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

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.

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