Carolina favored election by joint session of Congress, but Jonathan Dayton of New Jersey demanded that each state have only one vote in the balloting. Gouveneur Morris took up Wilson’s original suggestion of an electoral college.

In the end, David Brearley of New Jersey, John Dickinson of Pennsylvania, Gouveneur Morris and Madison worked out the final proposal, which contained elements of all plans. Each state would have as many electors as its total number of representatives and senators, and the electors would be chosen by the state legislature. These men would be the leading non-officeholders of the state, who would assemble in the state capital, examine their consciences and vote for the President. The electors would cast two ballots, and at least one would be for a person from another state. The person who had the largest number of electoral votes would become president if he obtained a majority of the votes, and the second-place finisher would become Vice President. Courtesy of Roger Sherman of Connecticut, if no candidate had a majority, the House of Representatives would choose from among the top five candidates with each state getting one vote. The proposal was now locked in.

Like everyone else at the Convention, Madison assumed that Washington would be chosen President by acclamation. After Washington, Madison assumed that in four out of five elections, electors would vote for a regional favorite son, and the House would make the final choice. This logic stemmed from the fact that Washington was opposed to the establishment of British-style political parties with every fiber of his being. Washington was dead for at least a few months before the Hamiltonian and Jeffersonian factions in the Cabinet and Congress coalesced into the Federalist and Republican parties respectively. Once that happened, Madison’s surmise turned out to be incorrect.

In A Magnificent Catastrophe, Edward Larson explains how the electoral machinery broke down in 1800 due to a combination of backdoor dealing and infighting within the two new parties. Congressman James Bayard of Delaware attempted to become king-maker by working out deals to deliver the Presidency to different people, but failed when no one wanted to sully the office. In the end, Hamilton endorsed his political enemy Jefferson to avoid a Burr presidency, and the House picked Jefferson and Burr. Four years later, that, among other things, would lead to Hamilton’s death by Burr’s hand in a duel.

The 12th Amendment was written to fix the problem by having the President and Vice President voted on the same ballot, reducing the number of finalists, and having the Senate elect the Vice President if the Electoral College failed.

When Jefferson’s Republican Party splintered in 1824, the House and Senate made the selection according to the 12th Amendment, and the winner of the popular and electoral vote plurality, Andrew Jackson, was not chosen due to Henry Clay’s throwing his support behind the scenes to John Quincy Adams.

Following the election of 1828, the two-party system, as it is known today, came into being, and the policy of having a state’s best minds as electors came to an end. Today, electors are political hacks chosen for their party loyalty.

Over the years, a winner-take-all approach for the awarding of electoral votes was instituted due to the pressures of the two-party system. Some nineteen states over time used a different method where each congressional district was assigned one electoral vote, and the state was assigned two electoral votes at large. Today, only Nebraska and Maine use this formula.

Following the election of 1800, state legislatures began the practice of having electors chosen by popular vote rather than by the legislature. By 1844, only South Carolina utilized the old method, and that ended in 1868 under Reconstruction. However, in the event of a contested election, the legislature has the authority to name the final slate of electors. In 2000, the Florida Legislature was prepared to name its own slate of electors if the election contest were still tied up in court by the day the electoral votes had to be cast.

³⁰ The Senate will be elected absolutely and exclusively by the state legislatures.

Although James Wilson suggested popular election of senators, the Constitution gave the right of electing senators to the state legislatures. Problems arose almost immediately. In states where one party controlled one house, and another controlled the other house, Senate vacancies often existed for years due to political stalemate.

But the largest and most troublesome problem occurred under industrialization. Of all the Framers, only Hamilton fully understood what being an industrial power would entail, and he embraced that fate. Jefferson, seeing much of the same image, fought to keep property requirements for voting, lest an un-propertied urban proletariat take power. But thanks to the acrimony surrounding the contested election of 1824, John Quincy Adams found himself signing a bill eliminating property requirements for federal elections. Slowly, in state after state, the vote was extended to non-property holders in state elections until the 24th Amendment made property qualifications unconstitutional.

At the time of the ratification of the Constitution, money came from the land. Once towns began to industrialize, money came from a different source, and no one had anticipated that magnitude of money but Hamilton. With that money came raw, concentrated power. Sweatshop capitalism lived by the seven-day workweek, payment in company scrip to be spent at the company store, and life in company housing. When it came time to vote, employees were lined up in military rank and file, and paraded to the polling place. Without a secret ballot, the county clerk, often an officer of the company, recorded the votes, and a man who voted the wrong way would lose his job, his company scrip and his company housing. In some jurisdictions, where it was impossible to tell where the company goon squad ended and local law enforcement began, the employee might lose his life.

Industrial money bought cities, counties and states, and in an era when the state legislature elected the state’s senators, industrial money bought US senators. The correspondence of Daniel Webster contains letter after letter complaining that the industrial interests of Massachusetts had failed to deliver his “retainer” in a timely manner. Andrew Jackson warned about the power of corporations, and he also proposed the popular election of senators and the President to get around them.

Whether Lincoln intended it or not, the Civil War bequeathed America an early, primitive form of corporate fascism. Big Business in general, and Big Rail in particular, ran the country. It reached the point where the California Legislature was a wholly-owned subsidiary of the railroad, and its senators were known as “the senators from the Southern Pacific.”

In the war, the Hamiltonian impulse had defeated the Jeffersonian impulse as expressed through states’ rights. With federalism now in disgrace, the Jeffersonian impulse found another outlet. Lincoln had left behind an all-powerful federal government, and the battle now became whom that government would work for.

The Progressive Movement started out as a tiny splinter from the Republican Party in the 1870's, and it was concentrated in the Northeast, where it acquired an Episcopal flavor, and the Midwest, where it was predominantly Lutheran. The Progressives wanted that powerful federal government to work on behalf of the people, not the corporations. They had a Protestant view of the world and saw themselves as a moderating force against not just the corporations, but genuine radicals like the Populists, who came from the Grange Movement and wanted to nationalize everything. Like most American political movements, the Progressives spent their first thirty years wandering in the political wilderness before achieving power with Theodore Roosevelt in 1901.

The Progressives had a laundry list, not just in the sphere of politics, but in the sphere of private life. Valuing science, they wanted that powerful government to make people live properly. In social science, they favored the abolition of child labor, the five-day forty-hour workweek, the control of addictive substances used in patent medicines or taken straight, and the prohibition of alcohol, the curse of the working class. In politics, they wanted the secret ballot, primary elections, initiative-referendum-recall, a direct tax on income, and the popular election of senators.

Thanks to the 17th Amendment, in 1914 the first election of senators was held by the people, not the state legislatures. The key difference over time turned out to be that corruption, once lodged in the state capitals, simply moved to K Street in the nation’s capital. Nothing had really changed.

* - quote
+ - comment

*25 Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons.

+ Okay so Madison admits that the primary reason for consolidation of power is external threat. Interesting and telling. Once again a “Great Nationer” admits their motivation, i.e. national power. Why else today would we have a national government if it weren’t for external threats?

* 27 The state governments may be regarded as constituent and essential parts of the federal government, [while] the latter is nowise essential to the operation or organization of the former.

Okay, this is a fallacy. The Federalist KNEW that the state governments would be lesser than the national government and were clear that the Presidency was to be based on a popular (not a state) vote.

* 32 Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.

+ Again an outright falsehood. The Federalists argued in the constitutional convention against this directly and they deliberately based the two most powerful parts, the House and the President, on popular consent. It was even debated that the Constitution should be ratified based upon popular vote. The compromise of having a Senate of State Representatives was something the Federalists hated.

* 34 The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular states.

* 35 There will consequently be less of personal influence on the side of the former than of the latter.

+ WRONG WRONG WRONG! This is an assertion by Madison. In fact, at the time he said there was no Federal Government! It is not a part of the constitution and has proven to be incorrect over time.

* 52 The regulation of commerce, it is true, is a new power, but that seems to be an addition which few oppose and from which no apprehensions are entertained.

+ Gah!

* 56 Had the states complied punctually with the Articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion that the state governments would have lost their constitutional powers and have gradually undergone an entire consolidation.

+ That’s true actually. The Articles of Confederation were a failure.

* In 2008, 2.5 million federal employees are to be compared to 3.8 million state employees

+ Hmmmm. Point taken and I agree with the qualifications.

* At 37, Madison argues that the sum total of all federal employees will never exceed that of all levels of state, county and local government. At what point did this cease to be true, and why?
+ WWII probably. Eisenhower was right to warn us of becoming ruled by experts.

* At 44, Madison argues that the powers of the federal government will be few and defined. Somewhere, something went radically wrong. How did it happen?

+ The Elastic Clause - http://en.wikipedia.org/wiki/Necessary_and_Proper_Clause

and it went wrong in 1819 (as Hamilton intended) during McCulloch v. Maryland

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional,”

* At 52, Madison points out that regulation of commerce is a new power, but few oppose it, and fewer are worried about it. Considering what later happened, was Madison being honest or disingenuous about this?

Lying through his freeking teeth. Well, to be fair Hamilton was the one who knew best it was a lie. Maybe Madison was just dumb on the topic. The Bill of rights was supposed to protect us but with the ninth amendment being so poorly written and an intentionally toothless judiciary being appointed by the branches it was meant to check and balance, the Bill of Rights has not stood the test of time.

Last - To Bigg Red’s point, my understanding is that the Senate was not meant to be a powerful part of the Federal Government. It was meant to act similarly to the House of Lords which stays out of the way unless something truly unacceptable comes up. The Senate, as negotiations wore on, became something of a dumping ground for ideas and wasn’t nearly as well thought out as the House of Representatives.

Well thank you for being so gracious. You’re not confused, I am. I got my Constitutional Convention arguments mixed up. Here is what the constitution said,

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

I don’t know* the portion of states that used a popular vote as the “Manner as the Legislature thereof may direct” but it wasn’t zero, I think. Of course, it quickly became per the popular vote with the possible exception of Massachusetts today.

I will defend my befuddled thinking by saying that the framers did intend the President to be popularly elected but apparently that intention was compromised upon.

* - Okay, I Googled this:

An early method of choosing electors was selection by the state legislature. A majority of the states legislatively selected presidential electors in both 1792 and 1800, and half of the states did so in 1812.[51] One reason most U.S. history textbooks don’t start reporting the national aggregate popular vote until the election of 1824 is because more than a quarter of all the states used legislative choice in all prior elections; there simply was no popular vote for President in those states. Even in 1824, when Andrew Jackson lost in spite of having pluralities of both the popular and electoral votes, a full quarter of the states (6 of 24) did not hold popular elections for President and Vice President;[52] instead, those six state legislatures choose the electors that year. By 1828, only Delaware and South Carolina continued to use legislative choice.[52]
http://en.wikipedia.org/wiki/Electoral_College_(United_States)

“More than a quarter” - I would assume this means less than a half and probably less than a third.

I think we are approaching this issue from two different directions. You are looking at it from the point in time of the ratification of the constitution and taking the constitution at that time as the intent of the founders.

I, on the other hand, am looking back into the arguments at the convention and looking forward to those arguments which won over time.

I think we both agree that the founders, notably Madison and Hamilton, believed in a national government based upon popular will, i.e. the Virginia Plan. I think we would agree that the Virginia Plan was the framework the final ratified constitution was based upon. Here below is the argument in the convention for the Electoral College,

MADISON: The option before us, then, lay between an appointment by electors chosen by the people, and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged against it, and greatly preferable to an appointment by the national legislature. As the electors would be chosen for the occasion, would meet at once, and proceed immediately to an appointment, there would be very little opportunity for cabal or corruption: as a further precaution, it might be required that they should meet at some place distinct from the seat of government, and even that no person within a certain distance of the place, at the time, should be eligible. This mode, however, had been rejected so recently, and by so great a majority, that it probably would not be proposed anew. The remaining mode was an election by the people, or rather by the qualified part of them at large. With all its imperfections, he liked this best.

It was the intent that the electors would be chose by the people, in some fashion. Note that Madison did not mention the states. Popular election of Electoral College representatives won out in a few short years after ratification because the electors were proportional to the state (+2) and the States could not make a reasonable argument that they should impose themselves between the people and the electoral college.

In the convention, the issue was looked at in a number of ways. Should the President be appointed by the legislature? No was the answer. Should he be appointed by a vote of the State Executives? No again. Should he be appointed by the Senate? No, no, no! Instead the founders knew that to be an equal and therefore able negative check on the Legislature, the President had to be proportionally elected and not be an agency of the states.

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