The Federalist No. 39

Federalist 39, like all the rest, is an argument for the plan of government put together by the Constitutional Convention. A majority of the states had to ratify the Constitution before it would go into effect, and there were a number of conservative patriots who thought the members of the Convention had exceeded their authority in scrapping the Articles of Confederation in favor of an entirely new system. The Federalist Papers were written to both combat those writing against its adoption, and also to explain the proposed system to the American people.

On the first count, they were successful, no one could keep up with Hamilton and Madison, at least in terms of sheer volume.  On the second count they provide interesting insight into the thought that went into the Constitution.  This paper, in particular, shows the unique nature of this new system of government.

It is interesting to read Madison here, in comparison with what Orestes Brownson had to say, 70 years later.  Brownson understood Madison correctly.

Madison doesn’t mince words.  He is not afraid to address those who claim that the Constitution forms a national government in many respects, especially in the direct exercise of power over the citizenry.  He even goes so far as to refer to some federal aspects as “blemishes.”  Nevertheless, he points out that the scope of that power is confined, and that the authority exercised by the national government is within a defined sphere, and that other authority remains at the local level.  The states are not subordinate to the national government within their proper sphere.

When there is contention about jurisdiction between states, Madison explains that this must be resolved by a tribunal – at the national level, because two equals cannot resolve matters impartially.  His words here are an interesting foreshadowing of a conflict not between states, but between a group of states and the national government. … Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; … Madison didn’t foresee that kind of conflict.

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Conformity of the Plan to Republican Principles

Independent Journal
Wednesday, January 16, 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 previous paper provided an overview of the plan of government produced by the convention. We will now look at how that is to be implemented.

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.

The first thing thing to answer is if the proposed form is a republican one, in whole or in part. No other form of government is suitable for the people of America, as is evidenced by the fundamental principles fought for in the Revolution. As a people we have determined and demonstrated that mankind is in fact capable of self-government. Consequently, should this plan to be shown as something other than republican in nature, its proponents would have to abandon it.

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.

So, what makes a government republican in form? If we look for answer to this question in the example provided by other countries, rather than in analysis of political theory, we might not find it. For instance, Holland is considered to have a republican government, and yet none of that government’s authority comes from the people. Similarly, Venice is frequently held up as an example of republican governance, and yet there a small group of hereditary nobles exercise almost total control over the people as a whole. So, too is Poland thought to be republican, and yet that country is governed by a mixture of hereditary aristocracy and monarchy. England takes this one step further, and has one republican branch of government which is combined with a monarchy and hereditary aristocracy. All of these countries have forms of government which are as dissimilar to one another as they are to a genuine republic, and yet they are all frequently so designated. This only shows how badly the term republican has been distorted in political discourse.

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.

Since example does not work, if choose to examine this question based on principles, we can at least say that a republican government is on that derives all its powers either directly or indirectly from the majority, and is subsequently administered by people who hold their offices either for limited terms which must be periodically re-ratified by the people, or who are subject to dismissal on the basis or behavior or performance. For such a government to work, it is essential that it derive its authority from a large majority of society rather than a powerful faction or aristocratic elite. Otherwise, a handful of tyrannical nobles could oppress the people by selectively delegating their powers to place-seekers, and call themselves republican. A republican government must be administered by persons who are directly or indirectly appointed by the people. Furthermore, those in administration must be either limited by tenure or the requirement of good behavior in office. If this is not the case then any popular government which has been, or might be constructed will degrade from its republican beginnings. In every State constitution in the Union, at least some portion of State government is appointed indirectly by the people. And, in most of the states the governor himself is selected by the people. In one of the States, a branch of the State legislature is chosen in this way. In addition, all the States have a specific tenure for those in the highest offices, and in many, the terms are limited for both the executive and the legislature. Finally, according to well-respected practice, most of the State’s judiciaries retain their offices based on good behavior in office.

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.

And so, if we use the above standard to measure the Constitution planned by the convention, we can see that the proposed plan is indeed, wholly republican in nature. The House of Representatives is directly elected by the people, as is at least one branch of all State legislatures. The Senate, like the current Congress, and the state Senate of Maryland, is appointed indirectly by the people. The President is also indirectly derived from the choice of the people, per the example of most of the States. Even the judiciary, however indirectly, is in fact a product of the people’s choice. The federal judicary also follows the model described above for republican governance. Judges hold office for life, as is proper, based on good behavior. Members of the House of Representatives serve two-year terms as in South Carolina, and must stand for re-election as in all the States. Senators serve six-year terms, which is one year more than in Maryland and only two more than in that of the Senates for New York and Virginia. The president is to hold office for four years. In New York and Delaware the executive serves three-year terms, and in South Carolina two. The other states hold annual gubernatorial elections, but no constitutional provision is made for impeachment of the chief magistrate. In Delaware and Virginia the executive is not subject to impeachment until he is out of office. The President of the United States is impeachable at any time while he is in office. Other offices will be subject to legal regulation in conformance with the best practices established by the States in their 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.

And if any further proof were necessary, what could be more decisive than that of the absolute prohibition against titles of nobility? Both federal and State governments do this as an express guaranty of republican governance.

“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.

“But this is not sufficent!” say opponents of the proposed Constitution. “Members of the Convention should also have made sure to preserve the federal form as under the Articles of Confederation. Instead they designed a national government, under which all the states are consolidated.” They further demand to know under what authority such a bold and radical step was taken? This objection requires precise analysis.

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.

To do so, we’ll first need to determine the real character of the government in question, and then to ascertain the how far members of the Convention were authorized to go, and finally look at the obligation owed to their country to fix the current system. Only then can we see the accuracy of this objection.

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.

First, to understand what kind of government is being proposed, we have to look at its foundations, the sources from which it will draw its power, and to how these powers will be exercised. We also have to look at the extent of these powers and how future changes to government will 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.

With regard to the foundation, it would appear that the Constitution is to be founded on the assent and ratification of the people of America, via deputies elected for that purpose. Furthermore, this assent is to be given by the people, not by the people as a whole, but as citizens of their respective States. And so, this is assent and ratification will come from the supreme authority in each State as indicated by the people themselves. Therefore, establishing a Constitution will be a federal rather than a national 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 objectors to the Constitution think that it being a federal act means that the people acting through so many independent States do not constitute an aggregate nation. Looking at things in this light, it seems obvious that ratification will occur neither at the behest of a majority of all the people in the Union, nor from a simple majority of the States. Ratification must result from the unanimous assent of the States that are party to it. The only difference here is that instead of the State legislatures deciding, the people themselves will have to give their assent. Were this a matter of simple majority rule in the Union, the will of the whole people of the United States would bind the minority. In order to make this work, one would have to decide either on the basis of individual votes, or or by taking the will of the majority of states as sufficient evidence of the majority will of the people of the United States. This is not the case. Each State is being considered as sovereign, independent of the other States, and only to become a member of the Union by its own voluntary assent. Accordingly, the new Constitution will be, if ratified, a federal and not a national one.

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 point is concerns the source of the proposed government’s powers. The House of Representatives will derive its powers directly from the people of America. The people will be represented in the same proportions and principles as they are in the legislatures of the particular states. Were we to stop here, the government might be considered national in character. However, the Senate gets its powers from the States which exist as equally represented political entities, just as in the present Congress. If we had only a Senate, one might consider the government Federal rather than national. But further complicating matters, is the fact that the executive power comes from a combination of sources. On the one hand, the president is made by the States as political entitites. But on the other, the votes allotted to each state, are based on both equal and respresentative proportion. They are at the same time equal and unequal members of the same society. In consideration of this system of choosing the executive, it appears that the proposed system will be one of mixed character.

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.

Supposedly, the key difference between a federal and a national government in regard to its exercise of power is that a federal government’s power operates on the States as political entities, whereas a national government exercices its authority on the individual citizens of the Union, directly. If we use this criterion to define what kind of government is being proposed, it is a national government. However, perhaps not as entirely so as has been suggested. For instance, if we examine how disputes between the States are to be resolved, we can see that the government will deal with the states as political entities. Aside from this exception and perhaps a few other federal features, the proposed government is national in character with respect to the exercise of power over individuals. This blemish in the design of a national government is perhaps unavoidable in any plan.

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.

But, while the government is national with respect to its use of power, it changes form again in regard to the extent of that power. The notion of national government implies an unlimited supremacy over all persons and things under its control, so far as they are reasonable responsibilities of government. For a people completely consolidated into one nation, the supreme authority is vested entirely in the ntaional legislature. Conversely, among communities united for a particular purpose, authority is vested partly in the general and partly under the municipal legislature. Under a true national system, the local authorities serve at the pleasure of the national authority, to be controlled, directed or abolished at its whim. Whereas, under the latter, the local authorities operate in distinct spheres and are supreme within them, just as the general government operates within its realm. Looking at the proposed system in view of these zones of authority, one cannot say that it is a purely national form of government, since it operates only within well-defined parameters. The States remain sovereign in all other areas. However, in matters of contention over the limits of this jurisdiction the courts of the general government will rule as impartially as possible as per the Constitution. There is no other choice than for this to be decided at the general, rather than state level, as this is infinitely preferable to an appeal to the sword and dismemberment of the Union.

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 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.

If we examine the proposed Constitution according to the method by which it may be changed, we find that it doesn’t conform to either of federal or national system. If the system were a wholly national one, ultimate authority would rest on majority rule, and that majority could decide to alter or abolish the established government at any time. If it were wholly federal, on the other hand, unanimity between all the States as political entities would be required to make a change binding on all members. The system designed in the proposed plan is not like either of these. In requiring a majority of the States, rather than citizens, it is more like a federal system than a national one. However, in not requireing the unanimous consent of the States, it seems like a national system.

The proposed Constitution, therefore, [even when tested by the rules laid down by its antagonists,][1] 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.

In conclusion, the proposed Constitution, even according to the definitions laid down by its opponents, is neither strictly a federal or national, but a combination of the two. In its foundation it is federal. It derives its power from both federal and national sources. In the operation of these powers it is national and not federal, but in the extent of these powers it is federal, not national. Finally, with respect to the mode of introducing amendments, it is neither wholly federal nor national.

PUBLIUS