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.
THE FEDERALIST.
No. XXXIX.
The Conformity of the Plan to Republican Principles
For the Independent Journal.
MADISON
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.
THE FEDERALIST.
No. XL.
The Powers of the Convention to Form a Mixed Government Examined and
Sustained
From the New York Packet.
Friday, January 18, 1788.
MADISON
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.