FReeper Book Club: The Debate over the Constitution, Federalist #52

In this, the first of seven papers, Madison examines the House from the perspective of frequency of elections and the qualifications for representatives.

² From the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government.

⁴ The first view to be taken of this part of the government relates to the qualifications of the electors and the elected.

⁵ Those of the former are to be the same with those of the electors of the most numerous branch of the state legislatures.

⁶ The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.

⁷ It was incumbent on the Convention, therefore, to define and establish this right in the Constitution.

⁸ To have left it open for the occasional regulation of the Congress would have been improper for the reason just mentioned.

⁹ To have submitted it to the legislative discretion of the states would have been improper for the same reason, and for the additional reason that it would have rendered too dependent on the state governments that branch of the federal government which ought to be dependent on the people alone.

¹⁰ To have reduced the different qualifications in the different states to one uniform rule would probably have been as dissatisfactory to some of the states as it would have been difficult to the Convention.

¹¹ The provision made by the Convention appears, therefore, to be the best that lay within their option.

¹² It must be satisfactory to every state because it is conformable to the standard already established, or which may be established, by the state itself.

¹³ It will be safe to the United States because, being fixed by the state constitutions, it is not alterable by the state governments, and it cannot be feared that the people of the states will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution.

¹⁴ The qualifications of the elected, being less carefully and properly defined by the state constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the Convention.

¹⁵ A representative of the United States must be of the age of twenty-five years, must have been seven years a citizen of the United States, must at the time of his election be an inhabitant of the state he is to represent, and during the time of his service must be in no office under the United States.

¹⁶ Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.

¹⁷ The term for which the representatives are to be elected falls under a second view which may be taken of this branch.

¹⁸ In order to decide on the propriety of this article, two questions must be considered: first: whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful.

¹⁹ First: As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people.

²⁰ Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.

²¹ But what particular degree of frequency may be absolutely necessary for the purpose does not appear to be susceptible of any precise calculation and must depend on a variety of circumstances with which it may be connected.

²² Let us consult experience, the guide that ought always to be followed whenever it can be found.

²³ The scheme of representation as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples.

²⁴ And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known and which bear the greatest analogy to our particular case.

²⁵ The first to which this character ought to be applied is the House of Commons in Great Britain.

²⁶ The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction.

²⁷ The very existence of it has been made a question among political antiquaries.

²⁸ The earliest records of subsequent date prove that Parliaments were to sit only every year, not that they were to be elected every year.

²⁹ And even these annual sessions were left so much at the discretion of the Monarch that under various pretexts very long and dangerous intermissions were often contrived by royal ambition.

³⁰ To remedy this grievance, it was provided by a statute in the reign of Charles II that the intermissions should not be protracted beyond a period of three years.

³¹ On the accession of William III, when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that Parliaments ought to be held frequently.

³² By another statute which passed a few years later in the same reign, the term “frequently,” which had alluded to the triennial period settled in the time of Charles II, is reduced to a precise meaning, it being expressly enacted that a new Parliament shall be called within three years after the termination of the former.

³³ The last change, from three to seven years, is well known to have been introduced pretty early in the present century under on alarm for the Hanoverian succession.

³⁴ From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom for binding the representatives to their constituents does not exceed a triennial return of them.

³⁵ And if we may argue from the degree of liberty retained even under septennial elections and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections under the federal system cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents.

³⁶ Elections in Ireland, till of late, were regulated entirely by the discretion of the Crown, and were seldom repeated except on the accession of a new prince or some other contingent event.

³⁷ The Parliament which commenced with George II was continued throughout his whole reign, a period of about thirty-five years.

³⁸ The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members and in the chance of some event which might produce a general new election.

³⁹ The ability also of the Irish Parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the Crown over the subjects of their deliberation.

⁴⁰ Of late these shackles, if I mistake not, have been broken, and octennial Parliaments have besides been established.

⁴¹ What effect may be produced by this partial reform must be left to further experience.

⁴² The example of Ireland, from this view of it, can throw but little light on the subject.

⁴³ As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty which might depend on a due connection between their representatives and themselves.

⁴⁵ The example of these states, when British colonies, claims particular attention at the same time that it is so well known as to require little to be said on it.

⁴⁶ The principle of representation, in one branch of the legislature at least, was established in all of them.

⁴⁹ Have we any reason to infer from the spirit and conduct of the representatives of the people prior to the Revolution that biennial elections would have been dangerous to the public liberties?

⁵⁰ The spirit which everywhere displayed itself at the commencement of the struggle and which vanquished the obstacles to independence is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement.

⁵¹ This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent.

⁵² Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing by public act the resolution of independence.

⁵³ In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial.

⁵⁴ This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental and still less of any advantage in septennial elections, for when compared with a greater frequency they are inadmissible, but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections.

⁵⁵ The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances.

⁵⁶ The first is that the Federal Legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament, and which, with a few exceptions, was exercised by the colonial assemblies and the Irish Legislature.

⁵⁷ It is a received and well founded maxim that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration, and conversely the smaller the power, the more safely may its duration be protracted.

⁵⁸ In the second place, it has on another occasion been shown that the Federal Legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures which other legislative bodies are not.

⁵⁹ And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people and the means of influence over the popular branch possessed by the other branches of the government above cited.

⁶⁰ With less power, therefore, to abuse, the federal representatives can be less tempted on one side and will be doubly watched on the other.

Madison the methodical has finished his analysis of the “more general” points regarding the construction, and now embarks on a multi-essay analysis of the specifics. Beginning at the beginning, his first topic is Article I, specifically those parts of it related to the House of Representatives.

First, who shall elect them? Accustomed as the modern reader might be to universal popular election and to a universalist tendency among the Federalists, it may be a surprise to re-read Article I and discover that here the Framers deferred to the practices within the various states. Certainly Madison is aware of the importance of defining the electorate.

⁶ The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.

Yet the actual text allows for differences between states, couching it in terms of following the practice for each state’s largest legislative body, a formulation that allows a state to adopt a unicameral legislature. Currently only Nebraska follows this practice.

The reader occasionally encounters a formulaic assertion in the popular press that the Constitution originally only empowered white, male property owners to vote. That is, in fact, far from the truth. Suffrage was, at the time, an issue very much in flux within the states. Vermont, not quite a state at that time, had eliminated the requirement for property ownership and the requirement that a voter be a taxpayer, and some states had altered the former requirement to the latter under the principle of “No taxation without representation.” Six states – Maryland, Massachusetts, New York, North Carolina, Pennsylvania and Vermont – permitted free black men to vote. By 1790 all states would drop religious requirements for suffrage, such as had existed in the pre-Revolutionary colonies, in five of which Catholics were barred from voting, and in four, Jews.

Defining suffrage is, according to Madison, too fundamental to allow Congress to re-regulate at will (8), or to allow the state legislatures to turn into a mechanism for control over the federal government (9). But simply to dictate a single set of rules would not have been acceptable to the states (10). The formulation is, therefore, a compromise, albeit a clever one: as the state constitutions would need to be amended in order for the states to change their own practices, any change they might make would be subject to ratification by the voters of the states in question (13).

Qualifications for the office of Representative were minimal: a minimum age of 25, US citizenship, and to be an inhabitant of the state in question. One notes that these qualifications did not include those necessary to vote in certain states. It was not an accidental omission.

That much Madison and the other Founders were able to make universal. It is a line of demarcation between the powers of federal government and state that delineates just how far the Federalists felt they could go in 1787.

Thus far the topics addressed have been fairly uncontroversial. That changes when Madison broaches the matter of term of office. The House is, after all, that body closest to the people by design, and the prevailing political theories of Montesquieu held that the more frequent the elections of its members, the better it might reflect the citizens’ current preferences.

²⁰ Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.

That point had been made by the anti-Federalists DeWitt at 84 in his third essay, and Samuel Bryan at 30 in his Address of the Pennsylvania Minority, where they demanded that the election of House members be, at the most lengthy, an annual affair. Madison must now defend the choice of two years as the term of office for members of the House.

Characteristically, Madison looks for a historical example. There isn’t much in the ancient world (23), the continuum of government clumping at the poles of direct democracy and despotism. Representative government in the sense of the proposed Constitution was still a relatively recent innovation. Madison settles on the example most familiar to his readers, that of England’s House of Commons (25).

²⁸ The earliest records…prove that Parliaments were to sit only every year, not that they were to be elected every year.

²⁹ And even these annual sessions were left so much at the discretion of the Monarch…

The complete discretion was at the beginning, and a Parliament that displeased the King could find itself summarily dismissed or refused permission to assemble. That was one of the principal issues that led to the English Civil Wars, wherein Parliament was set against King and later, Cromwell against the Parliament that empowered him. When, after the death of Cromwell, Parliament brought back the son of the King its predecessor had executed, precautions were taken.

³⁰ To remedy this grievance, it was provided by a statute in the reign of Charles II that the intermissions should not be protracted beyond a period of three years.

That was the Charles II, whose Long Parliament sat without an election for an astonishing 18 years. When Charles’ successor James II was shown the door, William III codified the customary three-year limitation (31).

It is, to be certain, an example of very limited applicability and checkered success, but Madison’s point is made: in what was regarded as the most representative government of the time, the equivalent to the House of Representatives met with an election cycle considerably longer than two years without noticeable hazard to the liberties of Englishmen.

The example of Ireland is briefly discussed with the conclusion that its Parliament suffered from too many of those same limitations and excesses – an overdependence on royal permission and a Parliament that sat for 35 years under George II – to be a useful case in point.

Madison now turns the discussion to the governments of the pre-Revolutionary colonies, finding that in those cases the periods of election “varied from one to seven years” (48), and that the first colony to assert the liberties of its citizens against the Crown, Virginia, had the longest period of election (53). There is a certain historical irony in that Virginia had achieved its aristocratic reputation from being the popular refuge for the losing Cavaliers – the King’s supporters against Parliament – in the English Civil wars of a century earlier.

Despite the assertions of the critics, there is, Madison concludes, no case for the assertion that an election cycle for the House of Representatives as long as two years would constitute a threat to the liberty of the citizen. He has defended the qualifications for office and explained how, despite the seeming independence of the federal government, the House will be elected under the rules set by the various states for their own legislative bodies. The methodical Madison has constructed an equally methodical defense, and over the next six essays he will expand it.

The Constitution ended up specifying biennial elections for members of the House. At the Convention, annual elections had been discussed and rejected. Madison examines arguments for longer terms and concludes that two years would be sufficient. In 1965, Lyndon Johnson asked for an amendment that would set the term for House members at four years to be elected with the President, but Congress could not find the necessary majorities to pass it to the states for ratification. Would longer or shorter terms be better? Why, or why not?

9 To have submitted it to the legislative discretion of the states would have been improper for the same reason, and for the additional reason that it would have rendered too dependent on the state governments that branch of the federal government which ought to be dependent on the people alone.

Well I suppose this statement won’t put the argument to rest but it is clear to me reading the Federalist Papers and the notes from the convention that Madison did NOT intend for the national government to be another layer of government. He intended the national government to be superior to the states and thus it was required that its legitimacy was directly set upon popular accent. It was only the great compromise that allowed the state governments to have a voice in the national government and they quickly gave up on appointing Senators giving that over to popular vote.

15 A representative of the United States must be of the age of twenty-five years, must have been seven years a citizen of the United States, must at the time of his election be an inhabitant of the state he is to represent, and during the time of his service must be in no office under the United States.

Note here they prevented an end run around the idea of the separation of powers by preventing a single person from holding two offices at the same time. Cute.

54 …..that the liberties of the people can be in no danger from biennial elections.

Okay, so we want the lower house to have frequent elections and "every two years" is no danger.

The reader occasionally encounters a formulaic assertion in the popular press that the Constitution originally only empowered white, male property owners to vote.

This is a very good point to bring up. The founders argued in the convention that a larger voting base made the country stronger. I went into my constitutional studies trying to figure out the ways they intended to protect property rights. They did not do this. (The opposite in fact, see the Commerce Clause and the Elastic Clause) Some argued against the dangers of allowing those without property to vote but the better argument won out and, as you say, this is as far as they could go.

Here are some notes from the convention:

Madison. I am in favor of entrusting the Right of Suffrage to Freeholders only. It is a mistake that we are governed by English attachments. The Knights of the Shires are chosen by freeholders, but the members of the Cities and Boroughs are elected by freemen without freeholds, & who have as small property as the Electors of any other country. Where is the crown influence seen, where is corruption in the Elections practiced-not in the Counties, but in the Cities and Boroughts.

Franklin. I am afraid that by depositing the Right of Suffrage in the freeholders exclusively we shall injure the lower Class of freemen. This Class possess hardy Virtues and great Integrity. The revolutionary war is a glorious Testimony in favor of Plebeian Virtue-our military and naval men are sensible of this Truth. I myself know that our Seamen who were Prisoners in England refused all the allurements that were made use of, to draw them from their allegiance to their Country-threatened with ignominious Halters, they still refused. This was not the case with the English Seamen, who, on being made Prisoners entered into the American Service and pointed out where other Prisoners could be made-and this arose from a plain cause. The Americans were all free and equal to any of their fellow citizens-the English Seamen were not so. In antient Times every free man was an Elector, but afterwards England made a Law which required that every Elector should be a freeholder. This Law related to the County Elections-the Consequence was that the Residue of the Inhabitants felt themselves disgraced, and in the next Parliament a law was made, authorizing the Justice of the Peace to fix the Price of Labour and to compel Persons who were not freeholders to labour for those who were, at a stated rate, or to be put in Prison as idle vagabonds. From this Period the common People of England lost a great Portion of attachment to their Country

http://avalon.law.yale.edu/18th_century/king.asp

So while Madison is arguing in the Federalist papers for the whole Constitution, he argued against some portions in the convention. I find the notes from the convention to be more illuminating of the Founders’ thinking than the Federalist Papers.

Discussion Topic

I think LBJ was deliberately trying to undermine the Founders’ intent. If anything congressional terms of four years elected in the second presidential year would have been closer to the founders’ intent. That is, the President and Congress would have had an even greater propensity to check each other if they were elected out of phase.

I could see one year terms for Congress, maybe, but it’s difficult for me to see how congress would in presidential years one and three to be much different from that elected in presidential year two. Then again, I doubt this was much of a consideration of the Founders as it was the President that was supposed to check the powerful congress rather than what we have today, a powerful president being checked by congress. If anything, given today’s powerful executive branch, its terms should be reduced to ensure the president is closer to the people.

All in all, I think the founders go this right. I think the problem today is the Modern American Presidency.

Reform efforts began as early as 1826, when direct election was first proposed. In the 1870s, citizens petitioned the House of Representatives for direct election. From 1893 to 1902, support for direct election increased considerably. Each year during that period, a constitutional amendment for direct election was proposed in Congress, but the Senate rejected it. In the mid-1890s, the Populist Party put direct election of Senators in its platform, but neither the Democrats nor the Republicans paid much notice at the time.

Direct election was also part of the Wisconsin Idea championed by Republican Senators Robert M. La Follette, Sr., a progressive, and George W. Norris, a reformer. In the early 1900s, Oregon pioneered direct election of Senators. Oregon tried various procedures until success in 1907, and was soon followed by Nebraska.

Popular support of Senatorial election reform grew rapidly at this time. In 1905, William Randolph Hearst acquired Cosmopolitan (then a general-interest magazine), and made it an advocate of direct election. In 1906, Cosmopolitan published “The Treason of the Senate”, a series of scathing articles by “Muckraking” reporter David Graham Phillips, which described Senators as corrupt pawns of industrialists and financiers.[4] A prime example was Senator William A. Clark of Montana.[5]

Increasingly, Senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as 29 states elected Senators either as nominees of party primaries, or in conjunction with a general election. These de facto directly elected Senators supported legislation to promote direct election, but to make direct election general, a constitutional amendment was required.

http://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution#History

By 1917 the constitution was amended. But the case for popular election of Senators goes back to Madison’s arguments in the convention. Again, it was only because of political compromise that the Senate was appointed by the states and it was a bad idea that has not passed the test of time. Madison was right to begin with.

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