Posted on 10/04/2010 8:00:49 AM PDT by Publius
Madison further justifies the decision of the Convention to opt for biennial elections of representatives even though that was not the custom in the states.
1 To the People of the State of New York:
2 I shall here perhaps be reminded of a current observation, “that where annual elections end, tyranny begins.”
3 If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true that when once established, they are often applied to cases to which the reason of them does not extend.
4 I need not look for a proof beyond the case before us.
5 What is the reason on which this proverbial observation is founded?
6 No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons and the period within which human virtue can bear the temptations of power.
7 Happily for mankind, liberty is not in this respect confined to any single point of time, but lies within extremes which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society.
8 The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual, and if circumstances may require a deviation from the rule on one side, why not also on the other side?
9 Turning our attention to the periods established among ourselves for the election of the most numerous branches of the state legislatures, we find them by no means coinciding any more in this instance than in the elections of other civil magistrates.
10 In Connecticut and Rhode Island, the periods are half-yearly.
11 In the other states, South Carolina excepted, they are annual.
12 In South Carolina they are biennial, as is proposed in the federal government.
13 Here is a difference, as four to one, between the longest and shortest periods, and yet it would be not easy to show that Connecticut or Rhode Island is better governed or enjoys a greater share of rational liberty than South Carolina, or that either the one or the other of these states is distinguished in these respects, and by these causes from the states whose elections are different from both.
14 In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case.
15 The important distinction so well understood in America between a constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.
16 Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government.
17 Even in Great Britain, where the principles of political and civil liberty have been most discussed and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision.
18 They have accordingly in several instances actually changed by legislative acts some of the most fundamental articles of the government.
19 They have in particular on several occasions changed the period of election, and on the last occasion not only introduced septennial in place of triennial elections, but by the same act continued themselves in place four years beyond the term for which they were elected by the people.
20 An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the cornerstone, and has led them to seek for some security to liberty against the danger to which it is exposed.
21 Where no constitution paramount to the government either existed or could be obtained, no constitutional security similar to that established in the United States was to be attempted.
22 Some other security, therefore, was to be sought for, and what better security would the case admit than that of selecting and appealing to some simple and familiar portion of time as a standard for measuring the danger of innovations for fixing the national sentiment and for uniting the patriotic exertions?
23 The most simple and familiar portion of time applicable to the subject was that of a year, and hence the doctrine has been inculcated by a laudable zeal to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections.
24 But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution?
25 Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual or even more frequent, but subject to alterations by the ordinary power of the government?
26 The second question stated is whether biennial elections be necessary or useful.
27 The propriety of answering this question in the affirmative will appear from several very obvious considerations.
28 No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate.
29 A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations.
30 Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it.
31 The period of service ought therefore in all such cases to bear some proportion to the extent of practical knowledge requisite to the due performance of the service.
32 The period of legislative service established in most of the states for the more numerous branch is, as we have seen, one year.
33 The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for state legislation?
34 The very statement of the question, in this form, suggests the answer that ought to be given to it.
35 In a single state, the requisite knowledge relates to the existing laws which are uniform throughout the state and with which all the citizens are more or less conversant, and to the general affairs of the state, which lie within a small compass, are not very diversified and occupy much of the attention and conversation of every class of people.
36 The great theater of the United States presents a very different scene.
37 The laws are so far from being uniform that they vary in every state, [while] the public affairs of the Union are spread throughout a very extensive region and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire.
38 Yet some knowledge of the affairs, and even of the laws, of all the states ought to be possessed by the members from each of the states.
39 How can foreign trade be properly regulated by uniform laws without some acquaintance with the commerce, the ports, the usages and the regulations of the different states?
40 How can the trade between the different states be duly regulated without some knowledge of their relative situations in these and other respects?
41 How can taxes be judiciously imposed and effectually collected if they be not accommodated to the different laws and local circumstances relating to these objects in the different states?
42 How can uniform regulations for the militia be duly provided without a similar knowledge of many internal circumstances by which the states are distinguished from each other?
43 These are the principal objects of federal legislation and suggest most forcibly the extensive information which the representatives ought to acquire.
44 The other interior objects will require a proportional degree of information with regard to them.
45 It is true that all these difficulties will by degrees be very much diminished.
46 The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code.
47 Improvements on the first drafts will every year become both easier and fewer.
48 Past transactions of the government will be a ready and accurate source of information to new members.
49 The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large.
50 And the increased intercourse among those of different states will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws.
51 But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state as to justify the longer period of service assigned to those who are to transact it.
52 A branch of knowledge which belongs to the acquirements of a federal representative and which has not been mentioned is that of foreign affairs.
53 In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations.
54 He ought not to be altogether ignorant of the law of nations, for that, as far as it is a proper object of municipal legislation, is submitted to the federal government.
55 And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation and will sometimes demand particular legislative sanction and cooperation.
56 Some portion of this knowledge may no doubt be acquired in a man’s closet, but some of it also can only be derived from the public sources of information, and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the Legislature.
57 There are other considerations, of less importance perhaps, but which are not unworthy of notice.
58 The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years.
59 No argument can be drawn on this subject from the case of the delegates to the existing Congress.
60 They are elected annually, it is true, but their reelection is considered by the legislative assemblies almost as a matter of course.
61 The election of the representatives by the people would not be governed by the same principle.
62 A few of the members, as happens in all such assemblies, will possess superior talents, will by frequent re-elections become members of long standing, will be thoroughly masters of the public business and perhaps not unwilling to avail themselves of those advantages.
63 The greater the proportion of new members and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them.
64 This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate.
65 It is an inconvenience mingled with the advantages of our frequent elections, even in single states where they are large and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect.
66 If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes.
67 Hence, a very pernicious encouragement is given to the use of unlawful means for obtaining irregular returns.
68 Were elections for the Federal Legislature to be annual, this practice might become a very serious abuse, particularly in the more distant states.
69 Each House is, as it necessarily must be, the judge of the elections, qualifications and returns of its members, and whatever improvements may be suggested by experience for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse before an illegitimate member could be dispossessed of his seat that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat.
70 All these considerations taken together warrant us in affirming that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.
Madison’s Critique
With respect to the terms of members of the House of Representatives, the question is very simple: why two years? The question may be simple, but the answer might not be, especially in the face of the insistence by the opponents of the proposed Constitution that a popularly elected body must face the citizens its members are supposed to represent on a basis frequent enough to force them to reflect the citizens’ preferences in a timely and accurate manner. Both in Montesquieu and the popular political culture of the time, annual elections were considered the minimum, as the anti-Federalists were not shy in pointing out (2).
Why two years, then? It certainly isn’t because there was anything innately magical about an annual period (6), but in fact annual elections of representatives were the custom in no fewer than ten of the thirteen states (11) at the time. Defending a two-year period, therefore, was not to be done through precedent, at least within the United States. Nor was it to be defended by precedent in the model representative government of the time, that of Great Britain, whose Parliament had recently moved from elections every three years to elections every seven. Madison allows that this very act justified the concern of the critics (20).
The one fundamental difference between the governments is, Madison says, the Constitution itself. Without a written one, Britain’s election periods were merely “a law established by the government and alterable by the government” (15). The authority of Parliament is “transcendent and uncontrollable” (17), whereas the authority of the American federal government will be specified through the Constitution, and unalterable outside of the amendment process, which devolves ultimately to the people.
23 The most simple and familiar portion of time applicable to the subject was that of a year, and hence the doctrine has been inculcated by a laudable zeal to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections.
24 But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution?
What Madison is suggesting is that the discipline forced on a government by annual elections may be safely replaced by the discipline accorded by a written Constitution. Madison argues that this will allow the federal government of the United States some breathing room. It is essentially an argument not that two years is better than one, but that the United States will be able to get away with it because Congress will not be empowered to turn that two into seven or seventeen or thirty-seven. It is an indirect argument at best.
So Madison must address the question directly: why two instead of one? One of his answers is the advantage offered by experience (30). Another is that the federal legislators will be called upon to possess a more universal set of knowledge than their annually elected state counterparts (33), especially in the sense that members of the House will need to be familiar with the laws and practices of all of the states if they are to legislate for all of them (38). What Madison has in mind reveals his own conception of the appropriate function of Congress: foreign trade (39), interstate trade (40), taxation policies (41), and uniform regulations for the military (42).
43 These are the principal objects of federal legislation and suggest most forcibly the extensive information which the representatives ought to acquire.
This brings the reader to Madison's central argument.
51 ...the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state as to justify the longer period of service assigned to those who are to transact it.
There is an implication that members of Congress are, or ought to be, twice as smart and experienced as their state counterparts, at which point a certain skepticism on the part of the reader naturally arises in the face of the menagerie of exotic fauna that actually constitutes a modern Congress.
There are other, albeit less important, considerations, says Madison. One is the difficulty posed by the travel of the time (58). A congressman obliged to travel back and forth between the District of Columbia and, say, the wilds of Ohio on an annual basis, might find his job consisting more of travel than legislation. Another is that Madison hopes that a more experienced representative will find himself less susceptible to the swindling and horse-trading that is politics at the hands of the perennial – one might use the term “chronic” – members of that body than might a callow newcomer. It is, to be sure, a rather cynical argument but it pales in comparison to Madison’s next.
That is simply that a one-year term does not allow sufficient time to catch election cheats (65) before they have enjoyed the fruits of their crimes in terms of the ability to write laws. Presumably twice that term offers twice that opportunity, an argument sound in theory but lacking in any real-world performance, unless one is to believe that twice the number of congressmen have been penalized for corruption than would have been the case had they faced election annually. Nevertheless, Madison was essentially correct in his suspicion that it takes time to learn the business of corruption as well as legislation, and that an old hand is likely to be better at both.
But that wasn’t the question, after all. The question was whether a two-year term for members of the House was likely to be “useful to the affairs of the public” as well as “safe to the liberty of the people” (70). Madison has answered in the affirmative. In the face of recurring demands for term limits and the demonstrable advantages of incumbency, it is a conclusion that must still be regarded as provisional at best.
Discussion Topic
At 28, Madison points out that a legislator must have some knowledge of the subjects on which he is to legislate. Thus, he shouldn’t have to pass a bill into law to find out what is in it. The preparation of bills by lobbyists and bureaucrats, then rammed through Congress, appears to be outside Madison’s idea of how legislatures should work. What can be done to fix this problem?
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
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
"Where annual elections end, there slavery begins … Humility, patience, and moderation, without which every man in power becomes a ravenous beast of prey."
A quick Wiki search reminded me of the 1995 Scotus decision, U.S. Term Limits, Inc. v. Thornton. The people or legislatures of 23 states had enacted some form of congressional term limits. Scotus said it denied the people right to choose their reps.
Gee, Scotus thanks for using me as a pretext for protecting the interests of the political class as you continue to flick away state laws as if they were lint. I doubt our country would be at the edge of the abyss today if term limits had not been tossed fifteen years ago.
Yo judges, have you noticed that the people are p!ssed? We are knocking off Rinos and rats this year, more in 2012 along with Hussein Himself.
You tyrannical judges are next.
I agree that Madison never imagined such a circumstance and only an informed and active electorate will ever correct the problem.
No one would hire a gardener to build a flower bed for them without paying close attention to what he did but very few pay that kind of attention to what their elected public servants do. Until they begin to do so the problems will remain.
Okay, so I’m reading this and I’m tempted to talk about the ideas percolating at the time about church governance and Kant’s writings which were perhaps the most profound ideas of the time. In essence the idea is truth is forever and when looking for it, "Two heads are better than one."
But then I run into this reasoning,
13 Here is a difference, as four to one, between the longest and shortest periods, and yet it would be not easy to show that Connecticut or Rhode Island is better governed or enjoys a greater share of rational liberty than South Carolina, or that either the one or the other of these states is distinguished in these respects, and by these causes from the states whose elections are different from both.Gah! He is using a circumstantial situation to justify his argument. He did not know that electing representatives every two years was the same as every six months, forever. I think this Federalist begins weakly.
33 The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for state legislation?
I once read an article on the problem with short-term state legislatures. While the representatives themselves may only be in session for two months (or whatever) the lobbyists are working year round on legislation. When newly elected representatives come to office, they are presented a menu of bills to choose from, all written by the lobbyists. Some of them might be good, some are bad but all of them are the proposal of self-interested parties. I think there is a good argument to be made for legislatures given the time to reason through all their choices before voting. Then again, perhaps short, easily understood laws are better laws.
Reading 35 through 51, I remember that I think there is one constant theme in Madison’s papers. He wanted a strong, able House of Representatives
Reading 57 through 64, it is clear that circumstances have changed with telephones, mass media and the internet. Everyone knows what everyone else is thinking (aside from real secrets of course).
What Madison is suggesting is that the discipline forced on a government by annual elections may be safely replaced by the discipline accorded by a written Constitution. Madison argues that this will allow the federal government of the United States some breathing room. It is essentially an argument not that two years is better than one, but that the United States will be able to get away with it because Congress will not be empowered to turn that two into seven or seventeen or thirty-seven. It is an indirect argument at best.
I agree. . . . at best.
a certain skepticism on the part of the reader naturally arises in the face of the menagerie of exotic fauna that actually constitutes a modern Congress.
I see no reason to bring Barney Frank into the discussion.
In the face of recurring demands for term limits and the demonstrable advantages of incumbency, it is a conclusion that must still be regarded as provisional at best.
Again, I agree.
One point regarding term limits. One unintended consequence of term limits is that the legislators spend time building their nest eggs while in office. They create a body of commissions, think tanks and agencies so that when they do lose their jobs, they have some place to go. I'll reply later with Benjamin Franklin's warnings about representatives while in office. It's prescient.
I have ideas on this. First and foremost, we have to know what is going on in congress. That means there must be a group of people (I’m looking at you retired Tea Party-ers) That sits in on committee hearings and presses the hell out of our congress critters to divulge all their secrets. They need to issue non-partisan grades on representatives’ willingness to cooperate. There is a lady in SC that does this and for the life of me, I can’t remember her full name but Mary comes to mind. I can’t think of anyone who does this on the Federal level. We are smart enough. FreeRepublic is a start. There just aren’t enough of us doing it. Not yet.
Second, we need to press them to be more open in their proceedings. Boehner commented on Pelosi’s ways at the AEI forum last week and the need to follow the committee structure rather than having the leadership write the bills in secret. That would help.
Third, there is a need to grade the bills on simplicity and clarity. Obscure, complex laws are a threat to representative government.
The Washington experts might be right, maybe we are too stupid to understand the bills. But that is the problem, if we are too stupid. The solution is not to elect an elite to do our business but to simplify the laws down to our level of understanding.
Your post has the sound of a hammer hitting a nail.
Thank you VERY much!
I sincerely wish I had more time to devote to this exercise but alas it is election season again and I simply do not.
I’m up next weekend. We got rid of Bob Inglis. John Spratt is the next to go.
Is there a ping list for this book club? If so, could you add me to it? Thanks.
Consider yourself added.
Publis is the executive of this thread. I’m just a flunky.
Publius
5.56mm
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