|| Federalist No. 37 ||
Concerning the Difficulties of the
Convention in Devising a Proper Form of Government
Daily Advertiser: January 11, 1788.
To the People of the State of New
York:
In reviewing the defects of the
existing Confederation, and showing that they cannot be supplied by a
government of less energy than that before the public, several of the most
important principles of the latter fell of course under consideration. But as
the ultimate object of these papers is to determine clearly and fully the
merits of this Constitution, and the expediency of adopting it, our plan cannot
be complete without taking a more critical and thorough survey of the work of
the convention, without examining it on all its sides, comparing it in all its
parts, and calculating its probable effects.
That this remaining task may be
executed under impressions conducive to a just and fair result, some
reflections must in this place be indulged, which candor previously suggests.
It is a misfortune, inseparable from
human affairs, that public measures are rarely investigated with that spirit of
moderation which is essential to a just estimate of their real tendency to
advance or obstruct the public good; and that this spirit is more apt to be
diminished than promoted, by those occasions which require an unusual exercise
of it. To those who have been led by experience to attend to this
consideration, it could not appear surprising, that the act of the convention,
which recommends so many important changes and innovations, which may be viewed
in so many lights and relations, and which touches the springs of so many
passions and interests, should find or excite dispositions unfriendly, both on
one side and on the other, to a fair discussion and accurate judgment of its
merits. In some, it has been too evident from their own publications, that they
have scanned the proposed Constitution, not only with a predisposition to
censure, but with a predetermination to condemn; as the language held by others
betrays an opposite predetermination or bias, which must render their opinions
also of little moment in the question. In placing, however, these different
characters on a level, with respect to the weight of their opinions, I wish not
to insinuate that there may not be a material difference in the purity of their
intentions. It is but just to remark in favor of the latter description, that
as our situation is universally admitted to be peculiarly critical, and to
require indispensably that something should be done for our relief, the
predetermined patron of what has been actually done may have taken his bias
from the weight of these considerations, as well as from considerations of a
sinister nature. The predetermined adversary, on the other hand, can have been
governed by no venial motive whatever. The intentions of the first may be
upright, as they may on the contrary be culpable. The views of the last cannot
be upright, and must be culpable. But the truth is, that these papers are not
addressed to persons falling under either of these characters. They solicit the
attention of those only, who add to a sincere zeal for the happiness of their
country, a temper favorable to a just estimate of the means of promoting it.
Persons of this character will proceed
to an examination of the plan submitted by the convention, not only without a
disposition to find or to magnify faults; but will see the propriety of
reflecting, that a faultless plan was not to be expected. Nor will they barely
make allowances for the errors which may be chargeable on the fallibility to
which the convention, as a body of men, were liable; but will keep in mind,
that they themselves also are but men, and ought not to assume an infallibility
in rejudging the fallible opinions of others.
With equal readiness will it be
perceived, that besides these inducements to candor, many allowances ought to
be made for the difficulties inherent in the very nature of the undertaking
referred to the convention.
The novelty of the undertaking
immediately strikes us. It has been shown in the course of these papers, that
the existing Confederation is founded on principles which are fallacious; that
we must consequently change this first foundation, and with it the
superstructure resting upon it. It has been shown, that the other confederacies
which could be consulted as precedents have been vitiated by the same erroneous
principles, and can therefore furnish no other light than that of beacons,
which give warning of the course to be shunned, without pointing out that which
ought to be pursued. The most that the convention could do in such a situation,
was to avoid the errors suggested by the past experience of other countries, as
well as of our own; and to provide a convenient mode of rectifying their own
errors, as future experiences may unfold them.
Among the difficulties encountered by
the convention, a very important one must have lain in combining the requisite
stability and energy in government, with the inviolable attention due to
liberty and to the republican form. Without substantially accomplishing this
part of their undertaking, they would have very imperfectly fulfilled the
object of their appointment, or the expectation of the public; yet that it
could not be easily accomplished, will be denied by no one who is unwilling to
betray his ignorance of the subject. Energy in government is essential to that
security against external and internal danger, and to that prompt and salutary
execution of the laws which enter into the very definition of good government.
Stability in government is essential to national character and to the
advantages annexed to it, as well as to that repose and confidence in the minds
of the people, which are among the chief blessings of civil society. An
irregular and mutable legislation is not more an evil in itself than it is
odious to the people; and it may be pronounced with assurance that the people
of this country, enlightened as they are with regard to the nature, and
interested, as the great body of them are, in the effects of good government,
will never be satisfied till some remedy be applied to the vicissitudes and
uncertainties which characterize the State administrations. On comparing,
however, these valuable ingredients with the vital principles of liberty, we
must perceive at once the difficulty of mingling them together in their due
proportions. The genius of republican liberty seems to demand on one side, not
only that all power should be derived from the people, but that those intrusted
with it should be kept in independence on the people, by a short duration of
their appointments; and that even during this short period the trust should be
placed not in a few, but a number of hands. Stability, on the contrary,
requires that the hands in which power is lodged should continue for a length
of time the same. A frequent change of men will result from a frequent return
of elections; and a frequent change of measures from a frequent change of men:
whilst energy in government requires not only a certain duration of power, but
the execution of it by a single hand.
How far the convention may have
succeeded in this part of their work, will better appear on a more accurate
view of it. From the cursory view here taken, it must clearly appear to have
been an arduous part.
Not less arduous must have been the
task of marking the proper line of partition between the authority of the
general and that of the State governments. Every man will be sensible of this
difficulty, in proportion as he has been accustomed to contemplate and
discriminate objects extensive and complicated in their nature. The faculties
of the mind itself have never yet been distinguished and defined, with
satisfactory precision, by all the efforts of the most acute and metaphysical
philosophers. Sense, perception, judgment, desire, volition, memory,
imagination, are found to be separated by such delicate shades and minute
gradations that their boundaries have eluded the most subtle investigations,
and remain a pregnant source of ingenious disquisition and controversy. The
boundaries between the great kingdom of nature, and, still more, between the
various provinces, and lesser portions, into which they are subdivided, afford
another illustration of the same important truth. The most sagacious and laborious
naturalists have never yet succeeded in tracing with certainty the line which
separates the district of vegetable life from the neighboring region of
unorganized matter, or which marks the ermination of the former and the
commencement of the animal empire. A still greater obscurity lies in the
distinctive characters by which the objects in each of these great departments
of nature have been arranged and assorted.
When we pass from the works of nature,
in which all the delineations are perfectly accurate, and appear to be
otherwise only from the imperfection of the eye which surveys them, to the
institutions of man, in which the obscurity arises as well from the object
itself as from the organ by which it is contemplated, we must perceive the
necessity of moderating still further our expectations and hopes from the
efforts of human sagacity. Experience has instructed us that no skill in the
science of government has yet been able to discriminate and define, with
sufficient certainty, its three great provinces the legislative, executive, and
judiciary; or even the privileges and powers of the different legislative
branches. Questions daily occur in the course of practice, which prove the
obscurity which reins in these subjects, and which puzzle the greatest adepts
in political science.
The experience of ages, with the
continued and combined labors of the most enlightened legislatures and jurists,
has been equally unsuccessful in delineating the several objects and limits of
different codes of laws and different tribunals of justice. The precise extent
of the common law, and the statute law, the maritime law, the ecclesiastical
law, the law of corporations, and other local laws and customs, remains still
to be clearly and finally established in Great Britain, where accuracy in such
subjects has been more industriously pursued than in any other part of the
world. The jurisdiction of her several courts, general and local, of law, of
equity, of admiralty, etc., is not less a source of frequent and intricate
discussions, sufficiently denoting the indeterminate limits by which they are
respectively circumscribed. All new laws, though penned with the greatest
technical skill, and passed on the fullest and most mature deliberation, are
considered as more or less obscure and equivocal, until their meaning be
liquidated and ascertained by a series of particular discussions and
adjudications. Besides the obscurity arising from the complexity of objects,
and the imperfection of the human faculties, the medium through which the
conceptions of men are conveyed to each other adds a fresh embarrassment. The
use of words is to express ideas. Perspicuity, therefore, requires not only
that the ideas should be distinctly formed, but that they should be expressed
by words distinctly and exclusively appropriate to them. But no language is so
copious as to supply words and phrases for every complex idea, or so correct as
not to include many equivocally denoting different ideas. Hence it must happen
that however accurately objects may be discriminated in themselves, and however
accurately the discrimination may be considered, the definition of them may be
rendered inaccurate by the inaccuracy of the terms in which it is delivered.
And this unavoidable inaccuracy must be greater or less, according to the
complexity and novelty of the objects defined. When the Almighty himself
condescends to address mankind in their own language, his meaning, luminous as
it must be, is rendered dim and doubtful by the cloudy medium through which it
is communicated.
Here, then, are three sources of vague
and incorrect definitions: indistinctness of the object, imperfection of the
organ of conception, inadequateness of the vehicle of ideas. Any one of these
must produce a certain degree of obscurity. The convention, in delineating the
boundary between the federal and State jurisdictions, must have experienced the
full effect of them all.
To the difficulties already mentioned
may be added the interfering pretensions of the larger and smaller States. We
cannot err in supposing that the former would contend for a participation in
the government, fully proportioned to their superior wealth and importance; and
that the latter would not be less tenacious of the equality at present enjoyed
by them. We may well suppose that neither side would entirely yield to the
other, and consequently that the struggle could be terminated only by
compromise. It is extremely probable, also, that after the ratio of
representation had been adjusted, this very compromise must have produced a fresh
struggle between the same parties, to give such a turn to the organization of
the government, and to the distribution of its powers, as would increase the
importance of the branches, in forming which they had respectively obtained the
greatest share of influence. There are features in the Constitution which
warrant each of these suppositions; and as far as either of them is well
founded, it shows that the convention must have been compelled to sacrifice
theoretical propriety to the force of extraneous considerations.
Nor could it have been the large and
small States only, which would marshal themselves in opposition to each other
on various points. Other combinations, resulting from a difference of local
position and policy, must have created additional difficulties. As every State
may be divided into different districts, and its citizens into different
classes, which give birth to contending interests and local jealousies, so the
different parts of the United States are distinguished from each other by a
variety of circumstances, which produce a like effect on a larger scale. And
although this variety of interests, for reasons sufficiently explained in a
former paper, may have a salutary influence on the administration of the
government when formed, yet every one must be sensible of the contrary
influence, which must have been experienced in the task of forming it.
Would it be wonderful if, under the
pressure of all these difficulties, the convention should have been forced into
some deviations from that artificial structure and regular symmetry which an
abstract view of the subject might lead an ingenious theorist to bestow on a
Constitution planned in his closet or in his imagination? The real wonder is
that so many difficulties should have been surmounted, and surmounted with a
unanimity almost as unprecedented as it must have been unexpected. It is
impossible for any man of candor to reflect on this circumstance without
partaking of the astonishment. It is impossible for the man of pious reflection
not to perceive in it a finger of that Almighty hand which has been so
frequently and signally extended to our relief in the critical stages of the
revolution.
We had occasion, in a former paper, to
take notice of the repeated trials which have been unsuccessfully made in the
United Netherlands for reforming the baneful and notorious vices of their
constitution. The history of almost all the great councils and consultations
held among mankind for reconciling their discordant opinions, assuaging their
mutual jealousies, and adjusting their respective interests, is a history of
factions, contentions, and disappointments, and may be classed among the most
dark and degraded pictures which display the infirmities and depravities of the
human character. If, in a few scattered instances, a brighter aspect is
presented, they serve only as exceptions to admonish us of the general truth;
and by their lustre to darken the gloom of the adverse prospect to which they
are contrasted. In revolving the causes from which these exceptions result, and
applying them to the particular instances before us, we are necessarily led to
two important conclusions. The first is, that the convention must have enjoyed,
in a very singular degree, an exemption from the pestilential influence of party
animosities the disease most incident to deliberative bodies, and most apt to
contaminate their proceedings. The second conclusion is that all the
deputations composing the convention were satisfactorily accommodated by the
final act, or were induced to accede to it by a deep conviction of the
necessity of sacrificing private opinions and partial interests to the public
good, and by a despair of seeing this necessity diminished by delays or by new
experiments.
PUBLIUS.
|| Federalist No. 38 ||
Part II: Concerning the Difficulties of
the Convention in Devising a Proper Form of Government and the Incoherence of
the Objections to the New Plan Exposed
New York Packet: January 15, 1788.
To the People of the State of New
York:
IT IS not a little remarkable that in
every case reported by ancient history, in which government has been
established with deliberation and consent, the task of framing it has not been
committed to an assembly of men, but has been performed by some individual
citizen of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive
founder of the government of Crete, as Zaleucus was of that of the Locrians.
Theseus first, and after him Draco and Solon, instituted the government of
Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original
government of Rome was laid by Romulus, and the work completed by two of his
elective successors, Numa and Tullius Hostilius. On the abolition of royalty
the consular administration was substituted by Brutus, who stepped forward with
a project for such a reform, which, he alleged, had been prepared by Tullius
Hostilius, and to which his address obtained the assent and ratification of the
senate and people. This remark is applicable to confederate governments also.
Amphictyon, we are told, was the author of that which bore his name. The
Achaean league received its first birth from Achaeus, and its second from
Aratus.
What degree of agency these reputed
lawgivers might have in their respective establishments, or how far they might
be clothed with the legitimate authority of the people, cannot in every
instance be ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with indefinite
powers to reform its government and laws. And Solon, according to Plutarch, was
in a manner compelled, by the universal suffrage of his fellow-citizens, to
take upon him the sole and absolute power of new-modeling the constitution. The
proceedings under Lycurgus were less regular; but as far as the advocates for a
regular reform could prevail, they all turned their eyes towards the single
efforts of that celebrated patriot and sage, instead of seeking to bring about
a revolution by the intervention of a deliberative body of citizens.
Whence could it have proceeded, that a
people, jealous as the Greeks were of their liberty, should so far abandon the
rules of caution as to place their destiny in the hands of a single citizen? Whence
could it have proceeded, that the Athenians, a people who would not suffer an
army to be commanded by fewer than ten generals, and who required no other
proof of danger to their liberties than the illustrious merit of a
fellow-citizen, should consider one illustrious citizen as a more eligible
depositary of the fortunes of themselves and their posterity, than a select
body of citizens, from whose common deliberations more wisdom, as well as more
safety, might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a number of
counsellors exceeded the apprehension of treachery or incapacity in a single
individual. History informs us, likewise, of the difficulties with which these
celebrated reformers had to contend, as well as the expedients which they were
obliged to employ in order to carry their reforms into effect. Solon, who seems
to have indulged a more temporizing policy, confessed that he had not given to
his countrymen the government best suited to their happiness, but most
tolerable to their prejudices. And Lycurgus, more true to his object, was under
the necessity of mixing a portion of violence with the authority of
superstition, and of securing his final success by a voluntary renunciation,
first of his country, and then of his life. If these lessons teach us, on one
hand, to admire the improvement made by America on the ancient mode of
preparing and establishing regular plans of government, they serve not less, on
the other, to admonish us of the hazards and difficulties incident to such
experiments, and of the great imprudence of unnecessarily multiplying them.
Is it an unreasonable conjecture, that
the errors which may be contained in the plan of the convention are such as
have resulted rather from the defect of antecedent experience on this
complicated and difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently such as will not be ascertained until an
actual trial shall have pointed them out? This conjecture is rendered probable,
not only by many considerations of a general nature, but by the particular case
of the Articles of Confederation. It is observable that among the numerous
objections and amendments suggested by the several States, when these articles
were submitted for their ratification, not one is found which alludes to the
great and radical error which on actual trial has discovered itself. And if we
except the observations which New Jersey was led to make, rather by her local
situation, than by her peculiar foresight, it may be questioned whether a
single suggestion was of sufficient moment to justify a revision of the system.
There is abundant reason, nevertheless, to suppose that immaterial as these
objections were, they would have been adhered to with a very dangerous
inflexibility, in some States, had not a zeal for their opinions and supposed
interests been stifled by the more powerful sentiment of selfpreservation. One
State, we may remember, persisted for several years in refusing her
concurrence, although the enemy remained the whole period at our gates, or
rather in the very bowels of our country. Nor was her pliancy in the end
effected by a less motive, than the fear of being chargeable with protracting
the public calamities, and endangering the event of the contest. Every candid
reader will make the proper reflections on these important facts.
A patient who finds his disorder daily
growing worse, and that an efficacious remedy can no longer be delayed without extreme
danger, after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable of
administering relief, and best entitled to his confidence. The physicians
attend; the case of the patient is carefully examined; a consultation is held;
they are unanimously agreed that the symptoms are critical, but that the case,
with proper and timely relief, is so far from being desperate, that it may be
made to issue in an improvement of his constitution. They are equally unanimous
in prescribing the remedy, by which this happy effect is to be produced. The
prescription is no sooner made known, however, than a number of persons
interpose, and, without denying the reality or danger of the disorder, assure
the patient that the prescription will be poison to his constitution, and
forbid him, under pain of certain death, to make use of it. Might not the
patient reasonably demand, before he ventured to follow this advice, that the
authors of it should at least agree among themselves on some other remedy to be
substituted? And if he found them differing as much from one another as from
his first counselors, would he not act prudently in trying the experiment
unanimously recommended by the latter, rather than be hearkening to those who
could neither deny the necessity of a speedy remedy, nor agree in proposing
one?
Such a patient and in such a situation
is America at this moment. She has been sensible of her malady. She has
obtained a regular and unanimous advice from men of her own deliberate choice.
And she is warned by others against following this advice under pain of the
most fatal consequences. Do the monitors deny the reality of her danger? No. Do
they deny the necessity of some speedy and powerful remedy? No. Are they
agreed, are any two of them agreed, in their objections to the remedy proposed,
or in the proper one to be substituted? Let them speak for themselves. This one
tells us that the proposed Constitution ought to be rejected, because it is not
a confederation of the States, but a government over individuals. Another
admits that it ought to be a government over individuals to a certain extent,
but by no means to the extent proposed. A third does not object to the
government over individuals, or to the extent proposed, but to the want of a
bill of rights. A fourth concurs in the absolute necessity of a bill of rights,
but contends that it ought to be declaratory, not of the personal rights of
individuals, but of the rights reserved to the States in their political
capacity. A fifth is of opinion that a bill of rights of any sort would be
superfluous and misplaced, and that the plan would be unexceptionable but for
the fatal power of regulating the times and places of election. An objector in a
large State exclaims loudly against the unreasonable equality of representation
in the Senate. An objector in a small State is equally loud against the
dangerous inequality in the House of Representatives. From this quarter, we are
alarmed with the amazing expense, from the number of persons who are to
administer the new government. From another quarter, and sometimes from the
same quarter, on another occasion, the cry is that the Congress will be but a
shadow of a representation, and that the government would be far less
objectionable if the number and the expense were doubled. A patriot in a State
that does not import or export, discerns insuperable objections against the
power of direct taxation. The patriotic adversary in a State of great exports
and imports, is not less dissatisfied that the whole burden of taxes may be
thrown on consumption. This politician discovers in the Constitution a direct
and irresistible tendency to monarchy; that is equally sure it will end in
aristocracy. Another is puzzled to say which of these shapes it will ultimately
assume, but sees clearly it must be one or other of them; whilst a fourth is
not wanting, who with no less confidence affirms that the Constitution is so
far from having a bias towards either of these dangers, that the weight on that
side will not be sufficient to keep it upright and firm against its opposite
propensities. With another class of adversaries to the Constitution the
language is that the legislative, executive, and judiciary departments are
intermixed in such a manner as to contradict all the ideas of regular
government and all the requisite precautions in favor of liberty. Whilst this
objection circulates in vague and general expressions, there are but a few who
lend their sanction to it. Let each one come forward with his particular
explanation, and scarce any two are exactly agreed upon the subject. In the
eyes of one the junction of the Senate with the President in the responsible
function of appointing to offices, instead of vesting this executive power in
the Executive alone, is the vicious part of the organization. To another, the
exclusion of the House of Representatives, whose numbers alone could be a due
security against corruption and partiality in the exercise of such a power, is
equally obnoxious. With another, the admission of the President into any share
of a power which ever must be a dangerous engine in the hands of the executive
magistrate, is an unpardonable violation of the maxims of republican jealousy.
No part of the arrangement, according to some, is more inadmissible than the
trial of impeachments by the Senate, which is alternately a member both of the
legislative and executive departments, when this power so evidently belonged to
the judiciary department. "We concur fully," reply others, "in
the objection to this part of the plan, but we can never agree that a reference
of impeachments to the judiciary authority would be an amendment of the error.
Our principal dislike to the organization arises from the extensive powers already
lodged in that department." Even among the zealous patrons of a council of
state the most irreconcilable variance is discovered concerning the mode in
which it ought to be constituted. The demand of one gentleman is, that the
council should consist of a small number to be appointed by the most numerous
branch of the legislature. Another would prefer a larger number, and considers
it as a fundamental condition that the appointment should be made by the
President himself.
As it can give no umbrage to the writers
against the plan of the federal Constitution, let us suppose, that as they are
the most zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a wiser and
better plan might and ought to be substituted. Let us further suppose that
their country should concur, both in this favorable opinion of their merits,
and in their unfavorable opinion of the convention; and should accordingly
proceed to form them into a second convention, with full powers, and for the
express purpose of revising and remoulding the work of the first. Were the
experiment to be seriously made, though it required some effort to view it
seriously even in fiction, I leave it to be decided by the sample of opinions
just exhibited, whether, with all their enmity to their predecessors, they
would, in any one point, depart so widely from their example, as in the discord
and ferment that would mark their own deliberations; and whether the
Constitution, now before the public, would not stand as fair a chance for
immortality, as Lycurgus gave to that of Sparta, by making its change to depend
on his own return from exile and death, if it were to be immediately adopted,
and were to continue in force, not until a BETTER, but until ANOTHER should be
agreed upon by this new assembly of lawgivers.
It is a matter both of wonder and
regret, that those who raise so many objections against the new Constitution
should never call to mind the defects of that which is to be exchanged for it.
It is not necessary that the former should be perfect; it is sufficient that
the latter is more imperfect. No man would refuse to give brass for silver or
gold, because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building, because
the latter had not a porch to it, or because some of the rooms might be a
little larger or smaller, or the ceilings a little higher or lower than his
fancy would have planned them. But waiving illustrations of this sort, is it
not manifest that most of the capital objections urged against the new system
lie with tenfold weight against the existing Confederation? Is an indefinite
power to raise money dangerous in the hands of the federal government? The
present Congress can make requisitions to any amount they please, and the
States are constitutionally bound to furnish them; they can emit bills of
credit as long as they will pay for the paper; they can borrow, both abroad and
at home, as long as a shilling will be lent. Is an indefinite power to raise
troops dangerous? The Confederation gives to Congress that power also; and they
have already begun to make use of it. Is it improper and unsafe to intermix the
different powers of government in the same body of men? Congress, a single body
of men, are the sole depositary of all the federal powers. Is it particularly
dangerous to give the keys of the treasury, and the command of the army, into
the same hands? The Confederation places them both in the hands of Congress. Is
a bill of rights essential to liberty? The Confederation has no bill of rights.
Is it an objection against the new Constitution, that it empowers the Senate,
with the concurrence of the Executive, to make treaties which are to be the laws
of the land? The existing Congress, without any such control, can make treaties
which they themselves have declared, and most of the States have recognized, to
be the supreme law of the land. Is the importation of slaves permitted by the
new Constitution for twenty years? By the old it is permitted forever.
I shall be told, that however
dangerous this mixture of powers may be in theory, it is rendered harmless by
the dependence of Congress on the State for the means of carrying them into
practice; that however large the mass of powers may be, it is in fact a
lifeless mass. Then, say I, in the first place, that the Confederation is
chargeable with the still greater folly of declaring certain powers in the
federal government to be absolutely necessary, and at the same time rendering
them absolutely nugatory; and, in the next place, that if the Union is to
continue, and no better government be substituted, effective powers must either
be granted to, or assumed by, the existing Congress; in either of which events,
the contrast just stated will hold good. But this is not all. Out of this
lifeless mass has already grown an excrescent power, which tends to realize all
the dangers that can be apprehended from a defective construction of the
supreme government of the Union. It is now no longer a point of speculation and
hope, that the Western territory is a mine of vast wealth to the United States;
and although it is not of such a nature as to extricate them from their present
distresses, or for some time to come, to yield any regular supplies for the
public expenses, yet must it hereafter be able, under proper management, both
to effect a gradual discharge of the domestic debt, and to furnish, for a
certain period, liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered by individual States; and
it may with reason be expected that the remaining States will not persist in
withholding similar proofs of their equity and generosity. We may calculate,
therefore, that a rich and fertile country, of an area equal to the inhabited
extent of the United States, will soon become a national stock. Congress have
assumed the administration of this stock. They have begun to render it
productive. Congress have undertaken to do more: they have proceeded to form
new States, to erect temporary governments, to appoint officers for them, and
to prescribe the conditions on which such States shall be admitted into the
Confederacy. All this has been done; and done without the least color of constitutional
authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT
and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of
men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to
their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have
not only been silent spectators of this prospect, but who are advocates for the
system which exhibits it; and, at the same time, urge against the new system
the objections which we have heard. Would they not act with more consistency,
in urging the establishment of the latter, as no less necessary to guard the
Union against the future powers and resources of a body constructed like the
existing Congress, than to save it from the dangers threatened by the present
impotency of that Assembly?
I mean not, by any thing here said, to
throw censure on the measures which have been pursued by Congress. I am
sensible they could not have done otherwise. The public interest, the necessity
of the case, imposed upon them the task of overleaping their constitutional
limits. But is not the fact an alarming proof of the danger resulting from a
government which does not possess regular powers commensurate to its objects? A
dissolution or usurpation is the dreadful dilemma to which it is continually
exposed.
PUBLIUS.
|| Federalist No. 39 ||
The Conformity of the Plan to Republican
Principles
Independent Journal: January 18, 1788
To the People of the State of New
York:
THE last paper having concluded the
observations which were meant to introduce a candid survey of the plan of
government reported by the convention, we now proceed to the execution of that
part of our undertaking.
The first question that offers itself
is, whether the general form and aspect of the government be strictly
republican. It is evident that no other form would be reconcilable with the
genius of the people of America; with the fundamental principles of the
Revolution; or with that honorable determination which animates every votary of
freedom, to rest all our political experiments on the capacity of mankind for
self-government. If the plan of the convention, therefore, be found to depart
from the republican character, its advocates must abandon it as no longer
defensible.
What, then, are the distinctive
characters of the republican form? Were an answer to this question to be
sought, not by recurring to principles, but in the application of the term by
political writers, to the constitution of different States, no satisfactory one
would ever be found. Holland, in which no particle of the supreme authority is
derived from the people, has passed almost universally under the denomination
of a republic. The same title has been bestowed on Venice, where absolute power
over the great body of the people is exercised, in the most absolute manner, by
a small body of hereditary nobles. Poland, which is a mixture of aristocracy
and of monarchy in their worst forms, has been dignified with the same
appellation. The government of England, which has one republican branch only,
combined with an hereditary aristocracy and monarchy, has, with equal
impropriety, been frequently placed on the list of republics. These examples,
which are nearly as dissimilar to each other as to a genuine republic, show the
extreme inaccuracy with which the term has been used in political
disquisitions.
If we resort for a criterion to the
different principles on which different forms of government are established, we
may define a republic to be, or at least may bestow that name on, a government
which derives all its powers directly or indirectly from the great body of the
people, and is administered by persons holding their offices during pleasure,
for a limited period, or during good behavior. It is ESSENTIAL to such a
government that it be derived from the great body of the society, not from an
inconsiderable proportion, or a favored class of it; otherwise a handful of
tyrannical nobles, exercising their oppressions by a delegation of their powers,
might aspire to the rank of republicans, and claim for their government the
honorable title of republic. It is SUFFICIENT for such a government that the
persons administering it be appointed, either directly or indirectly, by the
people; and that they hold their appointments by either of the tenures just
specified; otherwise every government in the United States, as well as every
other popular government that has been or can be well organized or well
executed, would be degraded from the republican character. According to the
constitution of every State in the Union, some or other of the officers of
government are appointed indirectly only by the people. According to most of
them, the chief magistrate himself is so appointed. And according to one, this
mode of appointment is extended to one of the co-ordinate branches of the
legislature. According to all the constitutions, also, the tenure of the
highest offices is extended to a definite period, and in many instances, both
within the legislative and executive departments, to a period of years.
According to the provisions of most of the constitutions, again, as well as
according to the most respectable and received opinions on the subject, the
members of the judiciary department are to retain their offices by the firm
tenure of good behavior.
On comparing the Constitution planned
by the convention with the standard here fixed, we perceive at once that it is,
in the most rigid sense, conformable to it. The House of Representatives, like
that of one branch at least of all the State legislatures, is elected
immediately by the great body of the people. The Senate, like the present
Congress, and the Senate of Maryland, derives its appointment indirectly from
the people. The President is indirectly derived from the choice of the people,
according to the example in most of the States. Even the judges, with all other
officers of the Union, will, as in the several States, be the choice, though a
remote choice, of the people themselves, the duration of the appointments is
equally conformable to the republican standard, and to the model of State
constitutions The House of Representatives is periodically elective, as in all
the States; and for the period of two years, as in the State of South Carolina.
The Senate is elective, for the period of six years; which is but one year more
than the period of the Senate of Maryland, and but two more than that of the
Senates of New York and Virginia. The President is to continue in office for
the period of four years; as in New York and Delaware, the chief magistrate is elected
for three years, and in South Carolina for two years. In the other States the
election is annual. In several of the States, however, no constitutional
provision is made for the impeachment of the chief magistrate. And in Delaware
and Virginia he is not impeachable till out of office. The President of the
United States is impeachable at any time during his continuance in office. The
tenure by which the judges are to hold their places, is, as it unquestionably
ought to be, that of good behavior. The tenure of the ministerial offices
generally, will be a subject of legal regulation, conformably to the reason of
the case and the example of the State constitutions.
Could any further proof be required of
the republican complexion of this system, the most decisive one might be found
in its absolute prohibition of titles of nobility, both under the federal and
the State governments; and in its express guaranty of the republican form to
each of the latter.
"But it was not sufficient,"
say the adversaries of the proposed Constitution, "for the convention to
adhere to the republican form. They ought, with equal care, to have preserved
the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states;
instead of which, they have framed a NATIONAL government, which regards the
Union as a CONSOLIDATION of the States." And it is asked by what authority
this bold and radical innovation was undertaken? The handle which has been made
of this objection requires that it should be examined with some precision.
Without inquiring into the accuracy of
the distinction on which the objection is founded, it will be necessary to a
just estimate of its force, first, to ascertain the real character of the
government in question; secondly, to inquire how far the convention were
authorized to propose such a government; and thirdly, how far the duty they
owed to their country could supply any defect of regular authority.
First. In order to ascertain the real
character of the government, it may be considered in relation to the foundation
on which it is to be established; to the sources from which its ordinary powers
are to be drawn; to the operation of those powers; to the extent of them; and
to the authority by which future changes in the government are to be
introduced.
On examining the first relation, it
appears, on one hand, that the Constitution is to be founded on the assent and
ratification of the people of America, given by deputies elected for the
special purpose; but, on the other, that this assent and ratification is to be
given by the people, not as individuals composing one entire nation, but as
composing the distinct and independent States to which they respectively
belong. It is to be the assent and ratification of the several States, derived
from the supreme authority in each State, the authority of the people
themselves. The act, therefore, establishing the Constitution, will not be a
NATIONAL, but a FEDERAL act.
That it will be a federal and not a
national act, as these terms are understood by the objectors; the act of the
people, as forming so many independent States, not as forming one aggregate
nation, is obvious from this single consideration, that it is to result neither
from the decision of a MAJORITY of the people of the Union, nor from that of a
MAJORITY of the States. It must result from the UNANIMOUS assent of the several
States that are parties to it, differing no otherwise from their ordinary
assent than in its being expressed, not by the legislative authority, but by
that of the people themselves. Were the people regarded in this transaction as
forming one nation, the will of the majority of the whole people of the United
States would bind the minority, in the same manner as the majority in each
State must bind the minority; and the will of the majority must be determined
either by a comparison of the individual votes, or by considering the will of
the majority of the States as evidence of the will of a majority of the people
of the United States. Neither of these rules have been adopted. Each State, in
ratifying the Constitution, is considered as a sovereign body, independent of
all others, and only to be bound by its own voluntary act. In this relation,
then, the new Constitution will, if established, be a FEDERAL, and not a
NATIONAL constitution.
The next relation is, to the sources
from which the ordinary powers of government are to be derived. The House of
Representatives will derive its powers from the people of America; and the
people will be represented in the same proportion, and on the same principle,
as they are in the legislature of a particular State. So far the government is
NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers
from the States, as political and coequal societies; and these will be
represented on the principle of equality in the Senate, as they now are in the
existing Congress. So far the government is FEDERAL, not NATIONAL. The
executive power will be derived from a very compound source. The immediate
election of the President is to be made by the States in their political
characters. The votes allotted to them are in a compound ratio, which considers
them partly as distinct and coequal societies, partly as unequal members of the
same society. The eventual election, again, is to be made by that branch of the
legislature which consists of the national representatives; but in this
particular act they are to be thrown into the form of individual delegations,
from so many distinct and coequal bodies politic. From this aspect of the
government it appears to be of a mixed character, presenting at least as many
FEDERAL as NATIONAL features.
The difference between a federal and
national government, as it relates to the OPERATION OF THE GOVERNMENT, is
supposed to consist in this, that in the former the powers operate on the
political bodies composing the Confederacy, in their political capacities; in
the latter, on the individual citizens composing the nation, in their
individual capacities. On trying the Constitution by this criterion, it falls
under the NATIONAL, not the FEDERAL character; though perhaps not so completely
as has been understood. In several cases, and particularly in the trial of
controversies to which States may be parties, they must be viewed and proceeded
against in their collective and political capacities only. So far the national
countenance of the government on this side seems to be disfigured by a few
federal features. But this blemish is perhaps unavoidable in any plan; and the
operation of the government on the people, in their individual capacities, in
its ordinary and most essential proceedings, may, on the whole, designate it,
in this relation, a NATIONAL government.
But if the government be national with
regard to the OPERATION of its powers, it changes its aspect again when we
contemplate it in relation to the EXTENT of its powers. The idea of a national
government involves in it, not only an authority over the individual citizens,
but an indefinite supremacy over all persons and things, so far as they are
objects of lawful government. Among a people consolidated into one nation, this
supremacy is completely vested in the national legislature. Among communities
united for particular purposes, it is vested partly in the general and partly
in the municipal legislatures. In the former case, all local authorities are
subordinate to the supreme; and may be controlled, directed, or abolished by it
at pleasure. In the latter, the local or municipal authorities form distinct
and independent portions of the supremacy, no more subject, within their respective
spheres, to the general authority, than the general authority is subject to
them, within its own sphere. In this relation, then, the proposed government
cannot be deemed a NATIONAL one; since its jurisdiction extends to certain
enumerated objects only, and leaves to the several States a residuary and
inviolable sovereignty over all other objects. It is true that in controversies
relating to the boundary between the two jurisdictions, the tribunal which is
ultimately to decide, is to be established under the general government. But
this does not change the principle of the case. The decision is to be
impartially made, according to the rules of the Constitution; and all the usual
and most effectual precautions are taken to secure this impartiality. Some such
tribunal is clearly essential to prevent an appeal to the sword and a
dissolution of the compact; and that it ought to be established under the
general rather than under the local governments, or, to speak more properly,
that it could be safely established under the first alone, is a position not
likely to be combated.
If we try the Constitution by its last
relation to the authority by which amendments are to be made, we find it
neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the
supreme and ultimate authority would reside in the MAJORITY of the people of
the Union; and this authority would be competent at all times, like that of a
majority of every national society, to alter or abolish its established
government. Were it wholly federal, on the other hand, the concurrence of each
State in the Union would be essential to every alteration that would be binding
on all. The mode provided by the plan of the convention is not founded on
either of these principles. In requiring more than a majority, and principles.
In requiring more than a majority, and particularly in computing the proportion
by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards
the FEDERAL character; in rendering the concurrence of less than the whole
number of States sufficient, it loses again the FEDERAL and partakes of the
NATIONAL character.
The proposed Constitution, therefore,
is, in strictness, neither a national nor a federal Constitution, but a
composition of both. In its foundation it is federal, not national; in the
sources from which the ordinary powers of the government are drawn, it is
partly federal and partly national; in the operation of these powers, it is
national, not federal; in the extent of them, again, it is federal, not national;
and, finally, in the authoritative mode of introducing amendments, it is
neither wholly federal nor wholly national.
PUBLIUS.
|| Federalist No. 40 ||
The Powers of the Convention to Form a
Mixed Government Examined and Sustained
New York Packet: January 18, 1788.
To the People of the State of New
York:
THE SECOND point to be examined is,
whether the convention were authorized to frame and propose this mixed
Constitution. The powers of the convention ought, in strictness, to be
determined by an inspection of the commissions given to the members by their
respective constituents. As all of these, however, had reference, either to the
recommendation from the meeting at Annapolis, in September, 1786, or to that
from Congress, in February, 1787, it will be sufficient to recur to these
particular acts. The act from Annapolis recommends the "appointment of
commissioners to take into consideration the situation of the United States; to
devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the
Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION;
and to report such an act for that purpose, to the United States in Congress
assembled, as when agreed to by them, and afterwards confirmed by the
legislature of every State, will effectually provide for the same. "The
recommendatory act of Congress is in the words following:"WHEREAS, There
is provision in the articles of Confederation and perpetual Union, for making
alterations therein, by the assent of a Congress of the United States, and of
the legislatures of the several States; and whereas experience hath evinced,
that there are defects in the present Confederation; as a mean to remedy which,
several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express
instructions to their delegates in Congress, have suggested a convention for
the purposes expressed in the following resolution; and such convention
appearing to be the most probable mean of establishing in these States A FIRM
NATIONAL GOVERNMENT:"Resolved, That in the opinion of Congress it is
expedient, that on the second Monday of May next a convention of delegates, who
shall have been appointed by the several States, be held at Philadelphia, for the
sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and
reporting to Congress and the several legislatures such ALTERATIONS AND
PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the
States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF
GOVERNMENT AND THE PRESERVATION OF THE UNION. "From these two acts, it
appears, 1st, that the object of the convention was to establish, in these
States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as
would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE
UNION; 3d, that these purposes were to be effected by ALTERATIONS AND
PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of
Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it
stands in the recommendatory act from Annapolis; 4th, that the alterations and
provisions were to be reported to Congress, and to the States, in order to be
agreed to by the former and confirmed by the latter. From a comparison and fair
construction of these several modes of expression, is to be deduced the
authority under which the convention acted. They were to frame a NATIONAL
GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to
reduce the articles of Confederation into such form as to accomplish these
purposes.
There are two rules of construction,
dictated by plain reason, as well as founded on legal axioms. The one is, that
every part of the expression ought, if possible, to be allowed some meaning,
and be made to conspire to some common end. The other is, that where the
several parts cannot be made to coincide, the less important should give way to
the more important part; the means should be sacrificed to the end, rather than
the end to the means. Suppose, then, that the expressions defining the
authority of the convention were irreconcilably at variance with each other;
that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of
the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF
CONFEDERATION; which part of the definition ought to have been embraced, and
which rejected? Which was the more important, which the less important part?
Which the end; which the means? Let the most scrupulous expositors of delegated
powers; let the most inveterate objectors against those exercised by the
convention, answer these questions. Let them declare, whether it was of most
importance to the happiness of the people of America, that the articles of
Confederation should be disregarded, and an adequate government be provided,
and the Union preserved; or that an adequate government should be omitted, and
the articles of Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a reform of the
government was to be introduced as the means; or whether the establishment of a
government, adequate to the national happiness, was the end at which these
articles themselves originally aimed, and to which they ought, as insufficient
means, to have been sacrificed. But is it necessary to suppose that these
expressions are absolutely irreconcilable to each other; that no ALTERATIONS or
PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into
a national and adequate government; into such a government as has been proposed
by the convention? No stress, it is presumed, will, in this case, be laid on
the TITLE; a change of that could never be deemed an exercise of ungranted
power. ALTERATIONS in the body of the instrument are expressly authorized. NEW
PROVISIONS therein are also expressly authorized. Here then is a power to
change the title; to insert new articles; to alter old ones. Must it of
necessity be admitted that this power is infringed, so long as a part of the
old articles remain? Those who maintain the affirmative ought at least to mark
the boundary between authorized and usurped innovations; between that degree of
change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and
that which amounts to a TRANSMUTATION of the government. Will it be said that
the alterations ought not to have touched the substance of the Confederation?
The States would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some SUBSTANTIAL reform had not
been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the
Confederation were not within the purview of the convention, and ought not to
have been varied? I ask, What are these principles? Do they require that, in
the establishment of the Constitution, the States should be regarded as
distinct and independent sovereigns? They are so regarded by the Constitution
proposed. Do they require that the members of the government should derive
their appointment from the legislatures, not from the people of the States? One
branch of the new government is to be appointed by these legislatures; and
under the Confederation, the delegates to Congress MAY ALL be appointed
immediately by the people, and in two States [1] are actually so appointed. Do
they require that the powers of the government should act on the States, and
not immediately on individuals? In some instances, as has been shown, the
powers of the new government will act on the States in their collective
characters. In some instances, also, those of the existing government act
immediately on individuals. In cases of capture; of piracy; of the post office;
of coins, weights, and measures; of trade with the Indians; of claims under grants
of land by different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be inflicted without
the intervention of a jury, or even of a civil magistrate; in all these cases
the powers of the Confederation operate immediately on the persons and
interests of individual citizens. Do these fundamental principles require,
particularly, that no tax should be levied without the intermediate agency of
the States? The Confederation itself authorizes a direct tax, to a certain
extent, on the post office. The power of coinage has been so construed by
Congress as to levy a tribute immediately from that source also. But
pretermitting these instances, was it not an acknowledged object of the
convention and the universal expectation of the people, that the regulation of
trade should be submitted to the general government in such a form as would
render it an immediate source of general revenue? Had not Congress repeatedly
recommended this measure as not inconsistent with the fundamental principles of
the Confederation? Had not every State but one; had not New York herself, so
far complied with the plan of Congress as to recognize the PRINCIPLE of the
innovation? Do these principles, in fine, require that the powers of the
general government should be limited, and that, beyond this limit, the States
should be left in possession of their sovereignty and independence? We have
seen that in the new government, as in the old, the general powers are limited;
and that the States, in all unenumerated cases, are left in the enjoyment of
their sovereign and independent jurisdiction. The truth is, that the great
principles of the Constitution proposed by the convention may be considered
less as absolutely new, than as the expansion of principles which are found in
the articles of Confederation. The misfortune under the latter system has been,
that these principles are so feeble and confined as to justify all the charges
of inefficiency which have been urged against it, and to require a degree of
enlargement which gives to the new system the aspect of an entire
transformation of the old. In one particular it is admitted that the convention
have departed from the tenor of their commission. Instead of reporting a plan
requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have
reported a plan which is to be confirmed by the PEOPLE, and may be carried into
effect by NINE STATES ONLY. It is worthy of remark that this objection, though
the most plausible, has been the least urged in the publications which have
swarmed against the convention. The forbearance can only have proceeded from an
irresistible conviction of the absurdity of subjecting the fate of twelve
States to the perverseness or corruption of a thirteenth; from the example of
inflexible opposition given by a MAJORITY of one sixtieth of the people of
America to a measure approved and called for by the voice of twelve States,
comprising fifty-nine sixtieths of the people an example still fresh in the
memory and indignation of every citizen who has felt for the wounded honor and
prosperity of his country. As this objection, therefore, has been in a manner
waived by those who have criticised the powers of the convention, I dismiss it
without further observation. The THIRD point to be inquired into is, how far
considerations of duty arising out of the case itself could have supplied any
defect of regular authority. In the preceding inquiries the powers of the
convention have been analyzed and tried with the same rigor, and by the same
rules, as if they had been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner they have borne
the trial even on that supposition. It is time now to recollect that the powers
were merely advisory and recommendatory; that they were so meant by the States,
and so understood by the convention; and that the latter have accordingly
planned and proposed a Constitution which is to be of no more consequence than
the paper on which it is written, unless it be stamped with the approbation of
those to whom it is addressed. This reflection places the subject in a point of
view altogether different, and will enable us to judge with propriety of the
course taken by the convention. Let us view the ground on which the convention
stood. It may be collected from their proceedings, that they were deeply and
unanimously impressed with the crisis, which had led their country almost with
one voice to make so singular and solemn an experiment for correcting the errors
of a system by which this crisis had been produced; that they were no less
deeply and unanimously convinced that such a reform as they have proposed was
absolutely necessary to effect the purposes of their appointment. It could not
be unknown to them that the hopes and expectations of the great body of
citizens, throughout this great empire, were turned with the keenest anxiety to
the event of their deliberations. They had every reason to believe that the
contrary sentiments agitated the minds and bosoms of every external and
internal foe to the liberty and prosperity of the United States. They had seen
in the origin and progress of the experiment, the alacrity with which the
PROPOSITION, made by a single State (Virginia), towards a partial amendment of
the Confederation, had been attended to and promoted. They had seen the LIBERTY
ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis,
of recommending a great and critical object, wholly foreign to their
commission, not only justified by the public opinion, but actually carried into
effect by twelve out of the thirteen States. They had seen, in a variety of
instances, assumptions by Congress, not only of recommendatory, but of
operative, powers, warranted, in the public estimation, by occasions and
objects infinitely less urgent than those by which their conduct was to be
governed. They must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid adherence in
such cases to the former, would render nominal and nugatory the transcendent
and precious right of the people to "abolish or alter their governments as
to them shall seem most likely to effect their safety and happiness," [2]
since it is impossible for the people spontaneously and universally to move in
concert towards their object; and it is therefore essential that such changes
be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some
patriotic and respectable citizen or number of citizens. They must have
recollected that it was by this irregular and assumed privilege of proposing to
the people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their ancient
government; that committees and congresses were formed for concentrating their
efforts and defending their rights; and that CONVENTIONS were ELECTED in THE
SEVERAL STATES for establishing the constitutions under which they are now
governed; nor could it have been forgotten that no little ill-timed scruples,
no zeal for adhering to ordinary forms, were anywhere seen, except in those who
wished to indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be framed and
proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of
this supreme authority would destroy it forever; its approbation blot out
antecedent errors and irregularities. It might even have occurred to them, that
where a disposition to cavil prevailed, their neglect to execute the degree of
power vested in them, and still more their recommendation of any measure
whatever, not warranted by their commission, would not less excite
animadversion, than a recommendation at once of a measure fully commensurate to
the national exigencies. Had the convention, under all these impressions, and
in the midst of all these considerations, instead of exercising a manly
confidence in their country, by whose confidence they had been so peculiarly
distinguished, and of pointing out a system capable, in their judgment, of
securing its happiness, taken the cold and sullen resolution of disappointing
its ardent hopes, of sacrificing substance to forms, of committing the dearest
interests of their country to the uncertainties of delay and the hazard of
events, let me ask the man who can raise his mind to one elevated conception,
who can awaken in his bosom one patriotic emotion, what judgment ought to have
been pronounced by the impartial world, by the friends of mankind, by every
virtuous citizen, on the conduct and character of this assembly? Or if there be
a man whose propensity to condemn is susceptible of no control, let me then ask
what sentence he has in reserve for the twelve States who USURPED THE POWER of
sending deputies to the convention, a body utterly unknown to their
constitutions; for Congress, who recommended the appointment of this body,
equally unknown to the Confederation; and for the State of New York, in
particular, which first urged and then complied with this unauthorized
interposition? But that the objectors may be disarmed of every pretext, it
shall be granted for a moment that the convention were neither authorized by
their commission, nor justified by circumstances in proposing a Constitution
for their country: does it follow that the Constitution ought, for that reason
alone, to be rejected? If, according to the noble precept, it be lawful to
accept good advice even from an enemy, shall we set the ignoble example of
refusing such advice even when it is offered by our friends? The prudent
inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice
comes, as whether the advice be GOOD. The sum of what has been here advanced
and proved is, that the charge against the convention of exceeding their
powers, except in one instance little urged by the objectors, has no foundation
to support it; that if they had exceeded their powers, they were not only
warranted, but required, as the confidential servants of their country, by the
circumstances in which they were placed, to exercise the liberty which they
assume; and that finally, if they had violated both their powers and their
obligations, in proposing a Constitution, this ought nevertheless to be
embraced, if it be calculated to accomplish the views and happiness of the
people of America. How far this character is due to the Constitution, is the
subject under investigation.
PUBLIUS.
1.
Connecticut and Rhode Island.
2.
Declaration of Independence.
|| Federalist No. 41 ||
General View of the Powers Conferred by
the Constitution
Independent Journal: January 18, 1788
To the People of the State of New
York:
THE Constitution proposed by the
convention may be considered under two general points of view. The FIRST
relates to the sum or quantity of power which it vests in the government,
including the restraints imposed on the States. The SECOND, to the particular
structure of the government, and the distribution of this power among its
several branches. Under the FIRST view of the subject, two important questions
arise: 1. Whether any part of the powers transferred to the general government
be unnecessary or improper? 2. Whether the entire mass of them be dangerous to
the portion of jurisdiction left in the several States? Is the aggregate power
of the general government greater than ought to have been vested in it? This is
the FIRST question. It cannot have escaped those who have attended with candor
to the arguments employed against the extensive powers of the government, that
the authors of them have very little considered how far these powers were
necessary means of attaining a necessary end. They have chosen rather to dwell
on the inconveniences which must be unavoidably blended with all political
advantages; and on the possible abuses which must be incident to every power or
trust, of which a beneficial use can be made. This method of handling the
subject cannot impose on the good sense of the people of America. It may display
the subtlety of the writer; it may open a boundless field for rhetoric and
declamation; it may inflame the passions of the unthinking, and may confirm the
prejudices of the misthinking: but cool and candid people will at once reflect,
that the purest of human blessings must have a portion of alloy in them; that
the choice must always be made, if not of the lesser evil, at least of the
GREATER, not the PERFECT, good; and that in every political institution, a
power to advance the public happiness involves a discretion which may be
misapplied and abused. They will see, therefore, that in all cases where power
is to be conferred, the point first to be decided is, whether such a power be
necessary to the public good; as the next will be, in case of an affirmative
decision, to guard as effectually as possible against a perversion of the power
to the public detriment. That we may form a correct judgment on this subject,
it will be proper to review the several powers conferred on the government of
the Union; and that this may be the more conveniently done they may be reduced
into different classes as they relate to the following different objects: 1.
Security against foreign danger; 2. Regulation of the intercourse with foreign
nations; 3. Maintenance of harmony and proper intercourse among the States; 4.
Certain miscellaneous objects of general utility; 5. Restraint of the States
from certain injurious acts; 6. Provisions for giving due efficacy to all these
powers. The powers falling within the FIRST class are those of declaring war
and granting letters of marque; of providing armies and fleets; of regulating
and calling forth the militia; of levying and borrowing money. Security against
foreign danger is one of the primitive objects of civil society. It is an avowed
and essential object of the American Union. The powers requisite for attaining
it must be effectually confided to the federal councils. Is the power of
declaring war necessary? No man will answer this question in the negative. It
would be superfluous, therefore, to enter into a proof of the affirmative. The
existing Confederation establishes this power in the most ample form. Is the
power of raising armies and equipping fleets necessary? This is involved in the
foregoing power. It is involved in the power of self-defense. But was it
necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing
fleets; and of maintaining both in PEACE, as well as in war? The answer to
these questions has been too far anticipated in another place to admit an
extensive discussion of them in this place. The answer indeed seems to be so
obvious and conclusive as scarcely to justify such a discussion in any place.
With what color of propriety could the force necessary for defense be limited
by those who cannot limit the force of offense? If a federal Constitution could
chain the ambition or set bounds to the exertions of all other nations, then
indeed might it prudently chain the discretion of its own government, and set
bounds to the exertions for its own safety.
How could a readiness for war in time
of peace be safely prohibited, unless we could prohibit, in like manner, the
preparations and establishments of every hostile nation? The means of security
can only be regulated by the means and the danger of attack. They will, in
fact, be ever determined by these rules, and by no others. It is in vain to
oppose constitutional barriers to the impulse of self-preservation. It is worse
than in vain; because it plants in the Constitution itself necessary
usurpations of power, every precedent of which is a germ of unnecessary and
multiplied repetitions. If one nation maintains constantly a disciplined army,
ready for the service of ambition or revenge, it obliges the most pacific
nations who may be within the reach of its enterprises to take corresponding
precautions.
The fifteenth century was the unhappy
epoch of military establishments in the time of peace. They were introduced by
Charles VII. of France. All Europe has followed, or been forced into, the
example. Had the example not been followed by other nations, all Europe must
long ago have worn the chains of a universal monarch. Were every nation except
France now to disband its peace establishments, the same event might follow.
The veteran legions of Rome were an overmatch for the undisciplined valor of
all other nations and rendered her the mistress of the world. Not the less true
is it, that the liberties of Rome proved the final victim to her military
triumphs; and that the liberties of Europe, as far as they ever existed, have,
with few exceptions, been the price of her military establishments. A standing
force, therefore, is a dangerous, at the same time that it may be a necessary,
provision. On the smallest scale it has its inconveniences. On an extensive
scale its consequences may be fatal. On any scale it is an object of laudable
circumspection and precaution. A wise nation will combine all these
considerations; and, whilst it does not rashly preclude itself from any
resource which may become essential to its safety, will exert all its prudence
in diminishing both the necessity and the danger of resorting to one which may
be inauspicious to its liberties. The clearest marks of this prudence are
stamped on the proposed Constitution. The Union itself, which it cements and
secures, destroys every pretext for a military establishment which could be
dangerous. America united, with a handful of troops, or without a single
soldier, exhibits a more forbidding posture to foreign ambition than America
disunited, with a hundred thousand veterans ready for combat. It was remarked,
on a former occasion, that the want of this pretext had saved the liberties of
one nation in Europe. Being rendered by her insular situation and her maritime
resources impregnable to the armies of her neighbors, the rulers of Great
Britain have never been able, by real or artificial dangers, to cheat the
public into an extensive peace establishment. The distance of the United States
from the powerful nations of the world gives them the same happy security. A
dangerous establishment can never be necessary or plausible, so long as they
continue a united people. But let it never, for a moment, be forgotten that
they are indebted for this advantage to the Union alone. The moment of its
dissolution will be the date of a new order of things. The fears of the weaker,
or the ambition of the stronger States, or Confederacies, will set the same
example in the New, as Charles VII. did in the Old World. The example will be
followed here from the same motives which produced universal imitation there.
Instead of deriving from our situation the precious advantage which Great
Britain has derived from hers, the face of America will be but a copy of that
of the continent of Europe. It will present liberty everywhere crushed between
standing armies and perpetual taxes. The fortunes of disunited America will be
even more disastrous than those of Europe. The sources of evil in the latter
are confined to her own limits. No superior powers of another quarter of the
globe intrigue among her rival nations, inflame their mutual animosities, and
render them the instruments of foreign ambition, jealousy, and revenge. In
America the miseries springing from her internal jealousies, contentions, and
wars, would form a part only of her lot. A plentiful addition of evils would
have their source in that relation in which Europe stands to this quarter of
the earth, and which no other quarter of the earth bears to Europe. This
picture of the consequences of disunion cannot be too highly colored, or too
often exhibited. Every man who loves peace, every man who loves his country,
every man who loves liberty, ought to have it ever before his eyes, that he may
cherish in his heart a due attachment to the Union of America, and be able to
set a due value on the means of preserving it.
Next to the effectual establishment of
the Union, the best possible precaution against danger from standing armies is
a limitation of the term for which revenue may be appropriated to their
support. This precaution the Constitution has prudently added. I will not
repeat here the observations which I flatter myself have placed this subject in
a just and satisfactory light. But it may not be improper to take notice of an
argument against this part of the Constitution, which has been drawn from the
policy and practice of Great Britain. It is said that the continuance of an
army in that kingdom requires an annual vote of the legislature; whereas the
American Constitution has lengthened this critical period to two years. This is
the form in which the comparison is usually stated to the public: but is it a
just form? Is it a fair comparison? Does the British Constitution restrain the
parliamentary discretion to one year? Does the American impose on the Congress
appropriations for two years? On the contrary, it cannot be unknown to the
authors of the fallacy themselves, that the British Constitution fixes no limit
whatever to the discretion of the legislature, and that the American ties down
the legislature to two years, as the longest admissible term. Had the argument
from the British example been truly stated, it would have stood thus: The term
for which supplies may be appropriated to the army establishment, though
unlimited by the British Constitution, has nevertheless, in practice, been
limited by parliamentary discretion to a single year. Now, if in Great Britain,
where the House of Commons is elected for seven years; where so great a
proportion of the members are elected by so small a proportion of the people;
where the electors are so corrupted by the representatives, and the
representatives so corrupted by the Crown, the representative body can possess
a power to make appropriations to the army for an indefinite term, without
desiring, or without daring, to extend the term beyond a single year, ought not
suspicion herself to blush, in pretending that the representatives of the
United States, elected FREELY by the WHOLE BODY of the people, every SECOND
YEAR, cannot be safely intrusted with the discretion over such appropriations,
expressly limited to the short period of TWO YEARS? A bad cause seldom fails to
betray itself. Of this truth, the management of the opposition to the federal
government is an unvaried exemplification. But among all the blunders which
have been committed, none is more striking than the attempt to enlist on that
side the prudent jealousy entertained by the people, of standing armies. The
attempt has awakened fully the public attention to that important subject; and
has led to investigations which must terminate in a thorough and universal
conviction, not only that the constitution has provided the most effectual
guards against danger from that quarter, but that nothing short of a
Constitution fully adequate to the national defense and the preservation of the
Union, can save America from as many standing armies as it may be split into
States or Confederacies, and from such a progressive augmentation, of these
establishments in each, as will render them as burdensome to the properties and
ominous to the liberties of the people, as any establishment that can become
necessary, under a united and efficient government, must be tolerable to the
former and safe to the latter. The palpable necessity of the power to provide
and maintain a navy has protected that part of the Constitution against a
spirit of censure, which has spared few other parts. It must, indeed, be
numbered among the greatest blessings of America, that as her Union will be the
only source of her maritime strength, so this will be a principal source of her
security against danger from abroad. In this respect our situation bears
another likeness to the insular advantage of Great Britain. The batteries most
capable of repelling foreign enterprises on our safety, are happily such as can
never be turned by a perfidious government against our liberties. The
inhabitants of the Atlantic frontier are all of them deeply interested in this
provision for naval protection, and if they have hitherto been suffered to
sleep quietly in their beds; if their property has remained safe against the
predatory spirit of licentious adventurers; if their maritime towns have not
yet been compelled to ransom themselves from the terrors of a conflagration, by
yielding to the exactions of daring and sudden invaders, these instances of
good fortune are not to be ascribed to the capacity of the existing government
for the protection of those from whom it claims allegiance, but to causes that
are fugitive and fallacious. If we except perhaps Virginia and Maryland, which
are peculiarly vulnerable on their eastern frontiers, no part of the Union
ought to feel more anxiety on this subject than New York. Her seacoast is
extensive. A very important district of the State is an island. The State
itself is penetrated by a large navigable river for more than fifty leagues.
The great emporium of its commerce, the great reservoir of its wealth, lies
every moment at the mercy of events, and may almost be regarded as a hostage
for ignominious compliances with the dictates of a foreign enemy, or even with
the rapacious demands of pirates and barbarians. Should a war be the result of
the precarious situation of European affairs, and all the unruly passions
attending it be let loose on the ocean, our escape from insults and
depredations, not only on that element, but every part of the other bordering
on it, will be truly miraculous. In the present condition of America, the
States more immediately exposed to these calamities have nothing to hope from
the phantom of a general government which now exists; and if their single
resources were equal to the task of fortifying themselves against the danger,
the object to be protected would be almost consumed by the means of protecting
them. The power of regulating and calling forth the militia has been already
sufficiently vindicated and explained. The power of levying and borrowing
money, being the sinew of that which is to be exerted in the national defense,
is properly thrown into the same class with it. This power, also, has been
examined already with much attention, and has, I trust, been clearly shown to
be necessary, both in the extent and form given to it by the Constitution. I
will address one additional reflection only to those who contend that the power
ought to have been restrained to external taxation by which they mean, taxes on
articles imported from other countries. It cannot be doubted that this will
always be a valuable source of revenue; that for a considerable time it must be
a principal source; that at this moment it is an essential one. But we may form
very mistaken ideas on this subject, if we do not call to mind in our
calculations, that the extent of revenue drawn from foreign commerce must vary
with the variations, both in the extent and the kind of imports; and that these
variations do not correspond with the progress of population, which must be the
general measure of the public wants. As long as agriculture continues the sole
field of labor, the importation of manufactures must increase as the consumers
multiply. As soon as domestic manufactures are begun by the hands not called
for by agriculture, the imported manufactures will decrease as the numbers of
people increase. In a more remote stage, the imports may consist in a
considerable part of raw materials, which will be wrought into articles for
exportation, and will, therefore, require rather the encouragement of bounties,
than to be loaded with discouraging duties. A system of government, meant for
duration, ought to contemplate these revolutions, and be able to accommodate
itself to them. Some, who have not denied the necessity of the power of
taxation, have grounded a very fierce attack against the Constitution, on the
language in which it is defined. It has been urged and echoed, that the power
"to lay and collect taxes, duties, imposts, and excises, to pay the debts,
and provide for the common defense and general welfare of the United
States," amounts to an unlimited commission to exercise every power which
may be alleged to be necessary for the common defense or general welfare. No
stronger proof could be given of the distress under which these writers labor
for objections, than their stooping to such a misconstruction. Had no other
enumeration or definition of the powers of the Congress been found in the
Constitution, than the general expressions just cited, the authors of the
objection might have had some color for it; though it would have been difficult
to find a reason for so awkward a form of describing an authority to legislate
in all possible cases. A power to destroy the freedom of the press, the trial
by jury, or even to regulate the course of descents, or the forms of
conveyances, must be very singularly expressed by the terms "to raise
money for the general welfare. "But what color can the objection have,
when a specification of the objects alluded to by these general terms
immediately follows, and is not even separated by a longer pause than a
semicolon? If the different parts of the same instrument ought to be so
expounded, as to give meaning to every part which will bear it, shall one part
of the same sentence be excluded altogether from a share in the meaning; and
shall the more doubtful and indefinite terms be retained in their full extent,
and the clear and precise expressions be denied any signification whatsoever?
For what purpose could the enumeration of particular powers be inserted, if
these and all others were meant to be included in the preceding general power?
Nothing is more natural nor common than first to use a general phrase, and then
to explain and qualify it by a recital of particulars. But the idea of an
enumeration of particulars which neither explain nor qualify the general
meaning, and can have no other effect than to confound and mislead, is an
absurdity, which, as we are reduced to the dilemma of charging either on the
authors of the objection or on the authors of the Constitution, we must take
the liberty of supposing, had not its origin with the latter. The objection
here is the more extraordinary, as it appears that the language used by the
convention is a copy from the articles of Confederation. The objects of the
Union among the States, as described in article third, are "their common
defense, security of their liberties, and mutual and general welfare. "
The terms of article eighth are still more identical: "All charges of war
and all other expenses that shall be incurred for the common defense or general
welfare, and allowed by the United States in Congress, shall be defrayed out of
a common treasury," etc. A similar language again occurs in article ninth.
Construe either of these articles by the rules which would justify the
construction put on the new Constitution, and they vest in the existing
Congress a power to legislate in all cases whatsoever.
But what would have been thought of
that assembly, if, attaching themselves to these general expressions, and
disregarding the specifications which ascertain and limit their import, they
had exercised an unlimited power of providing for the common defense and
general welfare? I appeal to the objectors themselves, whether they would in
that case have employed the same reasoning in justification of Congress as they
now make use of against the convention. How difficult it is for error to escape
its own condemnation!
PUBLIUS.
|| Federalist No. 42 ||
The Powers Conferred by the Constitution
Further Considered
New York Packet: January 22, 1788.
To the People of the State of New
York:
THE SECOND class of powers, lodged in
the general government, consists of those which regulate the intercourse with
foreign nations, to wit: to make treaties; to send and receive ambassadors,
other public ministers, and consuls; to define and punish piracies and felonies
committed on the high seas, and offenses against the law of nations; to
regulate foreign commerce, including a power to prohibit, after the year 1808,
the importation of slaves, and to lay an intermediate duty of ten dollars per
head, as a discouragement to such importations. This class of powers forms an
obvious and essential branch of the federal administration. If we are to be one
nation in any respect, it clearly ought to be in respect to other nations. The
powers to make treaties and to send and receive ambassadors, speak their own
propriety. Both of them are comprised in the articles of Confederation, with
this difference only, that the former is disembarrassed, by the plan of the
convention, of an exception, under which treaties might be substantially
frustrated by regulations of the States; and that a power of appointing and
receiving "other public ministers and consuls," is expressly and very
properly added to the former provision concerning ambassadors. The term
ambassador, if taken strictly, as seems to be required by the second of the
articles of Confederation, comprehends the highest grade only of public
ministers, and excludes the grades which the United States will be most likely
to prefer, where foreign embassies may be necessary. And under no latitude of
construction will the term comprehend consuls. Yet it has been found expedient,
and has been the practice of Congress, to employ the inferior grades of public
ministers, and to send and receive consuls. It is true, that where treaties of
commerce stipulate for the mutual appointment of consuls, whose functions are
connected with commerce, the admission of foreign consuls may fall within the
power of making commercial treaties; and that where no such treaties exist, the
mission of American consuls into foreign countries may PERHAPS be covered under
the authority, given by the ninth article of the Confederation, to appoint all
such civil officers as may be necessary for managing the general affairs of the
United States. But the admission of consuls into the United States, where no
previous treaty has stipulated it, seems to have been nowhere provided for. A
supply of the omission is one of the lesser instances in which the convention
have improved on the model before them. But the most minute provisions become
important when they tend to obviate the necessity or the pretext for gradual
and unobserved usurpations of power. A list of the cases in which Congress have
been betrayed, or forced by the defects of the Confederation, into violations
of their chartered authorities, would not a little surprise those who have paid
no attention to the subject; and would be no inconsiderable argument in favor
of the new Constitution, which seems to have provided no less studiously for
the lesser, than the more obvious and striking defects of the old. The power to
define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations, belongs with equal propriety to the
general government, and is a still greater improvement on the articles of
Confederation. These articles contain no provision for the case of offenses
against the law of nations; and consequently leave it in the power of any
indiscreet member to embroil the Confederacy with foreign nations. The
provision of the federal articles on the subject of piracies and felonies extends
no further than to the establishment of courts for the trial of these offenses.
The definition of piracies might, perhaps, without inconveniency, be left to
the law of nations; though a legislative definition of them is found in most
municipal codes.
A definition of felonies on the high
seas is evidently requisite. Felony is a term of loose signification, even in
the common law of England; and of various import in the statute law of that
kingdom. But neither the common nor the statute law of that, or of any other
nation, ought to be a standard for the proceedings of this, unless previously
made its own by legislative adoption. The meaning of the term, as defined in
the codes of the several States, would be as impracticable as the former would
be a dishonorable and illegitimate guide. It is not precisely the same in any
two of the States; and varies in each with every revision of its criminal laws.
For the sake of certainty and uniformity, therefore, the power of defining
felonies in this case was in every respect necessary and proper.
The regulation of foreign commerce,
having fallen within several views which have been taken of this subject, has
been too fully discussed to need additional proofs here of its being properly
submitted to the federal administration. It were doubtless to be wished, that
the power of prohibiting the importation of slaves had not been postponed until
the year 1808, or rather that it had been suffered to have immediate operation.
But it is not difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is expressed. It ought
to be considered as a great point gained in favor of humanity, that a period of
twenty years may terminate forever, within these States, a traffic which has so
long and so loudly upbraided the barbarism of modern policy; that within that
period, it will receive a considerable discouragement from the federal
government, and may be totally abolished, by a concurrence of the few States
which continue the unnatural traffic, in the prohibitory example which has been
given by so great a majority of the Union. Happy would it be for the
unfortunate Africans, if an equal prospect lay before them of being redeemed
from the oppressions of their European brethren!
Attempts have been made to pervert
this clause into an objection against the Constitution, by representing it on
one side as a criminal toleration of an illicit practice, and on another as
calculated to prevent voluntary and beneficial emigrations from Europe to
America. I mention these misconstructions, not with a view to give them an
answer, for they deserve none, but as specimens of the manner and spirit in
which some have thought fit to conduct their opposition to the proposed
government. The powers included in the THIRD class are those which provide for
the harmony and proper intercourse among the States. Under this head might be
included the particular restraints imposed on the authority of the States, and
certain powers of the judicial department; but the former are reserved for a
distinct class, and the latter will be particularly examined when we arrive at
the structure and organization of the government. I shall confine myself to a
cursory review of the remaining powers comprehended under this third
description, to wit: to regulate commerce among the several States and the
Indian tribes; to coin money, regulate the value thereof, and of foreign coin;
to provide for the punishment of counterfeiting the current coin and securities
of the United States; to fix the standard of weights and measures; to establish
a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe
the manner in which the public acts, records, and judicial proceedings of each
State shall be proved, and the effect they shall have in other States; and to
establish post offices and post roads. The defect of power in the existing
Confederacy to regulate the commerce between its several members, is in the
number of those which have been clearly pointed out by experience. To the
proofs and remarks which former papers have brought into view on this subject,
it may be added that without this supplemental provision, the great and
essential power of regulating foreign commerce would have been incomplete and
ineffectual. A very material object of this power was the relief of the States
which import and export through other States, from the improper contributions
levied on them by the latter. Were these at liberty to regulate the trade
between State and State, it must be foreseen that ways would be found out to
load the articles of import and export, during the passage through their
jurisdiction, with duties which would fall on the makers of the latter and the
consumers of the former. We may be assured by past experience, that such a
practice would be introduced by future contrivances; and both by that and a
common knowledge of human affairs, that it would nourish unceasing animosities,
and not improbably terminate in serious interruptions of the public
tranquillity. To those who do not view the question through the medium of
passion or of interest, the desire of the commercial States to collect, in any
form, an indirect revenue from their uncommercial neighbors, must appear not
less impolitic than it is unfair; since it would stimulate the injured party,
by resentment as well as interest, to resort to less convenient channels for
their foreign trade. But the mild voice of reason, pleading the cause of an
enlarged and permanent interest, is but too often drowned, before public bodies
as well as individuals, by the clamors of an impatient avidity for immediate
and immoderate gain. The necessity of a superintending authority over the
reciprocal trade of confederated States, has been illustrated by other examples
as well as our own. In Switzerland, where the Union is so very slight, each
canton is obliged to allow to merchandises a passage through its jurisdiction
into other cantons, without an augmentation of the tolls. In Germany it is a
law of the empire, that the princes and states shall not lay tolls or customs
on bridges, rivers, or passages, without the consent of the emperor and the
diet; though it appears from a quotation in an antecedent paper, that the
practice in this, as in many other instances in that confederacy, has not followed
the law, and has produced there the mischiefs which have been foreseen here.
Among the restraints imposed by the Union of the Netherlands on its members,
one is, that they shall not establish imposts disadvantageous to their
neighbors, without the general permission. The regulation of commerce with the
Indian tribes is very properly unfettered from two limitations in the articles
of Confederation, which render the provision obscure and contradictory. The
power is there restrained to Indians, not members of any of the States, and is
not to violate or infringe the legislative right of any State within its own
limits. What description of Indians are to be deemed members of a State, is not
yet settled, and has been a question of frequent perplexity and contention in
the federal councils. And how the trade with Indians, though not members of a
State, yet residing within its legislative jurisdiction, can be regulated by an
external authority, without so far intruding on the internal rights of
legislation, is absolutely incomprehensible. This is not the only case in which
the articles of Confederation have inconsiderately endeavored to accomplish
impossibilities; to reconcile a partial sovereignty in the Union, with complete
sovereignty in the States; to subvert a mathematical axiom, by taking away a
part, and letting the whole remain. All that need be remarked on the power to
coin money, regulate the value thereof, and of foreign coin, is, that by
providing for this last case, the Constitution has supplied a material omission
in the articles of Confederation. The authority of the existing Congress is
restrained to the regulation of coin STRUCK by their own authority, or that of
the respective States. It must be seen at once that the proposed uniformity in
the VALUE of the current coin might be destroyed by subjecting that of foreign
coin to the different regulations of the different States. The punishment of
counterfeiting the public securities, as well as the current coin, is submitted
of course to that authority which is to secure the value of both. The
regulation of weights and measures is transferred from the articles of
Confederation, and is founded on like considerations with the preceding power
of regulating coin.
The dissimilarity in the rules of
naturalization has long been remarked as a fault in our system, and as laying a
foundation for intricate and delicate questions. In the fourth article of the
Confederation, it is declared "that the FREE INHABITANTS of each of these
States, paupers, vagabonds, and fugitives from justice, excepted, shall be
entitled to all privileges and immunities of FREE CITIZENS in the several
States; and THE PEOPLE of each State shall, in every other, enjoy all the
privileges of trade and commerce," etc. There is a confusion of language
here, which is remarkable. Why the terms FREE INHABITANTS are used in one part
of the article, FREE CITIZENS in another, and PEOPLE in another; or what was
meant by superadding to "all privileges and immunities of free
citizens," "all the privileges of trade and commerce," cannot
easily be determined. It seems to be a construction scarcely avoidable,
however, that those who come under the denomination of FREE INHABITANTS of a
State, although not citizens of such State, are entitled, in every other State,
to all the privileges of FREE CITIZENS of the latter; that is, to greater
privileges than they may be entitled to in their own State: so that it may be
in the power of a particular State, or rather every State is laid under a
necessity, not only to confer the rights of citizenship in other States upon
any whom it may admit to such rights within itself, but upon any whom it may
allow to become inhabitants within its jurisdiction. But were an exposition of
the term "inhabitants" to be admitted which would confine the
stipulated privileges to citizens alone, the difficulty is diminished only, not
removed. The very improper power would still be retained by each State, of
naturalizing aliens in every other State. In one State, residence for a short
term confirms all the rights of citizenship: in another, qualifications of
greater importance are required. An alien, therefore, legally incapacitated for
certain rights in the latter, may, by previous residence only in the former,
elude his incapacity; and thus the law of one State be preposterously rendered
paramount to the law of another, within the jurisdiction of the other. We owe
it to mere casualty, that very serious embarrassments on this subject have been
hitherto escaped. By the laws of several States, certain descriptions of
aliens, who had rendered themselves obnoxious, were laid under interdicts
inconsistent not only with the rights of citizenship but with the privilege of
residence. What would have been the consequence, if such persons, by residence
or otherwise, had acquired the character of citizens under the laws of another
State, and then asserted their rights as such, both to residence and
citizenship, within the State proscribing them? Whatever the legal consequences
might have been, other consequences would probably have resulted, of too
serious a nature not to be provided against. The new Constitution has
accordingly, with great propriety, made provision against them, and all others
proceeding from the defect of the Confederation on this head, by authorizing
the general government to establish a uniform rule of naturalization throughout
the United States. The power of establishing uniform laws of bankruptcy is so
intimately connected with the regulation of commerce, and will prevent so many
frauds where the parties or their property may lie or be removed into different
States, that the expediency of it seems not likely to be drawn into question.
The power of prescribing by general laws, the manner in which the public acts,
records and judicial proceedings of each State shall be proved, and the effect
they shall have in other States, is an evident and valuable improvement on the
clause relating to this subject in the articles of Confederation. The meaning
of the latter is extremely indeterminate, and can be of little importance under
any interpretation which it will bear. The power here established may be
rendered a very convenient instrument of justice, and be particularly
beneficial on the borders of contiguous States, where the effects liable to justice
may be suddenly and secretly translated, in any stage of the process, within a
foreign jurisdiction. The power of establishing post roads must, in every view,
be a harmless power, and may, perhaps, by judicious management, become
productive of great public conveniency.
Nothing which tends to facilitate the
intercourse between the States can be deemed unworthy of the public care.
PUBLIUS.
|| Federalist No. 43 ||
Part II: The Powers Conferred by the
Constitution Further Considered
Independent Journal: January 23, 1788
To the People of the State of New
York:
THE FOURTH class comprises the
following miscellaneous powers:1. A power "to promote the progress of
science and useful arts, by securing, for a limited time, to authors and
inventors, the exclusive right to their respective writings and discoveries.
"The utility of this power will scarcely be questioned. The copyright of
authors has been solemnly adjudged, in Great Britain, to be a right of common
law. The right to useful inventions seems with equal reason to belong to the
inventors.
The public good fully coincides in
both cases with the claims of individuals. The States cannot separately make
effectual provisions for either of the cases, and most of them have anticipated
the decision of this point, by laws passed at the instance of Congress. 2.
"To exercise exclusive legislation, in all cases whatsoever, over such
district (not exceeding ten miles square) as may, by cession of particular
States and the acceptance of Congress, become the seat of the government of the
United States; and to exercise like authority over all places purchased by the
consent of the legislatures of the States in which the same shall be, for the
erection of forts, magazines, arsenals, dockyards, and other needful buildings.
"The indispensable necessity of complete authority at the seat of
government, carries its own evidence with it. It is a power exercised by every
legislature of the Union, I might say of the world, by virtue of its general
supremacy. Without it, not only the public authority might be insulted and its
proceedings interrupted with impunity; but a dependence of the members of the
general government on the State comprehending the seat of the government, for
protection in the exercise of their duty, might bring on the national councils
an imputation of awe or influence, equally dishonorable to the government and
dissatisfactory to the other members of the Confederacy. This consideration has
the more weight, as the gradual accumulation of public improvements at the stationary
residence of the government would be both too great a public pledge to be left
in the hands of a single State, and would create so many obstacles to a removal
of the government, as still further to abridge its necessary independence. The
extent of this federal district is sufficiently circumscribed to satisfy every
jealousy of an opposite nature. And as it is to be appropriated to this use
with the consent of the State ceding it; as the State will no doubt provide in
the compact for the rights and the consent of the citizens inhabiting it; as
the inhabitants will find sufficient inducements of interest to become willing
parties to the cession; as they will have had their voice in the election of
the government which is to exercise authority over them; as a municipal
legislature for local purposes, derived from their own suffrages, will of
course be allowed them; and as the authority of the legislature of the State,
and of the inhabitants of the ceded part of it, to concur in the cession, will
be derived from the whole people of the State in their adoption of the
Constitution, every imaginable objection seems to be obviated. The necessity of
a like authority over forts, magazines, etc. , established by the general
government, is not less evident. The public money expended on such places, and
the public property deposited in them, requires that they should be exempt from
the authority of the particular State. Nor would it be proper for the places on
which the security of the entire Union may depend, to be in any degree
dependent on a particular member of it. All objections and scruples are here
also obviated, by requiring the concurrence of the States concerned, in every
such establishment. 3. "To declare the punishment of treason, but no
attainder of treason shall work corruption of blood, or forfeiture, except
during the life of the person attained. "As treason may be committed
against the United States, the authority of the United States ought to be
enabled to punish it. But as new-fangled and artificial treasons have been the
great engines by which violent factions, the natural offspring of free
government, have usually wreaked their alternate malignity on each other, the
convention have, with great judgment, opposed a barrier to this peculiar
danger, by inserting a constitutional definition of the crime, fixing the proof
necessary for conviction of it, and restraining the Congress, even in punishing
it, from extending the consequences of guilt beyond the person of its author.
4. "To admit new States into the Union; but no new State shall be formed
or erected within the jurisdiction of any other State; nor any State be formed
by the junction of two or more States, or parts of States, without the consent
of the legislatures of the States concerned, as well as of the Congress.
"In the articles of Confederation, no provision is found on this important
subject. Canada was to be admitted of right, on her joining in the measures of
the United States; and the other COLONIES, by which were evidently meant the other
British colonies, at the discretion of nine States. The eventual establishment
of NEW STATES seems to have been overlooked by the compilers of that
instrument. We have seen the inconvenience of this omission, and the assumption
of power into which Congress have been led by it. With great propriety,
therefore, has the new system supplied the defect. The general precaution, that
no new States shall be formed, without the concurrence of the federal
authority, and that of the States concerned, is consonant to the principles
which ought to govern such transactions. The particular precaution against the
erection of new States, by the partition of a State without its consent, quiets
the jealousy of the larger States; as that of the smaller is quieted by a like
precaution, against a junction of States without their consent. 5. "To
dispose of and make all needful rules and regulations respecting the territory
or other property belonging to the United States, with a proviso, that nothing
in the Constitution shall be so construed as to prejudice any claims of the
United States, or of any particular State. "This is a power of very great
importance, and required by considerations similar to those which show the
propriety of the former. The proviso annexed is proper in itself, and was
probably rendered absolutely necessary by jealousies and questions concerning
the Western territory sufficiently known to the public. 6. "To guarantee
to every State in the Union a republican form of government; to protect each of
them against invasion; and on application of the legislature, or of the
executive (when the legislature cannot be convened), against domestic violence.
"In a confederacy founded on republican principles, and composed of
republican members, the superintending government ought clearly to possess
authority to defend the system against aristocratic or monarchial innovations.
The more intimate the nature of such a union may be, the greater interest have
the members in the political institutions of each other; and the greater right
to insist that the forms of government under which the compact was entered into
should be SUBSTANTIALLY maintained. But a right implies a remedy; and where
else could the remedy be deposited, than where it is deposited by the
Constitution? Governments of dissimilar principles and forms have been found
less adapted to a federal coalition of any sort, than those of a kindred
nature. "As the confederate republic of Germany," says Montesquieu,
"consists of free cities and petty states, subject to different princes,
experience shows us that it is more imperfect than that of Holland and
Switzerland. " "Greece was undone," he adds, "as soon as
the king of Macedon obtained a seat among the Amphictyons. " In the latter
case, no doubt, the disproportionate force, as well as the monarchical form, of
the new confederate, had its share of influence on the events. It may possibly
be asked, what need there could be of such a precaution, and whether it may not
become a pretext for alterations in the State governments, without the
concurrence of the States themselves. These questions admit of ready answers.
If the interposition of the general government should not be needed, the
provision for such an event will be a harmless superfluity only in the
Constitution. But who can say what experiments may be produced by the caprice
of particular States, by the ambition of enterprising leaders, or by the
intrigues and influence of foreign powers? To the second question it may be
answered, that if the general government should interpose by virtue of this
constitutional authority, it will be, of course, bound to pursue the authority.
But the authority extends no further than to a GUARANTY of a republican form of
government, which supposes a pre-existing government of the form which is to be
guaranteed. As long, therefore, as the existing republican forms are continued
by the States, they are guaranteed by the federal Constitution. Whenever the
States may choose to substitute other republican forms, they have a right to do
so, and to claim the federal guaranty for the latter. The only restriction
imposed on them is, that they shall not exchange republican for anti-republican
Constitutions; a restriction which, it is presumed, will hardly be considered
as a grievance.
A protection against invasion is due
from every society to the parts composing it. The latitude of the expression
here used seems to secure each State, not only against foreign hostility, but
against ambitious or vindictive enterprises of its more powerful neighbors. The
history, both of ancient and modern confederacies, proves that the weaker
members of the union ought not to be insensible to the policy of this article.
Protection against domestic violence is added with equal propriety. It has been
remarked, that even among the Swiss cantons, which, properly speaking, are not
under one government, provision is made for this object; and the history of
that league informs us that mutual aid is frequently claimed and afforded; and
as well by the most democratic, as the other cantons. A recent and well-known
event among ourselves has warned us to be prepared for emergencies of a like
nature. At first view, it might seem not to square with the republican theory,
to suppose, either that a majority have not the right, or that a minority will
have the force, to subvert a government; and consequently, that the federal
interposition can never be required, but when it would be improper. But
theoretic reasoning, in this as in most other cases, must be qualified by the
lessons of practice. Why may not illicit combinations, for purposes of
violence, be formed as well by a majority of a State, especially a small State
as by a majority of a county, or a district of the same State; and if the
authority of the State ought, in the latter case, to protect the local
magistracy, ought not the federal authority, in the former, to support the
State authority? Besides, there are certain parts of the State constitutions
which are so interwoven with the federal Constitution, that a violent blow
cannot be given to the one without communicating the wound to the other.
Insurrections in a State will rarely
induce a federal interposition, unless the number concerned in them bear some
proportion to the friends of government. It will be much better that the violence
in such cases should be repressed by the superintending power, than that the
majority should be left to maintain their cause by a bloody and obstinate
contest. The existence of a right to interpose, will generally prevent the
necessity of exerting it. Is it true that force and right are necessarily on
the same side in republican governments? May not the minor party possess such a
superiority of pecuniary resources, of military talents and experience, or of
secret succors from foreign powers, as will render it superior also in an
appeal to the sword? May not a more compact and advantageous position turn the
scale on the same side, against a superior number so situated as to be less
capable of a prompt and collected exertion of its strength? Nothing can be more
chimerical than to imagine that in a trial of actual force, victory may be
calculated by the rules which prevail in a census of the inhabitants, or which
determine the event of an election!
May it not happen, in fine, that the
minority of CITIZENS may become a majority of PERSONS, by the accession of
alien residents, of a casual concourse of adventurers, or of those whom the
constitution of the State has not admitted to the rights of suffrage? I take no
notice of an unhappy species of population abounding in some of the States,
who, during the calm of regular government, are sunk below the level of men;
but who, in the tempestuous scenes of civil violence, may emerge into the human
character, and give a superiority of strength to any party with which they may
associate themselves. In cases where it may be doubtful on which side justice
lies, what better umpires could be desired by two violent factions, flying to
arms, and tearing a State to pieces, than the representatives of confederate
States, not heated by the local flame? To the impartiality of judges, they
would unite the affection of friends. Happy would it be if such a remedy for
its infirmities could be enjoyed by all free governments; if a project equally
effectual could be established for the universal peace of mankind! Should it be
asked, what is to be the redress for an insurrection pervading all the States,
and comprising a superiority of the entire force, though not a constitutional
right? the answer must be, that such a case, as it would be without the compass
of human remedies, so it is fortunately not within the compass of human
probability; and that it is a sufficient recommendation of the federal
Constitution, that it diminishes the risk of a calamity for which no possible
constitution can provide a cure. Among the advantages of a confederate republic
enumerated by Montesquieu, an important one is, "that should a popular
insurrection happen in one of the States, the others are able to quell it.
Should abuses creep into one part, they are reformed by those that remain
sound. "7. "To consider all debts contracted, and engagements entered
into, before the adoption of this Constitution, as being no less valid against
the United States, under this Constitution, than under the Confederation.
"This can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the foreign
creditors of the United States, who cannot be strangers to the pretended
doctrine, that a change in the political form of civil society has the magical
effect of dissolving its moral obligations. Among the lesser criticisms which
have been exercised on the Constitution, it has been remarked that the validity
of engagements ought to have been asserted in favor of the United States, as
well as against them; and in the spirit which usually characterizes little
critics, the omission has been transformed and magnified into a plot against
the national rights. The authors of this discovery may be told, what few others
need to be informed of, that as engagements are in their nature reciprocal, an
assertion of their validity on one side, necessarily involves a validity on the
other side; and that as the article is merely declaratory, the establishment of
the principle in one case is sufficient for every case. They may be further
told, that every constitution must limit its precautions to dangers that are
not altogether imaginary; and that no real danger can exist that the government
would DARE, with, or even without, this constitutional declaration before it,
to remit the debts justly due to the public, on the pretext here condemned. 8.
"To provide for amendments to be ratified by three fourths of the States
under two exceptions only. "That useful alterations will be suggested by experience,
could not but be foreseen. It was requisite, therefore, that a mode for
introducing them should be provided. The mode preferred by the convention seems
to be stamped with every mark of propriety. It guards equally against that
extreme facility, which would render the Constitution too mutable; and that
extreme difficulty, which might perpetuate its discovered faults. It, moreover,
equally enables the general and the State governments to originate the
amendment of errors, as they may be pointed out by the experience on one side,
or on the other. The exception in favor of the equality of suffrage in the
Senate, was probably meant as a palladium to the residuary sovereignty of the
States, implied and secured by that principle of representation in one branch
of the legislature; and was probably insisted on by the States particularly
attached to that equality. The other exception must have been admitted on the
same considerations which produced the privilege defended by it. 9. "The
ratification of the conventions of nine States shall be sufficient for the
establishment of this Constitution between the States, ratifying the same.
"This article speaks for itself.
The express authority of the people
alone could give due validity to the Constitution. To have required the
unanimous ratification of the thirteen States, would have subjected the
essential interests of the whole to the caprice or corruption of a single
member. It would have marked a want of foresight in the convention, which our
own experience would have rendered inexcusable. Two questions of a very
delicate nature present themselves on this occasion: 1. On what principle the
Confederation, which stands in the solemn form of a compact among the States,
can be superseded without the unanimous consent of the parties to it? 2. What
relation is to subsist between the nine or more States ratifying the
Constitution, and the remaining few who do not become parties to it? The first
question is answered at once by recurring to the absolute necessity of the case;
to the great principle of self-preservation; to the transcendent law of nature
and of nature's God, which declares that the safety and happiness of society
are the objects at which all political institutions aim, and to which all such
institutions must be sacrificed. PERHAPS, also, an answer may be found without
searching beyond the principles of the compact itself. It has been heretofore
noted among the defects of the Confederation, that in many of the States it had
received no higher sanction than a mere legislative ratification. The principle
of reciprocality seems to require that its obligation on the other States
should be reduced to the same standard. A compact between independent
sovereigns, founded on ordinary acts of legislative authority, can pretend to
no higher validity than a league or treaty between the parties. It is an
established doctrine on the subject of treaties, that all the articles are
mutually conditions of each other; that a breach of any one article is a breach
of the whole treaty; and that a breach, committed by either of the parties,
absolves the others, and authorizes them, if they please, to pronounce the
compact violated and void. Should it unhappily be necessary to appeal to these
delicate truths for a justification for dispensing with the consent of
particular States to a dissolution of the federal pact, will not the
complaining parties find it a difficult task to answer the MULTIPLIED and
IMPORTANT infractions with which they may be confronted? The time has been when
it was incumbent on us all to veil the ideas which this paragraph exhibits. The
scene is now changed, and with it the part which the same motives dictate. The
second question is not less delicate; and the flattering prospect of its being
merely hypothetical forbids an overcurious discussion of it. It is one of those
cases which must be left to provide for itself. In general, it may be observed,
that although no political relation can subsist between the assenting and
dissenting States, yet the moral relations will remain uncancelled. The claims
of justice, both on one side and on the other, will be in force, and must be
fulfilled; the rights of humanity must in all cases be duly and mutually
respected; whilst considerations of a common interest, and, above all, the
remembrance of the endearing scenes which are past, and the anticipation of a
speedy triumph over the obstacles to reunion, will, it is hoped, not urge in
vain MODERATION on one side, and PRUDENCE on the other.
PUBLIUS.
|| Federalist No. 44 ||
Restrictions on the Authority of the
Several States
New York Packet: January 25, 1788.
To the People of the State of New
York:
A FIFTH class of provisions in favor
of the federal authority consists of the following restrictions on the
authority of the several States:1. "No State shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal; coin money;
emit bills of credit; make any thing but gold and silver a legal tender in
payment of debts; pass any bill of attainder, ex-post-facto law, or law
impairing the obligation of contracts; or grant any title of nobility.
"The prohibition against treaties, alliances, and confederations makes a
part of the existing articles of Union; and for reasons which need no
explanation, is copied into the new Constitution. The prohibition of letters of
marque is another part of the old system, but is somewhat extended in the new.
According to the former, letters of marque could be granted by the States after
a declaration of war; according to the latter, these licenses must be obtained,
as well during war as previous to its declaration, from the government of the
United States. This alteration is fully justified by the advantage of
uniformity in all points which relate to foreign powers; and of immediate
responsibility to the nation in all those for whose conduct the nation itself
is to be responsible.
The right of coining money, which is
here taken from the States, was left in their hands by the Confederation, as a
concurrent right with that of Congress, under an exception in favor of the
exclusive right of Congress to regulate the alloy and value. In this instance,
also, the new provision is an improvement on the old. Whilst the alloy and
value depended on the general authority, a right of coinage in the particular
States could have no other effect than to multiply expensive mints and
diversify the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was originally submitted
to the federal head; and as far as the former might prevent an inconvenient
remittance of gold and silver to the central mint for recoinage, the end can be
as well attained by local mints established under the general authority.
The extension of the prohibition to
bills of credit must give pleasure to every citizen, in proportion to his love
of justice and his knowledge of the true springs of public prosperity. The loss
which America has sustained since the peace, from the pestilent effects of
paper money on the necessary confidence between man and man, on the necessary
confidence in the public councils, on the industry and morals of the people,
and on the character of republican government, constitutes an enormous debt
against the States chargeable with this unadvised measure, which must long
remain unsatisfied; or rather an accumulation of guilt, which can be expiated
no otherwise than by a voluntary sacrifice on the altar of justice, of the
power which has been the instrument of it. In addition to these persuasive
considerations, it may be observed, that the same reasons which show the
necessity of denying to the States the power of regulating coin, prove with
equal force that they ought not to be at liberty to substitute a paper medium
in the place of coin. Had every State a right to regulate the value of its
coin, there might be as many different currencies as States, and thus the
intercourse among them would be impeded; retrospective alterations in its value
might be made, and thus the citizens of other States be injured, and
animosities be kindled among the States themselves. The subjects of foreign
powers might suffer from the same cause, and hence the Union be discredited and
embroiled by the indiscretion of a single member. No one of these mischiefs is
less incident to a power in the States to emit paper money, than to coin gold
or silver. The power to make any thing but gold and silver a tender in payment
of debts, is withdrawn from the States, on the same principle with that of
issuing a paper currency. Bills of attainder, ex-post-facto laws, and laws
impairing the obligation of contracts, are contrary to the first principles of
the social compact, and to every principle of sound legislation. The two former
are expressly prohibited by the declarations prefixed to some of the State
constitutions, and all of them are prohibited by the spirit and scope of these
fundamental charters. Our own experience has taught us, nevertheless, that
additional fences against these dangers ought not to be omitted. Very properly,
therefore, have the convention added this constitutional bulwark in favor of
personal security and private rights; and I am much deceived if they have not,
in so doing, as faithfully consulted the genuine sentiments as the undoubted
interests of their constituents. The sober people of America are weary of the
fluctuating policy which has directed the public councils. They have seen with
regret and indignation that sudden changes and legislative interferences, in
cases affecting personal rights, become jobs in the hands of enterprising and
influential speculators, and snares to the more-industrious and lessinformed
part of the community. They have seen, too, that one legislative interference
is but the first link of a long chain of repetitions, every subsequent
interference being naturally produced by the effects of the preceding. They
very rightly infer, therefore, that some thorough reform is wanting, which will
banish speculations on public measures, inspire a general prudence and
industry, and give a regular course to the business of society. The prohibition
with respect to titles of nobility is copied from the articles of Confederation
and needs no comment. 2. "No State shall, without the consent of the
Congress, lay any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws, and the net produce of
all duties and imposts laid by any State on imports or exports, shall be for
the use of the treasury of the United States; and all such laws shall be
subject to the revision and control of the Congress. No State shall, without
the consent of Congress, lay any duty on tonnage, keep troops or ships of war
in time of peace, enter into any agreement or compact with another State, or
with a foreign power, or engage in war unless actually invaded, or in such
imminent danger as will not admit of delay. "The restraint on the power of
the States over imports and exports is enforced by all the arguments which
prove the necessity of submitting the regulation of trade to the federal
councils. It is needless, therefore, to remark further on this head, than that
the manner in which the restraint is qualified seems well calculated at once to
secure to the States a reasonable discretion in providing for the conveniency
of their imports and exports, and to the United States a reasonable check
against the abuse of this discretion.
The remaining particulars of this
clause fall within reasonings which are either so obvious, or have been so fully
developed, that they may be passed over without remark. The SIXTH and last
class consists of the several powers and provisions by which efficacy is given
to all the rest. 1. Of these the first is, the "power to make all laws
which shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof. "Few parts of
the Constitution have been assailed with more intemperance than this; yet on a
fair investigation of it, no part can appear more completely invulnerable.
Without the SUBSTANCE of this power, the whole Constitution would be a dead
letter. Those who object to the article, therefore, as a part of the Constitution,
can only mean that the FORM of the provision is improper. But have they
considered whether a better form could have been substituted? There are four
other possible methods which the Constitution might have taken on this subject.
They might have copied the second article of the existing Confederation, which
would have prohibited the exercise of any power not EXPRESSLY delegated; they
might have attempted a positive enumeration of the powers comprehended under
the general terms "necessary and proper"; they might have attempted a
negative enumeration of them, by specifying the powers excepted from the
general definition; they might have been altogether silent on the subject,
leaving these necessary and proper powers to construction and inference. Had
the convention taken the first method of adopting the second article of
Confederation, it is evident that the new Congress would be continually
exposed, as their predecessors have been, to the alternative of construing the
term "EXPRESSLY" with so much rigor, as to disarm the government of
all real authority whatever, or with so much latitude as to destroy altogether
the force of the restriction.
It would be easy to show, if it were
necessary, that no important power, delegated by the articles of Confederation,
has been or can be executed by Congress, without recurring more or less to the
doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new
system are more extensive, the government which is to administer it would find
itself still more distressed with the alternative of betraying the public
interests by doing nothing, or of violating the Constitution by exercising
powers indispensably necessary and proper, but, at the same time, not EXPRESSLY
granted. Had the convention attempted a positive enumeration of the powers
necessary and proper for carrying their other powers into effect, the attempt
would have involved a complete digest of laws on every subject to which the
Constitution relates; accommodated too, not only to the existing state of things,
but to all the possible changes which futurity may produce; for in every new
application of a general power, the PARTICULAR POWERS, which are the means of
attaining the OBJECT of the general power, must always necessarily vary with
that object, and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the
particular powers or means not necessary or proper for carrying the general
powers into execution, the task would have been no less chimerical; and would
have been liable to this further objection, that every defect in the
enumeration would have been equivalent to a positive grant of authority. If, to
avoid this consequence, they had attempted a partial enumeration of the
exceptions, and described the residue by the general terms, NOT NECESSARY OR
PROPER, it must have happened that the enumeration would comprehend a few of
the excepted powers only; that these would be such as would be least likely to
be assumed or tolerated, because the enumeration would of course select such as
would be least necessary or proper; and that the unnecessary and improper
powers included in the residuum, would be less forcibly excepted, than if no
partial enumeration had been made. Had the Constitution been silent on this
head, there can be no doubt that all the particular powers requisite as means
of executing the general powers would have resulted to the government, by
unavoidable implication. No axiom is more clearly established in law, or in
reason, than that wherever the end is required, the means are authorized;
wherever a general power to do a thing is given, every particular power
necessary for doing it is included. Had this last method, therefore, been
pursued by the convention, every objection now urged against their plan would
remain in all its plausibility; and the real inconveniency would be incurred of
not removing a pretext which may be seized on critical occasions for drawing
into question the essential powers of the Union. If it be asked what is to be
the consequence, in case the Congress shall misconstrue this part of the
Constitution, and exercise powers not warranted by its true meaning, I answer,
the same as if they should misconstrue or enlarge any other power vested in
them; as if the general power had been reduced to particulars, and any one of
these were to be violated; the same, in short, as if the State legislatures
should violate the irrespective constitutional authorities. In the first
instance, the success of the usurpation will depend on the executive and judiciary
departments, which are to expound and give effect to the legislative acts; and
in the last resort a remedy must be obtained from the people who can, by the
election of more faithful representatives, annul the acts of the usurpers. The
truth is, that this ultimate redress may be more confided in against
unconstitutional acts of the federal than of the State legislatures, for this
plain reason, that as every such act of the former will be an invasion of the
rights of the latter, these will be ever ready to mark the innovation, to sound
the alarm to the people, and to exert their local influence in effecting a
change of federal representatives. There being no such intermediate body
between the State legislatures and the people interested in watching the conduct
of the former, violations of the State constitutions are more likely to remain
unnoticed and unredressed. 2. "This Constitution and the laws of the
United States which shall be made in pursuance thereof, and all treaties made,
or which shall be made, under the authority of the United States, shall be the
supreme law of the land, and the judges in every State shall be bound thereby,
any thing in the constitution or laws of any State to the contrary
notwithstanding. "The indiscreet zeal of the adversaries to the
Constitution has betrayed them into an attack on this part of it also, without
which it would have been evidently and radically defective. To be fully
sensible of this, we need only suppose for a moment that the supremacy of the
State constitutions had been left complete by a saving clause in their favor.
In the first place, as these constitutions invest the State legislatures with
absolute sovereignty, in all cases not excepted by the existing articles of
Confederation, all the authorities contained in the proposed Constitution, so
far as they exceed those enumerated in the Confederation, would have been
annulled, and the new Congress would have been reduced to the same impotent
condition with their predecessors. In the next place, as the constitutions of
some of the States do not even expressly and fully recognize the existing
powers of the Confederacy, an express saving of the supremacy of the former
would, in such States, have brought into question every power contained in the
proposed Constitution. In the third place, as the constitutions of the States
differ much from each other, it might happen that a treaty or national law, of
great and equal importance to the States, would interfere with some and not
with other constitutions, and would consequently be valid in some of the
States, at the same time that it would have no effect in others. In fine, the
world would have seen, for the first time, a system of government founded on an
inversion of the fundamental principles of all government; it would have seen
the authority of the whole society every where subordinate to the authority of
the parts; it would have seen a monster, in which the head was under the
direction of the members. 3. "The Senators and Representatives, and the
members of the several State legislatures, and all executive and judicial
officers, both of the United States and the several States, shall be bound by
oath or affirmation to support this Constitution. "It has been asked why
it was thought necessary, that the State magistracy should be bound to support
the federal Constitution, and unnecessary that a like oath should be imposed on
the officers of the United States, in favor of the State constitutions. Several
reasons might be assigned for the distinction. I content myself with one, which
is obvious and conclusive. The members of the federal government will have no
agency in carrying the State constitutions into effect. The members and
officers of the State governments, on the contrary, will have an essential
agency in giving effect to the federal Constitution. The election of the
President and Senate will depend, in all cases, on the legislatures of the
several States. And the election of the House of Representatives will equally
depend on the same authority in the first instance; and will, probably, forever
be conducted by the officers, and according to the laws, of the States. 4.
Among the provisions for giving efficacy to the federal powers might be added
those which belong to the executive and judiciary departments: but as these are
reserved for particular examination in another place, I pass them over in this.
We have now reviewed, in detail, all the articles composing the sum or quantity
of power delegated by the proposed Constitution to the federal government, and
are brought to this undeniable conclusion, that no part of the power is
unnecessary or improper for accomplishing the necessary objects of the Union.
The question, therefore, whether this amount of power shall be granted or not,
resolves itself into another question, whether or not a government commensurate
to the exigencies of the Union shall be established; or, in other words,
whether the Union itself shall be preserved.
PUBLIUS.
|| Federalist No. 45 ||
The Alleged Danger From the Powers of
the Union to the State Governments Considered
Independent Journal: January 26, 1788
To the People of the State of New
York:
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. 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. 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? 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? We have heard of the impious doctrine in the Old
World, that the people were made for kings, not kings for the people. 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? 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. Were the plan of the convention adverse to the public happiness, my
voice would be, Reject the plan. Were the Union itself inconsistent with the
public happiness, it would be, Abolish the Union. 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. How far the sacrifice is necessary, has been shown. How far the
unsacrificed residue will be endangered, is the question before us. 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. 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. 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. 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. 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. The Lycian Confederacy, as far as its
principles and form are transmitted, must have borne a still greater analogy to
it. Yet history does not inform us that either of them ever degenerated, or
tended to degenerate, into one consolidated government. 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. 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. In the feudal system, we have seen a similar propensity
exemplified. 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 rivalship for encroachments.
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. 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. The State governments may be regarded
as constituent and essential parts of the federal government; whilst the latter
is nowise essential to the operation or organization of the former. Without the
intervention of the State legislatures, the President of the United States
cannot be elected at all. They must in all cases have a great share in his
appointment, and will, perhaps, in most cases, of themselves determine it. The
Senate will be elected absolutely and exclusively by the State legislatures.
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.
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. 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. The number
of individuals employed under the Constitution of the United States will be
much smaller than the number employed under the particular States.
There will consequently be less of
personal influence on the side of the former than of the latter. 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. 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. If the
federal government is to have collectors of revenue, the State governments will
have theirs also. And as those of the former will be principally on the
seacoast, and not very numerous, whilst 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.
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. 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.
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.
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. The powers delegated by the proposed Constitution to the federal
government are few and defined. Those which are to remain in the State
governments are numerous and indefinite. 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. 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. 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. 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. 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. 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. 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. 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. The
proposed change does not enlarge these powers; it only substitutes a more
effectual mode of administering them. 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. 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. 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.
PUBLIUS.
|| Federalist No. 46 ||
The Influence of the State and Federal
Governments Compared
New York Packet: January 29, 1788.
To the People of the State of New
York:
Resuming the subject of the last
paper, I proceed to inquire whether the federal government or the State
governments will have the advantage with regard to the predilection and support
of the people. Notwithstanding the different modes in which they are appointed,
we must consider both of them as substantially dependent on the great body of
the citizens of the United States.
I assume this position here as it
respects the first, reserving the proofs for another place. The federal and
State governments are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different purposes. The
adversaries of the Constitution seem to have lost sight of the people
altogether in their reasonings on this subject; and to have viewed these
different establishments, not only as mutual rivals and enemies, but as
uncontrolled by any common superior in their efforts to usurp the authorities
of each other. These gentlemen must here be reminded of their error. They must
be told that the ultimate authority, wherever the derivative may be found,
resides in the people alone, and that it will not depend merely on the
comparative ambition or address of the different governments, whether either,
or which of them, will be able to enlarge its sphere of jurisdiction at the
expense of the other. Truth, no less than decency, requires that the event in
every case should be supposed to depend on the sentiments and sanction of their
common constituents. Many considerations, besides those suggested on a former
occasion, seem to place it beyond doubt that the first and most natural
attachment of the people will be to the governments of their respective States.
Into the administration of these a
greater number of individuals will expect to rise. From the gift of these a
greater number of offices and emoluments will flow. By the superintending care
of these, all the more domestic and personal interests of the people will be
regulated and provided for. With the affairs of these, the people will be more
familiarly and minutely conversant. And with the members of these, will a
greater proportion of the people have the ties of personal acquaintance and
friendship, and of family and party attachments; on the side of these,
therefore, the popular bias may well be expected most strongly to incline.
Experience speaks the same language in this case. The federal administration,
though hitherto very defective in comparison with what may be hoped under a
better system, had, during the war, and particularly whilst the independent
fund of paper emissions was in credit, an activity and importance as great as
it can well have in any future circumstances whatever.
It was engaged, too, in a course of
measures which had for their object the protection of everything that was dear,
and the acquisition of everything that could be desirable to the people at
large. It was, nevertheless, invariably found, after the transient enthusiasm
for the early Congresses was over, that the attention and attachment of the
people were turned anew to their own particular governments; that the federal
council was at no time the idol of popular favor; and that opposition to
proposed enlargements of its powers and importance was the side usually taken
by the men who wished to build their political consequence on the
prepossessions of their fellow-citizens. If, therefore, as has been elsewhere
remarked, the people should in future become more partial to the federal than
to the State governments, the change can only result from such manifest and
irresistible proofs of a better administration, as will overcome all their
antecedent propensities. And in that case, the people ought not surely to be
precluded from giving most of their confidence where they may discover it to be
most due; but even in that case the State governments could have little to
apprehend, because it is only within a certain sphere that the federal power
can, in the nature of things, be advantageously administered. The remaining
points on which I propose to compare the federal and State governments, are the
disposition and the faculty they may respectively possess, to resist and
frustrate the measures of each other. It has been already proved that the
members of the federal will be more dependent on the members of the State
governments, than the latter will be on the former. It has appeared also, that
the prepossessions of the people, on whom both will depend, will be more on the
side of the State governments, than of the federal government. So far as the
disposition of each towards the other may be influenced by these causes, the
State governments must clearly have the advantage.
But in a distinct and very important
point of view, the advantage will lie on the same side. The prepossessions,
which the members themselves will carry into the federal government, will
generally be favorable to the States; whilst it will rarely happen, that the
members of the State governments will carry into the public councils a bias in
favor of the general government. A local spirit will infallibly prevail much more
in the members of Congress, than a national spirit will prevail in the
legislatures of the particular States. Every one knows that a great proportion
of the errors committed by the State legislatures proceeds from the disposition
of the members to sacrifice the comprehensive and permanent interest of the
State, to the particular and separate views of the counties or districts in
which they reside. And if they do not sufficiently enlarge their policy to
embrace the collective welfare of their particular State, how can it be
imagined that they will make the aggregate prosperity of the Union, and the
dignity and respectability of its government, the objects of their affections
and consultations? For the same reason that the members of the State
legislatures will be unlikely to attach themselves sufficiently to national
objects, the members of the federal legislature will be likely to attach
themselves too much to local objects. The States will be to the latter what
counties and towns are to the former. Measures will too often be decided
according to their probable effect, not on the national prosperity and
happiness, but on the prejudices, interests, and pursuits of the governments
and people of the individual States. What is the spirit that has in general characterized
the proceedings of Congress? A perusal of their journals, as well as the candid
acknowledgments of such as have had a seat in that assembly, will inform us,
that the members have but too frequently displayed the character, rather of
partisans of their respective States, than of impartial guardians of a common
interest; that where on one occasion improper sacrifices have been made of
local considerations, to the aggrandizement of the federal government, the
great interests of the nation have suffered on a hundred, from an undue
attention to the local prejudices, interests, and views of the particular
States. I mean not by these reflections to insinuate, that the new federal
government will not embrace a more enlarged plan of policy than the existing
government may have pursued; much less, that its views will be as confined as
those of the State legislatures; but only that it will partake sufficiently of
the spirit of both, to be disinclined to invade the rights of the individual
States, or the preorgatives of their governments. The motives on the part of
the State governments, to augment their prerogatives by defalcations from the
federal government, will be overruled by no reciprocal predispositions in the
members. Were it admitted, however, that the Federal government may feel an
equal disposition with the State governments to extend its power beyond the due
limits, the latter would still have the advantage in the means of defeating
such encroachments. If an act of a particular State, though unfriendly to the
national government, be generally popular in that State and should not too
grossly violate the oaths of the State officers, it is executed immediately
and, of course, by means on the spot and depending on the State alone. The
opposition of the federal government, or the interposition of federal officers,
would but inflame the zeal of all parties on the side of the State, and the
evil could not be prevented or repaired, if at all, without the employment of
means which must always be resorted to with reluctance and difficulty.
On the other hand, should an
unwarrantable measure of the federal government be unpopular in particular
States, which would seldom fail to be the case, or even a warrantable measure
be so, which may sometimes be the case, the means of opposition to it are
powerful and at hand. The disquietude of the people; their repugnance and,
perhaps, refusal to co-operate with the officers of the Union; the frowns of
the executive magistracy of the State; the embarrassments created by legislative
devices, which would often be added on such occasions, would oppose, in any
State, difficulties not to be despised; would form, in a large State, very
serious impediments; and where the sentiments of several adjoining States
happened to be in unison, would present obstructions which the federal
government would hardly be willing to encounter. But ambitious encroachments of
the federal government, on the authority of the State governments, would not
excite the opposition of a single State, or of a few States only. They would be
signals of general alarm. Every government would espouse the common cause. A
correspondence would be opened. Plans of resistance would be concerted. One
spirit would animate and conduct the whole. The same combinations, in short,
would result from an apprehension of the federal, as was produced by the dread
of a foreign, yoke; and unless the projected innovations should be voluntarily
renounced, the same appeal to a trial of force would be made in the one case as
was made in the other. But what degree of madness could ever drive the federal
government to such an extremity. In the contest with Great Britain, one part of
the empire was employed against the other.
The more numerous part invaded the
rights of the less numerous part. The attempt was unjust and unwise; but it was
not in speculation absolutely chimerical. But what would be the contest in the
case we are supposing? Who would be the parties? A few representatives of the
people would be opposed to the people themselves; or rather one set of
representatives would be contending against thirteen sets of representatives,
with the whole body of their common constituents on the side of the latter. The
only refuge left for those who prophesy the downfall of the State governments
is the visionary supposition that the federal government may previously
accumulate a military force for the projects of ambition. The reasonings
contained in these papers must have been employed to little purpose indeed, if
it could be necessary now to disprove the reality of this danger. That the
people and the States should, for a sufficient period of time, elect an uninterrupted
succession of men ready to betray both; that the traitors should, throughout
this period, uniformly and systematically pursue some fixed plan for the
extension of the military establishment; that the governments and the people of
the States should silently and patiently behold the gathering storm, and
continue to supply the materials, until it should be prepared to burst on their
own heads, must appear to every one more like the incoherent dreams of a
delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than
like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let
it however be made. Let a regular army, fully equal to the resources of the
country, be formed; and let it be entirely at the devotion of the federal
government; still it would not be going too far to say, that the State
governments, with the people on their side, would be able to repel the danger.
The highest number to which, according to the best computation, a standing army
can be carried in any country, does not exceed one hundredth part of the whole
number of souls; or one twenty-fifth part of the number able to bear arms. This
proportion would not yield, in the United States, an army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million of citizens with arms in their hands,
officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their affections
and confidence. It may well be doubted, whether a militia thus circumstanced
could ever be conquered by such a proportion of regular troops. Those who are
best acquainted with the last successful resistance of this country against the
British arms, will be most inclined to deny the possibility of it. Besides the
advantage of being armed, which the Americans possess over the people of almost
every other nation, the existence of subordinate governments, to which the
people are attached, and by which the militia officers are appointed, forms a
barrier against the enterprises of ambition, more insurmountable than any which
a simple government of any form can admit of. Notwithstanding the military
establishments in the several kingdoms of Europe, which are carried as far as
the public resources will bear, the governments are afraid to trust the people
with arms. And it is not certain, that with this aid alone they would not be
able to shake off their yokes. But were the people to possess the additional
advantages of local governments chosen by themselves, who could collect the
national will and direct the national force, and of officers appointed out of
the militia, by these governments, and attached both to them and to the
militia, it may be affirmed with the greatest assurance, that the throne of
every tyranny in Europe would be speedily overturned in spite of the legions
which surround it. Let us not insult the free and gallant citizens of America
with the suspicion, that they would be less able to defend the rights of which
they would be in actual possession, than the debased subjects of arbitrary
power would be to rescue theirs from the hands of their oppressors. Let us
rather no longer insult them with the supposition that they can ever reduce
themselves to the necessity of making the experiment, by a blind and tame
submission to the long train of insidious measures which must precede and produce
it. The argument under the present head may be put into a very concise form,
which appears altogether conclusive. Either the mode in which the federal
government is to be constructed will render it sufficiently dependent on the
people, or it will not. On the first supposition, it will be restrained by that
dependence from forming schemes obnoxious to their constituents. On the other
supposition, it will not possess the confidence of the people, and its schemes
of usurpation will be easily defeated by the State governments, who will be
supported by the people. On summing up the considerations stated in this and
the last paper, they seem to amount to the most convincing evidence, that the
powers proposed to be lodged in the federal government are as little formidable
to those reserved to the individual States, as they are indispensably necessary
to accomplish the purposes of the Union; and that all those alarms which have
been sounded, of a meditated and consequential annihilation of the State
governments, must, on the most favorable interpretation, be ascribed to the
chimerical fears of the authors of them.
PUBLIUS.
|| Federalist No. 47 ||
The Particular Structure of the New
Government and the Distribution of Power Among Its Different Parts
New York Packet: February 1, 1788.
To the People of the State of New
York:
Having reviewed the general form of
the proposed government and the general mass of power allotted to it, I proceed
to examine the particular structure of this government, and the distribution of
this mass of power among its constituent parts. One of the principal objections
inculcated by the more respectable adversaries to the Constitution, is its
supposed violation of the political maxim, that the legislative, executive, and
judiciary departments ought to be separate and distinct. In the structure of
the federal government, no regard, it is said, seems to have been paid to this
essential precaution in favor of liberty. The several departments of power are
distributed and blended in such a manner as at once to destroy all symmetry and
beauty of form, and to expose some of the essential parts of the edifice to the
danger of being crushed by the disproportionate weight of other parts. No
political truth is certainly of greater intrinsic value, or is stamped with the
authority of more enlightened patrons of liberty, than that on which the
objection is founded.
The accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self-appointed, or elective, may justly
be pronounced the very definition of tyranny. Were the federal Constitution,
therefore, really chargeable with the accumulation of power, or with a mixture
of powers, having a dangerous tendency to such an accumulation, no further
arguments would be necessary to inspire a universal reprobation of the system.
I persuade myself, however, that it will be made apparent to every one, that
the charge cannot be supported, and that the maxim on which it relies has been
totally misconceived and misapplied. In order to form correct ideas on this
important subject, it will be proper to investigate the sense in which the
preservation of liberty requires that the three great departments of power
should be separate and distinct. The oracle who is always consulted and cited
on this subject is the celebrated Montesquieu. If he be not the author of this
invaluable precept in the science of politics, he has the merit at least of displaying
and recommending it most effectually to the attention of mankind. Let us
endeavor, in the first place, to ascertain his meaning on this point. The
British Constitution was to Montesquieu what Homer has been to the didactic
writers on epic poetry. As the latter have considered the work of the immortal
bard as the perfect model from which the principles and rules of the epic art
were to be drawn, and by which all similar works were to be judged, so this
great political critic appears to have viewed the Constitution of England as
the standard, or to use his own expression, as the mirror of political liberty;
and to have delivered, in the form of elementary truths, the several
characteristic principles of that particular system. That we may be sure, then,
not to mistake his meaning in this case, let us recur to the source from which
the maxim was drawn. On the slightest view of the British Constitution, we must
perceive that the legislative, executive, and judiciary departments are by no
means totally separate and distinct from each other. The executive magistrate
forms an integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which, when made, have,
under certain limitations, the force of legislative acts. All the members of
the judiciary department are appointed by him, can be removed by him on the
address of the two Houses of Parliament, and form, when he pleases to consult
them, one of his constitutional councils. One branch of the legislative
department forms also a great constitutional council to the executive chief,
as, on another hand, it is the sole depositary of judicial power in cases of
impeachment, and is invested with the supreme appellate jurisdiction in all
other cases. The judges, again, are so far connected with the legislative
department as often to attend and participate in its deliberations, though not
admitted to a legislative vote. From these facts, by which Montesquieu was
guided, it may clearly be inferred that, in saying "There can be no
liberty where the legislative and executive powers are united in the same
person, or body of magistrates," or, "if the power of judging be not
separated from the legislative and executive powers," he did not mean that
these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the
acts of each other. His meaning, as his own words import, and still more
conclusively as illustrated by the example in his eye, can amount to no more
than this, that where the WHOLE power of one department is exercised by the
same hands which possess the WHOLE power of another department, the fundamental
principles of a free constitution are subverted. This would have been the case
in the constitution examined by him, if the king, who is the sole executive
magistrate, had possessed also the complete legislative power, or the supreme
administration of justice; or if the entire legislative body had possessed the
supreme judiciary, or the supreme executive authority. This, however, is not
among the vices of that constitution. The magistrate in whom the whole
executive power resides cannot of himself make a law, though he can put a
negative on every law; nor administer justice in person, though he has the
appointment of those who do administer it. The judges can exercise no executive
prerogative, though they are shoots from the executive stock; nor any
legislative function, though they may be advised with by the legislative
councils. The entire legislature can perform no judiciary act, though by the
joint act of two of its branches the judges may be removed from their offices,
and though one of its branches is possessed of the judicial power in the last
resort. The entire legislature, again, can exercise no executive prerogative,
though one of its branches constitutes the supreme executive magistracy, and
another, on the impeachment of a third, can try and condemn all the subordinate
officers in the executive department. The reasons on which Montesquieu grounds
his maxim are a further demonstration of his meaning. "When the
legislative and executive powers are united in the same person or body,"
says he, "there can be no liberty, because apprehensions may arise lest
THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a
tyrannical manner. " Again: "Were the power of judging joined with
the legislative, the life and liberty of the subject would be exposed to
arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power,
THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of
these reasons are more fully explained in other passages; but briefly stated as
they are here, they sufficiently establish the meaning which we have put on
this celebrated maxim of this celebrated author.
If we look into the constitutions of
the several States, we find that, notwithstanding the emphatical and, in some
instances, the unqualified terms in which this axiom has been laid down, there
is not a single instance in which the several departments of power have been
kept absolutely separate and distinct. New Hampshire, whose constitution was
the last formed, seems to have been fully aware of the impossibility and
inexpediency of avoiding any mixture whatever of these departments, and has
qualified the doctrine by declaring "that the legislative, executive, and
judiciary powers ought to be kept as separate from, and independent of, each
other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH
THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE
INDISSOLUBLE BOND OF UNITY AND AMITY. " Her constitution accordingly mixes
these departments in several respects. The Senate, which is a branch of the
legislative department, is also a judicial tribunal for the trial of impeachments.
The President, who is the head of the executive department, is the presiding
member also of the Senate; and, besides an equal vote in all cases, has a
casting vote in case of a tie. The executive head is himself eventually
elective every year by the legislative department, and his council is every
year chosen by and from the members of the same department. Several of the
officers of state are also appointed by the legislature. And the members of the
judiciary department are appointed by the executive department. The
constitution of Massachusetts has observed a sufficient though less pointed
caution, in expressing this fundamental article of liberty. It declares
"that the legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; the judicial shall never
exercise the legislative and executive powers, or either of them. " This
declaration corresponds precisely with the doctrine of Montesquieu, as it has
been explained, and is not in a single point violated by the plan of the
convention. It goes no farther than to prohibit any one of the entire
departments from exercising the powers of another department. In the very
Constitution to which it is prefixed, a partial mixture of powers has been
admitted. The executive magistrate has a qualified negative on the legislative
body, and the Senate, which is a part of the legislature, is a court of
impeachment for members both of the executive and judiciary departments. The
members of the judiciary department, again, are appointable by the executive
department, and removable by the same authority on the address of the two
legislative branches.
Lastly, a number of the officers of
government are annually appointed by the legislative department. As the
appointment to offices, particularly executive offices, is in its nature an
executive function, the compilers of the Constitution have, in this last point
at least, violated the rule established by themselves. I pass over the
constitutions of Rhode Island and Connecticut, because they were formed prior
to the Revolution, and even before the principle under examination had become
an object of political attention. The constitution of New York contains no
declaration on this subject; but appears very clearly to have been framed with
an eye to the danger of improperly blending the different departments. It
gives, nevertheless, to the executive magistrate, a partial control over the
legislative department; and, what is more, gives a like control to the
judiciary department; and even blends the executive and judiciary departments
in the exercise of this control. In its council of appointment members of the
legislative are associated with the executive authority, in the appointment of
officers, both executive and judiciary. And its court for the trial of
impeachments and correction of errors is to consist of one branch of the
legislature and the principal members of the judiciary department. The
constitution of New Jersey has blended the different powers of government more
than any of the preceding. The governor, who is the executive magistrate, is
appointed by the legislature; is chancellor and ordinary, or surrogate of the
State; is a member of the Supreme Court of Appeals, and president, with a
casting vote, of one of the legislative branches. The same legislative branch
acts again as executive council of the governor, and with him constitutes the
Court of Appeals. The members of the judiciary department are appointed by the
legislative department and removable by one branch of it, on the impeachment of
the other. According to the constitution of Pennsylvania, the president, who is
the head of the executive department, is annually elected by a vote in which the
legislative department predominates. In conjunction with an executive council,
he appoints the members of the judiciary department, and forms a court of
impeachment for trial of all officers, judiciary as well as executive. The
judges of the Supreme Court and justices of the peace seem also to be removable
by the legislature; and the executive power of pardoning in certain cases, to
be referred to the same department. The members of the executive counoil are
made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief
executive magistrate is annually elected by the legislative department. The
speakers of the two legislative branches are vice-presidents in the executive
department. The executive chief, with six others, appointed, three by each of
the legislative branches constitutes the Supreme Court of Appeals; he is joined
with the legislative department in the appointment of the other judges.
Throughout the States, it appears that the members of the legislature may at
the same time be justices of the peace; in this State, the members of one
branch of it are EX-OFFICIO justices of the peace; as are also the members of
the executive council. The principal officers of the executive department are
appointed by the legislative; and one branch of the latter forms a court of
impeachments. All officers may be removed on address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring that
the legislative, executive, and judicial powers of government ought to be forever
separate and distinct from each other. Her constitution, notwithstanding, makes
the executive magistrate appointable by the legislative department; and the
members of the judiciary by the executive department. The language of Virginia
is still more pointed on this subject. Her constitution declares, "that
the legislative, executive, and judiciary departments shall be separate and
distinct; so that neither exercise the powers properly belonging to the other;
nor shall any person exercise the powers of more than one of them at the same
time, except that the justices of county courts shall be eligible to either
House of Assembly. " Yet we find not only this express exception, with
respect to the members of the irferior courts, but that the chief magistrate,
with his executive council, are appointable by the legislature; that two
members of the latter are triennially displaced at the pleasure of the
legislature; and that all the principal offices, both executive and judiciary,
are filled by the same department. The executive prerogative of pardon, also,
is in one case vested in the legislative department. The constitution of North
Carolina, which declares "that the legislative, executive, and supreme
judicial powers of government ought to be forever separate and distinct from
each other," refers, at the same time, to the legislative department, the
appointment not only of the executive chief, but all the principal officers
within both that and the judiciary department. In South Carolina, the
constitution makes the executive magistracy eligible by the legislative
department.
It gives to the latter, also, the
appointment of the members of the judiciary department, including even justices
of the peace and sheriffs; and the appointment of officers in the executive
department, down to captains in the army and navy of the State.
In the constitution of Georgia, where
it is declared "that the legislative, executive, and judiciary departments
shall be separate and distinct, so that neither exercise the powers properly belonging
to the other," we find that the executive department is to be filled by
appointments of the legislature; and the executive prerogative of pardon to be
finally exercised by the same authority. Even justices of the peace are to be
appointed by the legislature. In citing these cases, in which the legislative,
executive, and judiciary departments have not been kept totally separate and
distinct, I wish not to be regarded as an advocate for the particular
organizations of the several State governments. I am fully aware that among the
many excellent principles which they exemplify, they carry strong marks of the
haste, and still stronger of the inexperience, under which they were framed. It
is but too obvious that in some instances the fundamental principle under
consideration has been violated by too great a mixture, and even an actual
consolidation, of the different powers; and that in no instance has a competent
provision been made for maintaining in practice the separation delineated on
paper. What I have wished to evince is, that the charge brought against the
proposed Constitution, of violating the sacred maxim of free government, is
warranted neither by the real meaning annexed to that maxim by its author, nor
by the sense in which it has hitherto been understood in America. This
interesting subject will be resumed in the ensuing paper.
PUBLIUS.
|| Federalist No. 48 ||
These Departments Should Not Be So Far
Separated as to Have No Constitutional Control Over Each Other
New York Packet: February 1, 1788.
To the People of the State of New
York:
IT WAS shown in the last paper that
the political apothegm there examined does not require that the legislative,
executive, and judiciary departments should be wholly unconnected with each
other. I shall undertake, in the next place, to show that unless these
departments be so far connected and blended as to give to each a constitutional
control over the others, the degree of separation which the maxim requires, as
essential to a free government, can never in practice be duly maintained. It is
agreed on all sides, that the powers properly belonging to one of the
departments ought not to be directly and completely administered by either of
the other departments. It is equally evident, that none of them ought to
possess, directly or indirectly, an overruling influence over the others, in
the administration of their respective powers. It will not be denied, that
power is of an encroaching nature, and that it ought to be effectually
restrained from passing the limits assigned to it.
After discriminating, therefore, in
theory, the several classes of power, as they may in their nature be
legislative, executive, or judiciary, the next and most difficult task is to
provide some practical security for each, against the invasion of the others.
What this security ought to be, is the
great problem to be solved. Will it be sufficient to mark, with precision, the
boundaries of these departments, in the constitution of the government, and to
trust to these parchment barriers against the encroaching spirit of power? This
is the security which appears to have been principally relied on by the
compilers of most of the American constitutions. But experience assures us,
that the efficacy of the provision has been greatly overrated; and that some
more adequate defense is indispensably necessary for the more feeble, against
the more powerful, members of the government. The legislative department is
everywhere extending the sphere of its activity, and drawing all power into its
impetuous vortex. The founders of our republics have so much merit for the
wisdom which they have displayed, that no task can be less pleasing than that
of pointing out the errors into which they have fallen. A respect for truth,
however, obliges us to remark, that they seem never for a moment to have turned
their eyes from the danger to liberty from the overgrown and all-grasping
prerogative of an hereditary magistrate, supported and fortified by an
hereditary branch of the legislative authority. They seem never to have
recollected the danger from legislative usurpations, which, by assembling all
power in the same hands, must lead to the same tyranny as is threatened by
executive usurpations. In a government where numerous and extensive
prerogatives are placed in the hands of an hereditary monarch, the executive
department is very justly regarded as the source of danger, and watched with
all the jealousy which a zeal for liberty ought to inspire. In a democracy, where
a multitude of people exercise in person the legislative functions, and are
continually exposed, by their incapacity for regular deliberation and concerted
measures, to the ambitious intrigues of their executive magistrates, tyranny
may well be apprehended, on some favorable emergency, to start up in the same
quarter. But in a representative republic, where the executive magistracy is
carefully limited; both in the extent and the duration of its power; and where
the legislative power is exercised by an assembly, which is inspired, by a
supposed influence over the people, with an intrepid confidence in its own
strength; which is sufficiently numerous to feel all the passions which actuate
a multitude, yet not so numerous as to be incapable of pursuing the objects of
its passions, by means which reason prescribes; it is against the enterprising
ambition of this department that the people ought to indulge all their jealousy
and exhaust all their precautions. The legislative department derives a
superiority in our governments from other circumstances. Its constitutional
powers being at once more extensive, and less susceptible of precise limits, it
can, with the greater facility, mask, under complicated and indirect measures,
the encroachments which it makes on the co-ordinate departments. It is not
unfrequently a question of real nicety in legislative bodies, whether the
operation of a particular measure will, or will not, extend beyond the
legislative sphere. On the other side, the executive power being restrained
within a narrower compass, and being more simple in its nature, and the
judiciary being described by landmarks still less uncertain, projects of
usurpation by either of these departments would immediately betray and defeat
themselves. Nor is this all: as the legislative department alone has access to
the pockets of the people, and has in some constitutions full discretion, and
in all a prevailing influence, over the pecuniary rewards of those who fill the
other departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former. I have appealed to our
own experience for the truth of what I advance on this subject. Were it
necessary to verify this experience by particular proofs, they might be multiplied
without end. I might find a witness in every citizen who has shared in, or been
attentive to, the course of public administrations. I might collect vouchers in
abundance from the records and archives of every State in the Union. But as a
more concise, and at the same time equally satisfactory, evidence, I will refer
to the example of two States, attested by two unexceptionable authorities. The
first example is that of Virginia, a State which, as we have seen, has
expressly declared in its constitution, that the three great departments ought
not to be intermixed. The authority in support of it is Mr. Jefferson, who,
besides his other advantages for remarking the operation of the government, was
himself the chief magistrate of it. In order to convey fully the ideas with
which his experience had impressed him on this subject, it will be necessary to
quote a passage of some length from his very interesting "Notes on the
State of Virginia," p. 195. "All the powers of government,
legislative, executive, and judiciary, result to the legislative body. The
concentrating these in the same hands, is precisely the definition of despotic
government. It will be no alleviation, that these powers will be exercised by a
plurality of hands, and not by a single one. One hundred and seventy-three
despots would surely be as oppressive as one. Let those who doubt it, turn
their eyes on the republic of Venice. As little will it avail us, that they are
chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for;
but one which should not only be founded on free principles, but in which the
powers of government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without being
effectually checked and restrained by the others.
For this reason, that convention which
passed the ordinance of government, laid its foundation on this basis, that the
legislative, executive, and judiciary departments should be separate and
distinct, so that no person should exercise the powers of more than one of them
at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The
judiciary and the executive members were left dependent on the legislative for
their subsistence in office, and some of them for their continuance in it. If,
therefore, the legislature assumes executive and judiciary powers, no
opposition is likely to be made; nor, if made, can be effectual; because in
that case they may put their proceedings into the form of acts of Assembly,
which will render them obligatory on the other branches. They have accordingly,
IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY
CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR
SESSION, IS BECOMING HABITUAL AND FAMILIAR. "The other State which I shall
take for an example is Pennsylvania; and the other authority, the Council of
Censors, which assembled in the years 1783 and 1784. A part of the duty of this
body, as marked out by the constitution, was "to inquire whether the
constitution had been preserved inviolate in every part; and whether the
legislative and executive branches of government had performed their duty as
guardians of the people, or assumed to themselves, or exercised, other or
greater powers than they are entitled to by the constitution. " In the
execution of this trust, the council were necessarily led to a comparison of
both the legislative and executive proceedings, with the constitutional powers
of these departments; and from the facts enumerated, and to the truth of most
of which both sides in the council subscribed, it appears that the constitution
had been flagrantly violated by the legislature in a variety of important
instances. A great number of laws had been passed, violating, without any
apparent necessity, the rule requiring that all bills of a public nature shall
be previously printed for the consideration of the people; although this is one
of the precautions chiefly relied on by the constitution against improper acts
of legislature. The constitutional trial by jury had been violated, and powers
assumed which had not been delegated by the constitution.
Executive powers had been usurped. The
salaries of the judges, which the constitution expressly requires to be fixed,
had been occasionally varied; and cases belonging to the judiciary department
frequently drawn within legislative cognizance and determination. Those who
wish to see the several particulars falling under each of these heads, may
consult the journals of the council, which are in print. Some of them, it will
be found, may be imputable to peculiar circumstances connected with the war;
but the greater part of them may be considered as the spontaneous shoots of an
ill-constituted government. It appears, also, that the executive department had
not been innocent of frequent breaches of the constitution. There are three
observations, however, which ought to be made on this head: FIRST, a great
proportion of the instances were either immediately produced by the necessities
of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in
most of the other instances, they conformed either to the declared or the known
sentiments of the legislative department; THIRDLY, the executive department of
Pennsylvania is distinguished from that of the other States by the number of
members composing it. In this respect, it has as much affinity to a legislative
assembly as to an executive council. And being at once exempt from the
restraint of an individual responsibility for the acts of the body, and
deriving confidence from mutual example and joint influence, unauthorized
measures would, of course, be more freely hazarded, than where the executive
department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in
drawing from these observations is, that a mere demarcation on parchment of the
constitutional limits of the several departments, is not a sufficient guard
against those encroachments which lead to a tyrannical concentration of all the
powers of government in the same hands.
PUBLIUS.
|| Federalist No. 49 ||
Method of Guarding Against the
Encroachments of Any One Department of Government by Appealing to the People
Through a Convention
New York Packet: February 5, 1788.
To the People of the State of New
York:
THE author of the "Notes on the
State of Virginia," quoted in the last paper, has subjoined to that
valuable work the draught of a constitution, which had been prepared in order
to be laid before a convention, expected to be called in 1783, by the
legislature, for the establishment of a constitution for that commonwealth. The
plan, like everything from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it equally
displays a fervent attachment to republican government and an enlightened view
of the dangerous propensities against which it ought to be guarded.
One of the precautions which he
proposes, and on which he appears ultimately to rely as a palladium to the
weaker departments of power against the invasions of the stronger, is perhaps
altogether his own, and as it immediately relates to the subject of our present
inquiry, ought not to be overlooked. His proposition is, "that whenever
any two of the three branches of government shall concur in opinion, each by
the voices of two thirds of their whole number, that a convention is necessary
for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall
be called for the purpose. "As the people are the only legitimate fountain
of power, and it is from them that the constitutional charter, under which the
several branches of government hold their power, is derived, it seems strictly
consonant to the republican theory, to recur to the same original authority,
not only whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments may
commit encroachments on the chartered authorities of the others. The several
departments being perfectly co-ordinate by the terms of their common
commission, none of them, it is evident, can pretend to an exclusive or
superior right of settling the boundaries between their respective powers; and
how are the encroachments of the stronger to be prevented, or the wrongs of the
weaker to be redressed, without an appeal to the people themselves, who, as the
grantors of the commissions, can alone declare its true meaning, and enforce
its observance? There is certainly great force in this reasoning, and it must
be allowed to prove that a constitutional road to the decision of the people
ought to be marked out and kept open, for certain great and extraordinary
occasions. But there appear to be insuperable objections against the proposed
recurrence to the people, as a provision in all cases for keeping the several
departments of power within their constitutional limits. In the first place,
the provision does not reach the case of a combination of two of the
departments against the third. If the legislative authority, which possesses so
many means of operating on the motives of the other departments, should be able
to gain to its interest either of the others, or even one third of its members,
the remaining department could derive no advantage from its remedial provision.
I do not dwell, however, on this objection, because it may be thought to be
rather against the modification of the principle, than against the principle
itself. In the next place, it may be considered as an objection inherent in the
principle, that as every appeal to the people would carry an implication of
some defect in the government, frequent appeals would, in a great measure, deprive
the government of that veneration which time bestows on every thing, and
without which perhaps the wisest and freest governments would not possess the
requisite stability. If it be true that all governments rest on opinion, it is
no less true that the strength of opinion in each individual, and its practical
influence on his conduct, depend much on the number which he supposes to have
entertained the same opinion. The reason of man, like man himself, is timid and
cautious when left alone, and acquires firmness and confidence in proportion to
the number with which it is associated. When the examples which fortify opinion
are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a
nation of philosophers, this consideration ought to be disregarded. A reverence
for the laws would be sufficiently inculcated by the voice of an enlightened
reason. But a nation of philosophers is as little to be expected as the
philosophical race of kings wished for by Plato. And in every other nation, the
most rational government will not find it a superfluous advantage to have the
prejudices of the community on its side. The danger of disturbing the public
tranquillity by interesting too strongly the public passions, is a still more
serious objection against a frequent reference of constitutional questions to
the decision of the whole society. Notwithstanding the success which has
attended the revisions of our established forms of government, and which does
so much honor to the virtue and intelligence of the people of America, it must
be confessed that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the existing
constitutions were formed in the midst of a danger which repressed the passions
most unfriendly to order and concord; of an enthusiastic confidence of the
people in their patriotic leaders, which stifled the ordinary diversity of
opinions on great national questions; of a universal ardor for new and opposite
forms, produced by a universal resentment and indignation against the ancient
government; and whilst no spirit of party connected with the changes to be
made, or the abuses to be reformed, could mingle its leaven in the operation.
The future situations in which we must expect to be usually placed, do not
present any equivalent security against the danger which is apprehended. But
the greatest objection of all is, that the decisions which would probably
result from such appeals would not answer the purpose of maintaining the
constitutional equilibrium of the government. We have seen that the tendency of
republican governments is to an aggrandizement of the legislative at the
expense of the other departments. The appeals to the people, therefore, would
usually be made by the executive and judiciary departments. But whether made by
one side or the other, would each side enjoy equal advantages on the trial? Let
us view their different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a small part only
of the people. The latter, by the mode of their appointment, as well as by the
nature and permanency of it, are too far removed from the people to share much
in their prepossessions. The former are generally the objects of jealousy, and
their administration is always liable to be discolored and rendered unpopular.
The members of the legislative department, on the other hand, are numberous.
They are distributed and dwell among the people at large. Their connections of
blood, of friendship, and of acquaintance embrace a great proportion of the
most influential part of the society. The nature of their public trust implies
a personal influence among the people, and that they are more immediately the
confidential guardians of the rights and liberties of the people. With these
advantages, it can hardly be supposed that the adverse party would have an
equal chance for a favorable issue. But the legislative party would not only be
able to plead their cause most successfully with the people. They would probably
be constituted themselves the judges.
The same influence which had gained
them an election into the legislature, would gain them a seat in the
convention. If this should not be the case with all, it would probably be the
case with many, and pretty certainly with those leading characters, on whom
every thing depends in such bodies. The convention, in short, would be composed
chiefly of men who had been, who actually were, or who expected to be, members
of the department whose conduct was arraigned. They would consequently be
parties to the very question to be decided by them. It might, however,
sometimes happen, that appeals would be made under circumstances less adverse
to the executive and judiciary departments. The usurpations of the legislature
might be so flagrant and so sudden, as to admit of no specious coloring. A
strong party among themselves might take side with the other branches. The
executive power might be in the hands of a peculiar favorite of the people. In
such a posture of things, the public decision might be less swayed by
prepossessions in favor of the legislative party. But still it could never be
expected to turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties springing out
of the question itself. It would be connected with persons of distinguished
character and extensive influence in the community. It would be pronounced by
the very men who had been agents in, or opponents of, the measures to which the
decision would relate. The PASSIONS, therefore, not the REASON, of the public
would sit in judgment. But it is the reason, alone, of the public, that ought
to control and regulate the government. The passions ought to be controlled and
regulated by the government.
We found in the last paper, that mere
declarations in the written constitution are not sufficient to restrain the
several departments within their legal rights. It appears in this, that
occasional appeals to the people would be neither a proper nor an effectual
provision for that purpose. How far the provisions of a different nature
contained in the plan above quoted might be adequate, I do not examine. Some of
them are unquestionably founded on sound political principles, and all of them
are framed with singular ingenuity and precision.
PUBLIUS.
|| Federalist No. 50 ||
Periodic Appeals to the People
Considered
New York Packet: February 5, 1788.
To the People of the State of New
York:
IT MAY be contended, perhaps, that
instead of OCCASIONAL appeals to the people, which are liable to the objections
urged against them, PERIODICAL appeals are the proper and adequate means of
PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended
to, that in the examination of these expedients, I confine myself to their
aptitude for ENFORCING the Constitution, by keeping the several departments of
power within their due bounds, without particularly considering them as
provisions for ALTERING the Constitution itself. In the first view, appeals to
the people at fixed periods appear to be nearly as ineligible as appeals on
particular occasions as they emerge.
If the periods be separated by short
intervals, the measures to be reviewed and rectified will have been of recent
date, and will be connected with all the circumstances which tend to vitiate
and pervert the result of occasional revisions. If the periods be distant from
each other, the same remark will be applicable to all recent measures; and in
proportion as the remoteness of the others may favor a dispassionate review of
them, this advantage is inseparable from inconveniences which seem to
counterbalance it. In the first place, a distant prospect of public censure
would be a very feeble restraint on power from those excesses to which it might
be urged by the force of present motives. Is it to be imagined that a
legislative assembly, consisting of a hundred or two hundred members, eagerly
bent on some favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at the future
distance of ten, fifteen, or twenty years? In the next place, the abuses would
often have completed their mischievous effects before the remedial provision
would be applied. And in the last place, where this might not be the case, they
would be of long standing, would have taken deep root, and would not easily be
extirpated. The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually tried in one
of the States. One of the objects of the Council of Censors which met in
Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether
the constitution had been violated, and whether the legislative and executive
departments had encroached upon each other. " This important and novel
experiment in politics merits, in several points of view, very particular
attention. In some of them it may, perhaps, as a single experiment, made under
circumstances somewhat peculiar, be thought to be not absolutely conclusive.
But as applied to the case under consideration, it involves some facts, which I
venture to remark, as a complete and satisfactory illustration of the reasoning
which I have employed. First. It appears, from the names of the gentlemen who
composed the council, that some, at least, of its most active members had also
been active and leading characters in the parties which pre-existed in the
State.
Secondly. It appears that the same
active and leading members of the council had been active and influential
members of the legislative and executive branches, within the period to be
reviewed; and even patrons or opponents of the very measures to be thus brought
to the test of the constitution. Two of the members had been vice-presidents of
the State, and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same period.
Thirdly. Every page of their
proceedings witnesses the effect of all these circumstances on the temper of their
deliberations. Throughout the continuance of the council, it was split into two
fixed and violent parties. The fact is acknowledged and lamented by themselves.
Had this not been the case, the face of their proceedings exhibits a proof
equally satisfactory. In all questions, however unimportant in themselves, or
unconnected with each other, the same names stand invariably contrasted on the
opposite columns. Every unbiased observer may infer, without danger of mistake,
and at the same time without meaning to reflect on either party, or any
individuals of either party, that, unfortunately, PASSION, not REASON, must
have presided over their decisions. When men exercise their reason coolly and
freely on a variety of distinct questions, they inevitably fall into different
opinions on some of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.
Fourthly. It is at least
problematical, whether the decisions of this body do not, in several instances,
misconstrue the limits prescribed for the legislative and executive
departments, instead of reducing and limiting them within their constitutional
places.
Fifthly. I have never understood that
the decisions of the council on constitutional questions, whether rightly or
erroneously formed, have had any effect in varying the practice founded on
legislative constructions. It even appears, if I mistake not, that in one
instance the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest. This censorial body, therefore, proves
at the same time, by its researches, the existence of the disease, and by its
example, the inefficacy of the remedy. This conclusion cannot be invalidated by
alleging that the State in which the experiment was made was at that crisis,
and had been for a long time before, violently heated and distracted by the
rage of party. Is it to be presumed, that at any future septennial epoch the
same State will be free from parties? Is it to be presumed that any other
State, at the same or any other given period, will be exempt from them? Such an
event ought to be neither presumed nor desired; because an extinction of
parties necessarily implies either a universal alarm for the public safety, or
an absolute extinction of liberty. Were the precaution taken of excluding from
the assemblies elected by the people, to revise the preceding administration of
the government, all persons who should have been concerned with the government
within the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would in
other respects be little better qualified. Although they might not have been
personally concerned in the administration, and therefore not immediately
agents in the measures to be examined, they would probably have been involved
in the parties connected with these measures, and have been elected under their
auspices.
PUBLIUS.
|| Federalist No. 51 ||
The Structure of the Government Must
Furnish the Proper Checks and Balances Between the Different Departments
New York Packet: February 8, 1788.
To the People of the State of New
York:
TO WHAT expedient, then, shall we
finally resort, for maintaining in practice the necessary partition of power
among the several departments, as laid down in the Constitution? The only
answer that can be given is, that as all these exterior provisions are found to
be inadequate, the defect must be supplied, by so contriving the interior
structure of the government as that its several constituent parts may, by their
mutual relations, be the means of keeping each other in their proper places.
Without presuming to undertake a full development of this important idea, I
will hazard a few general observations, which may perhaps place it in a clearer
light, and enable us to form a more correct judgment of the principles and
structure of the government planned by the convention. In order to lay a due
foundation for that separate and distinct exercise of the different powers of
government, which to a certain extent is admitted on all hands to be essential
to the preservation of liberty, it is evident that each department should have
a will of its own; and consequently should be so constituted that the members
of each should have as little agency as possible in the appointment of the
members of the others. Were this principle rigorously adhered to, it would
require that all the appointments for the supreme executive, legislative, and
judiciary magistracies should be drawn from the same fountain of authority, the
people, through channels having no communication whatever with one another.
Perhaps such a plan of constructing the several departments would be less
difficult in practice than it may in contemplation appear. Some difficulties,
however, and some additional expense would attend the execution of it. Some
deviations, therefore, from the principle must be admitted. In the constitution
of the judiciary department in particular, it might be inexpedient to insist
rigorously on the principle: first, because peculiar qualifications being
essential in the members, the primary consideration ought to be to select that
mode of choice which best secures these qualifications; secondly, because the
permanent tenure by which the appointments are held in that department, must
soon destroy all sense of dependence on the authority conferring them. It is
equally evident, that the members of each department should be as little
dependent as possible on those of the others, for the emoluments annexed to
their offices. Were the executive magistrate, or the judges, not independent of
the legislature in this particular, their independence in every other would be
merely nominal. But the great security against a gradual concentration of the
several powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and personal
motives to resist encroachments of the others. The provision for defense must
in this, as in all other cases, be made commensurate to the danger of attack.
Ambition must be made to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place. It may be a reflection
on human nature, that such devices should be necessary to control the abuses of
government. But what is government itself, but the greatest of all reflections on
human nature? If men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control itself. A
dependence on the people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary precautions. This
policy of supplying, by opposite and rival interests, the defect of better
motives, might be traced through the whole system of human affairs, private as
well as public. We see it particularly displayed in all the subordinate
distributions of power, where the constant aim is to divide and arrange the
several offices in such a manner as that each may be a check on the other that
the private interest of every individual may be a sentinel over the public
rights. These inventions of prudence cannot be less requisite in the
distribution of the supreme powers of the State. But it is not possible to give
to each department an equal power of self-defense. In republican government,
the legislative authority necessarily predominates. The remedy for this
inconveniency is to divide the legislature into different branches; and to
render them, by different modes of election and different principles of action,
as little connected with each other as the nature of their common functions and
their common dependence on the society will admit. It may even be necessary to
guard against dangerous encroachments by still further precautions. As the
weight of the legislative authority requires that it should be thus divided,
the weakness of the executive may require, on the other hand, that it should be
fortified. An absolute negative on the legislature appears, at first view, to
be the natural defense with which the executive magistrate should be armed. But
perhaps it would be neither altogether safe nor alone sufficient. On ordinary
occasions it might not be exerted with the requisite firmness, and on
extraordinary occasions it might be perfidiously abused. May not this defect of
an absolute negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger department, by which
the latter may be led to support the constitutional rights of the former,
without being too much detached from the rights of its own department? If the
principles on which these observations are founded be just, as I persuade
myself they are, and they be applied as a criterion to the several State
constitutions, and to the federal Constitution it will be found that if the
latter does not perfectly correspond with them, the former are infinitely less
able to bear such a test. There are, moreover, two considerations particularly
applicable to the federal system of America, which place that system in a very
interesting point of view. First. In a single republic, all the power surrendered
by the people is submitted to the administration of a single government; and
the usurpations are guarded against by a division of the government into
distinct and separate departments. In the compound republic of America, the
power surrendered by the people is first divided between two distinct
governments, and then the portion allotted to each subdivided among distinct
and separate departments. Hence a double security arises to the rights of the
people. The different governments will control each other, at the same time
that each will be controlled by itself. Second. It is of great importance in a
republic not only to guard the society against the oppression of its rulers,
but to guard one part of the society against the injustice of the other part.
Different interests necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights of the minority will be
insecure. There are but two methods of providing against this evil: the one by
creating a will in the community independent of the majority that is, of the
society itself; the other, by comprehending in the society so many separate
descriptions of citizens as will render an unjust combination of a majority of
the whole very improbable, if not impracticable. The first method prevails in
all governments possessing an hereditary or self-appointed authority. This, at
best, is but a precarious security; because a power independent of the society
may as well espouse the unjust views of the major, as the rightful interests of
the minor party, and may possibly be turned against both parties. The second
method will be exemplified in the federal republic of the United States. Whilst
all authority in it will be derived from and dependent on the society, the
society itself will be broken into so many parts, interests, and classes of
citizens, that the rights of individuals, or of the minority, will be in little
danger from interested combinations of the majority. In a free government the
security for civil rights must be the same as that for religious rights. It
consists in the one case in the multiplicity of interests, and in the other in
the multiplicity of sects. The degree of security in both cases will depend on
the number of interests and sects; and this may be presumed to depend on the
extent of country and number of people comprehended under the same government.
This view of the subject must particularly recommend a proper federal system to
all the sincere and considerate friends of republican government, since it shows
that in exact proportion as the territory of the Union may be formed into more
circumscribed Confederacies, or States oppressive combinations of a majority
will be facilitated: the best security, under the republican forms, for the
rights of every class of citizens, will be diminished: and consequently the
stability and independence of some member of the government, the only other
security, must be proportionately increased. Justice is the end of government.
It is the end of civil society. It ever has been and ever will be pursued until
it be obtained, or until liberty be lost in the pursuit. In a society under the
forms of which the stronger faction can readily unite and oppress the weaker,
anarchy may as truly be said to reign as in a state of nature, where the weaker
individual is not secured against the violence of the stronger; and as, in the
latter state, even the stronger individuals are prompted, by the uncertainty of
their condition, to submit to a government which may protect the weak as well as
themselves; so, in the former state, will the more powerful factions or parties
be gradnally induced, by a like motive, to wish for a government which will
protect all parties, the weaker as well as the more powerful. It can be little
doubted that if the State of Rhode Island was separated from the Confederacy
and left to itself, the insecurity of rights under the popular form of
government within such narrow limits would be displayed by such reiterated
oppressions of factious majorities that some power altogether independent of
the people would soon be called for by the voice of the very factions whose
misrule had proved the necessity of it. In the extended republic of the United
States, and among the great variety of interests, parties, and sects which it
embraces, a coalition of a majority of the whole society could seldom take
place on any other principles than those of justice and the general good;
whilst there being thus less danger to a minor from the will of a major party,
there must be less pretext, also, to provide for the security of the former, by
introducing into the government a will not dependent on the latter, or, in
other words, a will independent of the society itself. It is no less certain
than it is important, notwithstanding the contrary opinions which have been
entertained, that the larger the society, provided it lie within a practical
sphere, the more duly capable it will be of self-government. And happily for
the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great
extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS.
|| Federalist No. 52 ||
The House of Representatives
New York Packet: February 8, 1788.
To the People of the State of New
York:
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. I shall begin with the House of
Representatives. The first view to be taken of this part of the government relates
to the qualifications of the electors and the elected. Those of the former are
to be the same with those of the electors of the most numerous branch of the
State legislatures.
The definition of the right of
suffrage is very justly regarded as a fundamental article of republican
government. It was incumbent on the convention, therefore, to define and
establish this right in the Constitution. To have left it open for the
occasional regulation of the Congress, would have been improper for the reason
just mentioned. 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. 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. The provision made by
the convention appears, therefore, to be the best that lay within their option.
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. 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. 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. 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. 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. The term for which the representatives are to be elected falls
under a second view which may be taken of this branch. 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. 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. Frequent elections
are unquestionably the only policy by which this dependence and sympathy can be
effectually secured. 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. Let us consult experience, the guide that ought always to be
followed whenever it can be found. 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. 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. The first to which this character ought to be applied, is the
House of Commons in Great Britain. The history of this branch of the English
Constitution, anterior to the date of Magna Charta, is too obscure to yield
instruction. The very existence of it has been made a question among political
antiquaries. The earliest records of subsequent date prove that parliaments
were to SIT only every year; not that they were to be ELECTED every year. 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. 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. 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. 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. 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. 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. 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. 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. The parliament which commenced
with George II. was continued throughout his whole reign, a period of about
thirty-five years. 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.
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. Of late these shackles, if I mistake
not, have been broken; and octennial parliaments have besides been established.
What effect may be produced by this partial reform, must be left to further
experience. The example of Ireland, from this view of it, can throw but little
light on the subject. 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. Let us bring our inquiries nearer
home. 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. The principle of representation, in one branch of the legislature
at least, was established in all of them. But the periods of election were
different. They varied from one to seven years. 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? 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 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 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.
In Virginia, nevertheless, if I have
not been misinformed, elections under the former government were septennial.
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. The conclusion resulting from these examples will be
not a little strengthened by recollecting three circumstances. 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. 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. 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. 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. With less power, therefore, to abuse, the federal
representatives can be less tempted on one side, and will be doubly watched on
the other.
PUBLIUS.
|| Federalist No. 53 ||
The Same Subject Continued: The House of
Representatives
New York Packet: February 12, 1788.
To the People of the State of New
York:
I SHALL here, perhaps, be reminded of
a current observation, "that where annual elections end, tyranny begins.
" 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. I need not look for a proof beyond the case before us. What is the
reason on which this proverbial observation is founded? 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. 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. 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? 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. In Connecticut and Rhode
Island, the periods are half-yearly. In the other States, South Carolina
excepted, they are annual. In South Carolina they are biennial as is proposed
in the federal government. 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. In searching for the grounds of
this doctrine, I can discover but one, and that is wholly inapplicable to our
case. 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. Wherever
the supreme power of legislation has resided, has been supposed to reside also
a full power to change the form of the government. 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.
They have accordingly, in several instances, actually changed, by legislative
acts, some of the most fundamental articles of the government. 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. 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 corner-stone; and has led them to seek
for some security to liberty, against the danger to which it is exposed. 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. 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? 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. 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? 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? The second question stated is, whether biennial
elections be necessary or useful. The propriety of answering this question in
the affirmative will appear from several very obvious considerations. 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. 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.
Another part can only be attained, or at least thoroughly attained, by actual
experience in the station which requires the use of it. 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. The period
of legislative service established in most of the States for the more numerous
branch is, as we have seen, one year. 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? The very statement of the question, in this
form, suggests the answer that ought to be given to it. 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. The great theatre of the United States presents a very
different scene. The laws are so far from being uniform, that they vary in
every State; whilst the public affairs of the Union are spread throughout a
very extensive region, and are extremely diversified by t e 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. 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. How can foreign trade be properly regulated by
uniform laws, without some acquaintance with the commerce, the ports, the
usages, and the regulatious of the different States? How can the trade between
the different States be duly regulated, without some knowledge of their
relative situations in these and other respects? 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?
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? These are the principal objects of federal legislation, and
suggest most forcibly the extensive information which the representatives ought
to acquire. The other interior objects will require a proportional degree of
information with regard to them. It is true that all these difficulties will,
by degrees, be very much diminished. The most laborious task will be the proper
inauguration of the government and the primeval formation of a federal code.
Improvements on the first draughts will every year become both easier and
fewer. Past transactions of the government will be a ready and accurate source
of information to new members. The affairs of the Union will become more and
more objects of curiosity and conversation among the citizens at large. 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. 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. A branch of knowledge which belongs to the acquirements of a
federal representative, and which has not been mentioned is that of foreign
affairs. 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. 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.
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 co-operation. 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.
There are other considerations, of
less importance, perhaps, but which are not unworthy of notice. 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. No argument can be drawn on this subject, from
the case of the delegates to the existing Congress. They are elected annually,
it is true; but their re-election is considered by the legislative assemblies
almost as a matter of course. The election of the representatives by the people
would not be governed by the same principle. A few of the members, as happens
in all such assemblies, will possess superior talents; will, by frequent
reelections, become members of long standing; will be thoroughly masters of the
public business, and perhaps not unwilling to avail themselves of those
advantages. 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. This remark is no less applicable to the
relation which will subsist between the House of Representatives and the
Senate. 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. 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. Hence, a very pernicious encouragement is given to the use of
unlawful means, for obtaining irregular returns. Were elections for the federal
legislature to be annual, this practice might become a very serious abuse,
particularly in the more distant States. 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. 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.
PUBLIUS.
|| Federalist No. 54 ||
The
Apportionment of Members Among the States
New
York Packet: February 12, 1788.
To the People of the State of New
York:
THE next view which I shall take of
the House of Representatives relates to the appointment of its members to the
several States which is to be determined by the same rule with that of direct
taxes. It is not contended that the number of people in each State ought not to
be the standard for regulating the proportion of those who are to represent the
people of each State. The establishment of the same rule for the appointment of
taxes, will probably be as little contested; though the rule itself in this case,
is by no means founded on the same principle. In the former case, the rule is
understood to refer to the personal rights of the people, with which it has a
natural and universal connection.
In the latter, it has reference to the
proportion of wealth, of which it is in no case a precise measure, and in
ordinary cases a very unfit one. But notwithstanding the imperfection of the
rule as applied to the relative wealth and contributions of the States, it is
evidently the least objectionable among the practicable rules, and had too
recently obtained the general sanction of America, not to have found a ready
preference with the convention. All this is admitted, it will perhaps be said;
but does it follow, from an admission of numbers for the measure of representation,
or of slaves combined with free citizens as a ratio of taxation, that slaves
ought to be included in the numerical rule of representation?
Slaves are considered as property, not
as persons. They ought therefore to be comprehended in estimates of taxation
which are founded on property, and to be excluded from representation which is
regulated by a census of persons. This is the objection, as I understand it,
stated in its full force. I shall be equally candid in stating the reasoning
which may be offered on the opposite side. "We subscribe to the
doctrine," might one of our Southern brethren observe, "that
representation relates more immediately to persons, and taxation more
immediately to property, and we join in the application of this distinction to
the case of our slaves. But we must deny the fact, that slaves are considered
merely as property, and in no respect whatever as persons. The true state of
the case is, that they partake of both these qualities: being considered by our
laws, in some respects, as persons, and in other respects as property. In being
compelled to labor, not for himself, but for a master; in being vendible by one
master to another master; and in being subject at all times to be restrained in
his liberty and chastised in his body, by the capricious will of another, the
slave may appear to be degraded from the human rank, and classed with those
irrational animals which fall under the legal denomination of property. In
being protected, on the other hand, in his life and in his limbs, against the
violence of all others, even the master of his labor and his liberty; and in
being punishable himself for all violence committed against others, the slave
is no less evidently regarded by the law as a member of the society, not as a
part of the irrational creation; as a moral person, not as a mere article of
property. The federal Constitution, therefore, decides with great propriety on
the case of our slaves, when it views them in the mixed character of persons
and of property. This is in fact their true character. It is the character
bestowed on them by the laws under which they live; and it will not be denied,
that these are the proper criterion; because it is only under the pretext that
the laws have transformed the negroes into subjects of property, that a place
is disputed them in the computation of numbers; and it is admitted, that if the
laws were to restore the rights which have been taken away, the negroes could
no longer be refused an equal share of representation with the other inhabitants.
"This question may be placed in
another light. It is agreed on all sides, that numbers are the best scale of
wealth and taxation, as they are the only proper scale of representation. Would
the convention have been impartial or consistent, if they had rejected the
slaves from the list of inhabitants, when the shares of representation were to
be calculated, and inserted them on the lists when the tariff of contributions
was to be adjusted? Could it be reasonably expected, that the Southern States would
concur in a system, which considered their slaves in some degree as men, when
burdens were to be imposed, but refused to consider them in the same light,
when advantages were to be conferred? Might not some surprise also be
expressed, that those who reproach the Southern States with the barbarous
policy of considering as property a part of their human brethren, should
themselves contend, that the government to which all the States are to be
parties, ought to consider this unfortunate race more completely in the
unnatural light of property, than the very laws of which they complain?
"It may be replied, perhaps, that slaves are not included in the estimate
of representatives in any of the States possessing them. They neither vote
themselves nor increase the votes of their masters. Upon what principle, then,
ought they to be taken into the federal estimate of representation? In
rejecting them altogether, the Constitution would, in this respect, have
followed the very laws which have been appealed to as the proper guide.
"This objection is repelled by a single observation. It is a fundamental
principle of the proposed Constitution, that as the aggregate number of
representatives allotted to the several States is to be determined by a federal
rule, founded on the aggregate number of inhabitants, so the right of choosing
this allotted number in each State is to be exercised by such part of the
inhabitants as the State itself may designate. The qualifications on which the
right of suffrage depend are not, perhaps, the same in any two States. In some
of the States the difference is very material. In every State, a certain
proportion of inhabitants are deprived of this right by the constitution of the
State, who will be included in the census by which the federal Constitution
apportions the representatives.
In this point of view the Southern
States might retort the complaint, by insisting that the principle laid down by
the convention required that no regard should be had to the policy of
particular States towards their own inhabitants; and consequently, that the
slaves, as inhabitants, should have been admitted into the census according to
their full number, in like manner with other inhabitants, who, by the policy of
other States, are not admitted to all the rights of citizens. A rigorous
adherence, however, to this principle, is waived by those who would be gainers
by it. All that they ask is that equal moderation be shown on the other side.
Let the case of the slaves be considered, as it is in truth, a peculiar one.
Let the compromising expedient of the Constitution be mutually adopted, which
regards them as inhabitants, but as debased by servitude below the equal level
of free inhabitants, which regards the SLAVE as divested of two fifths of the
MAN. "After all, may not another ground be taken on which this article of
the Constitution will admit of a still more ready defense? We have hitherto
proceeded on the idea that representation related to persons only, and not at
all to property. But is it a just idea?
Government is instituted no less for
protection of the property, than of the persons, of individuals. The one as
well as the other, therefore, may be considered as represented by those who are
charged with the government. Upon this principle it is, that in several of the
States, and particularly in the State of New York, one branch of the government
is intended more especially to be the guardian of property, and is accordingly
elected by that part of the society which is most interested in this object of
government. In the federal Constitution, this policy does not prevail. The
rights of property are committed into the same hands with the personal rights.
Some attention ought, therefore, to be paid to property in the choice of those
hands. "For another reason, the votes allowed in the federal legislature
to the people of each State, ought to bear some proportion to the comparative
wealth of the States. States have not, like individuals, an influence over each
other, arising from superior advantages of fortune. If the law allows an
opulent citizen but a single vote in the choice of his representative, the
respect and consequence which he derives from his fortunate situation very
frequently guide the votes of others to the objects of his choice; and through
this imperceptible channel the rights of property are conveyed into the public
representation. A State possesses no such influence over other States. It is
not probable that the richest State in the Confederacy will ever influence the
choice of a single representative in any other State. Nor will the
representatives of the larger and richer States possess any other advantage in
the federal legislature, over the representatives of other States, than what
may result from their superior number alone. As far, therefore, as their
superior wealth and weight may justly entitle them to any advantage, it ought
to be secured to them by a superior share of representation. The new
Constitution is, in this respect, materially different from the existing
Confederation, as well as from that of the United Netherlands, and other
similar confederacies. In each of the latter, the efficacy of the federal
resolutions depends on the subsequent and voluntary resolutions of the states
composing the union. Hence the states, though possessing an equal vote in the
public councils, have an unequal influence, corresponding with the unequal
importance of these subsequent and voluntary resolutions. Under the proposed
Constitution, the federal acts will take effect without the necessary
intervention of the individual States. They will depend merely on the majority
of votes in the federal legislature, and consequently each vote, whether
proceeding from a larger or smaller State, or a State more or less wealthy or
powerful, will have an equal weight and efficacy: in the same manner as the
votes individually given in a State legislature, by the representatives of
unequal counties or other districts, have each a precise equality of value and
effect; or if there be any difference in the case, it proceeds from the
difference in the personal character of the individual representative, rather
than from any regard to the extent of the district from which he comes.
"Such is the reasoning which an advocate for the Southern interests might
employ on this subject; and although it may appear to be a little strained in
some points, yet, on the whole, I must confess that it fully reconciles me to
the scale of representation which the convention have established. In one
respect, the establishment of a common measure for representation and taxation
will have a very salutary effect. As the accuracy of the census to be obtained
by the Congress will necessarily depend, in a considerable degree on the
disposition, if not on the co-operation, of the States, it is of great importance
that the States should feel as little bias as possible, to swell or to reduce
the amount of their numbers. Were their share of representation alone to be
governed by this rule, they would have an interest in exaggerating their
inhabitants. Were the rule to decide their share of taxation alone, a contrary
temptation would prevail. By extending the rule to both objects, the States
will have opposite interests, which will control and balance each other, and
produce the requisite impartiality.
PUBLIUS.
|| Federalist No. 55 ||
The Total Number of the House of
Representatives
New York Packet: February 15, 1788.
To
the People of the State of New York:
THE number of which the House of
Representatives is to consist, forms another and a very interesting point of
view, under which this branch of the federal legislature may be contemplated.
Scarce any article, indeed, in the
whole Constitution seems to be rendered more worthy of attention, by the weight
of character and the apparent force of argument with which it has been
assailed.
The charges exhibited against it are,
first, that so small a number of representatives will be an unsafe depositary
of the public interests; secondly, that they will not possess a proper
knowledge of the local circumstances of their numerous constituents; thirdly,
that they will be taken from that class of citizens which will sympathize least
with the feelings of the mass of the people, and be most likely to aim at a
permanent elevation of the few on the depression of the many; fourthly, that
defective as the number will be in the first instance, it will be more and more
disproportionate, by the increase of the people, and the obstacles which will
prevent a correspondent increase of the representatives. In general it may be
remarked on this subject, that no political problem is less susceptible of a
precise solution than that which relates to the number most convenient for a
representative legislature; nor is there any point on which the policy of the
several States is more at variance, whether we compare their legislative
assemblies directly with each other, or consider the proportions which they
respectively bear to the number of their constituents. Passing over the
difference between the smallest and largest States, as Delaware, whose most
numerous branch consists of twenty-one representatives, and Massachusetts,
where it amounts to between three and four hundred, a very considerable
difference is observable among States nearly equal in population. The number of
representatives in Pennsylvania is not more than one fifth of that in the State
last mentioned. New York, whose population is to that of South Carolina as six
to five, has little more than one third of the number of representatives. As
great a disparity prevails between the States of Georgia and Delaware or Rhode
Island. In Pennsylvania, the representatives do not bear a greater proportion
to their constituents than of one for every four or five thousand. In Rhode
Island, they bear a proportion of at least one for every thousand. And
according to the constitution of Georgia, the proportion may be carried to one
to every ten electors; and must unavoidably far exceed the proportion in any of
the other States. Another general remark to be made is, that the ratio between
the representatives and the people ought not to be the same where the latter
are very numerous as where they are very few. Were the representatives in Virginia
to be regulated by the standard in Rhode Island, they would, at this time,
amount to between four and five hundred; and twenty or thirty years hence, to a
thousand. On the other hand, the ratio of Pennsylvania, if applied to the State
of Delaware, would reduce the representative assembly of the latter to seven or
eight members. Nothing can be more fallacious than to found our political
calculations on arithmetical principles. Sixty or seventy men may be more
properly trusted with a given degree of power than six or seven. But it does
not follow that six or seven hundred would be proportionably a better
depositary. And if we carry on the supposition to six or seven thousand, the
whole reasoning ought to be reversed. The truth is, that in all cases a certain
number at least seems to be necessary to secure the benefits of free
consultation and discussion, and to guard against too easy a combination for
improper purposes; as, on the other hand, the number ought at most to be kept
within a certain limit, in order to avoid the confusion and intemperance of a
multitude. In all very numerous assemblies, of whatever character composed,
passion never fails to wrest the scepter from reason.
Had every Athenian citizen been a
Socrates, every Athenian assembly would still have been a mob.
It is necessary also to recollect here
the observations which were applied to the case of biennial elections. For the
same reason that the limited powers of the Congress, and the control of the
State legislatures, justify less frequent elections than the public safely
might otherwise require, the members of the Congress need be less numerous than
if they possessed the whole power of legislation, and were under no other than
the ordinary restraints of other legislative bodies. With these general ideas
in our mind, let us weigh the objections which have been stated against the
number of members proposed for the House of Representatives. It is said, in the
first place, that so small a number cannot be safely trusted with so much
power. The number of which this branch of the legislature is to consist, at the
outset of the government, will be sixty five. Within three years a census is to
be taken, when the number may be augmented to one for every thirty thousand
inhabitants; and within every successive period of ten years the census is to
be renewed, and augmentations may continue to be made under the above
limitation. It will not be thought an extravagant conjecture that the first
census will, at the rate of one for every thirty thousand, raise the number of
representatives to at least one hundred. Estimating the negroes in the
proportion of three fifths, it can scarcely be doubted that the population of
the United States will by that time, if it does not already, amount to three
millions. At the expiration of twenty-five years, according to the computed
rate of increase, the number of representatives will amount to two hundred, and
of fifty years, to four hundred. This is a number which, I presume, will put an
end to all fears arising from the smallness of the body. I take for granted
here what I shall, in answering the fourth objection, hereafter show, that the
number of representatives will be augmented from time to time in the manner
provided by the Constitution. On a contrary supposition, I should admit the
objection to have very great weight indeed. The true question to be decided
then is, whether the smallness of the number, as a temporary regulation, be
dangerous to the public liberty? Whether sixty-five members for a few years,
and a hundred or two hundred for a few more, be a safe depositary for a limited
and well-guarded power of legislating for the United States? I must own that I
could not give a negative answer to this question, without first obliterating
every impression which I have received with regard to the present genius of the
people of America, the spirit which actuates the State legislatures, and the
principles which are incorporated with the political character of every class
of citizens I am unable to conceive that the people of America, in their
present temper, or under any circumstances which can speedily happen, will
choose, and every second year repeat the choice of, sixty-five or a hundred men
who would be disposed to form and pursue a scheme of tyranny or treachery. I am
unable to conceive that the State legislatures, which must feel so many motives
to watch, and which possess so many means of counteracting, the federal
legislature, would fail either to detect or to defeat a conspiracy of the
latter against the liberties of their common constituents. I am equally unable
to conceive that there are at this time, or can be in any short time, in the
United States, any sixty-five or a hundred men capable of recommending
themselves to the choice of the people at large, who would either desire or
dare, within the short space of two years, to betray the solemn trust committed
to them. What change of circumstances, time, and a fuller population of our
country may produce, requires a prophetic spirit to declare, which makes no part
of my pretensions. But judging from the circumstances now before us, and from
the probable state of them within a moderate period of time, I must pronounce
that the liberties of America cannot be unsafe in the number of hands proposed
by the federal Constitution. From what quarter can the danger proceed? Are we
afraid of foreign gold? If foreign gold could so easily corrupt our federal
rulers and enable them to ensnare and betray their constituents, how has it
happened that we are at this time a free and independent nation? The Congress
which conducted us through the Revolution was a less numerous body than their
successors will be; they were not chosen by, nor responsible to, their fellow
citizens at large; though appointed from year to year, and recallable at
pleasure, they were generally continued for three years, and prior to the
ratification of the federal articles, for a still longer term.
They held their consultations always
under the veil of secrecy; they had the sole transaction of our affairs with foreign
nations; through the whole course of the war they had the fate of their country
more in their hands than it is to be hoped will ever be the case with our
future representatives; and from the greatness of the prize at stake, and the
eagerness of the party which lost it, it may well be supposed that the use of
other means than force would not have been scrupled. Yet we know by happy
experience that the public trust was not betrayed; nor has the purity of our
public councils in this particular ever suffered, even from the whispers of
calumny. Is the danger apprehended from the other branches of the federal
government?
But where are the means to be found by
the President, or the Senate, or both? Their emoluments of office, it is to be
presumed, will not, and without a previous corruption of the House of
Representatives cannot, more than suffice for very different purposes; their
private fortunes, as they must all be American citizens, cannot possibly be
sources of danger. The only means, then, which they can possess, will be in the
dispensation of appointments. Is it here that suspicion rests her charge?
Sometimes we are told that this fund of corruption is to be exhausted by the
President in subduing the virtue of the Senate. Now, the fidelity of the other
House is to be the victim. The improbability of such a mercenary and perfidious
combination of the several members of government, standing on as different
foundations as republican principles will well admit, and at the same time
accountable to the society over which they are placed, ought alone to quiet
this apprehension. But, fortunately, the Constitution has provided a still
further safeguard. The members of the Congress are rendered ineligible to any
civil offices that may be created, or of which the emoluments may be increased,
during the term of their election.
No offices therefore can be dealt out
to the existing members but such as may become vacant by ordinary casualties:
and to suppose that these would be sufficient to purchase the guardians of the
people, selected by the people themselves, is to renounce every rule by which
events ought to be calculated, and to substitute an indiscriminate and
unbounded jealousy, with which all reasoning must be vain. The sincere friends
of liberty, who give themselves up to the extravagancies of this passion, are
not aware of the injury they do their own cause. As there is a degree of
depravity in mankind which requires a certain degree of circumspection and
distrust, so there are other qualities in human nature which justify a certain
portion of esteem and confidence. Republican government presupposes the
existence of these qualities in a higher degree than any other form. Were the
pictures which have been drawn by the political jealousy of some among us
faithful likenesses of the human character, the inference would be, that there
is not sufficient virtue among men for self-government; and that nothing less
than the chains of despotism can restrain them from destroying and devouring
one another.
PUBLIUS.
|| Federalist No. 56 ||
Part II: The Total Number of the House
of Representatives
New York Packet: February 19, 1788.
To the People of the State of New
York:
THE SECOND charge against the House of
Representatives is, that it will be too small to possess a due knowledge of the
interests of its constituents. As this objection evidently proceeds from a
comparison of the proposed number of representatives with the great extent of
the United States, the number of their inhabitants, and the diversity of their
interests, without taking into view at the same time the circumstances which
will distinguish the Congress from other legislative bodies, the best answer
that can be given to it will be a brief explanation of these peculiarities. It
is a sound and important principle that the representative ought to be
acquainted with the interests and circumstances of his constituents. But this
principle can extend no further than to those circumstances and interests to
which the authority and care of the representative relate. An ignorance of a
variety of minute and particular objects, which do not lie within the compass
of legislation, is consistent with every attribute necessary to a due
performance of the legislative trust. In determining the extent of information
required in the exercise of a particular authority, recourse then must be had
to the objects within the purview of that authority. What are to be the objects
of federal legislation? Those which are of most importance, and which seem most
to require local knowledge, are commerce, taxation, and the militia. A proper
regulation of commerce requires much information, as has been elsewhere
remarked; but as far as this information relates to the laws and local
situation of each individual State, a very few representatives would be very
sufficient vehicles of it to the federal councils. Taxation will consist, in a
great measure, of duties which will be involved in the regulation of commerce.
So far the preceding remark is applicable to this object. As far as it may
consist of internal collections, a more diffusive knowledge of the
circumstances of the State may be necessary. But will not this also be possessed
in sufficient degree by a very few intelligent men, diffusively elected within
the State? Divide the largest State into ten or twelve districts, and it will
be found that there will be no peculiar local interests in either, which will
not be within the knowledge of the representative of the district. Besides this
source of information, the laws of the State, framed by representatives from
every part of it, will be almost of themselves a sufficient guide. In every
State there have been made, and must continue to be made, regulations on this
subject which will, in many cases, leave little more to be done by the federal
legislature, than to review the different laws, and reduce them in one general
act. A skillful individual in his closet with all the local codes before him,
might compile a law on some subjects of taxation for the whole union, without
any aid from oral information, and it may be expected that whenever internal
taxes may be necessary, and particularly in cases requiring uniformity
throughout the States, the more simple objects will be preferred. To be fully
sensible of the facility which will be given to this branch of federal
legislation by the assistance of the State codes, we need only suppose for a
moment that this or any other State were divided into a number of parts, each
having and exercising within itself a power of local legislation. Is it not
evident that a degree of local information and preparatory labor would be found
in the several volumes of their proceedings, which would very much shorten the
labors of the general legislature, and render a much smaller number of members
sufficient for it? The federal councils will derive great advantage from
another circumstance. The representatives of each State will not only bring
with them a considerable knowledge of its laws, and a local knowledge of their
respective districts, but will probably in all cases have been members, and may
even at the very time be members, of the State legislature, where all the local
information and interests of the State are assembled, and from whence they may
easily be conveyed by a very few hands into the legislature of the United
States. The observations made on the subject of taxation apply with greater
force to the case of the militia. For however different the rules of discipline
may be in different States, they are the same throughout each particular State;
and depend on circumstances which can differ but little in different parts of
the same State. The attentive reader will discern that the reasoning here used,
to prove the sufficiency of a moderate number of representatives, does not in
any respect contradict what was urged on another occasion with regard to the
extensive information which the representatives ought to possess, and the time
that might be necessary for acquiring it. This information, so far as it may
relate to local objects, is rendered necessary and difficult, not by a
difference of laws and local circumstances within a single State, but of those
among different States. Taking each State by itself, its laws are the same, and
its interests but little diversified. A few men, therefore, will possess all
the knowledge requisite for a proper representation of them. Were the interests
and affairs of each individual State perfectly simple and uniform, a knowledge
of them in one part would involve a knowledge of them in every other, and the
whole State might be competently represented by a single member taken from any
part of it. On a comparison of the different States together, we find a great
dissimilarity in their laws, and in many other circumstances connected with the
objects of federal legislation, with all of which the federal representatives
ought to have some acquaintance. Whilst a few representatives, therefore, from
each State, may bring with them a due knowledge of their own State, every
representative will have much information to acquire concerning all the other
States.
The changes of time, as was formerly
remarked, on the comparative situation of the different States, will have an
assimilating effect. The effect of time on the internal affairs of the States,
taken singly, will be just the contrary. At present some of the States are
little more than a society of husbandmen. Few of them have made much progress
in those branches of industry which give a variety and complexity to the
affairs of a nation. These, however, will in all of them be the fruits of a
more advanced population, and will require, on the part of each State, a fuller
representation. The foresight of the convention has accordingly taken care that
the progress of population may be accompanied with a proper increase of the
representative branch of the government. The experience of Great Britain, which
presents to mankind so many political lessons, both of the monitory and exemplary
kind, and which has been frequently consulted in the course of these inquiries,
corroborates the result of the reflections which we have just made. The number
of inhabitants in the two kingdoms of England and Scotland cannot be stated at
less than eight millions. The representatives of these eight millions in the
House of Commons amount to five hundred and fifty-eight.
Of this number, one ninth are elected
by three hundred and sixty-four persons, and one half, by five thousand seven
hundred and twenty-three persons. [1] It cannot be supposed that the half thus
elected, and who do not even reside among the people at large, can add any
thing either to the security of the people against the government, or to the
knowledge of their circumstances and interests in the legislative councils. On
the contrary, it is notorious, that they are more frequently the
representatives and instruments of the executive magistrate, than the guardians
and advocates of the popular rights. They might therefore, with great propriety,
be considered as something more than a mere deduction from the real
representatives of the nation. We will, however, consider them in this light
alone, and will not extend the deduction to a considerable number of others,
who do not reside among their constituents, are very faintly connected with
them, and have very little particular knowledge of their affairs. With all
these concessions, two hundred and seventy-nine persons only will be the
depository of the safety, interest, and happiness of eight millions that is to
say, there will be one representative only to maintain the rights and explain
the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constituents, in
an assembly exposed to the whole force of executive influence, and extending
its authority to every object of legislation within a nation whose affairs are
in the highest degree diversified and complicated. Yet it is very certain, not
only that a valuable portion of freedom has been preserved under all these
circumstances, but that the defects in the British code are chargeable, in a
very small proportion, on the ignorance of the legislature concerning the
circumstances of the people. Allowing to this case the weight which is due to
it, and comparing it with that of the House of Representatives as above
explained it seems to give the fullest assurance, that a representative for
every THIRTY THOUSAND INHABITANTS will render the latter both a safe and
competent guardian of the interests which will be confided to it.
PUBLIUS.
|| Federalist No. 57 ||
The Alleged Tendency of the New Plan to
Elevate the Few at the Expense of the Many Considered in Connection with
Representation
New York Packet: February 19, 1788.
To the People of the State of New
York:
THE THIRD charge against the House of
Representatives is, that it will be taken from that class of citizens which
will have least sympathy with the mass of the people, and be most likely to aim
at an ambitious sacrifice of the many to the aggrandizement of the few. Of all
the objections which have been framed against the federal Constitution, this is
perhaps the most extraordinary.
Whilst the objection itself is
levelled against a pretended oligarchy, the principle of it strikes at the very
root of republican government. The aim of every political constitution is, or
ought to be, first to obtain for rulers men who possess most wisdom to discern,
and most virtue to pursue, the common good of the society; and in the next
place, to take the most effectual precautions for keeping them virtuous whilst
they continue to hold their public trust. The elective mode of obtaining rulers
is the characteristic policy of republican government. The means relied on in
this form of government for preventing their degeneracy are numerous and
various. The most effectual one, is such a limitation of the term of
appointments as will maintain a proper responsibility to the people. Let me now
ask what circumstance there is in the constitution of the House of
Representatives that violates the principles of republican government, or
favors the elevation of the few on the ruins of the many? Let me ask whether
every circumstance is not, on the contrary, strictly conformable to these
principles, and scrupulously impartial to the rights and pretensions of every
class and description of citizens? Who are to be the electors of the federal
representatives? Not the rich, more than the poor; not the learned, more than the
ignorant; not the haughty heirs of distinguished names, more than the humble
sons of obscurity and unpropitious fortune. The electors are to be the great
body of the people of the United States. They are to be the same who exercise
the right in every State of electing the corresponding branch of the
legislature of the State. Who are to be the objects of popular choice? Every
citizen whose merit may recommend him to the esteem and confidence of his
country. No qualification of wealth, of birth, of religious faith, or of civil
profession is permitted to fetter the judgement or disappoint the inclination
of the people. If we consider the situation of the men on whom the free
suffrages of their fellow-citizens may confer the representative trust, we
shall find it involving every security which can be devised or desired for
their fidelity to their constituents. In the first place, as they will have
been distinguished by the preference of their fellow-citizens, we are to
presume that in general they will be somewhat distinguished also by those
qualities which entitle them to it, and which promise a sincere and scrupulous
regard to the nature of their engagements. In the second place, they will enter
into the public service under circumstances which cannot fail to produce a
temporary affection at least to their constituents. There is in every breast a
sensibility to marks of honor, of favor, of esteem, and of confidence, which,
apart from all considerations of interest, is some pledge for grateful and
benevolent returns.
Ingratitude is a common topic of
declamation against human nature; and it must be confessed that instances of it
are but too frequent and flagrant, both in public and in private life. But the
universal and extreme indignation which it inspires is itself a proof of the
energy and prevalence of the contrary sentiment.
In the third place, those ties which
bind the representative to his constituents are strengthened by motives of a
more selfish nature. His pride and vanity attach him to a form of government
which favors his pretensions and gives him a share in its honors and
distinctions. Whatever hopes or projects might be entertained by a few aspiring
characters, it must generally happen that a great proportion of the men
deriving their advancement from their influence with the people, would have
more to hope from a preservation of the favor, than from innovations in the
government subversive of the authority of the people. All these securities,
however, would be found very insufficient without the restraint of frequent
elections. Hence, in the fourth place, the House of Representatives is so
constituted as to support in the members an habitual recollection of their
dependence on the people. Before the sentiments impressed on their minds by the
mode of their elevation can be effaced by the exercise of power, they will be
compelled to anticipate the moment when their power is to cease, when their
exercise of it is to be reviewed, and when they must descend to the level from
which they were raised; there forever to remain unless a faithful discharge of
their trust shall have established their title to a renewal of it. I will add,
as a fifth circumstance in the situation of the House of Representatives,
restraining them from oppressive measures, that they can make no law which will
not have its full operation on themselves and their friends, as well as on the
great mass of the society. This has always been deemed one of the strongest
bonds by which human policy can connect the rulers and the people together. It
creates between them that communion of interests and sympathy of sentiments, of
which few governments have furnished examples; but without which every
government degenerates into tyranny. If it be asked, what is to restrain the
House of Representatives from making legal discriminations in favor of
themselves and a particular class of the society? I answer: the genius of the
whole system; the nature of just and constitutional laws; and above all, the
vigilant and manly spirit which actuates the people of America, a spirit which
nourishes freedom, and in return is nourished by it. If this spirit shall ever
be so far debased as to tolerate a law not obligatory on the legislature, as
well as on the people, the people will be prepared to tolerate any thing but liberty.
Such will be the relation between the House of Representatives and their
constituents. Duty, gratitude, interest, ambition itself, are the chords by
which they will be bound to fidelity and sympathy with the great mass of the
people.
It is possible that these may all be
insufficient to control the caprice and wickedness of man. But are they not all
that government will admit, and that human prudence can devise? Are they not
the genuine and the characteristic means by which republican government provides
for the liberty and happiness of the people? Are they not the identical means
on which every State government in the Union relies for the attainment of these
important ends? What then are we to understand by the objection which this
paper has combated? What are we to say to the men who profess the most flaming
zeal for republican government, yet boldly impeach the fundamental principle of
it; who pretend to be champions for the right and the capacity of the people to
choose their own rulers, yet maintain that they will prefer those only who will
immediately and infallibly betray the trust committed to them? Were the
objection to be read by one who had not seen the mode prescribed by the
Constitution for the choice of representatives, he could suppose nothing less
than that some unreasonable qualification of property was annexed to the right
of suffrage; or that the right of eligibility was limited to persons of
particular families or fortunes; or at least that the mode prescribed by the
State constitutions was in some respect or other, very grossly departed from.
We have seen how far such a supposition would err, as to the two first points.
Nor would it, in fact, be less erroneous as to the last. The only difference
discoverable between the two cases is, that each representative of the United
States will be elected by five or six thousand citizens; whilst in the
individual States, the election of a representative is left to about as many
hundreds. Will it be pretended that this difference is sufficient to justify an
attachment to the State governments, and an abhorrence to the federal
government? If this be the point on which the objection turns, it deserves to
be examined. Is it supported by REASON?
This cannot be said, without
maintaining that five or six thousand citizens are less capable of choosing a
fit representative, or more liable to be corrupted by an unfit one, than five
or six hundred. Reason, on the contrary, assures us, that as in so great a
number a fit representative would be most likely to be found, so the choice
would be less likely to be diverted from him by the intrigues of the ambitious
or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this
doctrine admissible? If we say that five or six hundred citizens are as many as
can jointly exercise their right of suffrage, must we not deprive the people of
the immediate choice of their public servants, in every instance where the
administration of the government does not require as many of them as will
amount to one for that number of citizens? Is the doctrine warranted by FACTS?
It was shown in the last paper, that the real representation in the British
House of Commons very little exceeds the proportion of one for every thirty
thousand inhabitants. Besides a variety of powerful causes not existing here,
and which favor in that country the pretensions of rank and wealth, no person
is eligible as a representative of a county, unless he possess real estate of
the clear value of six hundred pounds sterling per year; nor of a city or borough,
unless he possess a like estate of half that annual value. To this
qualification on the part of the county representatives is added another on the
part of the county electors, which restrains the right of suffrage to persons
having a freehold estate of the annual value of more than twenty pounds
sterling, according to the present rate of money. Notwithstanding these
unfavorable circumstances, and notwithstanding some very unequal laws in the
British code, it cannot be said that the representatives of the nation have
elevated the few on the ruins of the many. But we need not resort to foreign
experience on this subject. Our own is explicit and decisive. The districts in
New Hampshire in which the senators are chosen immediately by the people, are nearly
as large as will be necessary for her representatives in the Congress. Those of
Massachusetts are larger than will be necessary for that purpose; and those of
New York still more so.
In the last State the members of
Assembly for the cities and counties of New York and Albany are elected by very
nearly as many voters as will be entitled to a representative in the Congress,
calculating on the number of sixty-five representatives only. It makes no
difference that in these senatorial districts and counties a number of
representatives are voted for by each elector at the same time. If the same
electors at the same time are capable of choosing four or five representatives,
they cannot be incapable of choosing one. Pennsylvania is an additional
example. Some of her counties, which elect her State representatives, are
almost as large as her districts will be by which her federal representatives
will be elected. The city of Philadelphia is supposed to contain between fifty
and sixty thousand souls. It will therefore form nearly two districts for the
choice of federal representatives. It forms, however, but one county, in which
every elector votes for each of its representatives in the State legislature.
And what may appear to be still more directly to our purpose, the whole city
actually elects a SINGLE MEMBER for the executive council. This is the case in
all the other counties of the State. Are not these facts the most satisfactory
proofs of the fallacy which has been employed against the branch of the federal
government under consideration? Has it appeared on trial that the senators of
New Hampshire, Massachusetts, and New York, or the executive council of
Pennsylvania, or the members of the Assembly in the two last States, have
betrayed any peculiar disposition to sacrifice the many to the few, or are in
any respect less worthy of their places than the representatives and
magistrates appointed in other States by very small divisions of the people?
But there are cases of a stronger complexion than any which I have yet quoted.
One branch of the legislature of
Connecticut is so constituted that each member of it is elected by the whole
State. So is the governor of that State, of Massachusetts, and of this State,
and the president of New Hampshire. I leave every man to decide whether the
result of any one of these experiments can be said to countenance a suspicion,
that a diffusive mode of choosing representatives of the people tends to
elevate traitors and to undermine the public liberty.
PUBLIUS.
|| Federalist No. 58 ||
Objection That The Number of Members
Will Not Be Augmented as the Progress of Population Demands Considered
February 20, 1788
To the People of the State of New
York:
THE remaining charge against the House
of Representatives, which I am to examine, is grounded on a supposition that
the number of members will not be augmented from time to time, as the progress
of population may demand. It has been admitted, that this objection, if well
supported, would have great weight. The following observations will show that,
like most other objections against the Constitution, it can only proceed from a
partial view of the subject, or from a jealousy which discolors and disfigures every
object which is beheld. 1. Those who urge the objection seem not to have
recollected that the federal Constitution will not suffer by a comparison with
the State constitutions, in the security provided for a gradual augmentation of
the number of representatives. The number which is to prevail in the first
instance is declared to be temporary. Its duration is limited to the short term
of three years. Within every successive term of ten years a census of
inhabitants is to be repeated. The unequivocal objects of these regulations
are, first, to readjust, from time to time, the apportionment of
representatives to the number of inhabitants, under the single exception that
each State shall have one representative at least; secondly, to augment the
number of representatives at the same periods, under the sole limitation that
the whole number shall not exceed one for every thirty thousand inhabitants. If
we review the constitutions of the several States, we shall find that some of
them contain no determinate regulations on this subject, that others correspond
pretty much on this point with the federal Constitution, and that the most
effectual security in any of them is resolvable into a mere directory
provision. 2. As far as experience has taken place on this subject, a gradual
increase of representatives under the State constitutions has at least kept
pace with that of the constituents, and it appears that the former have been as
ready to concur in such measures as the latter have been to call for them. 3.
There is a peculiarity in the federal Constitution which insures a watchful
attention in a majority both of the people and of their representatives to a
constitutional augmentation of the latter. The peculiarity lies in this, that
one branch of the legislature is a representation of citizens, the other of the
States: in the former, consequently, the larger States will have most weight;
in the latter, the advantage will be in favor of the smaller States. From this
circumstance it may with certainty be inferred that the larger States will be
strenuous advocates for increasing the number and weight of that part of the
legislature in which their influence predominates. And it so happens that four
only of the largest will have a majority of the whole votes in the House of
Representatives. Should the representatives or people, therefore, of the
smaller States oppose at any time a reasonable addition of members, a coalition
of a very few States will be sufficient to overrule the opposition; a coalition
which, notwithstanding the rivalship and local prejudices which might prevent
it on ordinary occasions, would not fail to take place, when not merely
prompted by common interest, but justified by equity and the principles of the
Constitution. It may be alleged, perhaps, that the Senate would be prompted by
like motives to an adverse coalition; and as their concurrence would be
indispensable, the just and constitutional views of the other branch might be
defeated. This is the difficulty which has probably created the most serious
apprehensions in the jealous friends of a numerous representation. Fortunately
it is among the difficulties which, existing only in appearance, vanish on a
close and accurate inspection. The following reflections will, if I mistake
not, be admitted to be conclusive and satisfactory on this point.
Notwithstanding the equal authority which will subsist between the two houses
on all legislative subjects, except the originating of money bills, it cannot
be doubted that the House, composed of the greater number of members, when
supported by the more powerful States, and speaking the known and determined
sense of a majority of the people, will have no small advantage in a question
depending on the comparative firmness of the two houses. This advantage must be
increased by the consciousness, felt by the same side of being supported in its
demands by right, by reason, and by the Constitution; and the consciousness, on
the opposite side, of contending against the force of all these solemn
considerations. It is farther to be considered, that in the gradation between
the smallest and largest States, there are several, which, though most likely
in general to arrange themselves among the former are too little removed in
extent and population from the latter, to second an opposition to their just
and legitimate pretensions. Hence it is by no means certain that a majority of
votes, even in the Senate, would be unfriendly to proper augmentations in the
number of representatives. It will not be looking too far to add, that the
senators from all the new States may be gained over to the just views of the
House of Representatives, by an expedient too obvious to be overlooked. As
these States will, for a great length of time, advance in population with
peculiar rapidity, they will be interested in frequent reapportionments of the
representatives to the number of inhabitants. The large States, therefore, who
will prevail in the House of Representatives, will have nothing to do but to
make reapportionments and augmentations mutually conditions of each other; and
the senators from all the most growing States will be bound to contend for the
latter, by the interest which their States will feel in the former. These
considerations seem to afford ample security on this subject, and ought alone
to satisfy all the doubts and fears which have been indulged with regard to it.
Admitting, however, that they should all be insufficient to subdue the unjust
policy of the smaller States, or their predominant influence in the councils of
the Senate, a constitutional and infallible resource still remains with the
larger States, by which they will be able at all times to accomplish their just
purposes. The House of Representatives cannot only refuse, but they alone can
propose, the supplies requisite for the support of government. They, in a word,
hold the purse that powerful instrument by which we behold, in the history of
the British Constitution, an infant and humble representation of the people
gradually enlarging the sphere of its activity and importance, and finally
reducing, as far as it seems to have wished, all the overgrown prerogatives of
the other branches of the government. This power over the purse may, in fact,
be regarded as the most complete and effectual weapon with which any constitution
can arm the immediate representatives of the people, for obtaining a redress of
every grievance, and for carrying into effect every just and salutary measure.
But will not the House of Representatives be as much interested as the Senate
in maintaining the government in its proper functions, and will they not
therefore be unwilling to stake its existence or its reputation on the pliancy
of the Senate? Or, if such a trial of firmness between the two branches were
hazarded, would not the one be as likely first to yield as the other? These
questions will create no difficulty with those who reflect that in all cases
the smaller the number, and the more permanent and conspicuous the station, of
men in power, the stronger must be the interest which they will individually
feel in whatever concerns the government. Those who represent the dignity of
their country in the eyes of other nations, will be particularly sensible to
every prospect of public danger, or of dishonorable stagnation in public
affairs. To those causes we are to ascribe the continual triumph of the British
House of Commons over the other branches of the government, whenever the engine
of a money bill has been employed. An absolute inflexibility on the side of the
latter, although it could not have failed to involve every department of the
state in the general confusion, has neither been apprehended nor experienced.
The utmost degree of firmness that can be displayed by the federal Senate or
President, will not be more than equal to a resistance in which they will be
supported by constitutional and patriotic principles. In this review of the
Constitution of the House of Representatives, I have passed over the
circumstances of economy, which, in the present state of affairs, might have
had some effect in lessening the temporary number of representatives, and a
disregard of which would probably have been as rich a theme of declamation
against the Constitution as has been shown by the smallness of the number
proposed. I omit also any remarks on the difficulty which might be found, under
present circumstances, in engaging in the federal service a large number of
such characters as the people will probably elect. One observation, however, I
must be permitted to add on this subject as claiming, in my judgment, a very
serious attention. It is, that in all legislative assemblies the greater the
number composing them may be, the fewer will be the men who will in fact direct
their proceedings. In the first place, the more numerous an assembly may be, of
whatever characters composed, the greater is known to be the ascendency of
passion over reason. In the next place, the larger the number, the greater will
be the proportion of members of limited information and of weak capacities.
Now, it is precisely on characters of this description that the eloquence and
address of the few are known to act with all their force. In the ancient
republics, where the whole body of the people assembled in person, a single
orator, or an artful statesman, was generally seen to rule with as complete a
sway as if a sceptre had been placed in his single hand. On the same principle,
the more multitudinous a representative assembly may be rendered, the more it
will partake of the infirmities incident to collective meetings of the people.
Ignorance will be the dupe of cunning,
and passion the slave of sophistry and declamation. The people can never err
more than in supposing that by multiplying their representatives beyond a
certain limit, they strengthen the barrier against the government of a few.
Experience will forever admonish them that, on the contrary, AFTER SECURING A
SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF
DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views
by every addition to their representatives. The countenance of the government
may become more democratic, but the soul that animates it will be more
oligarchic. The machine will be enlarged, but the fewer, and often the more
secret, will be the springs by which its motions are directed. As connected
with the objection against the number of representatives, may properly be here
noticed, that which has been suggested against the number made competent for
legislative business. It has been said that more than a majority ought to have
been required for a quorum; and in particular cases, if not in all, more than a
majority of a quorum for a decision. That some advantages might have resulted
from such a precaution, cannot be denied. It might have been an additional
shield to some particular interests, and another obstacle generally to hasty
and partial measures. But these considerations are outweighed by the
inconveniences in the opposite scale. In all cases where justice or the general
good might require new laws to be passed, or active measures to be pursued, the
fundamental principle of free government would be reversed. It would be no
longer the majority that would rule: the power would be transferred to the
minority. Were the defensive privilege limited to particular cases, an interested
minority might take advantage of it to screen themselves from equitable
sacrifices to the general weal, or, in particular emergencies, to extort
unreasonable indulgences. Lastly, it would facilitate and foster the baneful
practice of secessions; a practice which has shown itself even in States where
a majority only is required; a practice subversive of all the principles of
order and regular government; a practice which leads more directly to public
convulsions, and the ruin of popular governments, than any other which has yet
been displayed among us.
PUBLIUS.
|| Federalist No. 59 ||
Concerning the Power of Congress to
Regulate the Election of Members
New York Packet: February 22, 1788.
To the People of the State of New
York:
THE natural order of the subject leads
us to consider, in this place, that provision of the Constitution which
authorizes the national legislature to regulate, in the last resort, the
election of its own members. It is in these words: "The TIMES, PLACES, and
MANNER of holding elections for senators and representatives shall be
prescribed in each State by the legislature thereof; but the Congress may, at
any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of
choosing senators." [1] This provision has not only been declaimed against
by those who condemn the Constitution in the gross, but it has been censured by
those who have objected with less latitude and greater moderation; and, in one
instance it has been thought exceptionable by a gentleman who has declared
himself the advocate of every other part of the system. I am greatly mistaken,
notwithstanding, if there be any article in the whole plan more completely
defensible than this. Its propriety rests upon the evidence of this plain
proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS
OWN PRESERVATION. Every just reasoner will, at first sight, approve an
adherence to this rule, in the work of the convention; and will disapprove
every deviation from it which may not appear to have been dictated by the
necessity of incorporating into the work some particular ingredient, with which
a rigid conformity to the rule was incompatible. Even in this case, though he
may acquiesce in the necessity, yet he will not cease to regard and to regret a
departure from so fundamental a principle, as a portion of imperfection in the
system which may prove the seed of future weakness, and perhaps anarchy. It
will not be alleged, that an election law could have been framed and inserted
in the Constitution, which would have been always applicable to every probable
change in the situation of the country; and it will therefore not be denied,
that a discretionary power over elections ought to exist somewhere. It will, I
presume, be as readily conceded, that there were only three ways in which this
power could have been reasonably modified and disposed: that it must either
have been lodged wholly in the national legislature, or wholly in the State legislatures,
or primarily in the latter and ultimately in the former. The last mode has,
with reason, been preferred by the convention. They have submitted the
regulation of elections for the federal government, in the first instance, to
the local administrations; which, in ordinary cases, and when no improper views
prevail, may be both more convenient and more satisfactory; but they have
reserved to the national authority a right to interpose, whenever extraordinary
circumstances might render that interposition necessary to its safety. Nothing
can be more evident, than that an exclusive power of regulating elections for
the national government, in the hands of the State legislatures, would leave
the existence of the Union entirely at their mercy. They could at any moment
annihilate it, by neglecting to provide for the choice of persons to administer
its affairs. It is to little purpose to say, that a neglect or omission of this
kind would not be likely to take place. The constitutional possibility of the
thing, without an equivalent for the risk, is an unanswerable objection. Nor
has any satisfactory reason been yet assigned for incurring that risk. The
extravagant surmises of a distempered jealousy can never be dignified with that
character. If we are in a humor to presume abuses of power, it is as fair to
presume them on the part of the State governments as on the part of the general
government. And as it is more consonant to the rules of a just theory, to trust
the Union with the care of its own existence, than to transfer that care to any
other hands, if abuses of power are to be hazarded on the one side or on the
other, it is more rational to hazard them where the power would naturally be
placed, than where it would unnaturally be placed. Suppose an article had been
introduced into the Constitution, empowering the United States to regulate the
elections for the particular States, would any man have hesitated to condemn
it, both as an unwarrantable transposition of power, and as a premeditated
engine for the destruction of the State governments? The violation of
principle, in this case, would have required no comment; and, to an unbiased
observer, it will not be less apparent in the project of subjecting the
existence of the national government, in a similar respect, to the pleasure of
the State governments. An impartial view of the matter cannot fail to result in
a conviction, that each, as far as possible, ought to depend on itself for its
own preservation. As an objection to this position, it may be remarked that the
constitution of the national Senate would involve, in its full extent, the
danger which it is suggested might flow from an exclusive power in the State
legislatures to regulate the federal elections. It may be alleged, that by
declining the appointment of Senators, they might at any time give a fatal blow
to the Union; and from this it may be inferred, that as its existence would be
thus rendered dependent upon them in so essential a point, there can be no
objection to intrusting them with it in the particular case under
consideration. The interest of each State, it may be added, to maintain its
representation in the national councils, would be a complete security against
an abuse of the trust. This argument, though specious, will not, upon examination,
be found solid. It is certainly true that the State legislatures, by forbearing
the appointment of senators, may destroy the national government. But it will
not follow that, because they have a power to do this in one instance, they
ought to have it in every other. There are cases in which the pernicious
tendency of such a power may be far more decisive, without any motive equally
cogent with that which must have regulated the conduct of the convention in
respect to the formation of the Senate, to recommend their admission into the
system. So far as that construction may expose the Union to the possibility of
injury from the State legislatures, it is an evil; but it is an evil which
could not have been avoided without excluding the States, in their political
capacities, wholly from a place in the organization of the national government.
If this had been done, it would doubtless have been interpreted into an entire
dereliction of the federal principle; and would certainly have deprived the
State governments of that absolute safeguard which they will enjoy under this
provision. But however wise it may have been to have submitted in this instance
to an inconvenience, for the attainment of a necessary advantage or a greater
good, no inference can be drawn from thence to favor an accumulation of the
evil, where no necessity urges, nor any greater good invites. It may be easily
discerned also that the national government would run a much greater risk from
a power in the State legislatures over the elections of its House of
Representatives, than from their power of appointing the members of its Senate.
The senators are to be chosen for the period of six years; there is to be a
rotation, by which the seats of a third part of them are to be vacated and
replenished every two years; and no State is to be entitled to more than two
senators; a quorum of the body is to consist of sixteen members. The joint
result of these circumstances would be, that a temporary combination of a few
States to intermit the appointment of senators, could neither annul the
existence nor impair the activity of the body; and it is not from a general and
permanent combination of the States that we can have any thing to fear. The
first might proceed from sinister designs in the leading members of a few of
the State legislatures; the last would suppose a fixed and rooted disaffection
in the great body of the people, which will either never exist at all, or will,
in all probability, proceed from an experience of the inaptitude of the general
government to the advancement of their happiness in which event no good citizen
could desire its continuance. But with regard to the federal House of
Representatives, there is intended to be a general election of members once in
two years. If the State legislatures were to be invested with an exclusive
power of regulating these elections, every period of making them would be a
delicate crisis in the national situation, which might issue in a dissolution
of the Union, if the leaders of a few of the most important States should have
entered into a previous conspiracy to prevent an election. I shall not deny,
that there is a degree of weight in the observation, that the interests of each
State, to be represented in the federal councils, will be a security against the
abuse of a power over its elections in the hands of the State legislatures. But
the security will not be considered as complete, by those who attend to the
force of an obvious distinction between the interest of the people in the
public felicity, and the interest of their local rulers in the power and
consequence of their offices. The people of America may be warmly attached to
the government of the Union, at times when the particular rulers of particular
States, stimulated by the natural rivalship of power, and by the hopes of
personal aggrandizement, and supported by a strong faction in each of those
States, may be in a very opposite temper. This diversity of sentiment between a
majority of the people, and the individuals who have the greatest credit in their
councils, is exemplified in some of the States at the present moment, on the
present question. The scheme of separate confederacies, which will always
multiply the chances of ambition, will be a never failing bait to all such
influential characters in the State administrations as are capable of
preferring their own emolument and advancement to the public weal. With so
effectual a weapon in their hands as the exclusive power of regulating
elections for the national government, a combination of a few such men, in a
few of the most considerable States, where the temptation will always be the
strongest, might accomplish the destruction of the Union, by seizing the
opportunity of some casual dissatisfaction among the people (and which perhaps
they may themselves have excited), to discontinue the choice of members for the
federal House of Representatives. It ought never to be forgotten, that a firm
union of this country, under an efficient government, will probably be an
increasing object of jealousy to more than one nation of Europe; and that
enterprises to subvert it will sometimes originate in the intrigues of foreign
powers, and will seldom fail to be patronized and abetted by some of them. Its
preservation, therefore ought in no case that can be avoided, to be committed
to the guardianship of any but those whose situation will uniformly beget an
immediate interest in the faithful and vigilant performance of the trust.
PUBLIUS.
1.
1st clause, 4th section, of the List article.
|| Federalist No. 60 ||
Part II: Concerning the Power of
Congress to Regulate the Election of Members
New York Packet: February 26, 1788.
To the People of the State of New
York:
WE HAVE seen, that an uncontrollable
power over the elections to the federal government could not, without hazard,
be committed to the State legislatures. Let us now see, what would be the
danger on the other side; that is, from confiding the ultimate right of regulating
its own elections to the Union itself. It is not pretended, that this right
would ever be used for the exclusion of any State from its share in the
representation. The interest of all would, in this respect at least, be the
security of all. But it is alleged, that it might be employed in such a manner
as to promote the election of some favorite class of men in exclusion of
others, by confining the places of election to particular districts, and
rendering it impracticable to the citizens at large to partake in the choice.
Of all chimerical suppositions, this seems to be the most chimerical. On the
one hand, no rational calculation of probabilities would lead us to imagine
that the disposition which a conduct so violent and extraordinary would imply,
could ever find its way into the national councils; and on the other, it may be
concluded with certainty, that if so improper a spirit should ever gain
admittance into them, it would display itself in a form altogether different
and far more decisive.
The improbability of the attempt may
be satisfactorily inferred from this single reflection, that it could never be
made without causing an immediate revolt of the great body of the people,
headed and directed by the State governments. It is not difficult to conceive
that this characteristic right of freedom may, in certain turbulent and
factious seasons, be violated, in respect to a particular class of citizens, by
a victorious and overbearing majority; but that so fundamental a privilege, in
a country so situated and enlightened, should be invaded to the prejudice of
the great mass of the people, by the deliberate policy of the government,
without occasioning a popular revolution, is altogether inconceivable and
incredible.
In addition to this general
reflection, there are considerations of a more precise nature, which forbid all
apprehension on the subject. The dissimilarity in the ingredients which will
compose the national government, and in still more in the manner in which they
will be brought into action in its various branches, must form a powerful
obstacle to a concert of views in any partial scheme of elections. There is
sufficient diversity in the state of property, in the genius, manners, and
habits of the people of the different parts of the Union, to occasion a
material diversity of disposition in their representatives towards the
different ranks and conditions in society. And though an intimate intercourse
under the same government will promote a gradual assimilation in some of these
respects, yet there are causes, as well physical as moral, which may, in a
greater or less degree, permanently nourish different propensities and
inclinations in this respect. But the circumstance which will be likely to have
the greatest influence in the matter, will be the dissimilar modes of
constituting the several component parts of the government. The House of
Representatives being to be elected immediately by the people, the Senate by
the State legislatures, the President by electors chosen for that purpose by
the people, there would be little probability of a common interest to cement
these different branches in a predilection for any particular class of
electors.
As to the Senate, it is impossible
that any regulation of "time and manner," which is all that is
proposed to be submitted to the national government in respect to that body,
can affect the spirit which will direct the choice of its members. The
collective sense of the State legislatures can never be influenced by
extraneous circumstances of that sort; a consideration which alone ought to
satisfy us that the discrimination apprehended would never be attempted. For
what inducement could the Senate have to concur in a preference in which itself
would not be included? Or to what purpose would it be established, in reference
to one branch of the legislature, if it could not be extended to the other? The
composition of the one would in this case counteract that of the other. And we
can never suppose that it would embrace the appointments to the Senate, unless
we can at the same time suppose the voluntary co-operation of the State
legislatures. If we make the latter supposition, it then becomes immaterial
where the power in question is placed whether in their hands or in those of the
Union.
But what is to be the object of this
capricious partiality in the national councils? Is it to be exercised in a
discrimination between the different departments of industry, or between the
different kinds of property, or between the different degrees of property? Will
it lean in favor of the landed interest, or the moneyed interest, or the
mercantile interest, or the manufacturing interest? Or, to speak in the
fashionable language of the adversaries to the Constitution, will it court the
elevation of "the wealthy and the well-born," to the exclusion and
debasement of all the rest of the society?
If this partiality is to be exerted in
favor of those who are concerned in any particular description of industry or
property, I presume it will readily be admitted, that the competition for it will
lie between landed men and merchants. And I scruple not to affirm, that it is
infinitely less likely that either of them should gain an ascendant in the
national councils, than that the one or the other of them should predominate in
all the local councils. The inference will be, that a conduct tending to give
an undue preference to either is much less to be dreaded from the former than
from the latter.
The several States are in various
degrees addicted to agriculture and commerce. In most, if not all of them,
agriculture is predominant. In a few of them, however, commerce nearly divides
its empire, and in most of them has a considerable share of influence. In
proportion as either prevails, it will be conveyed into the national
representation; and for the very reason, that this will be an emanation from a
greater variety of interests, and in much more various proportions, than are to
be found in any single State, it will be much less apt to espouse either of
them with a decided partiality, than the representation of any single State.
In a country consisting chiefly of the
cultivators of land, where the rules of an equal representation obtain, the
landed interest must, upon the whole, preponderate in the government. As long
as this interest prevails in most of the State legislatures, so long it must
maintain a correspondent superiority in the national Senate, which will
generally be a faithful copy of the majorities of those assemblies. It cannot
therefore be presumed, that a sacrifice of the landed to the mercantile class
will ever be a favorite object of this branch of the federal legislature. In
applying thus particularly to the Senate a general observation suggested by the
situation of the country, I am governed by the consideration, that the
credulous votaries of State power cannot, upon their own principles, suspect,
that the State legislatures would be warped from their duty by any external
influence. But in reality the same situation must have the same effect, in the
primitive composition at least of the federal House of Representatives: an
improper bias towards the mercantile class is as little to be expected from
this quarter as from the other.
In order, perhaps, to give countenance
to the objection at any rate, it may be asked, is there not danger of an
opposite bias in the national government, which may dispose it to endeavor to
secure a monopoly of the federal administration to the landed class? As there
is little likelihood that the supposition of such a bias will have any terrors
for those who would be immediately injured by it, a labored answer to this
question will be dispensed with. It will be sufficient to remark, first, that
for the reasons elsewhere assigned, it is less likely that any decided
partiality should prevail in the councils of the Union than in those of any of
its members. Secondly, that there would be no temptation to violate the
Constitution in favor of the landed class, because that class would, in the
natural course of things, enjoy as great a preponderancy as itself could desire.
And thirdly, that men accustomed to investigate the sources of public
prosperity upon a large scale, must be too well convinced of the utility of
commerce, to be inclined to inflict upon it so deep a wound as would result
from the entire exclusion of those who would best understand its interest from
a share in the management of them. The importance of commerce, in the view of
revenue alone, must effectually guard it against the enmity of a body which
would be continually importuned in its favor, by the urgent calls of public
necessity.
I the rather consult brevity in
discussing the probability of a preference founded upon a discrimination
between the different kinds of industry and property, because, as far as I
understand the meaning of the objectors, they contemplate a discrimination of
another kind. They appear to have in view, as the objects of the preference
with which they endeavor to alarm us, those whom they designate by the
description of "the wealthy and the well-born." These, it seems, are
to be exalted to an odious pre-eminence over the rest of their fellow-citizens.
At one time, however, their elevation is to be a necessary consequence of the
smallness of the representative body; at another time it is to be effected by
depriving the people at large of the opportunity of exercising their right of
suffrage in the choice of that body.
But upon what principle is the
discrimination of the places of election to be made, in order to answer the
purpose of the meditated preference? Are "the wealthy and the
well-born," as they are called, confined to particular spots in the
several States? Have they, by some miraculous instinct or foresight, set apart
in each of them a common place of residence? Are they only to be met with in
the towns or cities? Or are they, on the contrary, scattered over the face of
the country as avarice or chance may have happened to cast their own lot or
that of their predecessors? If the latter is the case, (as every intelligent
man knows it to be, [1] ) is it not evident that the policy of confining the
places of election to particular districts would be as subversive of its own
aim as it would be exceptionable on every other account? The truth is, that
there is no method of securing to the rich the preference apprehended, but by prescribing
qualifications of property either for those who may elect or be elected. But
this forms no part of the power to be conferred upon the national government.
Its authority would be expressly restricted to the regulation of the TIMES, the
PLACES, the MANNER of elections. The qualifications of the persons who may
choose or be chosen, as has been remarked upon other occasions, are defined and
fixed in the Constitution, and are unalterable by the legislature.
Let it, however, be admitted, for
argument sake, that the expedient suggested might be successful; and let it at
the same time be equally taken for granted that all the scruples which a sense
of duty or an apprehension of the danger of the experiment might inspire, were
overcome in the breasts of the national rulers, still I imagine it will hardly
be pretended that they could ever hope to carry such an enterprise into
execution without the aid of a military force sufficient to subdue the
resistance of the great body of the people. The improbability of the existence
of a force equal to that object has been discussed and demonstrated in
different parts of these papers; but that the futility of the objection under
consideration may appear in the strongest light, it shall be conceded for a
moment that such a force might exist, and the national government shall be
supposed to be in the actual possession of it. What will be the conclusion?
With a disposition to invade the essential rights of the community, and with
the means of gratifying that disposition, is it presumable that the persons who
were actuated by it would amuse themselves in the ridiculous task of
fabricating election laws for securing a preference to a favorite class of men?
Would they not be likely to prefer a conduct better adapted to their own
immediate aggrandizement? Would they not rather boldly resolve to perpetuate
themselves in office by one decisive act of usurpation, than to trust to
precarious expedients which, in spite of all the precautions that might
accompany them, might terminate in the dismission, disgrace, and ruin of their
authors? Would they not fear that citizens, not less tenacious than conscious
of their rights, would flock from the remote extremes of their respective
States to the places of election, to overthrow their tyrants, and to substitute
men who would be disposed to avenge the violated majesty of the people?
PUBLIUS.
1.
Particularly in the Southern States and in this State.
|| Federalist No. 61 ||
Part III: Concerning the Power of
Congress to Regulate the Election of Members
New York Packet: February 26, 1788.
To the People of the State of New
York:
THE more candid opposers of the
provision respecting elections, contained in the plan of the convention, when
pressed in argument, will sometimes concede the propriety of that provision;
with this qualification, however, that it ought to have been accompanied with a
declaration, that all elections should be had in the counties where the
electors resided. This, say they, was a necessary precaution against an abuse
of the power. A declaration of this nature would certainly have been harmless;
so far as it would have had the effect of quieting apprehensions, it might not
have been undesirable. But it would, in fact, have afforded little or no
additional security against the danger apprehended; and the want of it will
never be considered, by an impartial and judicious examiner, as a serious,
still less as an insuperable, objection to the plan. The different views taken
of the subject in the two preceding papers must be sufficient to satisfy all
dispassionate and discerning men, that if the public liberty should ever be the
victim of the ambition of the national rulers, the power under examination, at
least, will be guiltless of the sacrifice.
If those who are inclined to consult
their jealousy only, would exercise it in a careful inspection of the several
State constitutions, they would find little less room for disquietude and
alarm, from the latitude which most of them allow in respect to elections, than
from the latitude which is proposed to be allowed to the national government in
the same respect. A review of their situation, in this particular, would tend
greatly to remove any ill impressions which may remain in regard to this
matter. But as that view would lead into long and tedious details, I shall
content myself with the single example of the State in which I write. The
constitution of New York makes no other provision for LOCALITY of elections,
than that the members of the Assembly shall be elected in the COUNTIES; those
of the Senate, in the great districts into which the State is or may be
divided: these at present are four in number, and comprehend each from two to
six counties. It may readily be perceived that it would not be more difficult
to the legislature of New York to defeat the suffrages of the citizens of New
York, by confining elections to particular places, than for the legislature of
the United States to defeat the suffrages of the citizens of the Union, by the
like expedient. Suppose, for instance, the city of Albany was to be appointed
the sole place of election for the county and district of which it is a part, would
not the inhabitants of that city speedily become the only electors of the
members both of the Senate and Assembly for that county and district? Can we
imagine that the electors who reside in the remote subdivisions of the counties
of Albany, Saratoga, Cambridge, etc., or in any part of the county of
Montgomery, would take the trouble to come to the city of Albany, to give their
votes for members of the Assembly or Senate, sooner than they would repair to
the city of New York, to participate in the choice of the members of the
federal House of Representatives? The alarming indifference discoverable in the
exercise of so invaluable a privilege under the existing laws, which afford
every facility to it, furnishes a ready answer to this question. And, abstracted
from any experience on the subject, we can be at no loss to determine, that
when the place of election is at an INCONVENIENT DISTANCE from the elector, the
effect upon his conduct will be the same whether that distance be twenty miles
or twenty thousand miles. Hence it must appear, that objections to the
particular modification of the federal power of regulating elections will, in
substance, apply with equal force to the modification of the like power in the
constitution of this State; and for this reason it will be impossible to acquit
the one, and to condemn the other. A similar comparison would lead to the same
conclusion in respect to the constitutions of most of the other States.
If it should be said that defects in
the State constitutions furnish no apology for those which are to be found in
the plan proposed, I answer, that as the former have never been thought
chargeable with inattention to the security of liberty, where the imputations
thrown on the latter can be shown to be applicable to them also, the
presumption is that they are rather the cavilling refinements of a
predetermined opposition, than the well-founded inferences of a candid research
after truth. To those who are disposed to consider, as innocent omissions in
the State constitutions, what they regard as unpardonable blemishes in the plan
of the convention, nothing can be said; or at most, they can only be asked to
assign some substantial reason why the representatives of the people in a
single State should be more impregnable to the lust of power, or other sinister
motives, than the representatives of the people of the United States? If they
cannot do this, they ought at least to prove to us that it is easier to subvert
the liberties of three millions of people, with the advantage of local
governments to head their opposition, than of two hundred thousand people who
are destitute of that advantage. And in relation to the point immediately under
consideration, they ought to convince us that it is less probable that a
predominant faction in a single State should, in order to maintain its
superiority, incline to a preference of a particular class of electors, than
that a similar spirit should take possession of the representatives of thirteen
States, spread over a vast region, and in several respects distinguishable from
each other by a diversity of local circumstances, prejudices, and interests.
Hitherto my observations have only
aimed at a vindication of the provision in question, on the ground of theoretic
propriety, on that of the danger of placing the power elsewhere, and on that of
the safety of placing it in the manner proposed. But there remains to be
mentioned a positive advantage which will result from this disposition, and
which could not as well have been obtained from any other: I allude to the
circumstance of uniformity in the time of elections for the federal House of
Representatives. It is more than possible that this uniformity may be found by
experience to be of great importance to the public welfare, both as a security
against the perpetuation of the same spirit in the body, and as a cure for the
diseases of faction. If each State may choose its own time of election, it is
possible there may be at least as many different periods as there are months in
the year. The times of election in the several States, as they are now
established for local purposes, vary between extremes as wide as March and
November. The consequence of this diversity would be that there could never
happen a total dissolution or renovation of the body at one time. If an
improper spirit of any kind should happen to prevail in it, that spirit would
be apt to infuse itself into the new members, as they come forward in
succession. The mass would be likely to remain nearly the same, assimilating
constantly to itself its gradual accretions. There is a contagion in example
which few men have sufficient force of mind to resist. I am inclined to think
that treble the duration in office, with the condition of a total dissolution
of the body at the same time, might be less formidable to liberty than one
third of that duration subject to gradual and successive alterations.
Uniformity in the time of elections
seems not less requisite for executing the idea of a regular rotation in the
Senate, and for conveniently assembling the legislature at a stated period in
each year.
It may be asked, Why, then, could not
a time have been fixed in the Constitution? As the most zealous adversaries of
the plan of the convention in this State are, in general, not less zealous
admirers of the constitution of the State, the question may be retorted, and it
may be asked, Why was not a time for the like purpose fixed in the constitution
of this State? No better answer can be given than that it was a matter which
might safely be entrusted to legislative discretion; and that if a time had
been appointed, it might, upon experiment, have been found less convenient than
some other time. The same answer may be given to the question put on the other
side. And it may be added that the supposed danger of a gradual change being
merely speculative, it would have been hardly advisable upon that speculation
to establish, as a fundamental point, what would deprive several States of the
convenience of having the elections for their own governments and for the national
government at the same epochs.
PUBLIUS.
The Congressional Evolution of the United States of America
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(1981-1989)
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(1897-1901)
| ||
(1841-1845)
|
(1989-1993)
| |
(1901-1909)
| ||
(1845-1849)
|
(1993-2001)
| |
(1909-1913)
| ||
(1849-1850)
|
(2001-2009)
| |
(1913-1921)
| ||
(1850-1853)
|
(2009-2017)
| |
(1921-1923)
| ||
(1853-1857)
|
(20017-Present)
| |
(1923-1929)
|
*Confederate States of America
| |
(1857-1861)
| ||
(1929-1933)
| ||
(1861-1865)
|
United Colonies Continental Congress
|
President
|
18th Century Term
|
Age
|
Elizabeth "Betty" Harrison Randolph (1745-1783)
|
09/05/74 – 10/22/74
|
29
| |
Mary Williams Middleton (1741- 1761) Deceased
|
Henry Middleton
|
10/22–26/74
|
n/a
|
Elizabeth "Betty" Harrison Randolph (1745–1783)
|
05/20/ 75 - 05/24/75
|
30
| |
Dorothy Quincy Hancock Scott (1747-1830)
|
05/25/75 – 07/01/76
|
28
| |
United States Continental Congress
|
President
|
Term
|
Age
|
Dorothy Quincy Hancock Scott (1747-1830)
|
07/02/76 – 10/29/77
|
29
| |
Eleanor Ball Laurens (1731- 1770) Deceased
|
Henry Laurens
|
11/01/77 – 12/09/78
|
n/a
|
Sarah Livingston Jay (1756-1802)
|
12/ 10/78 – 09/28/78
|
21
| |
Martha Huntington (1738/39–1794)
|
09/29/79 – 02/28/81
|
41
| |
United States in Congress Assembled
|
President
|
Term
|
Age
|
Martha Huntington (1738/39–1794)
|
03/01/81 – 07/06/81
|
42
| |
Sarah Armitage McKean (1756-1820)
|
07/10/81 – 11/04/81
|
25
| |
Jane Contee Hanson (1726-1812)
|
11/05/81 - 11/03/82
|
55
| |
Hannah Stockton Boudinot (1736-1808)
|
11/03/82 - 11/02/83
|
46
| |
Sarah Morris Mifflin (1747-1790)
|
11/03/83 - 11/02/84
|
36
| |
Anne Gaskins Pinkard Lee (1738-1796)
|
11/20/84 - 11/19/85
|
46
| |
Dorothy Quincy Hancock Scott (1747-1830)
|
11/23/85 – 06/06/86
|
38
| |
Rebecca Call Gorham (1744-1812)
|
06/06/86 - 02/01/87
|
42
| |
Phoebe Bayard St. Clair (1743-1818)
|
02/02/87 - 01/21/88
|
43
| |
Christina Stuart Griffin (1751-1807)
|
01/22/88 - 01/29/89
|
36
|
Constitution of 1787
First Ladies |
President
|
Term
|
Age
|
April 30, 1789 – March 4, 1797
|
57
| ||
March 4, 1797 – March 4, 1801
|
52
| ||
Martha Wayles Jefferson Deceased
|
September 6, 1782 (Aged 33)
|
n/a
| |
March 4, 1809 – March 4, 1817
|
40
| ||
March 4, 1817 – March 4, 1825
|
48
| ||
March 4, 1825 – March 4, 1829
|
50
| ||
December 22, 1828 (aged 61)
|
n/a
| ||
February 5, 1819 (aged 35)
|
n/a
| ||
March 4, 1841 – April 4, 1841
|
65
| ||
April 4, 1841 – September 10, 1842
|
50
| ||
June 26, 1844 – March 4, 1845
|
23
| ||
March 4, 1845 – March 4, 1849
|
41
| ||
March 4, 1849 – July 9, 1850
|
60
| ||
July 9, 1850 – March 4, 1853
|
52
| ||
March 4, 1853 – March 4, 1857
|
46
| ||
n/a
|
n/a
| ||
March 4, 1861 – April 15, 1865
|
42
| ||
February 22, 1862 – May 10, 1865
| |||
April 15, 1865 – March 4, 1869
|
54
| ||
March 4, 1869 – March 4, 1877
|
43
| ||
March 4, 1877 – March 4, 1881
|
45
| ||
March 4, 1881 – September 19, 1881
|
48
| ||
January 12, 1880 (Aged 43)
|
n/a
| ||
June 2, 1886 – March 4, 1889
|
21
| ||
March 4, 1889 – October 25, 1892
|
56
| ||
June 2, 1886 – March 4, 1889
|
28
| ||
March 4, 1897 – September 14, 1901
|
49
| ||
September 14, 1901 – March 4, 1909
|
40
| ||
March 4, 1909 – March 4, 1913
|
47
| ||
March 4, 1913 – August 6, 1914
|
52
| ||
December 18, 1915 – March 4, 1921
|
43
| ||
March 4, 1921 – August 2, 1923
|
60
| ||
August 2, 1923 – March 4, 1929
|
44
| ||
March 4, 1929 – March 4, 1933
|
54
| ||
March 4, 1933 – April 12, 1945
|
48
| ||
April 12, 1945 – January 20, 1953
|
60
| ||
January 20, 1953 – January 20, 1961
|
56
| ||
January 20, 1961 – November 22, 1963
|
31
| ||
November 22, 1963 – January 20, 1969
|
50
| ||
January 20, 1969 – August 9, 1974
|
56
| ||
August 9, 1974 – January 20, 1977
|
56
| ||
January 20, 1977 – January 20, 1981
|
49
| ||
January 20, 1981 – January 20, 1989
|
59
| ||
January 20, 1989 – January 20, 1993
|
63
| ||
January 20, 1993 – January 20, 2001
|
45
| ||
January 20, 2001 – January 20, 2009
|
54
| ||
January 20, 2009 to date
|
45
|
Capitals of the United Colonies and States of America
Philadelphia
|
Sept. 5, 1774 to Oct. 24, 1774
| |
Philadelphia
|
May 10, 1775 to Dec. 12, 1776
| |
Baltimore
|
Dec. 20, 1776 to Feb. 27, 1777
| |
Philadelphia
|
March 4, 1777 to Sept. 18, 1777
| |
Lancaster
|
September 27, 1777
| |
York
|
Sept. 30, 1777 to June 27, 1778
| |
Philadelphia
|
July 2, 1778 to June 21, 1783
| |
Princeton
|
June 30, 1783 to Nov. 4, 1783
| |
Annapolis
|
Nov. 26, 1783 to Aug. 19, 1784
| |
Trenton
|
Nov. 1, 1784 to Dec. 24, 1784
| |
New York City
|
Jan. 11, 1785 to Nov. 13, 1788
| |
New York City
|
October 6, 1788 to March 3,1789
| |
New York City
|
March 3,1789 to August 12, 1790
| |
Philadelphia
|
Dec. 6,1790 to May 14, 1800
| |
Washington DC
|
November 17,1800 to Present
|
Book a primary source exhibit and a professional speaker for your next event by contacting Historic.us today. Our Clients include many Fortune 500 companies, associations, non-profits, colleges, universities, national conventions, PR and advertising agencies. As a leading national exhibitor of primary sources, many of our clients have benefited from our historic displays that are designed to entertain and educate your target audience. Contact us to learn how you can join our "roster" of satisfied clientele today!
Hosted by The New Orleans Jazz Museum and The Louisiana Historical Center
Hosted by The New Orleans Jazz Museum and The Louisiana Historical Center
Historic.us
A Non-profit Corporation
A Non-profit Corporation
Primary Source Exhibits
727-771-1776 | Exhibit Inquiries
202-239-1774 | Office
202-239-0037 | FAX
Dr. Naomi and Stanley Yavneh Klos, Principals
Naomi@Historic.us
Stan@Historic.us
Primary Source exhibits are available for display in your community. The costs range from $1,000 to $35,000 depending on length of time on loan and the rarity of artifacts chosen.
 |
| U.S. Dollar Presidential Coin Mr. Klos vs Secretary Paulson - Click Here |
The United Colonies of North America Continental Congress Presidents (1774-1776)
The United States of America Continental Congress Presidents (1776-1781)
The United States of America in Congress Assembled Presidents (1781-1789)
The United States of America Presidents and Commanders-in-Chiefs (1789-Present)
The United States of America Continental Congress Presidents (1776-1781)
The United States of America in Congress Assembled Presidents (1781-1789)
The United States of America Presidents and Commanders-in-Chiefs (1789-Present)
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