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
From the New York Packet. Tuesday, January 29, 1788.
MADISON
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 prerogatives 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.
For the Independent Journal. Wednesday, January 30, 1788.
MADISON
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.