Federalist 1-17: Unity of the States Is Essential
Federalist 1: A Question for the Ages
THE FATE OF THE UNITED STATES OF AMERICA presents the most interesting and important question in the world: whether societies really are capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. We have finally reached the era in which that decision can be made.
The Breadth of the Constitution
The Constitution for the United States of America comprehends in its consequences nothing less than the existence of a nation, the safety and welfare of its parts, and the fate of its empire. Its construction was directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations unconnected to the public good. Its passage adds to the good fortune of mankind. To this philanthropic spirit we can add the spirit of patriotism that we and our posterity must all feel for the event.
Some Invariably Oppose Change, Some Favor Confusion, and Some Hope for Impossible Alternatives
The Constitution affected too many particular interests and local institutions for its opponents not to have raised issues foreign to its merits. Their views, passions and prejudices little favored the discovery of truth. Resistance arose from those officeholders whose power, emolument, or consequence would be diminished. Some harbored the perverted ambition to aggrandize themselves by confusion of the issues. Others flattered themselves with fairer prospect of elevation to higher positions in separate confederacies than from union under one Federal government. The design of these papers, however, is not to dwell upon observations of this nature.
* * *
The fate of the United States of America presents the most interesting and important question in the world: whether societies really are capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. We have finally reached the era in which that decision can be made.
* * *
Minds Are often Led Astray by Preconceived Jealousies and Fears
It is unfair to question the motives of interested or ambitious individuals merely because their situations might subject them to suspicion. Such individuals are frequently motivated by upright intentions. Opposition often springs from the honest errors of minds led astray by preconceived jealousies and fears. The causes of false bias to the judgment are so numerous and powerful that wise and good individuals are on the wrong as well the right side of questions of the first magnitude to society. This circumstance furnishes a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy.
Base Instincts Operate Alike on Those Who Support the Truth as well as Those Who Oppose It
A further reason for caution is the uncertainty whether those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and less laudable motives operate alike on those who support as well as those who oppose the right side of any question. To these can be added the spirit of intolerance that political parties sometimes promote. In politics as in religion, it is absurd to persuade by fire and sword. Heresies in either can rarely be cured by persecution.
* * *
The causes of false bias to the judgment are so numerous and powerful that wise and good individuals are on the wrong as well the right side of questions of the first magnitude to society. This circumstance furnishes a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy.
* * *
Be Wary of the Populist Who Jealously Champions the Rights of the People
A vigorous government is essential to liberty. In all cases of great national discussion, moderation is besieged with torrents of angry and malignant passions. Each side evinces the justness of its opinions and seeks to increase converts by loudness of declamation and bitterness of invective. On the one hand, a zeal for energetic and efficient government will be branded the offspring of a despotic temperament. On the other hand, those who appear overly solicitous of the dangers to the rights of the People can be denounced as pretentious populists opposed to the public good. Of the two, history teaches the more certain road to the introduction of despotism is paved by those who appear the most jealous of any danger to the rights of the People.
Jealousy is a defect which results from intense love. It originates in the head rather than the heart. It can infect a noble enthusiasm for liberty with a narrow-minded spirit of distrust. A dangerous ambition for honor or preference can lurk behind the specious mask of zealous advocacy for the rights of the People. Of those who have overturned the liberties of republics, the greatest number began their careers paying obsequious court to the People. They commenced as demagogues, and ended as tyrants.
* * *
But in the private circles of those who oppose the Constitution, we will always hear whispered how one part might be 'improved' – or even 'removed.' Doctrines like these are quietly propagated until they have enough votaries to countenance their open avowal. Such doctrines are calculated to fan dissension and promote dismemberment of the United States. They are as clear in object as unsound in practice.
* * *
Those Who Oppose the Constitution Are Subtle, So Be Wary of Any Campaign to “Improve” It
It might now be thought superfluous to offer arguments to prove the utility of forming the United States. But in the private circles of those who oppose the Constitution, we will always hear whispered how one part might be “improved” – or even “removed.” Doctrines like these are quietly propagated until they have enough votaries to countenance their open avowal. Such doctrines are calculated to fan dissension and promote dismemberment of the United States. They are as clear in object as unsound in practice.
The Objects of the 85 Papers
Our Constitution plots the safest course for the liberty, dignity, and happiness of the People. These papers will discuss the following particulars:
The utility of the Constitution to our political prosperity –
The insufficiency of the Articles of Confederation to preserve that prosperity –
The necessity of an energetic Federal government to attain this object –
How the Constitution conforms to the true principles of republican government –
How the Constitution is based on State constitutions – and lastly –
The additional security its adoption affords to the preservation of republican government, liberty and prosperity.
In Federalist 2, I examine the advantages of creating the United States, and explain the evils and dangers to every State from its dissolution.
Hamilton
original Federalist 1 [Ed. note Federalist 1: As will appear, the authors principally discuss the interaction of the People (consisting of voting citizens), State governments, and the Federal government created by the Constitution. Accordingly, all three are capitalized.] Federalist 2: The Need for Government and a Single Union
WHENEVER OR HOWEVER INSTITUTED, government is indispensable. And to vest it with the requisite powers, the People must cede some natural rights. This was done at a very early period in our history, when the value and blessings of a union of the States induced the People’s representatives to institute a Federal government to preserve and perpetuate those advantages. It was formed when homes were in flames and many were bloodied. It is therefore unsurprising the government they instituted was found greatly deficient, since time was insufficient to undertake a calm and mature reflection on what would constitute a wise and well balanced government for a free People.
Here I respond to those who seek to divide the States into distinct confederacies or sovereignties and thereby forsake the safety and happiness of our constitutional union.
A Single Union Is Greatly Preferable to Several
A multitude of circumstances favor a single union over several. America consists of a single, connected, fertile, and expansive country, with a variety of soils and productions, watered by innumerable streams and navigable waters, forming natural highways for easy communication and the mutual transportation and exchange of various commodities.
Providence also has given America one united People, who are descended from the same ancestors, speak the same language, profess the same religion, are attached to the same principles of government, and by their joint counsels, arms and efforts, fought side by side through a long and bloody revolutionary war, and nobly established general liberty and independence.
This country and this People seem to have been made for each other, and they should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of individuals among us. We have uniformly been one People, with each individual citizen everywhere enjoying the same national rights, privileges, and protections. As a nation, we have made peace and war, vanquished our common enemies, formed alliances, and adopted treaties, compacts, and conventions with foreign states.
The Constitutional Convention Was the Greatest Ever Convened to Establish a Government
The Constitutional Convention of 1787 was composed of intelligent people committed equally to union and liberty. They were persuaded that security for both could only be found in a national government, wisely framed and articulated with one voice. The Convention itself was composed of individuals who possessed the confidence of the People. Many were highly distinguished by patriotism, virtue, and wisdom. They undertook the arduous task in the mild season of peace, with minds unoccupied by other subjects. They passed many months in cool, uninterrupted, and daily consultation. Without being awed by power or influenced by any passion except love of country, they finally presented and recommended to the People the constitutional plan produced by joint and unanimous councils.
The composition of the 1787 Constitutional Convention resembled that of the memorable Continental Congress of 1774, which the majority of citizens believed was composed of wise and experienced individuals who – being convened from different parts of the country – brought with them and communicated to each other a variety of useful information. During the time shared together in the Congress – and inquiring into and discussing the true interests of the colonies – they undoubtedly acquired a very accurate knowledge of those interests.
Each member of the 1774 Congress was individually interested in public liberty and prosperity. Each was thus induced by inclination as much as by duty to recommend only those measures found prudent and advisable after the most mature of deliberations. These and similar considerations induced the People to rely greatly on the judgment and integrity of that Congress – and to follow its advice – although only a few of it members were generally known or fully tested – and notwithstanding the various arts and endeavors employed to defeat its proposals.
* * *
The Constitutional Convention, every Congress before it, and the People have invariably believed the prosperity of America depended upon its union. Those who deprecate its importance have no good purpose in mind. Every citizen should see that this will be the end of our greatness.
* * *
With even greater reason we can respect the judgment and advice of the 1787 Convention that composed the Constitution. Several of the most distinguished members of the 1774 Congress also served as members of the Constitutional Convention. Those individuals – who had proven their patriotism and ability – were familiar with the acquisition of political information, and they carried into the Convention their accumulated knowledge and experience.
Their plan was recommended only – and not imposed – so that it would receive neither blind approval nor blind disapproval, in the hope that it would encourage the sedate and candid consideration the magnitude and importance of the subject demand. But this was more of a wish or hope than an expectation, as shown by opposition to ratification of the Constitution.
The People Ought to Reject Arguments Against the Constitution Just As They Rejected the Arguments Against the Proposals of the Congress of 1774
The Continental Congress of 1774 recommended certain measures whose wisdom was ultimately proven true. But their proposals soon were attacked by the press, by officers of the government who obeyed the dictates of personal interest, and by others still – who from mistake, ambition, or the undue influence of former attachments – were unstoppable in their efforts to persuade the People to reject the advice of that patriotic Congress. Although many were deceived and deluded, the great majority of the People reasoned and decided judiciously, to their happiness.
The Constitutional Convention, every Congress before it, and the People have invariably believed the prosperity of America depended upon its union. Those who deprecate its importance have no good purpose in mind. Every citizen should see that this will be the end of our greatness.
In Federalist 3, I explain why a Federal government will provide greater safety, less war, and more peace.
Jay
original Federalist 2Federalist 3: A Federal Government Will Provide Greater Safety, Less War, and More Peace
AN INTELLIGENT AND WELL-INFORMED PEOPLE seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. The People of America – intelligent and well-informed – have for a long period uniformly entertained the importance of their continuing firmly united under one Federal government vested with sufficient powers for all general and national purposes. Their opinion merits great respect.
Here I examine whether a cordial union under one efficient Federal government affords the best security that can be devised against hostilities from abroad, or whether this can be more perfectly and punctually done by thirteen or more separate States or by three or more distinct confederacies.
A Federal Government Will Provide the Greatest Safety from All Sources of Conflict
The attention of wise and free individuals necessarily turns first to providing for their own safety. The safety of the People encompasses a great variety of circumstances and considerations, and naturally affords great latitude to those who wish to define it. For the moment, I will limit myself to those aspects of safety bearing on the preservation of peace and tranquility against dangers from foreign arms and influence, as well as from dangers of the like kind arising from domestic causes. As the dangers of foreign arms and influence comes first in order, it should be examined first, to ascertain whether the People are not right in their opinion that a cordial union – under an efficient national government – affords them the best security that can be devised against hostilities from abroad.
The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes – whether real or pretended – which provoke or invite them. If it should turn out that the United States will give fewer just causes of war than a disunited America, the United States will tend most to preserve the People in a State of peace with other nations.
* * *
The People of America – intelligent and well-informed – have for a long period uniformly entertained the importance of their continuing firmly united under one Federal government vested with sufficient powers for all general and national purposes. Their opinion merits great respect.
* * *
The just causes of war mostly arise from either a violation of treaties or direct violence. We have already formed treaties with no less than six foreign nations. Except for the one with Prussia, all the treaties are maritime, and thereby able to annoy and injure us. Our country also has extensive commerce with the countries of Portugal, Spain, and Britain, and we share borders with the territories of Spain and Britain. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.
A Federal Government Will Have Wiser Counsel than States or Confederacies
With the establishment of an efficient Federal government, the best individuals in the country will not only consent to serve, but also will generally be appointed to manage it. Unlike assemblies, senates, courts of justice, and executive departments in the States – which can be filled with individuals of town, country, or other limited influence – more general and extensive reputation for talent and other qualifications will be necessary to recommend individuals to offices under the Federal government. A national government will have the widest field for choice, and never experience a want of proper persons. The administration, political counsels, and judicial decisions of one Federal government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.
A Federal Government Will Speak with One Voice
Under a Federal government for the United States, treaties, articles of treaties, and the laws of nations always will be expounded in one sense and executed in the same manner. Adjudications on the same points and questions by a number of different States or confederacies are less likely to be consistent or in accord, due to the variety of courts and judges that different and independent governments will appoint, and the influence local laws and interests will have on them.
A Federal Government Will Be Less Affected by Local Circumstances
The prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice. Unless those temptations reach other States, they will have little or no influence on the Federal government. These temptations would prove fruitless, and good faith and justice be preserved, as shown the treaty of peace with Britain. But even where the governing party in a State should be disposed to resist the temptation to swerve from good faith and justice, upon an actual or perceived loss or advantage affecting a great number of a State’s inhabitants, the governing party may find itself unable to prevent any injustice meditated, or to punish the aggressors. The Federal government – not being affected by those local circumstances – will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others.
A Federal Government Will Provide Fewer Just Causes of War
Either designed or accidental violations of treaties or the laws of nations can afford just causes of war. Such just causes are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the People.
As to those just causes of war which proceed from direct and unlawful violence, one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Direct and unlawful violence is more frequently caused by the passions and interests of a part of a community rather than the whole; and by one or two States rather than an entire nation. None of the wars with the preexisting tribes and nations of America has been occasioned by aggressions of the Federal government, feeble as it is. But there are several instances where hostilities with these groups were provoked by the improper conduct of individual States, which were either unwilling or unable or to restrain or punish offenses, thereby occasioning the slaughter of many innocent inhabitants. The States bordering on foreign nations – acting under the impulse of sudden irritation and a quick sense of apparent interest or injury – will be most likely to excite war with these tribes and nations by direct violence. Nothing can obviate that danger so effectively as a Federal government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested.
A Federal Government Will Settle Wars More Easily
Not only will fewer just causes of war be given by a Federal government, it will also be more in its power to accommodate and settle them amicably. A national government will be more temperate and cool, and thus have more in capacity to act advisedly than an offending State. The pride of States as well as of individuals naturally disposes them to justify all of their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. A Federal government will not be affected by this pride, but instead will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. Besides, it is well known that acknowledgments, explanations, and compensations from a strong, united nation are often accepted as satisfactory, while such offers would be rejected as unsatisfactory if given by a state or confederacy of little consideration or power.
The Example of Genoa
In 1685, the state of Genoa offended Louis XIV and endeavored to appease him. Louis demanded they should send their chief magistrate and four senators to France to ask his pardon and receive his terms. Genoa was obliged to submit for the sake of peace. Would Louis either have demanded or received a like humiliation from Spain, Britain, or any other powerful nation?
In Federalist 4, I explain why a disunited America will be subject to undue foreign influence.
Jay
original Federalist 3Federalist 4: A Unified Federal Government Will Give Fewer Causes for War
In Federalist 3, I explained why a Federal government would best secure the safety of the People against the dangers to which they would be exposed in the event a just cause for war was given to other nations. With a Federal government, not only would just cause be more rarely given, but if given, more easily accommodated than by individual State governments or confederacies of States.
The safety of the People of America against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult, since it is obvious there are pretended causes of war as well.
It is too true – however disgraceful it may be to human nature – that nations in general will make war whenever they have a prospect of getting anything by it. And absolute monarchs will often make war when their nations are to get nothing by it, other than for purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives affecting only the mind of the sovereign – especially an absolute sovereign – often lead such persons to engage in wars not sanctified by justice or the voice and interests of the People.
Independently of these inducements to war, there are others which affect nations as often as monarchies, and which can grow out of relative situation and circumstances.
Commercial Rivalries Are Inducements to War
We are rivals with Britain, France and other European nations in navigation and the carrying trade. For instance, we can supply the markets of France and Britain with fish more cheaply than they can themselves, even with their duties on foreign fish. We shall deceive ourselves if we suppose any of them will rejoice to see our trade flourish, since our carrying trade cannot increase without in some degree diminishing theirs. Thus it will be in their interest to adopt policies to restrain our trade rather than promote it.
* * *
It is too true – however disgraceful it may be to human nature – that nations in general will make war whenever they have a prospect of getting anything by it.
* * *
In the trade to China and India, we now have advantages which they had monopolized, by supplying ourselves with commodities which we used to purchase from them. And the extension of our own commerce in our own vessels cannot give pleasure to any nation which possesses territory on or near this continent. Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other. Both nations also restrict use of the ocean between them and us in order to control mutual intercourse and traffic. It is easy to see how jealousy and uneasiness may gradually slide into the minds and cabinets of other nations. We should not expect they will regard with indifference and composure the advancement of our union in power and consequence by use of land and sea.
The value and excellence of our productions, the enterprise of our merchants and navigators, and the circumstance of vicinity give us a greater share in the advantages afforded by those territories, thereby interfering with the wishes or policy of these other sovereigns.
A Single Federal Government Provides Greater Strength, Safety, and Uniformity of Policy and Action with Respect to Other Nations
The People of America are aware that inducements to war may arise out of the circumstances described above, as well as from others not so obvious at present. Whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. A Federal government will tend to repress and discourage these pretenses for war rather than inviting them. This is the best possible state of defense, and it necessarily depends on the unity of the government, arms, and resources of the entire country.
One Federal government is better than one composed of any number of States or confederacies. One government can collect and avail itself of the talents and experience of the ablest individuals, in whatever part of the United States they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and also extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with the whole.
State Militias Under Presidential Control Will Be More Uniform
A Federal government can apply the resources and power of the whole to the defense of any particular part more easily and expeditiously than State governments or separate confederacies could possibly do, due to their want of unity and concert of system. It also will place the State militias under one plan of discipline and – by putting their officers in a proper line of subordination to the President – consolidate them into one corps, thereby rendering them more efficient than if divided into thirteen State militias or three or four militias of separate confederacies.
The British Example of Unified Militias
The case of Great Britain proves the point. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? In the event of invasion, would those three governments be able – if they agreed at all – to operate with all their respective forces against the enemy so effectually as the single government of Britain?
The same is true of the British fleet. We have heard much of the fleets of Britain, and the time may come when the fleets of America engage their attention. If the national government had not so regulated the navigation of the constituent parts of Britain as to make it a nursery for seamen – nor called forth all the national means and materials for forming fleets – their prowess and thunder would never have been celebrated. If England, Scotland, Wales and Ireland had their own fleets under four independent governments, it is easy to perceive how soon they would each dwindle into comparative insignificance.
Dividing the United States Will Result in Weakness and Uncertainty
If America is divided into any number of States or confederacies, what armies could they raise and pay, and what fleets could they ever hope to have? If one was attacked, would another spend its blood and money for the defense of another?
It is far more likely these other States or confederacies would remain neutral, whether through the flattery of specious promises offered by the aggressor, the seduction of an untoward fondness for peace, or the jealousy to see their neighbor diminished. Such conduct, though unwise, would nevertheless be natural. The history of the states of Greece and other countries abounds with such events. What has so often happened before would – under similar circumstances here – happen again.
Even if we assume a neighbor might be willing to help the invaded State or confederacy, how, when, and in what proportion would the aids of money and men be afforded? Who would command the allied armies, and from which States shall he receive his orders? Who would settle the terms of peace, and what umpire shall decide disputes between them and compel acquiescence?
Various difficulties and inconveniences would be inseparable from such a situation. One national government, by contrast, would be free from all these embarrassments, and be far more conducive to the safety of the People by watching over the general and common interests and combining and directing the powers and resources of the whole.
Other Nations Will See Our Situation for What It Is
One thing is certain: whatever our situation – whether firmly united under one national government or split into a number of confederacies – foreign nations will see it exactly as it is, and they will act toward us accordingly.
If they see that our Federal government is efficient and well administered, our trade prudently regulated, our militias properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, and our People free, united and contented, they will be much more disposed to cultivate our friendship than provoke our resentment.
On the other hand, what a poor and pitiful figure would America be in their eyes if they should find us either destitute of an effectual government – with each State doing right or wrong as its rulers may deem convenient – or split into three or four independent and probably discordant republics or confederacies – with one inclining to Britain, another to France, a third to Spain, and perhaps played off against each other by the three.
These confederacies would become liable to their contempt, and then their outrage. The costly experience would prove again that when a People or family so divide, it never fails to be against themselves.
In Federalist 5, I explain why a divided America would be more prone to foreign influence and strife.
Jay
original Federalist 4Federalist 5: A Divided America Would Be Prone to Foreign Influence and Strife
A Divided America Would Be Prone to Foreign Influence and Strife
WEAKNESS AND DIVISIONS AT HOME WOULD INVITE DANGERS from abroad, and nothing would tend more to secure us from these dangers than union, strength, and good government within ourselves, as I noted in Federalist 4.
This copious subject is not easily exhausted. Queen Anne, in her letter to the Scottish Parliament on the 1st of July 1706, observed the importance of the union then forming between England and Scotland, and it merits repeating:
“An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies.” (Emphasis added.)
She added: “We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will undoubtedly, on this occasion, use their utmost endeavors to prevent or delay this union.” (Emphasis added.)
The Lessons from Great Britain
The history of Great Britain provides many profitable lessons for our use without payment of the price their experiences cost them. While it seems obvious to common sense that the people of such an island should be one nation, for ages they were divided into three, and almost constantly embroiled in quarrels and wars with one another. Even though their true interests with respect to the European mainland were really the same, the arts, policies, and practices of those continental nations kept the mutual jealousies of the three governments of the island perpetually inflamed. For a long series of years they were far more inconvenient and troublesome to each other than they were useful and assisting.
The British Example Applied to a Divided America
If the People of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different “interests,” envy and jealousy would soon extinguish confidence and affection. Instead of pursuing the general interests of all of America, the partial interest of each confederacy would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or living in the constant apprehension of them.
Superior policy and good management would probably distinguish the government of one above the rest. Their relative equality in strength and consideration would be destroyed. One cannot presume the same degree of prudence, foresight and sound policy would uniformly be observed by each of these confederacies for a long succession of years.
However it might happen – and happen it would – if any one of these nations or confederacies were to rise on the scale of political importance much above the degree of her neighbors, those neighbors would behold her with envy and fear. Those passions would lead the neighbors to countenance and promote whatever might promise to diminish the importance of the prospering confederacy, and to restrain them from measures calculated to advance or even to secure her prosperity. The prospering confederacy would soon discern these unfriendly dispositions, and begin to lose confidence in her neighbors and to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is goodwill and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.
The Likely Conflict Between North and South
The North is generally the region of strength, and many local circumstances render it probable that in the near future the proposed northern confederacies unquestionably would be more formidable than any of the others. As soon as this became evident the young swarms of this northern hive might be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. The same ideas and sensations the northern islands formerly excited in the more southern parts of Europe would be aroused in the southern parts of America.
The history of similar divisions and confederacies shows that northern and southern confederacies of States would be borderers rather than neighbors, who would neither love nor trust one another. We would be prey to discord, jealousy, and mutual injuries. We then would be formidable only to each other, a situation some other nations doubtless wish to see.
Greatly mistaken are those who suppose alliances offensive and defensive might be formed between these confederacies, producing a union of wills, arms, and resources necessary to put and keep them in a formidable state of defense against foreign enemies. Did the independent states into which Britain and Spain were formerly divided ever combine in such alliance, or unite their forces against a foreign enemy?
The proposed confederacies would be distinct nations, each regulating its commerce with foreigners by distinct treaties. Since the productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns necessarily create different interests, with different degrees of political attachment to and connection with different foreign nations. A foreign nation with whom a southern confederacy might be at war would be the one with whom a northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to the northern confederacy’s immediate interests would not be easily formed, and if formed, would not be observed or fulfilled with perfect good faith.
* * *
The history of similar divisions and confederacies shows that northern and southern confederacies of States would be borderers rather than neighbors, who would neither love nor trust one another. We would be prey to discord, jealousy, and mutual injuries. We then would be formidable only to each other, a situation some other nations undoubtedly wish to see.
* * *
Alliances Between Distinct American Confederacies and Foreign Nations Would Destroy Unity
It is far more probable that in America, as in Europe, neighboring nations – acting under the impulse of opposite interests and unfriendly passions – would frequently be found taking different sides. It would be more natural for these confederacies to apprehend danger from one another than from distant nations.
Each of them would be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. It would be natural to receive foreign fleets into their ports, and foreign armies into their lands. Lest we forget, it is far easier to receive foreign fleets and armies than to persuade or compel them to depart. How many conquests did the Romans and others make by appearing as allies to the governments of those whom they pretended to protect?
Let candid persons judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations.
In Federalist 6, I explain why republics are as subject as to rivalries, intrigues and wars as monarchies.
Jay
original Federalist 5Federalist 6: The Causes of Human Hostility Are Innumerable
ONE MUST BE FAR GONE IN UTOPIAN SPECULATIONS to question whether the States of a disunited America would have frequent and violent contests with each other. We should not presume a lack of motives for such hostilities. Are not humans ambitious, rapacious, and vindictive? To anticipate harmony between a number of independent, unconnected sovereignties in the same neighborhood would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of the ages.
In Federalist 3 through Federalist 5, I exposed the dangers a disunited United States would suffer from the arms and arts of foreign nations. I now delineate dangers of a different and more alarming kind: those which will flow from dissensions between the States themselves, and from domestic factions and convulsions.
The Love and Jealousy of Power
The causes of hostility among nations are innumerable. Some have a general and almost constant operation upon the collective bodies of society. One is the love of power: the desire for preeminence and dominion. Another is the jealousy of power: the desire for equality and safety.
The Commercial Rivalries of Nations
Other causes of hostility are more circumscribed – such as the rivalries and competitions between commercial nations – but these too maintain an equally operative influence within their spheres.
The Rivalries of Passion
Still other causes of human hostility take their origin entirely in private passions, such as the attachments, enmities, interests, hopes and fears of leading individuals in their communities. Individuals of this class – whether the favorites a king or a people – have in too many instances abused the confidence they possessed. They have assumed the pretext of some public motive, and sacrificed the national tranquility to personal advantage or personal gratification. More grounds of human hostility are discussed in Federalist 7.
* * *
The causes of hostility among nations are innumerable. Some have a general and almost constant operation upon the collective bodies of society. One is the love of power: the desire for preeminence and dominion. Another is the jealousy of power: the desire for equality and safety.
* * *
The Case of Pericles and Athens
The celebrated Pericles of Athens attacked, vanquished, and destroyed another Greek city-state – at the expense of much of the blood and treasure of his countrymen – to satisfy the resentment of a woman. The same man was the primitive author of the famous and fatal Peloponnesian War which, after various vicissitudes, intermissions and renewals, terminated in the ruin of the Athenian commonwealth.
The stimulus for his actions was either a private pique against another city-state, or to avoid his own prosecution for theft of public funds, or to eliminate accusations that he had dissipated the funds of the state to purchase popularity, or from a combination of all these causes.
Cardinal Wolsey and Charles V of Spain
The ambitious Cardinal Wolsey, the prime minister to Henry VIII, permitted his vanity to aspire to the papacy – with the aid of Emperor Charles V of Spain. To this end, Wolsey precipitated England into a war with France, contrary to the plainest dictates of policy, thereby hazarding the safety and independence of England and Europe. If ever there was a sovereign who bid fair to realize the project of universal monarchy, it was Charles V, of whose intrigues Wolsey was at once both instrument and dupe.
* * *
If ever there was a sovereign who bid fair to realize the project of universal monarchy, it was Charles V of Spain, of whose intrigues Cardinal Wolsey was at once both instrument and dupe.
* * *
Recent Examples, Including Shays of Massachusetts
More recently, the bigotry of Madame de Maintenon, the petulance of the Duchess of Marlborough, and the cabals of Madame de Pompadour have led to ferments and pacifications of a considerable part of Europe.
It is unnecessary to multiply examples of the agency of personal considerations in the production of great national events. Even those only superficially acquainted with the sources from which they are drawn will themselves recollect a variety of similar instances.
One has lately happened among ourselves. If the leader of Shays Rebellion had not been a desperate debtor, it is doubtful Massachusetts would have been plunged into a civil war.
Visionaries and Schemers Alike Will Advocate Dismemberment of the United States
Notwithstanding the concurring testimony of experience, there are still to be found visionary or designing individuals who stand ready to advocate the paradox of perpetual peace among the States even though they be dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics like ours, the argument proceeds, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.
But we may ask, is it not the true interest of all nations to cultivate the same benevolent and philosophic spirit? And if this be their true interest, have they in fact pursued it? Or has it not invariably been found that momentary passions and immediate interests have a more active and imperious control over human conduct than those general or remote considerations of policy, utility and justice? In practice, have republics been less addicted to war than monarchies? Both are administered by individuals.
The aversions, predilections, rivalries and desires of unjust acquisitions affect nations as well as kings. Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice and other irregular and violent propensities? The decisions of popular assemblies are often governed by a few individual leaders whose passions and views have infected those of the body or assembly.
* * *
One must be far gone in utopian speculations to question whether the States of a disunited America would have frequent and violent contests with each other.
* * *
Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience – the least fallible guide of human opinions – be consulted for an answer to these inquiries.
Experience Proves Even Commercial Republics Are Fallible
Sparta, Athens, Rome, and Carthage were all republics. Sparta was little better than a well regulated camp, and Rome was never sated of carnage and conquest. Athens and Carthage were commercial republics, yet were they as often engaged in wars – offensive and defensive – as the neighboring monarchies of the same times.
Although it was a commercial republic, Carthage was the aggressor in the very war that ended in her destruction. Hannibal carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of that commonwealth.
Venice, in later times, figured more than once in wars of ambition, until it became an object to the other Italian states and the pope, who formed a league with the kingdoms of France and Aragon, which gave a deadly blow to the power and pride of the haughty Venetian republic.
The provinces of Holland took a leading and conspicuous part in the wars of Europe, until they were overwhelmed in debts and taxes.
Commerce has been for ages the predominant pursuit of Britain, but few nations have been more frequently engaged in war. Although the representatives of its People compose one branch of the national legislature, they have championed aggression in numerous instances.
There have been almost as many popular wars as royal wars. The cries of a nation and the importunities of its representatives have dragged its monarchs into war upon various occasions, or continued them in it, contrary to the monarch’s inclinations – and sometimes contrary to the real interests of the state. In that memorable struggle for superiority between the rival houses of Austria and Bourbon, Europe was long kept in a flame by the antipathies of the English – stirred by the avarice of their favored leader, the Duke of Marlborough – who protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court.
The wars of England and France have in a great measure grown out of commercial considerations – the desire of supplanting and the fear of being supplanted – either in particular branches of traffic or in the general advantages of trade and navigation.
From this summary of situations nearest our own, what reason can seduce us into an expectation of peace and cordiality between the members of a confederacy in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? We must awaken from the deceitful dream of a golden age, and adopt as a practical maxim for the direction of our political conduct that we – as well as the other inhabitants of the globe – are yet remote from the happy empire of perfect wisdom and perfect virtue.
We need look no further than the extreme depression to which our national dignity and credit have sunk, the lax and ill administration of government, the revolt in a part of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts.
* * *
We must awaken from the deceitful dream of a golden age, and adopt as a practical maxim for the direction of our political conduct that we – as well as the other inhabitants of the globe – are yet remote from the happy empire of perfect wisdom and perfect virtue.
* * *
The Enmity which Naturally Arises from Close Physical Proximity Can Be Alleviated by a League of Confederate Republics
From long observation of the progress of human society, it is an axiom in politics that vicinity or nearness of situation can render nations natural enemies. L’Abbé de Mably, an intelligent writer on this subject, explained how a joinder of neighboring weak confederacies can overcome this natural tendency to animosity: “Neighboring nations are naturally enemies of each other unless their common weakness forces them to league in a confederate republic, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.”
This passage at once points out the evil and suggests the remedy.
Hamilton
original Federalist 6Federalist 7: The Causes of War
WHAT INDUCEMENTS WOULD THE STATES of a disunited America have to make war upon each other? Precisely the same inducements which have deluged in blood all the nations of the world at various times.
Disputes Over Territory Can Cause War
Territorial disputes have at all times been one of the most fertile sources of hostility among nations. The greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. Disputes have already arisen concerning the rights to the “crown lands,” which had not been granted at the time of the Revolution. Congress appeased this controversy by prevailing upon the States to cede territories to the United States for the benefit of the whole. Dismemberment of the United States would revive these disputes.
The wide field of western territory provides ample theater for hostile pretensions, absent any umpire or common judge to interpose between the contending parties. If the past guides the future, the sword would sometimes be appealed to as the arbiter of these differences.
* * *
What inducements would the States of a disunited America have to make war upon each other? Precisely the same inducements which have deluged in blood all the nations of the world at various times.
* * *
Commercial Competition Can Cause War
The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State or separate confederacy would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. We should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest.
Each State or separate confederacy would pursue a system of commercial policy peculiar to itself. The unbridled spirit of American enterprise would pay little respect to a State trade regulation intended to secure exclusive benefits to its own citizens. Infractions of such regulations by one side – and the efforts to prevent and repel them on the other – would naturally lead to outrages, reprisals and wars.
* * *
There is nothing humans differ so readily about as the payment of money. There is nothing more likely to disturb the tranquility of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit.
* * *
Nonpayment of Debts Can Cause War
A further cause of collision between separate States or confederacies of States would arise from the retirement of the public debt of the expired Union under the Articles of Confederation. The apportionment of those debts in the first instance, and their progressive extinguishment afterward, would be productive alike of ill-humor and animosity. Settling on a rule would be postponed by real differences of opinion. The citizens of the States would clamor; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention.
There is nothing more likely to disturb the tranquility of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. There is nothing humans differ so readily about as the payment of money.
Contract Violations Can Cause War
Laws in violation of private contracts are aggressions on the rights of those States whose citizens are injured by them. Such laws are another probable source of hostility. In some circumstances, a war of parchment would give rise to one of the sword, in order to chastise such atrocious breaches of moral obligation and social justice.
* * *
Divide and command must be the motto of every nation that either hates us or fears us.
* * *
Political Machinations Can Cause War
A disunited America gradually would become entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided. Divided states or confederacies would likely become a prey to the artifices and machinations of powers which are equally the enemies of them all.
Divide and command must be the motto of every nation that either hates us or fears us.
Hamilton
original Federalist 7Federalist 8: War Between the States Will Lead to Devastation
A DISUNITED UNITED STATES would be subject to all those vicissitudes of peace and war – and of friendship and enmity with each other – that are the lot of all neighboring nations who are not united under one government.
War between the States would be more devastating than in those European countries where regular military establishments have long existed. Although malignant to liberty and economy, the disciplined armies kept on foot in continental Europe have rendered sudden conquests impracticable, ending the rapid desolation which used to mark the progress of war there.
The Deterrent Effect of Fortifications and Garrisons
Extensive fortifications mutually obstruct invasion. Frontier garrisons and similar impediments exhaust the strength and delay the progress of an invader. In former times, an invading army could penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received. Now a comparatively small force of disciplined troops – acting on the defensive and with the aid of posts – is able to impede and frustrate the invasions of much larger forces. European history is no longer one of nations subdued and empires overturned, but of towns taken and retaken, of battles that decide nothing, of retreats more beneficial than victories, and of much effort and little acquisition.
In a Disunited America, the People’s Jealousy of Fortifications and Garrisons Would Deter Construction, Leaving Borders Open to Predators
If the States were disunited, the scene would be altogether reversed. The jealousy of military establishments would postpone their construction for as long as possible. The lack of fortifications would leave the frontiers of one State open to another. Populous States would overrun their less populous neighbors with little difficulty. War between States or confederacies would be desultory and predatory, since plunder and devastation ever march in the train of irregulars. Individual calamities would characterize our military exploits.
* * *
European history is no longer one of nations subdued and empires overturned, but of towns taken and retaken, of battles that decide nothing, of retreats more beneficial than victories, and of much effort and little acquisition.
* * *
Liberty Eventually Would Succumb to the Desire for Security
Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will gave way to its dictates after a time. The violent destruction of life and property incident to war – or the alarm attendant to a state of continual danger – compel all nations to resort to standing armies for security, even though they tend to destroy civil and political rights. To be more safe, citizens will at length become willing to run the risk of being less free.
* * *
War between States or confederacies would be desultory and predatory, since plunder and devastation ever march in the train of irregulars.
* * *
Frequent war and apprehension of war require a state of constant preparation, which infallibly produces standing armies. Standing armies certainly would exist with a dissolution of the Union. Weaker states or confederacies would establish a regular and effective system of defense – by disciplined troops and fortifications – in order to put themselves upon an equality with their more potent neighbors. Such actions would necessarily strengthen the executive arm of the government, because war naturally tends to increase the executive power at the expense of the legislative authority. Over time, their constitutions and governments would acquire a progressive direction toward monarchy.
Smaller states or confederacies using such expedients would soon be superior to their neighbors – even those with greater resources – since vigorous governments with disciplined armies have often triumphed over large states or states of greater natural strength that did not have these advantages.
In response to such actions by smaller states, the pride and safety of the more important states or confederacies would not long submit to this mortifying and adventitious superiority. They would quickly resort to similar means to reinstate themselves. Thus in a little time we would see established in every part of this country the same engines of despotism which have been the scourge of the Old World.
* * *
The violent destruction of life and property incident to war – or the alarm attendant to a state of continual danger – compel all nations to resort to standing armies for security, even though they tend to destroy civil and political rights. To be more safe, citizens will at length become willing to run the risk of being less free.
* * *
The Absence of Standing Armies in the Greek Republics Was Specific to Their Circumstances
It may be asked, by way of objection, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Several equally satisfactory answers may be given to this question. Those republics were nations of soldiers. In the present day, the industrious habits of the American people – absorbed in the pursuits of gain and devoted to the improvements of agriculture and commerce – are incompatible with the condition of a nation of soldiers. Our means of revenue – so greatly multiplied by the increase of gold, silver, the arts of industry, together with the new science of finance – have produced an entire revolution in the system of war. Disciplined armies distinct from the body of the citizens are required only when hostilities are frequent.
The Constitution Permits the Federal Government to Create a Federal Standing Army
Standing armies are not prohibited in the Constitution, from which it may be inferred they may exist under it, although their actual composition remains uncertain.
A Small Federal Standing Army Is Consistent with Liberty
Military establishments are quite different between a country often exposed to invasions – and therefore more apprehensive of them – and a country that is geographically secure. The rulers of a relatively secure nation have little pretext to require more than a small standing army. Such an army rarely would be called into activity for defense of the interior, and thus the citizens of that nation would be in no danger of being broken to military subordination. The laws in such a country would not be accustomed to relaxation in favor of military exigencies. The civil state would remain in full vigor, neither corrupted nor confounded with the principles or propensities of a true military state. The natural strength of the People would overmatch the small army. Citizens would neither be habituated to look to the military power for protection, nor to submit to its oppressions. Such a country would neither love nor fear the soldiery, but instead view them as a necessary evil, standing ready to resist a power which may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the People.
A Large Federal Standing Army Would Undermine Liberty
In a country with a large standing army, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theater of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights. By degrees the People would come to consider the soldiery as their superiors as well as their protectors. This transition of the soldiery from servants to masters in the minds of the citizenry is neither remote nor difficult, for a People subject to a constant threat rarely mount a bold or effectual resistance to usurpations supported by the military power.
The Benefits of Our Geographic Insularity
The kingdom of Great Britain has no large standing army. Its insular situation and a powerful marine guard against the possibility of foreign invasion, thus superseding the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, until the militia could have time to rally and embody, is all that is required. Britain’s national policy has not demanded – nor her public opinion tolerated – a large number of troops upon domestic establishment. This peculiar felicity of situation has contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, had Britain been situated on the continent – and been compelled by that situation to make her military establishments at home coextensive with those of the other great powers of Europe – she, like them, would in all probability have fallen victim to the absolute power of a single individual. It is possible the People of that island might be enslaved from other causes, but not by the prowess of a large standing army.
If we are wise enough to preserve the United States we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited – and the integral parts should either remain separated – or should be thrown together into two or three confederacies (which is most probable) – in a short course of time we should be in the predicament of the continental powers of Europe – our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.
Hamilton
original Federalist 8 Federalist 9: Union Is a Safeguard Against Domestic Faction and Insurrection
A FIRM UNION IS THE ULTIMATE BARRIER against the forces that would overwhelm the peace and liberty of the States. Those forces – domestic faction, party rage, sedition and insurrection – led to a rapid succession of revolutions in the small republics of Greece and Italy. Those same forces – aided by the vices of their governments – continually agitated and perverted the bright talents and exalted endowments for which these republics were otherwise justifiably renowned. It is impossible to read their histories without feeling sensations of horror and disgust at the petty distractions which kept them in a state of perpetual vibration between the extremes of tyranny and anarchy.
From the disorders of those republics, the advocates of despotism in America argue that all forms republican government – even the very principles of civil liberty – are inconsistent with the order of society. Happily for mankind, the few glorious instances of governments founded on liberty refute their gloomy sophisms.
Modern Improvements to the Republican Form of Government Make It the Wisest Choice
If the enlightened friends of liberty who assembled at the Constitutional Convention believed they could not devise a more perfect republican structure, they would have abandoned that species of government as indefensible. The science of politics, however, has received great improvement in modern times, as have most other sciences. Principles which were unknown or imperfectly known to the ancients are now well understood. Many new discoveries, or the perfection of old discoveries, include: the regular distribution of power into distinct departments, the introduction of legislative balances and checks, the institution of courts composed of judges holding their offices during good behavior, and the representation of the People in the legislature by deputies of their own election. To this catalogue of improvements a new one may be added: the enlargement of the geographical orbit within which such systems revolve, either in a single states, or a consolidation of several smaller states into one great confederacy.
The utility of a confederacy is not really a new idea. It has been practiced in different countries and ages, in order to suppress faction, guard the internal tranquility of states, and increase external forces and security. The most esteemed writers on the subject of politics have approved its use.
* * *
Principles which were unknown or imperfectly known to the ancients are now well understood. Many new discoveries, or the perfection of old discoveries, include: the regular distribution of power into distinct departments, the introduction of legislative balances and checks, the institution of courts composed of judges holding their offices during good behavior, and the representation of the People in the legislature by deputies of their own election.
* * *
Critics of a Large Republic Misread Montesquieu
The opponents of a united America have circulated the observations of the great Montesquieu to argue a republican government can succeed only in small geographical territories. Their arguments are drawn from a selective reading of the author’s works and disregard the experiences of our own republican States – Virginia, Massachusetts, Pennsylvania, New York, North Carolina, and Georgia – all of which are larger than the republics Montesquieu considered. If the critics of the United States are correct, we should either take refuge at once in the arms of monarchy, or split ourselves into an infinity of tumultuous little commonwealths which would be the wretched nurseries of unceasing discord and the miserable objects of universal pity and contempt.
Some writers have even boldly suggested a division of even the larger States is desirable. While such a desperate expedient might multiply the petty offices for individuals who possess no qualification to extend their influence beyond the narrow circles of personal intrigue, it could never promote the greatness or happiness of the People of America.
Montesquieu does not stand in opposition to a general union of states, as the critics of union would falsely have us believe. He explicitly treats a confederate republic as the expedient for extending the sphere of popular government to gain the internal advantages a republic and the external force of a monarchy.
A republic of this kind is able to withstand an external force, and support itself without any internal corruptions. “If a single member should attempt to usurp the supreme authority,” the author writes, “he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.”
The United States is a confederacy of States, and not a consolidation of States, as its misguided opponents have claimed. The definition of a confederate republic is simply “an assemblage of societies,'' or an association of two or more states into one state. The Constitution makes each State government a constituent part of the national sovereignty, with direct representation in the Senate. Exclusive and very important portions of sovereign power are left in the possession of the States. This fully corresponds with the idea of a Federal government. The objects, extent, and modifications of the Federal authority are merely matters of discretion. Under the Constitution, the separate organizations of the member States – though subordinate to the general authority of the union – continue to exist for local purposes.
* * *
If critics of the United States are correct, we should either take refuge at once in the arms of monarchy, or split ourselves into an infinity of tumultuous little commonwealths which would be the wretched nurseries of unceasing discord and the miserable objects of universal pity and contempt.
* * *
In ancient Lycia, twenty-three republican cities joined in a confederacy governed by a common council. The largest cites were entitled to three votes in the council, those of the middle to two, and the smallest to one. The cities granted to the council the power to appoint all the judges and magistrates of the respective cities, even though the power to appoint its own officers is one which would seem exclusively appropriated to local jurisdictions. Yet Montesquieu cites the Lycian confederacy as the finest republic to date. From this we can see the critics of our union have misused Montesquieu to advance no more than novel refinements of their erroneous theories.
Hamilton
original Federalist 9Federalist 10: Governments Are Formed to Protect Property Rights; a Republic Is Far Superior to a Democracy
ONE OF THE MOST IMPORTANT ADVANTAGES promised by a well-constructed Constitution is its tendency to break and control the violence of faction. By “faction,” I mean a minority or majority of citizens who are united and motivated by some common impulse of passion or interest adverse either to the rights of other citizens or to the permanent and aggregate interests of the community.
Lessening the Instability, Injustice and Confusion Caused by Factions
Popular governments have perished everywhere from the mortal diseases of instability, injustice, and confusion introduced into their public councils by factions. Even with the valuable improvements made by State constitutions on ancient and modern models, we still hear complaints that issues related to the public good are decided by the superior force of an interested and overbearing majority rather than the rules of justice and the rights of the minor party. These complaints – in some degree true – are chiefly the effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.
* * *
Popular governments have perished everywhere from the mortal diseases of instability, injustice, and confusion introduced into their public councils by factions.
* * *
Different Human Aptitudes and Abilities Result in the Unequal Ownership of Property, which Leads to Factions
The creation or acquisition of property results from the diversity of human abilities and aptitudes sown into the nature of mankind. The first object of government is to protect those differing faculties and skills.
Once a sovereign power extends physical protection to the different and unequal faculties of creating and acquiring property, the possession of different degrees and kinds of property immediately results.
History has shown the most common and durable source of faction is the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors and those who are debtors fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest – with many lesser interests – necessarily arise in civilized nations, and divide them into different classes, motivated by different sentiments and views.
* * *
Mankind’s propensity to fall into mutual animosities is so strong that the most frivolous and fanciful distinctions have sufficed to kindle their unfriendly passions and excite their most violent conflicts.
* * *
The influence of property ownership on the sentiments and views of their proprietors ensure a division of society into different interests and parties, which can become factions.
The regulation of these various and interfering interests is the principal task of modern legislation, and necessarily involves the spirit of party and faction in the ordinary operations of the government.
The Diversity of Human Interests Is Visible Everywhere
We see the expression of these differing interests everywhere, from the variety of opinions concerning government, religion and the like, to attachments to different leaders who ambitiously contend for preeminence and power, and to persons whose fortunes have interested human passions. Mankind’s propensity to fall into mutual animosities is so strong that the most frivolous and fanciful distinctions have sufficed to kindle their unfriendly passions and excite their most violent conflicts. These interests have divided mankind into parties, inflamed them with mutual animosity, and rendered them more disposed to vex and oppress each other than to cooperate for the common good.
Factions Test Republics, and Can Control Governments
It is an ancient rule that no man shall be judge in his own cause, because his interest would certainly bias his judgment, and probably corrupt his integrity. Neither should a body of individuals be both judges and interested parties at the same time. Yet what are legislative acts but so many judicial determinations concerning the rights of persons and large bodies of citizens? Are not the different classes of legislators simply advocates and parties to the causes they determine?
If a law is proposed concerning private debts, the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them, yet the parties are – and must be – themselves the judges. The most numerous party – the most powerful faction – must be expected to prevail.
Even legislative acts which seem to require the most exact impartiality – such as the apportionment of taxes on property – can tempt the predominant party to trample the rules of justice. Every penny by which they overburden the inferior number is a penny saved to their own pockets.
In cases where a faction consists of less than a majority, the republican principle of majority vote will defeat its sinister views by regular vote. On the other hand, when the faction is in the majority, both the public good and the rights of other citizens will be sacrificed to the majority passion or interest. The ultimate question is how to secure the public good and private rights against such a faction, while at the same time preserving the spirit and form of popular government.
Do Not Expect the Enlightened to Save the Day
It is vain to hope enlightened statesmen will adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Moreover, their equitable arguments rarely will prevail over the immediate interest one party may find in disregarding the rights of another or the good of the whole.
Democracies Have Never Possessed the Cure for Faction
A pure democracy – a society consisting of a small number of citizens who assemble and administer the government in person – can admit of no cure for the mischiefs of faction. In almost every case, a common passion or interest will be felt by a majority of the whole. The form of government itself leads to a communication of the passion and the resulting concert of action. There is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Democracies can devolve into rule by mob.
Democracies are incompatible with personal security or the rights of property. They have forever been spectacles of turbulence and contention – usually as short in their lives as violent in their deaths. Their histories prove wrong those theorists who suppose that reducing mankind to a perfect equality in political rights would perfectly equalize them in possessions, opinions, and passions.
The Only Cures for Factions Are Worse than the Disease
To remedy the mischiefs of faction, we must either remove its causes or control its effects. As I will show, the causes cannot be removed, only the effects lessened.
It is impossible to eradicate factions without also destroying the liberty that allows them to exist, or requiring every citizen to share the same passions and interests. Destroying liberty is as unwise as forcing everyone to think alike is impractical.
In scientific terms, the idea that liberty should be extinguished in order to prevent the creation of factions is as foolish as annihilating the air we breathe because it imparts to fire a destructive agency.
As for uniformity of opinion, so long as the reason of man continues to prove fallible – and he is at liberty to exercise it – different opinions will be formed.
As for uniformity of interests, the natural and acquired abilities of humans – from property rights originate – erect an impenetrable barrier to its attainment. Human interests will never be uniform, nor will ownership of property.
* * *
It is impossible to eradicate factions without also destroying the liberty that allows them to exist, or requiring every citizen to share the same passions and interests. Destroying liberty is as unwise as forcing everyone to think alike is impractical.
* * *
The Only Relief from Faction Is to Limit its Effects Through Representative Government
There are two ways to manage factions, but only one will succeed. The first is to prevent the same passion or interest from ever forming a majority. The second is to prevent the majority from executing its schemes of oppression.
To those who think the second option might suffice – blocking the execution of an oppressive scheme – it is well known that neither morals nor religion can reliably control the injustice and violence of individuals – let alone groups – should the impulse to passion and the opportunity to execute it be suffered to coincide.
That leaves the first option – preventing the same passion or interest from forming a majority – which is best accomplished through a republic in which the scheme of representation occurs. Compared to the passion of a democracy, the first great difference is that the citizens of a republic delegate control of the government to a small number of citizens elected by the rest. The second is that a republic may be extended over a far greater sphere of country and citizens than a democracy.
Representation Positively Refines and Enlarges the Viewpoints of the Representative and Represented Alike
The election of representatives refine and enlarges the People’s views by passing them through the medium of a chosen body of citizens. The collective wisdom of the representatives is best able discern the true interests of the country. Their patriotism and love of justice should render them the least likely to sacrifice those ideals based on temporary conditions or a predisposition to favor one interest over another.
So regulated, the public voice will be more consonant to the public good than if pronounced by the People themselves, should they be convened to decide a particular question.
The Proper Size of a Representative Body Lies Between Extremes
Representative government creates the risk that individuals of factious tempers, local prejudices, or sinister designs might first obtain the votes of the citizens through intrigue, corruption or other means, and then betray those electors.
Consequently, no matter how small a republic may be, its representatives must be raised to a certain number in order to guard against the cabals of a few. Conversely, no matter how large its size, the representatives must be limited to a certain number in order to guard against the confusion of a multitude.
Deciding on the correct number of representatives does present obstacles. If the number of electors for an office is too large, the representatives will be too little acquainted with all their local circumstances and lesser interests. If the number of electors is too small, representatives will be unduly attached to local circumstances and interests.
The Constitution is a happy compromise of these extremes: the great and aggregate interests are referred to the Federal legislature, and the local and particular interests to the State legislatures.
The Larger the Republic, the Larger the Number of Suitable Candidates Available to the Electors
The number of potential suitable representatives should be greater in a large republic, thereby increasing the probability of a fit choice for office. This circumstance will make it more difficult for unworthy candidates to practice successfully the vicious arts by which elections are too often carried. The votes of the People – being less influenced by such arts – will more likely center on the individuals who possess the most attractive merit and the most diffusive and established characters.
* * *
A large republic with more citizens and territory renders factious combinations less likely than in a democracy.
* * *
A Large Republic Provides a Better Guard Against Factions than a Small Republic, or a Democracy of Any Size
A large republic with more citizens and territory renders factious combinations less likely than in a democracy. A small society is more likely composed of fewer distinct parties and interests. The fewer the distinct parties and interests, the more frequently the majority will be of the same party. The representatives – being fewer in number – can more easily work in concert to execute their plans of oppression.
By contrast, a large republic – having a greater geographical sphere and larger number of citizens – will likely include a greater variety of parties and interests. This will reduce the probability that a majority of the electors will have a common motive to invade the rights of other citizens. And if such a common motive did exist, those who felt its strength would have difficulty communicating it to and acting in unison with others, since the communication of a consciously unjust or dishonorable purpose is always checked by distrust in proportion to the number whose concurrence is necessary.
The advantage a republic has over a democracy in controlling the effects of faction is the same as one enjoyed by a large over a small republic. Another advantage of a republic consists in the substitution of representatives whose enlightened views and virtuous sentiments should render them superior to local prejudices and schemes of injustice. Yet another advantage will be the increased number of parties, which afford security against the event of any one party being able to outnumber and oppress the rest. Finally, a republic will erect greater obstacles to the execution of the secret wishes of an unjust and interested majority.
* * *
Democracies are incompatible with personal security or the rights of property. They have forever been spectacles of turbulence and contention – usually as short in their lives as violent in their deaths. Their histories prove wrong those theorists who suppose that reducing mankind to a perfect equality in political rights would perfectly equalize them in possessions, opinions, and passions.
* * *
Factions Originate Locally, and Republican Government Is Best-Suited to Prevent their Spread Nationally
While factious leaders may from time to time kindle a flame within their particular States, they will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in one part of the United States, but the variety of sects dispersed over the entire face of it will secure the Federal government against any danger from that source.
A rage for paper money, an abolition of debts, an unequal division of property – or any other improper or wicked project – will be less apt to pervade the whole body of States than a particular member of it, in the same way such maladies are more likely to infect a particular county or district than an entire State.
Thus in size and proper structure of the United States do we behold a republican remedy for the diseases most incident to republican government.
Madison
original Federalist 10Federalist 11: A Unified Country Is the Wisest Choice for Protecting Our Trade from Foreign Interference
THE IMPORTANCE OF THE UNITED STATES to foster and improve commerce among the several States is indisputable. The same is true for our commercial intercourse with foreign countries.
The commercial character of the United States has already excited uneasy sensations in several of the maritime powers of Europe. They are apprehensive that our union will interfere with their carry of trade, which supports their navigation and naval strength. Those countries with colonies in America foresee the dangers to their American dominions from United States, which would have the disposition and means to create a powerful marine. The cabinet ministers of Europe already have in place policies designed to foster divisions among us, and to deprive us of an active commerce with our own ships. By dividing us, they seek to prevent our interference in their navigation, monopolize the profits of our trade, and clip the wings by which we might soar to a dangerous greatness.
Methods to Counter Foreign Interference
If we continue united, we may counteract these unfriendly policies in a variety of ways. By prohibitory regulations, we would oblige foreign countries to bid against each other for the privileges of our growing markets. Any manufacturing nation would discern the immense difference between using its own ships to trade directly with our union and the indirect conveyance of its products and returns to and from the United States in the ships of another country. If we excluded Great Britain from our ports, would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? Some have responded that such a prohibition on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? The price of British commodities in our markets would increase, and facilitate competition from other nations by transferring to other hands the management of British commerce.
* * *
The cabinet ministers of Europe already have in place policies designed to foster divisions among us, and to deprive us of an active commerce with our own ships. By dividing us, they seek to prevent our interference in their navigation, monopolize the profits of our trade, and clip the wings by which we might soar to a dangerous greatness.
* * *
The real disadvantages to Britain from such a state of things – together with the predispositions of its inhabitants in favor of trade with the United States, as well as the needs of its colonies in the West India islands – would relax her present system let us enjoy privileges in the markets of those islands and elsewhere, from which our trade would derive the most substantial benefits. To gain such a point from the British government, of course, could not be expected without an equivalent in exemptions and immunities in our markets. It would, however, improve the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade.
Monroe Doctrine Suggested
The establishment of a Federal navy would further improve the conduct of European nations toward our trade. The continuance of the Union under an efficient Federal government would soon put in our power the ability to create a navy which – if it could not vie with those of the great maritime powers – would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be particularly true in the West Indies, where a few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign. Our position in this respect is a most commanding one. If we add the usefulness of supplies from this country to the prosecution of military operations in the West Indies, we could bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union we may hope soon to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate.
Should we fail to remain united, our commerce would be a prey to the wanton intermeddlings of all nations at war with each other, who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation that is despicable by its weakness forfeits even the privilege of being neutral.
Under a vigorous Federal government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of little politicians to control or vary the irresistible and unchangeable course of nature.
Without a union, powerful maritime nations would avail themselves of our universal impotence to prescribe the conditions of our political existence, since they have a common interest in being our carriers, and still more in preventing our becoming theirs. We would be confined to a passive commerce, compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled and inexhaustible American spirit of enterprise, exemplified by the genius of our merchants and navigators, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world.
* * *
Due to the length of her superiority, Europe has plumed herself the Mistress of the World. She considers the rest of mankind as created for her benefit.
* * *
Our nation holds rights to coastal fisheries and navigation of the Great Lakes and Mississippi. If the Union is dissolved, these rights would be open to question, and the European powers would hardly fail to solve those questions to our disadvantage. The rights of fishing and navigation are important to all navigating States, and would be more so with a greater extension of mercantile capital. The navigating States are a nursery of seamen, who in turn are indispensable to the establishment of a navy.
Every institution will grow and flourish in proportion to the quantity and extent of the means concerted towards the formation and support of a navy. A navy of the United States - established from the resources of all - is far less remote than a navy of any single State or partial confederacy. Each region of America will contribute its own part. The more southern States furnish in greater abundance certain kinds of naval stores – tar, pitch, and turpentine – as well as wood of a more solid and durable texture. Iron from the southern and middle States is plentiful and of better quality. Seamen must chiefly be drawn from the northern hive. The necessity of naval protection to external or maritime commerce requires no elucidation. Similarly, the success of maritime commerce is conducive to the prosperity of a navy.
An unrestrained intercourse of trade between the States will advance the trade of each; first, by an interchange of their respective productions for the supply of reciprocal wants at home, and second, for export to foreign markets. The diversity in the production of different States will give commercial enterprise a much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety of products for export contributes as much as does their value to the activity of foreign commerce. Much better terms can be had with a large number of materials of a given value than with a small number of materials of the same value. Particular articles may be in great demand at certain periods and unsalable at others. The greater the variety of articles available for export, the lesser the chance the operations of merchants would stagnate. The speculative trader will at once perceive the force of these observations. A union is far more likely to command a fair price for its goods than single State or partial confederacy.
Some might argue that an intimate intercourse between the States would exist with or without a union, thus achieving the same ends. To this we believe these papers show that such intercourse would be fettered, interrupted and narrowed by a multiplicity of causes. A unity of commercial and political interests can result only from a unity of government.
The Hubris of Europe
Our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. At present, the world is divided politically and geographically into four parts – Europe, Africa, Asia, and America – each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and negotiations, by force and fraud, has by degrees extended her dominion over them all. Africa, Asia, and America have successively felt her domination.
Due to the length of her superiority, Europe has plumed herself the Mistress of the World. She considers the rest of mankind as created for her benefit. Some philosophers actually have attributed to Europe’s inhabitants a physical superiority, and seriously asserted that all animals – and with them the human species – degenerate in America – so that even dogs cease to bark after having breathed awhile in our atmosphere.
Unfortunately, the facts have too long supported these arrogant pretensions. Therefore it falls to America to vindicate the honor of the human race, and to teach moderation to our pretentious European brethren. A Federal union will enable us to do it. Disunion will add another victim to Europe’s triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States – bound together in a strict and indissoluble union – concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old world the new one!
Hamilton
original Federalist 11Federalist 12: The Union Will Increase Commerce and Therefore Taxes
THE FORMATION OF THE UNITED STATES will increase the commercial prosperity of the States and revenues to their governments. The prosperity of commerce is the most useful and productive source of national wealth. The introduction and circulation of precious metals – those darling objects of human avarice and enterprise – invigorate the channels of industry. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer – all orders of individuals – look forward with eager expectation to this pleasing reward of their toils.
Experience demonstrates the interest of agriculture and commerce are intimately blended and interwoven. Where commerce has flourished, land has risen in value. And how could it have happened otherwise? Commerce procures a freer vent for the products of the earth, and incites the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state. The value of land, in turn, is augmented by labor and industry. It is astonishing that so simple a truth should ever have had an adversary. It is but one example of how a spirit of ill-informed jealousy – or one of too great abstraction and refinement – can lead humans astray from the plainest truths of reason and conviction.
The ability of a country to pay taxes must in great degree be proportioned to the quantity of money in circulation, and to the celerity with which it circulates. Since commerce contributes to both these objects, it necessarily renders the payment of taxes easier, to the benefit of the public treasury.
Wealth without Commerce Reduces Tax Revenue
The hereditary dominions of the emperor of Germany consist of a fertile, cultivated, and populous territory, largely situated in mild climates, and with some of best gold and silver mines in Europe. And yet revenues are slender due to a lack of commerce, resulting in borrowing from foreigners to preserve his essential interests, and an inability to sustain a long or continued war upon the strength of his own resources.
* * *
Experience demonstrates the interest of agriculture and commerce are intimately blended and interwoven. Where commerce has flourished, land has risen in value. And how could it have happened otherwise? Commerce procures a freer vent for the products of the earth, and incites the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state.
* * *
From experience we have discovered it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed; and the treasuries of the States have remained empty. Even in Britain, direct taxation is far exceeded by revenue of the indirect kind, such as imposts and excises, particularly duties on imported articles.
In America, revenue must depend chiefly on import duties. Other excise taxes – which are imposed on a step in the production, manufacture, sale or distribution of goods – must be confined within a narrow compass in most parts of the country, since the genius of the People will ill brook the inquisitive and peremptory spirit of excise laws. Impositions on houses and lands will yield but scanty supplies from the reluctant pockets of farmers. Personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption.
A general union, being conducive to the interests of commerce, would tend to the extension of revenue drawn from that source, and contribute to rendering regulations for the collection of the duties more simple and efficacious. In making the same rate of duties more productive, governments would have the power to increase the rate without prejudice to trade.
In the absence of a union of States, a conspiracy of circumstances – the number of our rivers and bays, the facility of communication in every direction, the affinity of language and manners, and the familiar habits of intercourse – would render an illicit trade between the States a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. To mitigate such trade, separate States or confederacies would forced to lower their duties. The temper of our governments would not likely countenance the rigorous precautions by which European nations guard the avenues of land and water into their respective countries, and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice.
Wisely Guarding Our Coastlines Is Our Best Defense against Smugglers
In France, there is an army of patrols constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Without a union, the States would be placed in a situation resembling that of France with respect to her neighbors, and armed patrols would necessarily arise. The arbitrary and vexatious powers of such patrols would be intolerable in a free country.
With a union, we would have but to guard our coastlines, principally the Atlantic coast, which touches only one side of the union. Foreign vessels would rarely choose to hazard transferring valuable cargoes prior to entering port. They would dread the dangers of the coast and of detection upon entry. A few armed vessels – judiciously stationed at the entrances of our ports – might at a small expense be made useful sentinels of the laws. Since a Federal government would have the same interest to prevent violations everywhere, uniform application of its measures in each State would render them effectual.
By preserving the United States, we also preserve the advantage of geographical separation natural has accorded us. The United States lies at a great distance from Europe, and a considerable distance from all other areas with which we might have extensive foreign trade. It would be impractical to smuggle goods from these areas in a few hours or a single night, as happens between the coasts of France and Britain. This is a prodigious security against a direct contraband with foreign countries. Without a union, a circuitous contraband to one State through the medium of another would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation in small parcels through the channel of a neighboring State – according to time and opportunity, with the additional facilities of inland communication – must be palpable to everyone of discernment.
Duties on Imports Are a Sound Basis for Federal Revenue and Ought Not Be Neglected
A single Federal government would be able to extend the duties on imports, at much less expense, than would be practicable by separate States or partial confederacies. Hitherto these State duties have not exceeded three percent on average. In France they average fifteen per cent, and in Britain twenty percent. Thus, the United States reasonably could triple existing import duties of the several States. The Federal regulation of a single article – ardent spirits – would furnish a considerable revenue. Four million gallons are imported annually. A duty of a shilling per gallon would produce revenue of two hundred thousand pounds. Liquor would well bear this duty, and if the duty diminishes consumption, the effect would be equally favorable to the agriculture, economy, morals, and health of society. There is nothing so much a subject of national extravagance as these spirits.
What will be the consequences of not availing ourselves of these sources of revenue? A nation cannot long exist without revenue. Destitute of this essential support, it must resign its independence and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events.
Taxes on Commerce Must Be the Principal Source of Federal Revenue
In the United States, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. Excise taxes are too little in unison with the feelings of the People to admit of great use. Indeed, in the States where almost the sole employment is agriculture, the objects proper for excise are insufficiently numerous to permit very ample collections in that way. Personal property, due to the difficulty in tracing it, cannot be subjected to large contributions, except by indirect taxes on consumption. In populous cities, perhaps, personal property taxes may more easily be collected – to the oppression of individuals – but beyond these circles, it will largely escape the eye and hand of the tax gatherer.
This leaves the possessors of land as the principal source of revenue for the public treasury. Without having other sources of revenue available to maintain the government, we shall not even have the consolation of a full treasury to atone for the oppression of that valuable class of the citizens employed in cultivation of the soil. Public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion. Taxation is discussed in greater detail in Federalist 30 through Federalist 36.
Hamilton
original Federalist 12Federalist 13: Our National Economy Will Prosper with Union
THE SEPARATION OF THE STATES into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. Having just discussed the revenue of the Federal government, we turn now turn to economy. The money saved from one object may be usefully applied to another, with so much the less drawn from the pockets of the People. The States united under one government would have but one national civil list to support. If they are divided into several confederacies, there would be as many different national civil lists to be provided for, and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole.
Those who speculate upon the dismemberment of the empire generally envisage three confederacies – one consisting of the four northern States, another of the four middle States, and a third of the five southern States. According to this distribution, each confederacy would comprise an extent of territory larger than the kingdom of Great Britain. Proper regulation of each confederacy would require a government as comprehensive in its organs and institutions as that of the Federal government, for when the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent.
By comparison, the measure the momentum of civil power necessary to the government of the United States – properly organized and exerted – would be capable of diffusing its force to a very great extent, and reproducing itself in every part of a great empire by a judicious arrangement of subordinate institutions.
Each imagined confederacy would require a government not less comprehensive than the government of the United States, particularly if we consider that in case of disunion they will most naturally league themselves under two governments. New York, Pennsylvania, and New Jersey, having active foreign commerce, would ally with the northern confederacy. The more southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities.
* * *
Each imagined confederacy would require a government not less comprehensive than the government of the United States, particularly if we consider that in case of disunion they will most naturally league themselves under two governments.
* * *
The thirteen States if united will be able to support a national government better than one half, or one third, or any number less than the whole. Aside from requiring multiple civil lists, separate confederacies will require additional personnel, both to guard the inland communication between the different confederacies against illicit trade, and to collect taxes. If we also take into view the military establishments which would unavoidably result from the jealousies and conflicts of the several confederacies, we discover that separation would be more injurious to the economy, tranquility, commerce, revenue, and liberty of every part.
Hamilton
original Federalist 13Federalist 14: The Geographical Size of the United States Is No Detriment to Union
THE UNION OF THE UNITED STATES will be our bulwark against foreign danger, conservator of peace among ourselves, guardian of our commerce and other common interests, and as the only substitute for those military establishments which have subverted the liberties of the Old World.
Union is the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms are present in our own. All that remains within this branch of our inquiries is to take notice of an objection that may be drawn from the great extent of country which the union embraces. A few observations on this subject are proper to refute this objection, which is based on prejudice rather than fact.
The error of the objection results from confusing a republic with a democracy. In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy must be confined to a small spot, while a republic may be extended over a large region.
* * *
Union is the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms are present in our own.
* * *
To this confusion may be added the error of some celebrated authors whose writings informed the modern standard of political opinions. Since the subjects these authors studied were either absolute or limited monarchies, they endeavored to heighten the advantages – or palliate the evils of monarchical forms – by identifying the vices and defects of republican government, but citing as specimens the turbulent democracies of ancient Greece and modern Italy. Their conclusions – republics can only be established among a small number of people living within a small compass of territory – are applicable to democracies only.
The natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions. So too the natural limit of a republic is that distance from the center which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs.
Can it be said that the limits of the United States exceed this distance? The size of the United States is commensurate with several European countries. At present it is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. In Great Britain, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the present United States.
Additional observations further ameliorate the objection based on the physical size of the union. In the first place, the Federal government is not charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate State governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.
A second observation, concerning expansion, is that the immediate object of the Federal Constitution is to secure the union of the thirteen original States, which we know to be practicable. Further discoveries and experience will render the addition of new States equally practicable.
* * *
In the first place, the Federal government is not charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.
* * *
In the third place, intercourse throughout the union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers multiplied and ameliorated; and interior navigation on our eastern side opened throughout, or nearly throughout, the whole extent of the thirteen States, as demonstrated by those numerous canals which nature’s beneficence has intersected our country, and which are not difficult to connect and complete.
A fourth and still more important consideration is that those distant States bordering foreign nations should be willing to exchange the burden of traveling to the capital for the general protection of the union, of which they will have the greatest need.
Hearken not to the unnatural voice which tells you the People of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family, nor continue the mutual guardians of their mutual happiness, nor be fellow citizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language, and shut your hearts against the poison it conveys.
Madison
original Federalist 14Federalist 15: Our Former Government Was Fatally Flawed
THE POINT NEXT TO BE EXAMINED is why the Articles of Confederation were insufficient to the preserve the Union of the States. Although no one has disputed the proposition, a few observations are in order, since we had reached almost the last stage of national humiliation under that Confederation.
The Confederation violated contracts and defaulted on its war debts. It allowed Britain to remain in territories which – by express stipulations – ought long since to have been surrendered, to the prejudice of our interests and rights. We were in no condition to resent or repel aggression because we had neither troops, nor a treasury, nor a government. We were not even in a condition to remonstrate with dignity. We were entitled by nature and compact to a free participation in the navigation of the Mississippi, but Spain excluded us from it. Our public credit – an indispensable resource in time of public danger – was abandoned as desperate and irretrievable. Our commerce – of great importance to national wealth – was at the lowest point of declension. Our former government was so imbecilic that no foreign power respected or would entreat with it, depriving us of a safeguard against foreign encroachments. Our ambassadors abroad were mere pageants of mimic sovereignty.
We suffered a violent and unnatural decrease in the value of land, which surely was a symptom of national distress. The price of improved land in most parts of the country was much lower than attributable to the quantity of wasteland at market. It could only be fully explained by the alarmingly prevalent want of private and public confidence among all ranks, which has a direct tendency to depreciate property of every kind. Private credit – the friend and patron of industry – was reduced within the narrowest limits, more so from the prevailing opinion of insecurity than from scarcity of money.
To this melancholy situation were we led by the very maxims and councils who also sought to deter us from adopting the Constitution. Not content with having conducted us to the brink of a precipice, our opponents were resolved to plunge us into the abyss that awaited us below.
These facts produced a general assent to existence of material defects in our former national system. It was at that point where we stood firm for our safety, tranquility, dignity, and reputation – impelled by every motive that ought to influence an enlightened People. We at last broke the fatal charm which too long seduced us from the paths of felicity and prosperity.
* * *
The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted.
* * *
The adversaries of the Constitution strenuously opposed conferring upon the United States the powers to remedy the deficiencies of the Confederation. These adversaries aimed at things repugnant and irreconcilable: augmentation of Federal authority without a diminution of State authority, and sovereignty in the Federal government but with complete independence in the States. They cherished with blind devotion the political monster of an imperium in imperio – of individual sovereign States within a sovereign Federal government.
Thus it becomes necessary to display fully the principal defects of the Confederation, in order to show the evils we experienced did not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which could not be amended other than by altering its main pillars.
The Need to Extend Federal Governmental Control Over Individuals
The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted. Although this principle does not run through all the powers delegated to the United States, it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the Confederation had an indefinite discretion to make requisitions for men and money from the States, but it lacked authority to raise either by the use of regulations extending to the individual citizens of the States. In theory the regulations of the Confederation concerning those objects were binding on the States, but in practice they were mere recommendations which the States observed or disregarded at their option.
The capriciousness of the human mind is singularly shown by those who insisted we could not abandon these weaknesses of the Confederation, even though all the evidence and experience demonstrated that these weaknesses undermined the idea and very foundation of government. In the end, these opponents would have substituted the violent and sanguinary agency of the sword to the mild influence of the magistracy.
Europe’s Experience with Treaties Dependent on Good Faith
There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion, and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations – subject to the usual vicissitudes of peace and war (and of treaty observance and non-observance) – as the interests or passions of the contracting powers dictate.
In the years after 1700 there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits that never materialized. All the resources of negotiation were exhausted with a view to establishing the equilibrium of power and the peace of that part of the world. Triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.
* * *
In the Eighteen Century, triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.
* * *
Limited Treaties Between the States Are Insufficient
If the particular States had been disposed to stand in a similar relation to each other – and to drop the project of a general discretionary superintendence – the scheme would have indeed been pernicious, entailing upon us all the mischiefs that flow when the competing interests or passions if the contracting States conflicted. But at least such a plan would have had the merit of being consistent and practicable. If we had abandoned all views towards a Federal government, it would have brought us to a simple alliance offensive and defensive, and placed us in a situation alternately to be friends and enemies of each other, as our mutual jealousies and rivalries – nourished by the intrigues of foreign nations – would have prescribed to us.
But we were unwilling to be placed in this perilous situation, and still desired to adhere to the superintending power of a Federal government under the direction of a common council. We therefore resolved to incorporate into our plan those ingredients which distinguish a league from a government: we extended the authority of the United States to individual citizens – who are the only proper objects of government.
A Penalty for an Illegal Act Must Be Enforceable Against the Offending Individual
The penalty, whatever it may be, can be inflicted in only two ways: by the agency of the courts and ministers of justice, or by military force; that is, by the coercion of the magistracy, or by the coercion of arms. Coercion by courts and justice ministers can apply only to individuals; coercion by military force must be employed against bodies politic, communities, or states.
It must be evident there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be pronounced for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war, and military execution must be the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent individual choose to commit personal happiness to it.
* * *
The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.
* * *
There was a time when we were told that breaches of the regulations of the Federal authority by the States were not to be expected, and that a sense of common interest would preside over the conduct of the respective members, and beget a full compliance with all the constitutional requisitions of the Confederation. Experience – the best oracle of wisdom – has proven these assurances to be as wild as those heard earlier in Europe and now in opposition to the Constitution.
A viewpoint that relies on good faith alone for compliance betrays an ignorance of the true springs by which human conduct is actuated, and belies the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of humans will not conform to the dictates of reason and justice without constraint. Has it been found that bodies of individuals act with more rectitude or greater disinterestedness than single individuals? Every accurate observer of the human conduct has concluded the opposite is true, and for obvious reasons. When the infamy of a bad action is to be divided among a number of individuals rather than fall singly upon one, a sound regard for one’s reputation has a less active influence. The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.
Subordinate Political Bodies Often Resist a Superior Sovereign Power
In addition to all this, the nature of sovereign power includes an impatience for control. All those who exercise sovereign power look with an evil eye upon any external attempt to restrain or direct its operation. In response to this spirit of control, every inferior political association formed upon the principle of uniting in a common interest will have a tendency to fly off from the common center of the ultimate sovereign. This tendency is easily explained: its origin is the love of power. Power that is controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.
This simple proposition teaches us how little reason there is to expect that persons entrusted with the administration of the affairs of a particular member of a confederacy will at all times be ready to execute – with perfect good-humor and an unbiased regard to the public weal – the resolutions or decrees of the general authority. The reverse results from the very constitution of human nature.
If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all. The rulers of each State – whether or not they have a constitutional right to do so – will themselves undertake to judge the propriety of the Federal measures. They will naturally consider the conformity of the thing proposed or required to their immediate interests or aims, and the momentary conveniences or inconveniences that would attend its adoption. All this will be done in a spirit of interested and suspicious scrutiny, with a strong predilection in favor of local objects. The knowledge essential to a right judgment – the national circumstances and reasons of state which led to an enactment – will be absent, and this can hardly fail to mislead the local decision. Furthermore, the same process must be repeated in every State, and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Anyone conversant in the proceedings of popular assemblies has seen how difficult it is to bring them to harmonious resolutions on important points, in the absence exterior pressure of circumstances. From this one can readily conceive how impossible it would be to induce a number of such assemblies – deliberating at a distance from each other, at different times, and under different impressions – to cooperate in the same views and pursuits.
Under the Articles of Confederation, the concurrence of thirteen distinct sovereign wills was required to complete the execution of every important measure that proceeded from the Union. As we saw, the measures of that Confederation were not executed; the delinquencies of the States incrementally matured themselves to an extreme, which at length arrested all the wheels of the national government, and brought them to an awful stand. Until the States could agree upon a more substantial substitute for the shadow of a Federal government, its Congresses scarcely possessed the means of keeping up the forms of administration.
* * *
If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all.
* * *
Things did not proceed to this desperate extremity all at once. At first there were only unequal and disproportionate degrees of compliance with the requisitions of the Confederation. The greater deficiencies of some States furnished the temptation to and pretext for lesser compliance by the least delinquent States: why should they do more in proportion than those States who had embarked with them on the same political voyage, or consent to bear more than our proper share of the common burden? These were suggestions human selfishness could not withstand, especially since consequences for noncompliance were remote. Yielding to the persuasive voice of immediate interest or convenience, each State successively withdrew its support of the Confederation, until the frail and tottering edifice seemed ready to fall upon our heads and crush us beneath its ruins.
Hamilton
original Federalist 15Federalist 16: Anarchy Results When Federal Systems Lack Power Over Subordinate Individuals
WHEN A CENTRAL AUTHORITY or government directs its legislation to lesser states or communities in their political capacities – as opposed to directing it to the individuals comprising those states or communities – the tendency is towards anarchy, as exemplified both by the experiment we have made of it, and the events which have befallen all other federal governments in exact proportion to its prevalence in those systems.
Legislation directed to states or communities invariably leads to delinquencies by one or more of its members. The only constitutional remedy for such delinquencies is force, and the immediate effect of its use is civil war.
The Use of Force Is a Far from Certain Remedy for Breaches by Subordinate Governments
It was uncertain whether the use of force would even have remedied the ills which weakened our former confederacy of States. In the absence of a large army constantly at the disposal of the national government, force could not be employed at all. If an army could have been raised, it would have resulted in a war between parts of the former confederacy.
* * *
Legislation directed to states or communities invariably leads to delinquencies by one or more of its members. The only constitutional remedy for such delinquencies is force, and the immediate effect of its use is civil war.
* * *
In such a war, the strongest combination would most likely have prevailed, whether consisting of those who supported or of those who resisted the general authority. Since the delinquencies to be redressed would not likely be confined to a single member, the similarity of situation among those who had neglected their duty would have induced them to unite for common defense. Aside from this motive of sympathy, if a large and influential State should happen to have been the initial aggressor, it would likely have weight enough with its neighbors to win over some of them as associates. It would have been easy to contrive specious arguments about dangers to the common liberty and invent plausible excuses for the delinquency, in order to alarm the apprehensions, inflame the passions, and conciliate the goodwill even of those States not chargeable with any violation or omission of duty.
This would have been the more likely course of the larger members, perhaps motivated by the ambitious premeditation of its rulers to break free from all external control upon their designs of personal aggrandizement. To achieve this end, these rulers presumably would have pleaded beforehand with leading individuals of adjacent States. If associates to their scheme could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encourage the dissensions of a confederacy they would otherwise rightly fear.
Once the sword is drawn, the passions of humans observe no bounds of moderation. The States against which the arms of the union were exerted would have been carried by wounded pride and irritated resentment to any extreme necessary to avenge the affront or avoid the disgrace of submission. The first war of this kind would probably have terminated in a violent dissolution of the union.
A more natural death of the former confederacy of States is what we now seem to be on the point of experiencing, unless the Federal system is speedily renovated in a more substantial form. Considering the genius of this country, it would be improbable for complying States to support the authority of the Union by engaging in a war against the noncomplying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all.
Our past experience has exhibited the operation of this spirit in its full light, due to the insuperable difficulty in ascertaining when force could with propriety be employed. In the case of pecuniary contribution to the national government – which was the most usual source of delinquency – it was often impossible to decide whether it had proceeded from disinclination or inability. The pretense of inability would always be advanced, and seldom refuted, except in cases where the fallacy was flagrant. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, partiality, and oppression, among any majority that happened to prevail in the national council.
* * *
Once the sword is drawn, the passions of humans observe no bounds of moderation.
* * *
It requires no proof that States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. If such a scheme were even practicable, it would instantly degenerate into a military despotism. But such a scheme will be found in every light impracticable. To begin with, the resources of the Union are not and would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty. Nor would the means ever be furnished of forming such an army in the first instance. Anyone who considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities.
The principle of legislation for sovereign states, supported by military coercion, has proven ineffectual even in those confederacies composed of members smaller than many of our counties. Military coercion has been rarely employed, and then only against the weaker members. Such attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half.
Federal Law Must Extend to Individual Citizens
From these observations, intelligent minds must conclude that a Federal government capable of regulating the common concerns and preserving the general tranquility must be founded upon the reverse of the principle upon which the opponents of the Constitution rely. The Federal government must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislation. It must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions, and the majesty of the national authority must be manifested through the medium of the courts of justice. The government of the United States, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. The United States must possess all the means, and have a right to resort to all the methods, of executing the powers with which it is entrusted, that are possessed and exercised by the government of the particular States.
Since Federal Law Applies to Individual Citizens, a Contrary State Law Would Be an Open and Violent Exertion of an Unconstitutional Power
It may be asserted in response that any State disaffected to the authority of the United States could obstruct the execution of its laws and thereby bring the matter to the same issue of force. The objection itself loses force when we advert to the essential difference between a mere noncompliance and a direct and active resistance to the laws of the Federal government. Where the interposition of the State legislatures is necessary to give effect to a measure of the United States, those legislatures need only not act, or to act evasively, to defeat the measure. Such neglect of duty could be disguised under affected but unsubstantial provisions, so as not to appear to raise – and of course not excite – any alarm in the People for the safety of the Constitution. The State leaders may even claim their surreptitious invasions are justified on the ground of some temporary convenience, exemption, or advantage.
But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, State governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions or evasions could prove otherwise. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of (1) an existing Constitution that is in any degree competent to its own defense, and (2) of a People enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the People. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the People were not tainted with the spirit of their State representatives, they – as the natural guardians of the Constitution – would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, except perhaps in the case of a tyrannical exercise of the Federal authority.
Refractory and Seditious Leaders of State Governments Would Be Subject to Prosecution by the Federal Executive Branch
If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The executive magistracy – being equally the ministers of the law of the land, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness, from whatever source it might emanate. As to those partial commotions and insurrections, which sometimes disquiet society – from intrigues of an inconsiderable faction, or sudden or occasional ill humors that do not infect the great body of the community, the Federal government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single State.
* * *
It requires no proof that States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government.
* * *
A Civil War Usually Results in Revolution or Dismemberment of Empire
And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it – proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm – they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberment of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it is idle to object to a government because it could not perform impossibilities.
Hamilton
original Federalist 16Federalist 17: Applying Federal Law to Individual State Citizens Will Not Result in an Unlimited Federal Government
ANOTHER OBJECTION made to the principle that Federal law ought to apply to the individual citizens of America is that it would tend to render the government of the United States too powerful, and enable it to absorb those residual authorities which are properly left to the States for local purposes.
Those Without Federal Power Falsely Assume Those with Federal Power Will Abuse It
The objection assumes the persons entrusted with the administration of the general government would be tempted to divest the States of such residuary authorities. Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition. The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power. The powers properly reserved for local legislation – the administration of private justice between the citizens of the same State, the supervision of agriculture, and other concerns of a similar nature – can never be desirable cares of general Federal power.
Federal councils disposed to usurp and exercise these residual powers would find the task as troublesome as successful in negating those residual powers; and for this reason the possession of them would contribute nothing to the dignity, importance, or splendor of the national government or their persons. Even if I were to assume the existence base wantonness and lust of domination would beget such a disposition, the constituent body of the Congress – composed of representatives of all the States – would control the indulgence of so extravagant an appetite.
States Pose Greater Threats to Federal Power than Vice-Versa
The objection that the Federal government will become too powerful disregards that State governments can encroach upon the national authorities with greater ease than the national government can encroach upon the State authorities. A State government will generally possess a greater degree of influence over the People if it administers its affairs with uprightness and prudence.
* * *
Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition. The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.
* * *
Human affections are generally weaker in proportion to the distance or diffusiveness of the object. Just as one is more attached to family than to neighborhood, and to neighborhood than to the community at large, the People of each State would be apt to feel a stronger connection to their local governments than to the government of the United States (unless the latter has a much better administration). As a consequence, there is an inherent and intrinsic weakness in all federal constitutions, requiring detailed attention to their organization, in order to give them all the force compatible with the principles of liberty.
States Retain the Important Power and Control over the Ordinary Administration of Criminal and Civil Justice
While the diffusive construction of the Federal government partly contributes to the superiority of influence in favor of State governments, the chief cause of State superiority results from the nature of the objects to which the attention of the State administrations are directed. This strength of local administrations lies in their superintendence of minute interests, which form so many rivulets of influence, running through every part of the society, that they cannot be particularized without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is, however, one transcendent advantage belonging to the province of the State governments which alone suffices to place the matter in a clear and satisfactory light: the ordinary administration of criminal and civil justice, which is the most powerful, universal, and attractive source of popular obedience and attachment.
The administration of criminal and civil justice – being the immediate and visible guardian of life and property – has its benefits and its terrors in constant activity before the public eye. In regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, the administration of criminal and civil justice contributes more than any other circumstance to impressing upon the minds of the People affection, esteem, and reverence towards the government. This great cement of society, diffused almost wholly through the channels of local governments, and independently of all other causes of influence), ensure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise – and not infrequently – dangerous rivals to the power of the United States.
The Federal Government Will Have Less Impact on Daily Lives than State Governments
On the other hand, the operations of the Federal government fall less immediately under the observation of the mass of the citizens. The benefits of such operations will chiefly be perceived and attended to by speculative individuals. Since the Federal operations will relate to more general interests, they will be less apt to come home to the feelings of the People; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.
The Examples of the Feudal System and Scotland
The experience of all federal constitutions and analogous arrangements demonstrate exemplify these observations. For example, ancient feudal systems – although they were not, strictly speaking, confederacies – partook of the nature of that species of association.
There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons from whom they held it.
Each principal vassal was a kind of sovereign within the area he controlled. As a consequence there was a continual opposition to a general sovereign, resulting in frequent wars between the great barons or chief feudatories themselves. Since the power of the head of the nation was commonly too weak to preserve the public peace or protect the people against the oppressions of their immediate lords, feudal anarchy ensued.
When the sovereign happened to have a vigorous, warlike temper and superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority, but generally the power of the barons triumphed over the power of the prince. In many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons or nobles – being equally the enemies of the sovereign and the oppressors of the common people – were dreaded and detested by both. The mutual danger and mutual interest of the prince and the people effected a union between them fatal to the power of the aristocracy. Had the nobles preserved the fidelity and devotion of their retainers and followers by a conduct of clemency and justice, their contests with the prince would almost always have ended in their favor, with the abridgment or subversion of royal authority.
This assertion is not founded merely in speculation or conjecture, for the example of Scotland, among others, illustrates its truth. From that kingdom’s early days, the spirit of clanship united the nobles and their dependents as though they were kindred. These ties rendered the aristocracy a constant overmatch for the power of the monarch, until England subdued its fierce and ungovernable spirit, and subordinated it to a more rational and energetic system of civil polity.
States May Be Compared to Feudal Baronies
The separate governments in a confederacy may aptly be compared with feudal baronies. They will generally possess the confidence and goodwill of the People, and be disposed to oppose all encroachments of the national government. In fact, the States would tend to counteract the legitimate and necessary Federal authority. Both State and Federal governments would rival for power, but the State has large portions of the strength of the community concentrated into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies.
Hamilton
original Federalist 17 Federalist 18-20: Review of Confederacies throughout History
Federalist 18: Two Confederacies from Greece Offer Valuable Lessons to the United States
HERE I DISCUSS HISTORICAL CONFEDERACIES bearing closest resemblance to the former Confederation of the American States. I will discuss the German, Polish and Swiss confederacies in Federalist 19, and the confederacy of the United Netherlands in Federalist 20.
The Amphictyonic Council of Greece
The first instructive analogy is the confederacy of the Grecian republics of antiquity, associated under the Amphictyonic Council of Greece (“Council”). From the best accounts transmitted of this celebrated Council, its members retained the character of independent and sovereign states, and had equal votes in the Council. The Council had a general authority to propose and resolve whatever it judged necessary for the common welfare of the confederacy, to declare and carry on war, to decide all controversies between the members (including imposing fines on the aggressing party and employing the whole force of the confederacy against the disobedient), and to admit new members. The Amphictyons were the guardian of religion and the immense riches belonging to the temple of Delphos, over which they had the right of jurisdiction to decide controversies between the inhabitants and those who came to consult the oracle. To further the efficacy of the federal powers, a mutual oath was sworn to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple.
Both in theory and writing, this apparatus of powers seemed amply sufficient for all general purposes. In several material instances, though, the Council exceeded the powers enumerated in its articles of confederation. The Amphictyons had in their hands the superstition of the times – which was one of the principal engines by which their government was maintained. The Council also had a declared authority to use coercion against refractory cities, and the members were bound by oath to exert this authority on the necessary occasions.
The experiment proved very different from the theory. The Council’s powers were administered by deputies appointed by the cities wholly in their political capacities, and exercised over them in the same capacities. This error was the same one we experienced under our former Articles of Confederation. From this error, weakness and disorder ensued, finally destroying the confederacy. The more powerful members – instead of being kept in awe of and subordinate to the Council – tyrannized successively over all the other members. Athens was the arbiter of Greece for 73 years, followed by the Lacedaemonians, who governed for 29 years. After the battle of Leuctra, the Thebans had their turn of domination.
The deputies of the strongest cities awed and frequently corrupted those of the weaker cities. The members never acted in concert, even in the midst of defensive and dangerous wars with Persia and Macedon. Some deputies were eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes, convulsions, and carnage.
* * *
Had the Greeks been as wise as they were courageous, they would have availed themselves of the peace which followed their success against Persian arms to establish a closer union. Instead, Athens and Sparta – inflated with the victories and the glory they had acquired – first became rivals and then enemies, causing each other infinitely more mischief than they had suffered from Xerxes.
* * *
After the war with the Persians (led by Xerxes) concluded, the Lacedaemonians demanded that a number of the cities be turned out of the confederacy, for their wartime unfaithfulness. The Athenians saw that such a measure would lose them more allies than the Lacedaemonians, who would thereby become masters of the Council’s public deliberations. The Athenians thus vigorously opposed and defeated the attempt. This history proves not only the inefficiency of the union, but the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members – though entitled by the theory of their system to revolve in equal pride and majesty around the common center – had in fact become mere satellites of the orbs of primary magnitude.
Had the Greeks been as wise as they were courageous, they would have availed themselves of the peace which followed their success against Persian arms to establish a closer union. Instead, Athens and Sparta – inflated with the victories and the glory they had acquired – first became rivals and then enemies, causing each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries culminated with the celebrated Peloponnesian war, which itself ended in the ruin and slavery of the Athenians, who had started it.
Philip of Macedon’s Successful Scheme to Control the Amphictyonic Council
When not at war, a weak government is ever agitated by internal dissensions. These in turn never fail to bring on fresh calamities from abroad. For example, when the Phocians ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyon Council imposed a fine on the sacrilegious offenders. The Phocians – being abetted by Athens and Sparta – refused to submit to the decree. Other cities undertook to maintain the authority of the Council and avenge the violated god. Being weaker, they invited the assistance of Philip of Macedon. Unbeknownst to the Amphictyons, Philip had instigated the controversy. He gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities. By their influence and votes, he gained admission into the Council. By his arts and his arms, he made himself master of the Amphictyonic confederacy.
* * *
When not at war, a weak government is ever agitated by internal dissensions. These in turn never fail to bring on fresh calamities from abroad.
* * *
Such were the consequences of the principle on which this league was founded, and which opponents of our Constitution would have us follow, to a similar end. Had Greece been united by a stricter confederation – and persevered in her union – she would never have worn the chains of Macedon, and might have proved a barrier to the vast projects of Rome.
The Achaean League
Another society of Grecian republics – known as the Achaean league – supplies us with valuable instruction. That union was far more intimate, and its organization much wiser than in the Amphictyonic Council. The cities comprising the league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The cities were represented in a senate, which had the sole and exclusive right of declaring peace and war, sending and receiving ambassadors, and entering into treaties and alliances. The senate appointed a chief magistrate – or praetor, as he was called – who commanded their armies. With the advice and consent of 10 senators, the praetor administered the government while the senate was in recess, and when it was assembled, he had a great share in its deliberations. (Their constitution initially designated two praetors would administer the league, but on trial, this was reduced to one.)
The cities of the league apparently shared the same laws, customs, weights, measures, and money. When Lacedaemon was brought into the league by Philopoemen, the institutions and laws of Lycurgus of Sparta were abolished, and replaced with those of the Achaeans. Prior to its entry to the Achaean league, Lacedaemon had been a member of the Amphictyonic confederacy, which had left her in the full exercise of her government and legislation. This circumstance alone proves a very material difference in the genius of the two systems.
It is regrettable that only imperfect monuments remain of this curious political edifice. If one could ascertain its interior structure and regular operation, its would contribute much to the science of operating a federal government.
One important fact is known about the Achaean league: from its inception, through its renovation by Aratus, and prior to its dissolution by the arts of Macedon, there was infinitely more moderation and justice in the administration of its government – and less of violence and sedition in the people – than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. One of our contemporaries, the French philosopher Abbé de Mably, says the popular government caused no disorders within the members of the Achaean league because it was tempered by the general authority and laws of the confederacy.
Nevertheless, faction did agitate the particular cities to a certain degree, and a due subordination and harmony did not reign in the general system, which is sufficiently displayed in the vicissitudes and fate of the republic.
The Achaean league arose while the Amphictyonic confederacy remained, but comprehended the less important cities only, and made little figure on the theater of Greece. After the Amphictyonic confederacy became a victim to Macedon, the policies of Philip and Alexander spared the Achaean republic. The successors to these princes, however, practiced the arts of division among the Achaeans. Each city was seduced into a separate interest, and the union dissolved. Some of the cities fell under the tyranny of Macedonian garrisons, while others under the tyranny of usurpers springing out of their own confusions.
Before long, though, shame and oppression awakened the Achaean love of liberty. A few cities reunited, and others followed, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole of Peloponnesus. Macedon witnessed this progress, but was hindered from stopping it by internal dissensions. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy of Sparta and Athens to the rising glory of the Achaeans threw a fatal damp on the enterprise.
The dread of Macedonian power induced the Achaean league to court the alliance of the kings of Egypt and Syria, who as successors of Alexander were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, whose ambition led him to make an unprovoked attack on the neighboring Achaeans. Sparta, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of Achaean engagements with the league.
The Achaeans were now reduced to the dilemma of submitting to Cleomenes of Sparta, or of supplicating the aid of Macedon, its former oppressor to the north. The Achaeans chose the aid of Macedon, which was again pleased to intermeddle in the affairs of its southern neighbors. A Macedonian army quickly appeared, and Cleomenes was vanquished, but as so often happens, the Achaeans soon realized their victorious and powerful ally intended to be their master. Philip – now on the throne of Macedon – no more than tolerated Achaean laws, and the Achaeans were soon provoked by his tyrannies, which led to fresh combinations among the Greeks. Together with Aetolians and Athenians, the Achaeans erected the standard of opposition. Notwithstanding this new support, the Achaeans found themselves unequal to the undertaking. Once more the Achaeans resorted to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered, and Macedon subdued.
A new crisis to the Achaean league ensued when dissensions broke out among it members, which the Romans fostered. Inveigling their countrymen, popular leaders like Callicrates debased themselves to mere mercenary instruments of Rome. To nourish further the discord and disorder, the Romans proclaimed universal liberty throughout Greece. The Romans seduced members from the Achaean league by representing to their pride that league membership violated their sovereignty. By these arts the Achaean union – the last hope of Greece and the last hope of ancient liberty – was torn into pieces. Such imbecility and distraction were introduced that the arms of Rome found little difficulty in completing the ruin their arts had commenced. The Achaeans were cut to pieces and Achaia was loaded with chains, under which it still groans.
* * *
The Romans seduced members from the Achaean league by representing to their pride that league membership violated their sovereignty. By these arts the Achaean union – the last hope of Greece and the last hope of ancient liberty – was torn into pieces.
* * *
This important portion of history emphatically illustrates the tendency of federal bodies to induce anarchy among its members, than to impose tyranny from the head.
Madison and Hamilton
original Federalist 18 Federalist 19: Examination of the German, Polish and Swiss Confederacies
SEVERAL EUROPEAN CONFEDERATIONS OFFER more recent evidence than the examples of ancient confederacies discussed in Federalist 18.
Germany After Charlemagne
In the early ages of Christianity, Germany was occupied by seven distinct nations, none of which had a common chief. One of the seven – the Franks – conquered the Gauls and established the kingdom now known as France. In the ninth century, its warlike monarch – Charlemagne – carried his victorious arms in every direction, and Germany became a part of his vast dominions. His principal Germanic vassals, whose fiefs had become hereditary, were permitted to continue participation in their national political bodies.
Charlemagne possessed the ensigns, dignity and reality of imperial power, but his sons dismembered the empire, and Germany was erected into a separate and independent empire. Its leaders gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain them, or to preserve the unity and tranquility of the empire. Furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. Unable to maintain the public order, the imperial authority declined by degrees until it was almost extinct in the anarchy which ensued during the long interval between the death of the last emperor of the Swabian line, and the accession of the first emperor of the Austrian lines, which arose to the southeast of Germany. In the eleventh century the emperors enjoyed full sovereignty; but by the fifteenth they had little more than the symbols and decorations of power.
The Germanic Feudal System
Out of this feudal system (which itself has many of the important features of a confederacy) grew a federal system which constitutes the Germanic empire. Its powers are vested (1) in a formal deliberative assembly known as a diet, which represents the component members of the confederacy; (2) in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and (3) in the imperial chamber and the aulic council, the two judicial tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members.
Composition of the German Diet
The German diet possesses the general power of legislating for the empire, making war and peace, contracting alliances, assessing quotas of troops and money, constructing fortresses, regulating coin, admitting new members, and subjecting disobedient members to the ban of the empire by degrading his sovereign rights and forfeiting his possessions. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire, imposing tolls and duties on their mutual intercourse without the consent of the emperor and diet, altering the value of money, doing injustice to one another, or affording assistance or retreat to disturbers of the public peace. The ban applies to a violation of any of these restrictions. A member of the diet – in his capacity as a member – is subject in all cases to be judged by the emperor and diet. In his private capacity, jurisdiction over a member of the dirt vests in the aulic council and imperial chamber.
Powers of the German Emperor
The prerogatives of the emperor are numerous, the most important being his exclusive right to make propositions to the diet and veto its resolutions, name ambassadors, confer dignities and titles, fill vacant electorates, found universities, grant privileges not injurious to the states of the empire, receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. As emperor, he possesses no territory within the empire, nor receives any revenue for his support, but his powers still constitute him one of the most powerful princes in Europe.
The Germanic Feudal System in Practice
From this parade of constitutional powers, both in the representatives and head of this confederacy, one naturally would suppose it must form an exception to the general character which belongs to its kindred systems. Yet nothing would be further from reality. The fundamental principles on which it rests – the empire is a community of sovereigns, the diet is a representation of those sovereigns, and the laws are addressed to sovereigns – renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.
* * *
The history of Germany is a history of wars – wars between the emperor and the princes and states, and wars among the princes and states themselves – of the licentiousness of the strong and the oppression of the weak, of foreign intrusions and foreign intrigues, of requisitions of men and money disregarded in whole or in part, of attempts to enforce them which are either altogether abortive or attended with slaughter and desolation of the innocent along with the guilty, and of general imbecility, confusion, and misery.
* * *
War in Germany
The history of Germany is a history of wars – wars between the emperor and the princes and states, and wars among the princes and states themselves – of the licentiousness of the strong and the oppression of the weak, of foreign intrusions and foreign intrigues, of requisitions of men and money disregarded in whole or in part, of attempts to enforce them which are either altogether abortive or attended with slaughter and desolation of the innocent along with the guilty, and of general imbecility, confusion, and misery.
In the sixteenth century, for example, the emperor, with one part of the empire on his side, was engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight and very near made a prisoner by the elector of Saxony. A king of Prussia was more than once pitted against his imperial sovereign, and commonly proved an overmatch for him. Controversies and wars among the members themselves were so common that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor (with one half of the empire) was on one side, and Sweden (with the other half) on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution.
German Disunity Is the Norm
Even if Germany happens to be more united by the emergency of self-defense, its situation remains deplorable. Military preparations require tedious discussions arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies. Before the diet can settle arrangements, the enemy is in the field, and before the federal troops are ready to take the field, they are retiring into winter quarters. The small body of national troops – deemed necessary in time of peace – is not kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.
The impossibility of maintaining order and dispensing justice among these sovereign subjects has produced the experiment of dividing the empire into nine or ten circles or districts, giving each an interior organization, and charging them with the military execution of the laws against delinquent and contumacious members. This experiment has served only to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters, and then they increase the mischief which they were instituted to remedy.
The Example of the Duchy of Swabia
The scheme of military coercion is shown by the example of Donauwörth, a free and imperial city of the circle of Swabia, where its leader enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion (as he had secretly intended from the beginning), he revived an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory. The duke took possession of the city in his own name, then disarmed and punished the inhabitants, and reannexed the city to his domains.
The Emperor Has Kept Germany Together
One might inquire: What has so long kept this disjointed machine from falling entirely to pieces? The answers are obvious: most of the members are weak and unwilling to expose themselves to the mercy of foreign powers; most of the principal members also are weak in comparison to the formidable powers all around them; the vast weight and influence the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe.
* * *
Foreign nations have long been interested in the events shaping Germany, occasionally even betraying their policy of perpetuating Germany’s anarchy and weakness.
* * *
All these causes support a feeble and precarious union. The principle of competing dual sovereignty continually repels the members from each other, and prevents any reform to be had with a proper consolidation. Even if a local sovereign chose to yield some sovereign powers to a central sovereign, it is unimaginable that the neighboring powers would suffer the revolution to their sovereignty if the empire were give the force and preeminence to which it is entitled.
Foreign nations have long been interested in the events shaping Germany, occasionally even betraying their policy of perpetuating Germany’s anarchy and weakness.
The Example of Poland
If another example were needed of the calamities befalling central governments attempting to control local sovereigns, Poland provides striking proof. This nation has found itself equally unfit for self-government and for self-defense – and long been at the mercy of its powerful neighbors, who recently annexed one third of its people and territories.
The Swiss Confederacy
Sometimes the Swiss cantons are cited as an instance of the stability of a confederacy, although it scarcely amounts to one. They have neither common treasury, common troops (even in war), common coin, common judicatory, nor any other common mark of sovereignty.
The cantons are kept together by a catalogue of unusual circumstances, including the peculiarity of their topographical locations, their individual weakness and insignificancy, and their fear of powerful neighbors. There are few sources of contention among the simple and homogeneous people. They have a joint interest in their dependent possessions, and the mutual aid they offer and require for suppressing insurrections and rebellions. Further, there is need of some regular and permanent provision for accommodating disputes among the cantons.
In such a dispute, the parties at variance each chooses four judges out of the neutral cantons, who (in case of disagreement) choose an umpire. This tribunal – under an oath of impartiality – pronounces a definitive sentence, which all the cantons are bound to enforce.
Whatever efficacy the Swiss union may have had in ordinary cases, it appears the moment a cause of difference sprang up – capable of trying its strength – it failed. The controversies on the subject of religion have in three instances kindled violent and bloody contests and eventually severed the league. Thereafter the Protestant and Catholic cantons have had their separate diets, where all the most important concerns are adjusted, leaving to the general diet little other than commercial proceedings.
The separation of the cantons had another consequence meriting attention: it produced opposite alliances with foreign powers. Bern, at the head of the Protestant association, aligned with the United Provinces, while Lucerne, at the head of the Catholic association, sided with France.
Hamilton with the assistance of Madison
original Federalist 19 Federalist 20: The Confederacy of the United Netherlands
THE FINAL CONFEDERATION resembling the United States is the present-day United Netherlands. Its contemporary lessons confirm those derived from those confederacies we have already reviewed.
United Netherlands
United Netherlands is a confederacy of republics (or more precisely aristocracies) consisting of seven coequal and sovereign states. Each state (or province) is composed of equal and independent cities. The union requires that the states to be unanimous, and in important cases, the cities also must be unanimous. The sovereignty of the union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. Some hold their seats for life, others for six, three, or one year terms, and in two provinces their appointment is at will.
The Legislative Authority in the United Netherlands
The States-General has authority to enter into treaties and alliances, make war and peace, raise armies and equip fleets, ascertain quotas, and demand contributions. In all these cases, unanimity and the sanction of their lesser constituents are requisite. The States-General also has authority to appoint and receive ambassadors, execute treaties and alliances already formed, provide for the collection of duties on imports and exports, regulate the mint, and to govern as sovereigns their dependent territories. Unless given general consent, the provinces are restrained from entering into foreign treaties, establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. The federal administration is aided and fortified by a council of state and a chamber of accounts, with five colleges of admiralty.
The Executive Authority in the United Netherlands
The executive magistrate of the union is the stadtholder, who is now a hereditary prince. His weight and influence in the republic are derived in part from this independent title, his great patrimonial estates, and his family connections with some of the chief potentates of Europe. Perhaps most important, however, is his status as stadtholder in the several provinces. As provincial stadtholder, he appoints town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and controls the power of pardon.
His prerogatives as stadtholder of the union are also considerable. In his political capacity, he has authority to settle disputes between the provinces when other methods fail, assist at the deliberations of the States-General and their particular conferences, give audiences to foreign ambassadors, and keep agents for his particular affairs at foreign courts.
In his military capacity, he commands the federal troops, provides for garrisons, disposes of all appointments from colonel to ensign, selects the governments and posts of fortified towns, and generally regulates military affairs.
In his marine capacity (as admiral-general), he superintends and directs everything relative to naval forces and other naval affairs, presides in the admiralties in person or by proxy, appoints lieutenant-admirals and other officers, and establishes councils of war, whose sentences are not executed until he approves them.
His revenue (exclusive of his private income) amounts to 300,000 florins. The standing army which he commands consists of about 40,000 men.
The United Netherlands in Practice
Such is the nature of the celebrated union on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces, foreign influence and indignities, a precarious existence in peace, and peculiar calamities from war.
The esteemed Dutch jurist Hugo Grotius remarked long ago that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution. Another respectable writer observed the union reposes in the States-General an authority seemingly sufficient to secure harmony, but that the practice is very different from the theory due to the jealousies in each province. The same instrument, says another, obliges each province to levy certain contributions, but that this article will probably never be executed because the inland provinces cannot pay an equal quota on account of insufficient commerce.
It is the practice to waive the articles of the constitution in matters of contribution. The danger of delay obliges the consenting provinces to furnish their quotas without waiting for the others, and then to obtain reimbursement from the others by deputations (which are frequent) or otherwise, as they can. The great wealth and influence of the province of Holland has enabled her to do both. More than once were the deficiencies ultimately collected at the point of the bayonet. This is only possible in a confederacy where the force of one of the members exceeds all the rest, and where several of them are too small to meditate resistance. It is utterly impracticable in a confederacy in which several of the members are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense.
Foreign ministers, says Sir William Temple (who was himself a foreign minister), elude matters subject to finalization of details, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious.
* * *
Tyranny more often grows out of the demand for and assumption of power not authorized by a constitution – usually to respond to a pressing exigency – than from the full exercise of the largest constitutional authorities.
* * *
In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648 – by which their independence was formerly and finally recognized – was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the States-General departed from the constitutional principle of unanimity.
A weak constitution necessarily terminates in dissolution, either from want of proper powers, or usurpation of the powers requisite for the public safety. Whether the usurpation of powers – when once begun – will stop at the salutary point, or go forward to the dangerous extreme, depends on the contingencies of the moment. Tyranny more often grows out of the demand for and assumption of power not authorized by a constitution – usually to respond to a pressing exigency – than from the full exercise of the largest constitutional authorities.
The calamities just discussed have been produced as well as ameliorated by the stadtholdership. Without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. “Under such a government,” says the Abbé de Mably, “the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder.” During intermissions of the of the stadtholdership, Sir William Temple reports, Holland assumed the role “by her riches and her authority, which drew the others into a sort of dependence.”
In addition to the stadtholder, the strength of the surrounding powers has lessened the tendency to anarchy and dissolution, and practically imposed an absolute necessity of union. At the same time, by their intrigues these powers nourish the constitutional vices which keep the republic in some degree always at their mercy.
The true patriots of the United Netherlands have long bewailed the fatal tendency of these vices and sought to remedy them. They conceived a design to establish a general tax to be administered by the federal authority, but its adversaries defeated it. In no less than four instances, these patriots convened extraordinary assemblies for the special purpose of reforming the known, acknowledged, and fatal evils of the existing constitution. In as many instances has their laudable zeal found it impossible to unite the public councils.
* * *
Experience is the oracle of truth. Where its responses are unequivocal, they ought to be conclusive and sacred. The important truths history unequivocally pronounces in the present case are these:
a sovereignty over sovereigns,
a government over governments,
and a legislation for communities
– as contrdistinguished from legislation for individuals –
are subversive of the order and ends of civil polity. Ultimately they substitute violence in place of law.
* * *
These unhappy people seem to be now suffering from popular convulsions, dissensions among the states, and the actual invasion of foreign arms – which are crises destined by their defective constitution. All nations have their eyes fixed on the awful spectacle. The first wish of humanity is this severe trial will cause such a revolution of their government so as to establish a union that will be the parent of tranquility, freedom, and happiness. The next wish is the asylum under which the enjoyment of these blessings will speedily be secured in this country, to receive and console them for the catastrophe of their own. The melancholy lesson of the United Netherlands causes a tear to drop for the calamities brought on mankind by their adverse opinions and selfish passions. In contrast, we are grateful for the propitious concord which distinguished the consultations for political happiness our own representatives recently concluded.
The Laws of a Federal Government Must Be Directed Towards Its Citizens as Individuals
I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth. Where its responses are unequivocal, they ought to be conclusive and sacred. The important truths history unequivocally pronounces in the present case are these: a sovereignty over sovereigns, a government over governments, and legislation for communities – as contradistinguished from legislation for individuals – are subversive of the order and ends of civil polity. Ultimately they substitute violence in place of law. To replace the destructive coercion of the sword with the mild and salutary coercion of the magistracy, the objects of the powers of the sovereign government must be individuals, not fellow sovereigns, governments, or communities.
Madison with the assistance of Hamilton
original Federalist 20 Federalist 21 -23: The Articles of Confederation Were Inadequate
Federalist 21: Summary of the Defects of the Articles of Confederation
HAVING REVIEWED THE PRINCIPAL CIRCUMSTANCES and events which depict the genius and fate of other confederate governments – most notably the lack of federal sovereignty over individuals rather than states (in Federalist 18-20) – I shall now enumerate the most important of those defects which have hitherto disappointed our hopes from the system we established among ourselves. It is absolutely necessary that we should be well acquainted with the extent and malignity of the disease in order to form a safe and satisfactory judgment of the proper remedy.
The Federal Government Must Have Authority to Enforce Its Laws
A palpable defect of the Confederation was the total want of a sanction to its laws. The Confederation had no powers to exact obedience – or to punish disobedience – to its resolutions, whether by fines or taxes, suspension or divestiture of privileges, or any other constitutional mode. There was no express delegation of authority to use force against delinquent States, and inferring one would have required a construction that would have justified departure from second article of Confederation, which declared “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.”
We had either to contravene or explain away this provision or to embrace the absurdity that the Federal government had no right to compel obedience or sanction disobedience to its laws. If we were unwilling to impair the force of this provision, the United States would have presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. Even those defective republics I examined in the preceding three papers were not so destitute of power.
The Federal Government Must Have the Power to Guarantee State Governments
Another principal imperfection in the Articles of Confederation was the want of a Federal guarantee of the State governments. The Articles declared nothing of its kind. To have implied a tacit guarantee (from considerations of utility) would have marked a flagrant departure from the clause declaring “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.” An implied guarantee also would improperly imply a tacit power of coercion from like considerations.
Absent such a guarantee, the United States could provide no assistance in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions. Usurpers might rear their crests in each State, and trample upon the liberties of the People, while the Federal government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Federal government to the friends and supporters of the State government.
* * *
In a popular (representative) constitution, the natural cure for ill administration is a change of leaders. So long as the whole power of the government remains in the hands of the People, there seldom should be either need or pretense for the use of violent remedies in partial or occasional distempers of the state.
* * *
Dangers of this kind are not merely speculative, as evidenced recently by the tempestuous Shays’s rebellion in Massachusetts. Who can determine what might have been the issue of her late convulsions if the malcontents had been headed by a Caesar or a Cromwell? Who could predict what effect a despotism established in Massachusetts would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?
Some have objected (out of inordinate pride) to the principle of a guarantee in the Federal government, on the ground it officiously interferes in State domestic concerns. The objection misapprehends the nature of the provision itself, and would deprive us of one of the principal advantages of a Federal government.
The guarantee would only operate against changes to be effected by violence. The right to reform State constitutions and governments by a majority of the People in a legal and peaceable mode would remain undiminished.
In a popular (representative) constitution, the natural cure for ill administration is a change of leaders. So long as the whole power of the government remains in the hands of the People, there seldom should be either need or pretense for the use of violent remedies in partial or occasional distempers of the state. Since the peace of society and the stability of government depend absolutely on efficacious precautions against violent reforms, too many checks cannot be provided towards prevention such calamities. A guarantee by the Federal government is one such necessary check. Furthermore, this check equally would apply against the usurpations of rulers as against the ferments and outrages of faction and sedition in a State.
Demanding Quotas from State Governments Has Proven Ineffectual
Another fundamental error of the Confederation was the use of quotas to regulate State contributions to the common treasury. The trial we made of them sufficiently showed the repugnancy of quotas to an adequate treasury in cases of national exigency.
There is no common standard (or barometer) by which the degrees of national wealth can be ascertained. Neither the value of land nor the number of the people is a just representative. If I compare the wealth of the United Netherlands with that of Russia, Germany, or France – and if I at the same time compare the total value of the lands and the aggregate population of the small confederacy of the United Netherlands with the total value of the lands and the aggregate population of the immense regions of either Russia, Germany, or France – we shall at once discover there is no comparison between the proportion of land values or populations and the relative wealth of those nations.
If the like parallel were to be run between several of the American States, it would furnish a like result. If Virginia is contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, we would see the respective abilities of those States (in relation to revenue) bear little or no analogy to their comparative stock in lands or to their comparative population. The position also is illustrated by a similar process between the counties within the same State. No one acquainted with the State of New York doubts the active wealth of King’s County in lower Manhattan is greater than that of Montgomery County, which is north of Albany. The disparity equally would appear if I should use either the total value of the lands or the total number of the people of these counties as a criterion.
The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The clear consequence is there can be no common measure of national wealth, and no general or stationary rule by which the ability of a State to pay taxes can be determined. The attempt to regulate the contributions of the members of a confederacy by any such rule cannot fail to produce glaring inequality and extreme oppression.
The Innate Inequality Caused Federal Requisitions Would Dismember the United States
Even assuming a mode of enforcing compliance with requisitions of the Federal government could be devised, the resulting inequality would itself be sufficient to work the eventual destruction of the United States. The suffering states would not long remain associated upon a principle which impoverishes and oppresses its citizens, while leaving others scarcely conscious of the small proportion of the weight they were required to sustain. This evil is inseparable from the principle of quotas and requisitions.
The Federal Government Must Be Empowered to Raise Its Own Revenue
The only method to steer clear of this inconvenience is to authorize the Federal government to raise its own revenues in its own way. Imposts, excises, and generally all duties upon articles of consumption will in time reach a balance with the means of paying them. In some degree, each citizen will have the option to regulate his contribution, by an attention to his resources. The rich may be extravagant, the poor frugal, or the reverse. Private oppression may always be avoided by a judicious selection of the objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, in all probability these will be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium – as far as it is attainable in so complicated a subject – will be established everywhere. To the extent inequalities should still exist, they would be less in degree, operation, and appearance than those which necessarily spring from quotas, upon any scale devised.
* * *
As the saying goes, “in political arithmetic, two and two do not always make four.” Applied to taxes on consumption, the saying is as just as it is witty.
* * *
Taxes on articles of consumption contain in their own nature the signal advantage of being a security against excess. They prescribe their own limit, which cannot be exceeded without defeating the end of increasing the tax revenue. If duties are too high, they lessen consumption, and hence collections. The product to the treasury is less than when the taxes are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class. The barrier is itself a natural limitation on the power of imposing taxes. As the saying goes, “in political arithmetic, two and two do not always make four.” Applied to taxes on consumption, the saying is as just as it is witty.
* * *
Taxes on articles of consumption contain in their own nature the advantage of being a security against excess. They prescribe their own limit, which cannot be exceeded without defeating the end of increasing the tax revenue.
* * *
Impositions of this kind are usually denominated indirect taxes. For the foreseeable future, indirect taxes must constitute the chief part of the revenue raised in the United States. Taxes of the direct kind principally relate to the value of land and buildings. These direct taxes may be apportioned based on either the value of land or the number of the people. The value of land and the populousness of a country are closely connected with each other. Simplicity and certainty give a preference to taxation based on population. It is a herculean task to obtain a valuation of the land in any country. In a country imperfectly settled and progressive in improvement – like the United States – the difficulties are increased almost to impracticability. An additional and formidable objection to the undertaking is the expense of an accurate valuation. Finally, there are no natural limits on the discretionary valuation of lands and buildings. It is better to establish a fixed rule (attended with fewer inconveniences) based on population, than to leave the discretion to tax land and buildings altogether at large.
Hamilton
original Federalist 21 Federalist 22: The Need for a Power to Regulate Commerce, a National Court of Last Resort, and the Consent of a Majority of the People
IN ADDITION TO THE DEFECTS already enumerated concerning the Federal system under the Articles of Confederation, others of equal importance concur in rendering it altogether unfit for the administration of the affairs of the United States.
The Power to Regulate Commerce Is Indispensable
All agreed that a principal defect of the Articles of Confederation was the absence of a Federal power to regulate commerce. No objects more strongly demand a Federal superintendence than trade and finance. The absence of a Federal power to regulate commerce prevented formation of beneficial treaties with foreign powers and caused dissatisfaction between States. No nation acquainted with the Confederation was unwise enough to agree to concede privileges of any importance, since these engagements could at any moment be violated by the individual States comprising it. Experience has shown other nations they can enjoy every advantage they desire in our markets without granting us any return except what their momentary convenience might suggest. For instance, Great Britain consistently limited itself to temporary trade measures with us – and would have continued doing so – until it appeared to them that our government was likely to acquire a greater consistency.
Several States have endeavored to influence trade with Britain through the use of prohibitions, restrictions, and exclusions. All such efforts were frustrated, due either to the lack of concerted action among the States, or from clashing and dissimilar views within an individual State. These obstacles would remain unless there arose a general Federal authority to regulate commerce.
Some States (through regulation) had interfered with and been unneighborly to other States, contrary to a spirit of union. Their regulations gave just cause of umbrage for complaint. Examples of this nature, unless restrained by the Federal government, likely would have multiplied and extended until they become injurious impediments to trade between different parts of the confederacy Consider Germany, where commerce is continually trammeled due to the multiplicity of duties the several princes and states exact upon the merchandises passing through their territories, thus rendering its fine streams and navigable rivers almost useless. One would hope the genius of our People will never permit this description to be strictly applicable to us. However, we may have reasonably expected the gradual conflicts of State regulation would at length have cause the citizens of each State to be considered and treated by the others no better than as foreigners and aliens.
Quota Systems for the Supply of Troops During the Revolutionary War Were Erratic and Unreliable
Under the Articles of Confederation, the power of raising armies was merely a power of making requisitions upon the States for quotas of men. During the Revolutionary War, this practice obstructed a vigorous and economical system of defense. The States set up bounties for enlistment and competed with each other for recruits. The result was an auction for men, with States outbidding each other until the bounties grew to be enormous and insupportable. Even those predisposed to serve procrastinated their enlistment, in the hope of a further increase. The levies of men were slow and scanty even in the most critical times. Short enlistments were had at unparalleled expense. The continual fluctuations in troops was ruinous to their discipline, and frequently subjected the public safety to the perilous crisis of a disbanded army. Irregular enlistment also led to the use of oppressive expedients for raising men, which nothing but the enthusiasm of liberty would have induced the People to endure.
A quota system of raising troops also resulted in an unequal distribution of the burden. The States near the seat of war – influenced by motives of self-preservation – made efforts to furnish their quotas in excess of their abilities. Those States at a distance from danger were generally as remiss in their exertions as the others were diligent. The inequality in the supply of men was aided by the unlikelihood of a penalty at war’s end. At least with contributions of money, States which did not pay their proportions might be charged with their deficiencies. No account could be formed of the deficiencies in the supplies of men. And we have seen there is little prospect the most delinquent States will ever be able to make compensation for their pecuniary failures. In short, the system of quotas and requisitions – whether applied to men or money – was a system of imbecility in the Union, and of inequality and injustice among the States.
The Articles Gave Smaller States Undue Influence in the National Council
Another defect in the Articles was the right of equal suffrage among the States. It gave Rhode Island or Delaware an equal weight in the scale of power with Massachusetts, New York, or Virginia. Equal suffrage among the States contradicts every idea of proportion and every rule of fair representation. It also is contrary to the fundamental maxim of republican (representative) government that the majority should prevail.
* * *
In situations where more than a majority is required for a decision, the minority is given a negative upon the majority. The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison.
* * *
Some argued that sovereigns are equal, and a majority of the votes of the States was a majority of confederated America. This kind of logical legerdemain will never counteract justice and common sense. Sometimes a majority of States constitutes a small minority of the People of America. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of States, but they do not contain one third of its citizens. Artificial distinctions and syllogistic subtleties will not long persuade two thirds of the People of America to submit their interests to the management and disposal of one third. The love of power will not acquiesce in such a privation. The desire for equality also would abhor the sacrifice of power. After a while, the larger States would revolt from the idea of receiving the law from the smaller. The smaller States – whose safety and welfare depend on union – ought readily to renounce a pretension which would prove fatal to its duration.
But this is not all. In situations where more than a majority is required for a decision, the minority is given a negative upon the majority. The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison. By the nonattendance of a few States delegations, a single vote has been sufficient to stop all movement in Congress. A sixtieth part of the Union – about the proportion of Delaware or Rhode Island – has several times been able to impose an entire bar to the operations of Congress.
Requiring Unanimity Magnifies the Influence of the Minority
The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority. Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.
In the emergencies of a nation, there is commonly a necessity for action. In such times, the strength or weakness of the government is most apparent, and of greatest importance. The public business must go forward in some way or another. If a rigid minority can control the opinion of a majority respecting the best mode of conducting the public business, the majority must conform to the views of the minority, in order that something may be done. The sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. This results in tedious delays, continual negotiations and intrigues, and contemptible compromises of the public good. On some occasions, a recalcitrant minority will refuse any accommodation, keeping the government in a state of inaction due to the impracticability of obtaining the concurrence of the necessary number of votes. The measures of government are thus injuriously suspended or fatally defeated. The situation savors of weakness, and sometimes borders on anarchy.
* * *
The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority. Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.
* * *
Requiring More than a Majority Also Magnifies the Influence of the Minority
Some mistakenly presume that a vote requiring more than a majority would lessen the effects of foreign corruption and domestic faction. This mistake proceeds from overlooking or ignoring the mischiefs occasioned by obstructing the progress of government at certain critical seasons. Some are apt to assume all is safe with a higher vote threshold, reasoning that nothing improper will be done. Yet we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing of what may be necessary. Such conduct keeps our affairs in the same unfavorable posture in which happen to stand at particular periods.
Provisions Requiring More than a Majority Make Corruption Easier
Suppose we and a foreign nation were engaged in a war against a third nation. Suppose the necessity of our situation demanded peace, but the interest or ambition of our ally led it to continue prosecution of the war. Suppose finally that our ally’s views justified us to make separate terms with the third nation. In such a state of things, this ally of ours would find it much easier – by bribes and intrigues – to tie the hands of government where a two-thirds vote was required, than where a simple majority would suffice. In the case of a two-thirds requirement, our ally would have to corrupt a smaller number forestall action. If a simple majority could act, our ally would have to corrupt a larger number. For the same reasons, a foreign enemy could perplex our councils and embarrass our exertions with less effort.
The same inconveniences would inure in the commercial sphere. If more than a majority vote is required, a nation with which we might enter a treaty of commerce could more easily prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.
These evils are not imaginary. One weakness of republics is they afford too easy an inlet to foreign corruption. Even a hereditary monarch – including one disposed to sacrifice his subjects to his ambition – has a great a personal interest in the continuance of the government and the external glory of the nation. Few foreign powers would be able to offer the monarch an equivalent for what he or she would sacrifice by treachery to the State. The world has accordingly been witness to few examples of this species of royal prostitution, although there have been abundant specimens of every other kind.
In republics, persons elevated by their fellow citizens to stations of great preeminence and power may find compensations for betraying their trust. To any but minds animated and guided by superior virtue, such betrayals may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalence of foreign corruption in republican governments. I have already delineated how much this contributed to the ruin of the ancient commonwealths. In modern times, it is well known that the deputies of the United Provinces have been purchased by the emissaries of the neighboring kingdoms in various instances. In a letter to his court, the Earl of Chesterfield intimated his success in an important negotiation depended on obtaining a major’s commission for one of those deputies. And in Sweden the parties were alternately bought by France and England. The purchase was so barefaced and notorious it excited universal disgust in the nation, and was a principal cause by which its limited monarch became one of Europe’s most absolute and uncontrolled in a single day, without tumult, violence, or opposition.
* * *
In order to avoid the confusion that unavoidably results from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.
* * *
A Supreme Judicial Tribunal Is Essential
The crowning defect of our Confederation was the want of a judiciary. Laws are a dead letter without courts to expound and define their true meaning and operation. For instance, the treaties of the United States must be considered as part of the law of the land if they are to have any force at all. Like all other laws, the true import of such treaties – with respect to individuals – must be ascertained by judicial determinations. To produce uniformity in these determinations, in the last resort they ought to be submitted to one supreme tribunal. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. Both ingredients are indispensable.
If State courts of final resort were granted authority to have the last word on questions of Federal law, there may be as many different final determinations on the same point as there are courts, owing to the endless diversities in the opinions of judges. How often have we seen different courts (including different judges of the same court) differing from each other? In order to avoid the confusion that unavoidably results from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.
This is the more necessary due to the sheer number of State governments that could allow the laws of the parts to contravene the laws of the whole. Under the Articles of Confederation, the treaties of the United States were liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. Nothing is more natural to individuals holding office than to look with peculiar deference towards that authority to which they owe their official existence. There would be much to fear from the bias of local views and prejudices and the interference of local regulations if State tribunals were invested with a right of ultimate jurisdiction on the general laws and treaties of the United States. As frequently as permitted, the interference of particular local laws might be preferred to those of the general laws. The faith, reputation, and peace of the United States would be continually at the mercy of the prejudices, passions, and interests of every State. Is it possible foreign nations would neither respect nor confide in such a government? Is it also possible the People of America would any longer consent to entrust their honor, happiness, and safety to a government constructed on so precarious a foundation?
My review of the Confederation has confined itself the most material defects. Individuals who reflected (divesting themselves of preconceived opinions) believed the former Articles Confederation were so radically vicious and unsound that no amendment could save them, and that an entire change in its leading features and characters was required.
* * *
The fabric of American empire ought to rest on the solid basis of the consent of the People. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.
* * *
The organization of the Congress under the Articles was utterly inadequate for the exercise of those powers necessary to be deposited in a union of the States. While this single assembly may have been a proper receptacle of those limited authorities heretofore delegated to the Federal head, it would be inconsistent with all of the principles of good government to entrust it with those additional powers which ought to reside in the government of the United States. If we had retained that structure, and merely conferred supplementary powers upon Congress, one of two outcomes was likely: (1) either the enfeebled structure would have mouldered into pieces despite our ill-judged efforts to prop it up, or (2) by successive augmentations of its force and energy, we would have finally have accumulated – in a single body – all of the most important prerogatives of sovereignty, and thus entailed upon our posterity one of the most execrable forms of government human infatuation ever contrived. We would have created that very tyranny the adversaries of the new Constitution either are (or affect to be) solicitous to avert.
The Consent of the People Is the Fountainhead of Legitimate Authority
A final infirmity of the Federal system under the Articles of Confederation was that it was never ratified by the People. It rested on no better foundation than the consent of State legislatures. It was has been exposed to frequent and intricate questions concerning the validity of its powers, which have given birth to the doctrine of the right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. This theory contended that since ratification was based on the law of a State, the same authority may repeal the law by which it was ratified. The possibility of a question of this nature could arise proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the People. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.
Hamilton
original Federalist 22 Federalist 23: The Necessity of an Energetic Federal Government to Preserve the United States
WE ARE NOW ARRIVED at the point of examining the necessity of a Constitution energetic enough to preserve the United States. This inquiry will naturally divide itself into three branches: (1) the principal objects of the Federal government, (2) the quantity of power necessary to accomplish those objects, and (3) the persons upon whom that power ought to operate.
The principal objects of the Federal government are these: (1) the common defense of the States; (2) the preservation of the public peace against internal convulsions as well as external attacks; (3) the regulation of commerce with other nations and between the States; and (4) the superintendence of our political and commercial intercourse with foreign countries.
The Common Defense of the States
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; and to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.
The circumstances which can endanger the safety of nations are infinite. For this reason, it is unwise to impose constitutional shackles on the power to respond to these circumstances. The power must be coextensive with all of the possible combinations of circumstances, and ought to be under the direction of the same councils which are appointed to preside over the common defense.
To an unprejudiced mind, this truth carries its own evidence along with it. The truth may be obscured, but neither argument nor reasoning can make it plainer, for it rests on axioms as simple as they are universal: the means ought to be proportioned to the end, and the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained.
* * *
The principal objects of the Federal government are these:
(1) the common defense of the States;
(2) the preservation of the public peace against internal convulsions as well as external attacks;
(3) the regulation of commerce with other nations and between the States; and
(4) the superintendence of our political and commercial intercourse with foreign countries.
* * *
Whether there ought to be a Federal government entrusted with the care of the common defense was a question that was open for discussion in the first instance. But once decided in the affirmative, it necessarily follows that the Federal government ought to be clothed with all the powers requisite to complete execution of its trust. And in the absence of proof that the power to protect public safety can be reduced to certain determinate limits, it must be admitted that no limit can exist on the authority to provide for the defense and protection of the community – in any matter essential to its efficacy, that is, in any matter essential to the formation, direction, or support of the national forces.
The Articles of Confederation Recognized Broad Federal Powers Were Needed
The care of the common defense was fully recognized by the framers of the Articles of Confederation, although they did not make a proper or adequate provision for its exercise. The powers granted to the Congress included an unlimited discretion to make requisitions of men and money, to govern the army and navy, and to direct their operations. Congressional requisitions were constitutionally binding upon the States, which were under the most solemn obligations to furnish the supplies required of them. The evident intention of the Congress was that the Congress could command whatever resources it judged requisite to the “common defense and general welfare.” The framers of the Articles of Confederation presumed that the sense of a State as to true interests – and a regard to the dictates of good faith – would be sufficient pledges for the punctual performance of the duties of the States to the national government.
The experiment proved this expectation was ill-founded and illusory, as quotas failed. Impartial and discerning readers of Federalist 21 and Federalist 22 were shown the absolute necessity for an entire change in the first principles of our former system. In order to give the Federal government energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities, and instead extend the laws of the Federal government to the individual citizens of America. We must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The United States must be invested with full power to levy troops, build and equip fleets, and raise the revenues required for the formation and support of an army and navy in the customary and ordinary modes practiced in other governments.
Once the members of the Constitutional Convention decided the circumstances of our country demand a compound government, not a simple one, it became essential to discriminate the objects which shall appertain to the different departments (or provinces) of power, and granting to each the most ample authority for fulfilling those objects.
A few issues will illustrate the manner of analysis used at the Convention. For instance, shall the Federal government be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? Should the Federal government be empowered to pass all laws, and to make all regulations which have relation to them? If so, the same must be the case in respect to commerce and every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State more properly the department of the local governments? If so, the States must possess all the authorities connected with this object, along with every other that may be allotted to their cognizance and direction. A policy that fails to confer in each case a degree of power commensurate to the end would violate the most obvious rules of prudence and propriety, and entrust the great interests of the nation to hands which are disabled from managing them with vigor and success.
* * *
A government whose constitution renders it unfit to be entrusted with all the powers a free people ought to delegate to it would be an unsafe and improper depositary of the national interests. However, once these powers are properly delegated, coincident powers may safely accompany them.
* * *
The Federal Government Must Have the Power and the Means to Provide for a Common Defense
There is a manifest inconsistency in devolving upon the Federal government the care of the general defense, but leaving in State governments the powers to provide for it. The Federal government will make the most suitable provisions for the public defense, since it will be the body to which the guardianship of the public safety is confided. It will be the center of information, and will best understand the extent and urgency of the dangers that threaten. As it will be the representative of the whole, it will feel itself most deeply interested in the preservation of every part. The responsibility implied from the duty assigned to it will most sensibly demand the necessity of proper exertions. By the extension of its authority throughout the States, it alone can establish uniformity and concert in the plans and measures to secure the common safety. To leave the State governments in control of the powers of providing for a defense will infallibly lead to a want of cooperation between the Federal and State governments, and among the separate State governments. Its natural and inevitable concomitants will be weakness, disorder, undue distribution of the burdens and calamities of war, and an unnecessary and intolerable increase of expense. We had unequivocal experience of these detrimental effects in the course of the Revolutionary War.
Every view we take of the subject convinces us it is both unwise and dangerous to deny to the Federal government an unconfined authority over those objects entrusted to its management. (Of course, a most vigilant and careful attention of the structure of the Federal government is deserved to see it be modeled in such a manner as to admit of its being safely vested with the requisite powers.)
A government whose constitution renders it unfit to be entrusted with all of the powers a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. However, once these powers are properly delegated, coincident powers may safely accompany them.
The adversaries of the Constitution failed to confine themselves to showing the internal structure of the Federal government rendered it unworthy of the confidence of the People. Instead they wandered into inflammatory declamations and senseless objections to the powers conferred. The powers granted are not too extensive for the objects of Federal administration, namely, the management of our national interests.
Hamilton
original Federalist 23 Federalist 24-29: Federal Power to Create and Maintain Military Forces
Federalist 24: The Objections to a Standing Army Are Illusory
THE ONLY SPECIFIC OBJECTION raised with respect to the powers to be conferred upon the Federal government concerning the creation and direction of the national forces is that proper provision has not been made against the existence of standing armies in time of peace.
The Objections to Standing Armies Are So Weak as to Betray Duplicity
The objection is brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument, and without even the sanction of theoretical opinion. It contradicts the practice of other free nations as well as the general sense of the American People, as they expressed in most State constitutions. The objection is premised upon a supposed necessity of restraining the legislative authority (Congress) in the article of military establishments. But the objection is rejected in all State constitutions except two, which do not even prohibit them.
* * *
The American People – so jealous of their liberties – have declined to insert into their State constitutions the most precise and rigid precautions against standing armies. Nonetheless, the same omission in the Federal Constitution gave birth to a torrent of apprehension and clamor.
* * *
A stranger to our politics might reasonably assume the argument against standing armies must have a foundation based on a positive constitutional injunction against maintaining standing armies in times of peace, or that the whole power of levying troops is vested in the executive without any legislative control. Yet the Constitution contains neither. First, it contains no provision in favor of standing armies. Second, the whole power of raising armies is not lodged in the executive, but instead in the Congress, a popular legislative body consisting of the representatives of the People who are elected every two years. Further, the proposed Constitution includes an important qualification on the legislative discretion. Section 8 of Article I provides: “The Congress shall have Power . . . [¶] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years . . . .” By forbidding the appropriation of money for the support of an army for any period longer than two years, the drafters have included a precaution that will be a great and real security against the keeping up of troops without evident necessity.
The vehement objections and pathetic declamation concerning standing armies are unsupported by a colorable pretext. The American People – so jealous of their liberties – have declined to insert into their State constitutions the most precise and rigid precautions against standing armies. Nonetheless, the same omission in the Federal Constitution gave birth to a torrent of apprehension and clamor.
Only two of the several State constitutions contain an interdiction of standing armies in time of peace. The other eleven State constitutions are silent on the subject, or have express terms admitting the right of the State legislature to authorize their existence.
The two States purporting to interdict standing armies are Pennsylvania and North Carolina, whose constitutions provide: “As standing armies in time of peace are dangerous to liberty, they ought not to be kept up.” Upon inspection, the italicized words are more a caution than a prohibition. The constitutions of four other States – New Hampshire, Massachusetts, Delaware, and Maryland – formally admit the authority of their legislatures to maintain standing armies, using this language: “Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.” The italicized language is a formal admission of the authority of the legislature. New York has no bill of rights, and her constitution says not a word about the matter. No bill of rights appear annexed to the constitutions of any other State, and their constitutions are equally silent. Further, the Articles of Confederation imposed not a single restraint on a standing army in the United States.
In the absence of a plausible foundation for the cry raised against standing armies, the objection is simply a dubious experiment on the public credulity, dictated by a deliberate deception or an excessive zeal too intemperate to be deceptive, effected by the dishonest artifices of a sinister and unprincipled opposition to the Constitution. The allowance of standing armies conforms to the general sense of Americans as declared in their various constitutions, and adds a new and powerful guard unknown to any of them, namely, the requirement of review every two years.
A calm and dispassionate observer might indulge a sigh for the frailty of human nature, and lament that a matter so interesting to the happiness of millions – the adoption of the Constitution – should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. The conduct of its opponents has too much appears intended to mislead the People by alarming their passions, and to avoid convincing them with arguments addressed to their intellect.
It is Foreseeable that a Military Force May Soon Be Required
Having set forth the artifice of the objections, I now review the facts concerning standing armies. Restraints upon the discretion of the legislature in respect to military establishments in time of peace are improper. Even if restraints were imposed, they would not be observed due to the necessities of society.
Although a wide ocean separates the United States from Europe, various considerations warn us against an excess of confidence or security. The improvements in the art of navigation have rendered distant nations neighbors, at least as to facility of communication. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations is not improbable. In France and Spain, the increasing remoteness of consanguinity of their monarchs is every day diminishing the force of the family compact between these two kingdoms. Further, politicians have with great reason always considered ties of blood as precarious links of political connection. These combined circumstances admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
Regular Federal Troops on the Western Frontier Are Preferable to State Militias
To our north – and stretching far into our interior – are growing settlements subject to the dominion of Britain. To our south – and extending to meet the British settlements – are colonies and establishments subject to the dominion of Spain. For now, it is wise to regard the native tribes on our western frontier as natural enemies – for they have the most to fear from us – and the most to hope from our enemies.
Prior to the Revolution – and ever since the peace – there has been a constant necessity for keeping small garrisons on our western frontier. These will remain indispensable, if only to guard against the ravages and depredations of the native tribes. Our garrisons must be furnished by occasional detachments from the militia or by permanent corps in the pay of the government. If the garrisons are furnished by occasional detachments from the militia, it would prove impracticable. Even if it were practicable, it would prove pernicious. Members of a militia would not long submit – if at all – to being dragged from their occupations and families to perform the disagreeable duty of attending forts, especially in times of profound peace. And even if they could be prevailed upon (or compelled) to do it, would be as burdensome and injurious to the public as ruinous to private citizens. The increased expense of a frequent rotation of service, the loss of labor, and the disruption of the industrious pursuits of individuals would conclusively doom the scheme. The better resource is a permanent corps in the pay of the Federal government. It will be a standing army in time of peace: a small one, indeed, but real nonetheless. This view of the subject shows at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the Congress.
As the United States increases in strength, it is certain Britain and Spain would augment their military establishments in our neighborhood. Unless we are willing to be exposed – in a naked and defenseless condition – to their insults and encroachments, it will be expedient to increase our frontier garrisons in a ratio to the force by which our western settlements might be annoyed. Some of the particular posts will include the command of large districts of territory, and facilitate future expansion into the remainder. These posts also will be keys to trade with the native American nations. No one can think it wise to leave such posts in a situation at any instant to be seized by one or two formidable neighboring powers. The usual maxims of prudence and policy dictate otherwise.
A Federal Navy Also is Required
If we are to be a commercial people – or only to secure our Atlantic side – we must have a navy as soon as possible. There must be dockyards and arsenals, with fortifications and garrisons to protect them. When a nation has become so powerful by sea that it can protect its dockyards by its fleets, the necessity of protective garrisons will be superseded. But where naval establishments are in their infancy, moderate garrisons will be an indispensable security against naval attacks on our arsenals and dockyards, and sometimes on the fleet itself.
Hamilton
original Federalist 24Federalist 25: The Utility of a Federal Standing Army
A Federal Standing Army Must Be Controlled by the Federal Government, not State Governments
THE ARGUMENT THAT STANDING ARMIES ought to be provided for by State governments under Federal direction is an inversion of the primary principle of our political association. The project would be oppressive to some States, dangerous to all, and baneful to the United States.
Although the territories of Britain, Spain, and the native tribes do not border on particular States, they encircle the United States from Maine to Georgia. The danger is a common one, although in different degrees. The means of guarding against it ought to be the objects of common councils and a common treasury. Due to local situation, some States are more directly exposed, such as New York. But if New York had to provide for its own defense, it would have to sustain not only the whole weight of establishments requisite to her own immediate safety, but also the protection of her neighbors. This would be both inequitable as to New York and unsafe as to her neighbors. Various inconveniences would attend such a system. To those States required to support the necessary establishments, they would be unwilling and unable to bear the burden for a considerable in the future. Further, the security of all would be subject to the parsimony, improvidence or inability of a part. Should the resources of one State become more abundant and extensive – and its provisions proportionally enlarged – the other States quickly would take alarm at seeing the whole military force of the United States in the hands of two or three States, which likely would be among the most powerful in the country. Every lesser State would choose some counterpoise. Pretenses easily could be contrived. The growth of competing military establishments – nourished by mutual jealousy – would be apt to swell beyond their natural or proper size. Being at the separate disposal of the State, they would be engines for the abridgment or demolition of the national authority.
The People Will Keep a Warier Eye on the Representatives of the Federal Government
I have already given reasons why State governments will be naturally prone to a rivalry with the United States. The foundation of the rivalry is the love of power. In any contest between the Federal government and one of the States, the citizens of that State would be most apt to unite with their local government. The ambition of a State – stimulated by its separate and independent possession of military forces – would afford too strong a temptation (and too great a facility) to make enterprises upon and ultimately subvert the constitutional authority of the United States. In those circumstances, the liberty of the People would be less safe than if the national forces were left in the hands of the Federal government. Because an army may be considered a dangerous weapon of power, it ought to be in the hands of individuals of whom the People are most jealous (distant Federal representatives), rather than in the hands of those of whom the People are least jealous (State representatives). The People are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.
The framers of our former Confederation were fully aware of the danger to the United States from the separate possession of military forces by the States. They expressly prohibited the States from having either ships or troops without the consent of Congress. A Federal government supported only by State military establishments will result in conflict between the States and the United States.
Other reasons demonstrate the impropriety of restraining the discretion of Congress with respect to standing armies, as revealed by a cross-examination of potential objections. Those opposed to standing army in times of peace never inform us how far the prohibition should extend. Does the prohibition extend to raising armies as well as keeping them up, whether the season be tranquil or not? If it be confined to keeping them up, it will be imprecise, and thus ineffectual. What shall be denominated “keeping them up,” once armies are raised? What date shall be designated to ascertain a violation? Shall it be a week, a month, a year?
* * *
The People are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.
* * *
Or shall we say they may be continued as long as the danger which occasioned their raising continues? To admit this is to admit they might be kept up in time of peace, against threatening or impending danger. This would at once deviate from the literal meaning of the prohibition, and introduce an extensive latitude of construction. Who shall be the judge of the continuance of the danger? That question undoubtedly must be submitted to the Federal government, where the matter would eventually be brought to the issue whether the Federal government, in order to provide against an apprehended danger, might in the first instance raise troops, and afterwards keep them on foot as long as the peace or safety of the community was in any degree of jeopardy. A discretion of such wide latitude would afford ample room for eluding the force of any paper prohibition of a standing army.
The Only Reason to Limit a Standing Army Is the Possibility Congress and President Might Combine to Usurp Power
The utility of a provision against standing armies in times of peace can be founded only on the possibility of a combination between the executive and the legislative in some scheme of usurpation. If this should happen, they easily could fabricate pretenses of approaching danger. Indian hostilities – instigated by Spain or Britain – would always be at hand. Foreign powers could themselves stage provocations to produce the desired appearances, in exchange for Federal concessions. If an army were raised in response, it easily could be applied to execute the project of usurpation.
* * *
Some might respond the militia of the country is a natural bulwark against a standing army, and would be at all times equal to the national defense. This belief would have lost the Revolution.
* * *
Even in Circumstances of Attempted Usurpation, a Standing Army Will Still Prove Essential
To obviate this possibility, one might argue the prohibition against a standing army ought be limited to the raising of armies in time of peace. But if this prohibition were added, the Constitution would incapacitate the nation from preparing a defense before it was actually invaded. This would be an extraordinary spectacle for the world to see. The Federal government would have to await the presence of an enemy within our territory to warrant the commencement of levies of men for the protection of the country. We would have to await receipt of an actual blow before even preparing to return it, contrary to the policies by which nations anticipate distant danger to meet gathering storm. We would thereby expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize us as naked and defenseless prey, based on the fear that our leaders – created by our choice and dependent on our will – might endanger our liberty, by an abuse of the means necessary to its preservation.
State Militias Are an Inadequate Substitute for a Standing Army
Some might respond the militia of the country is a natural bulwark against a standing army, and would be at all times equal to the national defense. This belief would have lost the Revolution. The facts from our own experience are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy confirm this position. During the Revolution, the valor of the American militia erected eternal monuments to their fame, but the bravest of them know the liberty of their country could not have been established by their efforts alone, however great and valuable they were. Like most other things, war is a science to be acquired and perfected by diligence, perseverance, time, and practice.
The Recent Rebellions in Pennsylvania and Massachusetts Prove the Utility of a Standing Army
All policies based on violence defeat themselves, as they are contrary to the natural course of human affairs and experience. Recent events in Pennsylvania affords an example of the truth of this remark. The bill of rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, Pennsylvania resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace.
The conduct of Massachusetts also affords a lesson on the same subject, although on different ground. That State (without waiting for the sanction of Congress, as the Articles of the Confederation required) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The constitution of Massachusetts contained no obstacle to the measure; but the instance of its still instructs us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us – in its application to the United States – how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity.
The Example of Lysander
In the Lacedaemonian commonwealth, tradition held the post of admiral could not be conferred twice on the same person. But when their Peloponnesian confederates suffered a severe defeat at sea from the Athenians, the confederates demanded that Lysander (who had before served with success in the post of admiral) command the combined fleets. The Lacedaemonians agreed (not only to gratify their allies – but also to preserve the semblance of an adherence to their ancient institutions), yet they resorted to the flimsy subterfuge of naming Lysander vice-admiral, although he was actually vested with the real power of an admiral. This example is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples, which is: nations pay little regard to rules and maxims calculated to run counter to the necessities of society. Wise politicians are cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of fundamental law – though dictated by necessity – impairs that sacred reverence rulers ought to maintain towards the constitution of their country, and sets a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.
Hamilton
original Federalist 25Federalist 26: The Constitution's Biennial Review of Standing Armies Is Salutary
The Balance of Power and Privilege
IT WAS HARDLY TO BE EXPECTED that the minds of individuals inspired by our popular revolution would stop at that happy median that combines the energy of government with the security of private rights. There is a salutary yet delicate boundary between power and privilege that can give rise to difficulties. Unless resolved as to standing armies, we will travel from one chimerical project to another, marking change upon change, but without any material change for the better.
* * *
Those who would restrict the Congress will combat the general consensus of America. Instead of learning from experience – which counsels avoidance of extremes – the opponents of congressional authority would conduct us into more dangerous and extravagant extremities.
* * *
The idea of restraining the authority of Congress to provide for the national defense originates in a zeal for liberty more ardent than enlightened. It found support only in Pennsylvania and North Carolina. Every other State refused to give it the least countenance – wisely judging that the very act of delegating power requires we place confidence somewhere – and it is better to hazard an abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority.
Those who would restrict the Congress will combat the general consensus of America. Instead of learning from experience – which counsels avoidance of extremes – the opponents of congressional authority would conduct us into more dangerous and extravagant extremities.
The doctrines they propound are calculated to induce us to depress or relax the tone of government by expedients that were condemned or forborne on other occasions. But the citizens of America have too much discernment to be argued into anarchy. Experience has wrought a deep and solemn conviction in the public mind that greater energy of government is essential to the welfare and prosperity of the community.
Historical Restrictions on Funding Standing Armies Were Directed Principally at Hereditary Monarchs
The idea that aims to exclude military establishments in times of peace has its origins in the history of England, a land from which many of the inhabitants of our country have sprung. For a long time after the Norman Conquest, the authority of the monarch was almost unlimited Inroads were gradually made upon the prerogative in favor of liberty – first by the barons and afterwards by the People – until the greatest part of its most formidable pretensions became extinct.
English liberty was made complete with the glorious (or bloodless) revolution which elevated the Prince of Orange to the throne in 1688. Prior to that event, Charles II had kept on foot (in time of peace) a body of 5,000 regular troops, based on his own authority and incident to the undefined power of making war, which was an acknowledged prerogative of the British crown. James II increased this number to 30,000, who were paid out of his civil list. In order to abolish the exercise of so dangerous an authority, the Bill of Rights was amended after the revolution to declare “the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, was against law.”
Thus when the pulse of liberty was at its highest pitch in that kingdom, no security against the danger of standing armies was thought requisite beyond a prohibition of their being raised or kept up based solely on the monarch’s authority alone. The British patriots who effected the memorable revolution were too temperate and well-informed to impose any restraint on legislative discretion. They were aware a certain number of troops for guards and garrisons were indispensable, that no precise bounds could be set to national exigencies, and that a power equal to every possible contingency must exist somewhere in the government. By referring the exercise of that power to the judgment of their legislature (the Parliament), they had arrived at the ultimate point of precaution that could be reconciled with the safety of the community.
The Fear of a Standing Army Should Not Exist when Authorized by Congress, which Represents the People
From this history, the People of America have developed a natural disposition to view standing armies in times of peace as a danger to liberty. The circumstances of our revolution have further quickened the public sensibility on every point connected with the security of popular rights. But the warmth of this zeal was raised beyond the degree consistent with the due temperature of the body politic with the attempts of Pennsylvania and North Carolina to restrict the authority of the legislature in the article on military establishments. These States erroneously assumed that the reasons for being vigilant against misuse of this power by monarchs extended to the representatives of the People in their popular assemblies. Even in some States where this error was not expressly adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, without the consent of the legislature. Such declarations were unnecessary because the reason for introducing a similar provision into the English Bill of Rights is inapplicable to any of the State constitutions. Under all of those State constitutions, the power of raising armies resides in the legislature. It would superfluous – if not absurd – to declare that a matter should not be done without the consent of the body which alone had the power of doing it!
No State Constitution Actually Prohibits a Standing Army
Even in the two states which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression is merely cautionary, not prohibitory. The constitutions of Pennsylvania and North Carolina do not say standing armies shall not be kept up, but that they ought not to be kept up, in time of peace. This ambiguity of terms appears to result from a conflict between jealousy and conviction, between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe.
In other State constitutions – including the celebrated constitution of New York – there is a total silence upon the subject.
Even If Standing Armies Were Disfavored on Paper, a Crisis Would Compel Their Existence
Can anyone doubt that a mere admonition against standing armies would yield to the necessities or supposed necessities of a state or nation when the People, through their representatives, demanded it? What is the use of such a provision if it ceases to operate the moment there is an inclination to disregard it?
There can be no comparison between admonitions of State constitutions and the provision in the federal Constitution restraining the appropriations of money for military purposes to the period of two years.
Article I, section 8, clause 12, of the Constitution expressly grants to Congress this power: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; . . . .”
The State constitutional provisions purporting to limit standing armies aim at too much, and effect nothing. The federal provision steers clear of this imprudent extreme and will have a salutary and powerful operation because it is perfectly compatible with a proper provision for the exigencies of the nation.
At least once every two years, the legislature of the United States will be obliged to deliberate upon the propriety of keeping a military force on foot, come to a new resolution on the point, and declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest permanent funds with the executive for the support of an army, even if they were to act so incautiously.
* * *
As the spirit of party infects all political bodies in different degrees, there will undoubtedly arise persons in the national legislature willing enough to advocate for providing permanent military funds to the executive department, and to label contrary views criminal.
* * *
As the spirit of party infects all political bodies in different degrees, there will undoubtedly arise persons in the national legislature willing enough to advocate for providing permanent military funds to the executive department, and to label contrary views criminal. However, the provision for limiting the support of a military force will always be a topic favored by those inclined to warn of the dangers to liberty. If they be members of the party in opposition, they will arouse and attract public attention whenever the question comes forward. Should the majority actually be disposed to exceed proper limits, the community will be warned of the danger, and have an opportunity of taking measures to guard against it.
State Legislatures Will Be the Voice – and If Necessary – the Arm of the People’s Discontent
And the State legislatures – being independent of parties in the national legislature – will always be vigilant, suspicious and jealous guardians of the rights of the citizens against encroachments from the Federal government. They will constantly be awake to the conduct of the national rulers, and if any thing improper appears, will be ready enough to sound the alarm to the People. The State legislatures will be the voice of the majority, and if necessary, the arm of their discontent.
Schemes to subvert the liberties of a great community to mature them for execution. An army so large as seriously to menace those liberties could only be formed by progressive augmentations. This would require a continued conspiracy over a period of time, not merely a temporary combination between the legislature and executive. Is it probable such a combination could exist at all, and then be persevered in and transmitted through all the successive variations of a representative body elected in whole or in part every two years? Can we presume that the instant a representative took a seat in Congress that individual would commence as a traitor to constituents and country? Can it be supposed that not one representative would be discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise constituents of their danger?
If such a presumption can fairly be made, there ought at once to be an end of all delegated authority. The People would recall all the powers they have heretofore ceded, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.
Would Every Member of Congress Become a Traitor to a Conspiracy?
Even if we assume every representative made a pledge to become a traitor to constituents and country, still the concealment of the design would be impracticable for any duration. The very circumstance of greatly augmenting the army in times of profound peace would itself announce the conspiracy.
What colorable reason could be assigned for such vast augmentations of the military force in a country situated like the United States? It is impossible the People would be long deceived. The destruction of the project – and of its progenitors – would quickly follow the discovery.
Some have suggested the executive branch could circumvent the two-year limit on appropriations because once possessed of a force large enough to awe the People into submission, the President would find resources in that very force sufficient to enable him to dispense with supplies from the Congress. But upon what pretense could the executive be put in possession of a force of that magnitude in time of peace? If the force were created as a result of some domestic insurrection or foreign war, then the objection thereto would not apply because it the objection is leveled against the power of keeping up troops in time of peace. Few persons could seriously contend military forces ought not to be raised to quell a rebellion or resist an invasion.
If defense of the community should require an army so numerous as to hazard its liberty, it is one of those calamities having neither prevention nor cure. No possible form of government can provide against it. It might even result from a simple league offensive and defensive with confederates or allies, should it be necessary to form an army for common defense. But it is an evil infinitely less likely to attend us in a united than a disunited state. And in a state of disunion (as discussed in Federalist 8), the evil of a standing army would become not only probable, but almost unavoidable.
It is not easy to conceive that dangers so formidable will assail the whole union as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary.
Hamilton
original Federalist 26 Federalist 27: A Properly Administered Federal Government Will Not Require Force to Execute Its Laws
SOME HAVE ARGUED THE CONSTITUTION CANNOT OPERATE without the aid of a military force to execute its laws. The argument most likely originates in the assumption the People will be disinclined to the exercise of Federal authority on any internal State matter.
Why should we presuppose the People will be disinclined to the exercise of Federal power on internal State issues? Unless we presume the powers of the Federal government will be worse administered than those of the State governments, we should not presume the People’s ill-will, disaffection, or opposition. As a general rule, the People’s confidence in and obedience to the Federal government will commonly be proportioned to the goodness or badness of its administration.
We should not presuppose the Federal government will be worse administered than State governments. Consider first the Senate of the United States, which will be comprised of individuals selected by the State legislatures, whose members themselves are composed of individuals selected by the People. The extension of the spheres of election will present a greater latitude of choice to the People. If we should presuppose anything, it would be the Senate will be composed with peculiar care and judgment, with the promise of greater knowledge and more extensive information in the national councils. As a result, the Senate would be less apt to be tainted by the spirit of faction. It would be more out of the reach of those occasional ill-humors or temporary prejudices and propensities which – in smaller societies – frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which – though they gratify a momentary inclination or desire – terminate in general distress, dissatisfaction, and disgust.
Unless someone can advance reasons why the Federal government will be so maladministered as to render it odious or contemptible to the People, the laws of the United States will neither meet with obstruction from the People, nor stand in need of any other methods to enforce their execution than the laws of the particular States.
Extending Federal Law to Individuals Will Strengthen the United States
The hope of impunity is a strong incitement to sedition, and the dread of punishment is a proportionably strong discouragement to it. Will not the Federal government – possessed of a due degree of power which can call to its aid the collective resources of the whole country – be more likely to repress the hope of impunity and to inspire the dread of punishment – than that of a single State, which can only command the resources within herself?
A turbulent faction within a State might suppose itself able to contend with the opposition of the friends of the government in that State. Yet such a faction can hardly be so infatuated as to imagine itself a match for the combined efforts of the United States. If this be true, it also is true that irregular combinations of individuals opposed to the authority of the United States will pose less resistance to that authority than that of a single State.
* * *
The hope of impunity is a strong incitement to sedition, and the dread of punishment is a proportionably strong discouragement to it.
* * *
The more that the operations of the Federal government are intermingled in the ordinary exercise of State governments, the more the People will be accustomed to meet with it in the common occurrences of their political life. The more the Federal Government is familiarized to the sight and feelings of the People – and the more it acts sensibly and puts in motion the most active springs of the human heart – the greater the probability it will earn the respect and attachment of the People.
Man is very much a creature of habit. A thing that rarely strikes his senses will generally little influence his mind. A Federal government continually at a distance and out of sight will little interest the sensations of the People. The authority of the Federal government – and the affections of the People towards it – will be strengthened by its extension to internal State matters. The Federal government will have less occasion to resort to force in proportion to the familiarity and comprehensiveness of its agency. The more the Federal government circulates through those channels and currents in which the passions of the People naturally flow, the less will it require the perilous expedient of violent compulsion.
One thing is certain. The Federal government as set forth in the Constitution will be less likely to need force to enforce the laws of the United States than a Federal authority which only operates on States in their political or collective capacities as States. As I explained in Federalist 15, in that type of league, the only sanction for disobedience of Federal law is force. Frequent delinquencies of the States would be the natural offspring of the very frame of the government. As often as they happen, the only redress – if any – would be by violence and war.
Extending the authority of the Federal government to the individual citizens of the several States will enable it to employ the ordinary administration of each State in the execution of its laws. In practice this will destroy all distinctions between the sources of governmental power. It will give the Federal government the same advantage for securing a due obedience to its authority now enjoyed by the government of each State. In addition to this influence on public opinion, the Federal government will benefit from the public knowledge that it has the power to call to its assistance and support the resources of the entire United States.
The laws of the United States will become the supreme law of the land as to the enumerated and legitimate objects of its jurisdiction. Every State officer – whether legislative, executive, or judicial – will be bound by the sanctity of oath to uphold those laws. All State legislatures, courts, and officers will be incorporated into the operations of the Federal government – as far as its just and constitutional authority extends – and thus be rendered auxiliary to the enforcement of its laws. To those who argue this will tend to the destruction of the State governments, Federalist 41 and Federalist 44 give a complete reply.
* * *
Extending the authority of the Federal government to the individual citizens of the several States will enable it to employ the ordinary administration of each State in the execution of its laws. In practice this will destroy all distinctions between the sources of governmental power.
* * *
Anyone honestly reflecting on these circumstances will perceive the laws of the United States will be peacefully executed if its powers are administered with a common share of prudence. If those laws be injudiciously administered, the best government that ever was or ever will be would provoke and precipitate the People into the wildest excesses. The adversaries of the Constitution presumed that the Federal rulers would be insensitive to the motives of public good or to the obligations of duty. To them I would ask: how can the interests of ambition or the views of encroachment be promoted by such a conduct?
Hamilton
original Federalist 27 Federalist 28: A Federal Standing Army Can Quell Insurrections
The Use of Force May Be Required to Quell Civil Disturbances
SEDITIONS AND INSURRECTIONS are maladies that are as inseparable from the body politic as tumors and eruptions are from the natural body. Thus, the idea of governing at all times with the simple force of law exists only in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Emergencies of this kind arise at times in all societies, no matter how they are constituted. Our own experience corroborates the lessons taught by the examples of other nations. Should such an emergency arise under the Constitution, the only response must be by force, since an insurrection – whatever its immediate cause – eventually endangers all forms of government.
State Militias are Adequate to Control Minor Disturbances
The means employed to respond to such an event must be proportional to the mischief. if it is but a slight commotion in a small part of a State, the militia of the other States would be adequate suppress it. The Federal government should presume that the State militias would be ready to do their duty, if only to preserve the public peace. As for upholding the rights of the Federal government, it would be irrational to assume State militias would not assist – so long as the people find the practices of that government conducive to their prosperity and felicity.
Larger Disturbances Require a Force Greater than State Militias
If an insurrection should pervade a whole or principal part of a State, it might be unavoidable to employ a different kind of force. Massachusetts found it necessary to raise troops for repressing the disorders within its borders. Pennsylvania also thought it was proper to have recourse to the same remedy from the mere apprehension of commotions among a part of her citizens. If the State of New York had been inclined to reestablish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success from the efforts of her militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design?
* * *
In the event the representatives of the People betray their constituents, the only resource left is the exercise of the right of self-defense, a right paramount to all positive forms of government. The right of self-defense against the usurpations of the Federal government can be exerted with infinitely better prospect of success than against an individual State government.
* * *
The recurring need to utilize a force greater than the militias in extraordinary cases within the States – as shown by these examples – negates the objection that the Federal government ought not to have the same power under a like necessity in similar extremities. Is there anyone who would prefer not to have that option to respond to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?
Dividing the United States into Three, Four or Thirteen Separate Parts Is No Solution
Those who object to a standing army for the Federal government presumably would also object to the existence of a standing army for three or four confederacies of States. Would not each of them be exposed to the same insurrections as a Federal government? Would not each confederacy have recourse to the same expedients for upholding its authority which are objected to in a Federal government for all the States? Would a militia be more ready or more able to support the Federal authority than in the case of the general union under the Constitution? The principle of the objection applies equally in both cases. Whether we have one government for all of the States, or different governments for different parcels of them – or even if there should be an entire separation of the States – it might become necessary to use a force constituted differently from the militias, in order to preserve the peace of the community and maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.
To those who would require a more definite prohibition against military establishments in times of peace, it is a full answer to say that the whole power of the Federal government is to be in the hands of the representatives of the People. This is the essential and only efficacious security for the rights and privileges of the People attainable in a civil society.
* * *
It can be said without exaggeration that in a republican confederacy of State governments like ours, the People are entirely the masters of their own fate. Power is almost always the rival of power. Just as the Federal government will at all times stand ready to check the usurpations of State governments, the State governments will have the same disposition towards the Federal government. By throwing themselves onto either scale, the People will infallibly tip those scales in their favor. If their rights are invaded by either the Federal or State governments, the People can make use of the other as the instrument of redress.
* * *
The Innate Right of Self-Defense Is Available to Counter a Federal Usurpation
In the event the representatives of the People betray their constituents, the only resource left is the exercise of the right of self-defense, a right paramount to all positive forms of government. The right of self-defense against the usurpations of the Federal government can be exerted with infinitely better prospect of success than against an individual State government. If the persons entrusted with control of a State government become usurpers, the different parcels, subdivisions, and districts of the State – having no distinct government in each – can take no regular measure for defense. The citizens must rush tumultuously to arms, without concert, system, or resource, except in their courage and despair. The usurpers – clothed with the forms of legal authority – can too often crush the opposition in embryo. In smaller States, it will be more difficult for the People to form a regular or systematic plan of opposition. Hence it will be easier to defeat their initial efforts. It will be easier to obtain speedy intelligence of their preparations and movements. Hence the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
The obstacles to usurpation – and the facilities of resistance – increase with the physical extent of a State, provided the individual citizens understand their rights and are disposed to defend them. The natural strength of the People – compared to the artificial strength of a government – is greater in a large community than in a small, and of course more competent to a struggle with the attempts of any government to establish a tyranny.
The People Can Tip the Balance against State or Federal Usurpations of Power
It can be said without exaggeration that in a republican confederacy of State governments like ours, the People are entirely the masters of their own fate. Power is almost always the rival of power. Just as the Federal government will at all times stand ready to check the usurpations of State governments, the State governments will have the same disposition towards the Federal government. By throwing themselves onto either scale, the People will infallibly tip those scales in their favor. If their rights are invaded by either the Federal or State governments, the People can make use of the other as the instrument of redress.
By supporting the creation of the United States, the People have wisely preserved to themselves an advantage which can never be too highly prized! It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the People’s liberty. The projects of usurpation by the Federal government cannot be masked under pretenses that would likely to escape notice by the select bodies of individuals in the State governments, nor by the People at large. The State legislatures will have access to more information regarding Federal plots to usurp power. They can discover the danger at a distance. Since State governments possess all the organs of civil power – as well as the confidence of the People – they can at once adopt a regular plan of opposition to the Federal government by combining all the resources of the community. They also can readily communicate with each other in the different States, and thereby unite their common forces for the protection of their common liberty.
The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the Federal government. If the army of the Federal government should be able to quell the resistance of one State, it would be within the power of distant States to make head with fresh forces. The Federal government would have to abandon the advantages obtained in one State to subdue the opposition in other States. And upon the moment the State reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.
In all events, the extent of a Federal military force is naturally limited by the resources of the States. It will not be possible to create a large Federal army for many years, but as our means increase, so too will our means of increasing the Federal army. Of course, this increase in means can grow only in proportion to the increase of the population and natural strength of the People and their communities.
Will the time ever arrive when the Federal government can raise and maintain an army capable of erecting a despotism over the great body of the People of an immense empire? Not so long as the People – through the medium of their State governments – take measures for their own defense, with all the celerity, regularity, and system of independent nations. Those who fail to apprehend these facts may be viewed as suffering from a disease, for no cure can be found in the resources of argument and reasoning.
Hamilton
original Federalist 28 Federalist 29: Congress Must Fund and the President Must Control State Militias
The Federal Government Should Regulate State Militias
IF WELL-REGULATED MILITIAS are the most natural defenders of a free country, they certainly ought to be regulated by and be at the disposal of the Federal government, which the Constitution establishes as the guardian of the national security. The power of regulating State militias – and of commanding their services in times of insurrection and invasion – are natural incidents to the power and duty of the Federal government to superintend the common defense and watch over the internal peace of the United States.
The State Militias Should Be Uniform and Ready to Defend
Even a person unskilled in the science of war can discern that uniformity in the organization and discipline of the militias naturally would lead to the most beneficial effects whenever it was called to serve for the public defense. Uniformity in organization and discipline of the State militias would fit them much sooner to the degree of military proficiency needed to discharge the duties of the camp and field with mutual intelligence.
The Constitution Expressly Provides for the Congress to Fund and Arm State Militias and for the President to Lead Them
Such uniformity can be accomplished only by confiding the regulation of the militia to the direction of the Federal government. Thus, the Constitution empowers the Federal government “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.” Art. I, § 8, cl. 16 (emphasis added).
And the President “shall” be their Commander in Chief, which is in accordance with an enumerated power: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Art. II, § 2, cl. 1.
State Militias Are a Natural Bulwark Against Federal Tyranny
Militias are the bodies to whom we commit the protection of the individual States. If standing armies are dangerous to liberty, a Federal power over the militias will lessen the inducement and the pretext to such armies. If the Federal government cannot command the aid of State militias in those emergencies which call for military support of the President, it will more likely employ a different type of force, such as a standing army. The most certain method of preventing a standing army is to render its existence unnecessary – a method more sure than a thousand prohibitions on paper.
The Absence of a Posse Comitatus Provision Proves Nothing
Those opposed to a power in the Federal government to call forth the militia to execute the laws of the United States point to the absence of any constitutional provision granting a Federal power to summon the posse comitatus of able-bodied individuals to assist with the execution of the President’s duties. From this they infer the President’s only auxiliary is military force.
There appears a striking incoherence to an argument that in one breath tells us the power of the Federal government will be despotic and unlimited due to its military force, and in the next that the same government has not authority sufficient even to call out the posse comitatus.
The right to pass all laws necessary and proper to execute the Federal government’s declared powers undoubtedly includes requiring citizens to assist the officers entrusted with the execution of those laws. There is no reason to infer the expression of a power to use a military force includes an intent that such force be the sole instrument of authority.
* * *
To summarize: the most to be reasonably aimed at with respect to the People at large is to see that they are properly armed and equipped. So this is not neglected, it will be necessary to assemble them once or twice in the course of a year.
* * *
The Citizenry Should Be Armed and Equipped Annually
It is unlikely the Federal power to discipline the militia would extend in practice to all the individual citizens of the United States. The project would be as futile as it would be injurious, even if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. Neither a day nor a week would suffice to attain it. It would be a real grievance to the People – and a serious public inconvenience and loss – to oblige all classes of citizens to be under arms for the purpose of going through military exercises and evolutions as often as necessary to acquire the degree of perfection that characterizes a well-regulated militia. Even to attempt the thing would abridge the mass of labor and industry so considerably as to be unwise. And if the experiment were made, it would fail as soon as endurance gave out.
To summarize: the most to be reasonably aimed at with respect to the People at large is to see that they are properly armed and equipped. So this is not neglected, it will be necessary to assemble them once or twice in the course of a year.
Misuse of State Militias to Execute Federal Tyranny Is Unlikely
Another improbable and exaggerated claim is the Federal government will march one or more State militias to a distant State or States. It is announced the militia of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. It is said that even the wartime debts due the French and Dutch are not to be paid in their native currencies but instead with able-bodied American militiamen. At one moment the critics of the Constitution envisage a large army to lay prostrate the liberties of the People, and at another they foresee the militia of Virginia being dragged from their homes to tame that obstinate resistance to authority habitual to the citizens of Massachusetts. And then again the militia of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Can such mad and delirious arguments be expected to persuade the People of America to abandon infallible truth?
* * *
Assuming a State militia were called to undertake a distant and hopeless Federal expedition to rivet the chains of slavery upon a part of their countrymen, said militia – properly irritated by the order of so foolish and wicked a project – would more likely direct its course to the seat of the tyrants, in order to crush their grasping and imagined power, and make them an example of the just vengeance of an abused and incensed People.
* * *
A Misused Militia Would Probably First March on the Federal Capital
If a Federal standing army is to be made the engine of Federal despotism, what need is there of State militias to assist this scheme of tyranny? If there be no Federal standing army, the chances of oppression are even less. Assuming a State militia were called to undertake a distant and hopeless Federal expedition to rivet the chains of slavery upon a part of their countrymen, said militia – properly irritated by the order of so foolish and wicked a project – would more likely direct its course to the seat of the tyrants, in order to crush their grasping and imagined power, and make them an example of the just vengeance of an abused and incensed People.
State Militias Should Have a Ready Body of Individuals Who Can Serve
As for the composition of State militias, they should have an excellent body of well-trained members ready to take the field whenever the defense of a State requires it. This will lessen the call for military establishments. If circumstances should oblige the Federal government to form an army of any magnitude, that army can never be formidable to the liberties of the People so long as a large body of individual citizens – little if at all inferior to the army in discipline and the use of arms – stand ready to defend their own rights and those of the People. Well-regulated State militias are the only substitutes for a Federal standing army, and the best possible security against such an army should it exist.
* * *
As for the far-fetched fear that conjures danger to liberty from militias, one is at a loss whether to treat it with gravity or raillery. Is the argument a mere trial of skill – like the paradoxes of rhetoricians – a disingenuous artifice to instill prejudices at any price? Or is it simply the offspring of political fanaticism?
* * *
State Militias Must Be Available to Quell Neighboring Disturbances
When we finally arrive at the true facts, it would be natural and proper – in times of insurrection or invasion – for the militia of a State to be marched into a neighboring State in order to resist a common enemy or to guard the republic against the violence of faction or sedition. Resisting a common enemy was frequently the case for utilizing State militias in the course of the Revolutionary War. This mutual succor is indeed a principal end of our political association. Placing the power over such forces in Federal hands will lessen the risk State governments will lapse into a listless inattention to the dangers of a neighboring force until its near approach had awakened the feeble impulses of duty and the urge to self-preservation.
As for the far-fetched fear that conjures danger to liberty from militias, one is at a loss whether to treat it with gravity or raillery. Is the argument a mere trial of skill – like the paradoxes of rhetoricians – a disingenuous artifice to instill prejudices at any price? Or is it simply the offspring of political fanaticism?
The States Retain the Important Power of Appointing All Officers to Their Militias
In the name of common sense, where are our fears to end if we cannot trust our sons, daughters, brothers, sisters, neighbors, and fellow-citizens? What shadow of danger can be cast from individuals daily mingling with the rest of their countrymen, and who experience the same feelings, sentiments, habits and interests? How can the Federal power over State militias be a vehicle to tyranny while the particular States have the sole and exclusive appointment of its officers, as the Constitution declares? The appointment of militia officers by the States should extinguish any fear the Federal government will establish tyranny by means of State militias. By reserving to the States the sole and exclusive power to appoint officers, the States will always maintain a preponderating influence over their respective militias.
Hamilton
original Federalist 29Federalist 30–36: Federal Taxation
Federalist 30: The Federal Government Must Be Well-Funded
THE FEDERAL GOVERNMENT WILL POSSESS THE POWER of providing for the support of the national forces, and with it the obligation to make expenditures for raising troops, building and equipping fleets, and any other expense in any way connected with military arrangements and operations.
The Federal taxing power must also embrace a provision for the support of the operation of the national civil list, the payment of the national debts contracted, and in general for all those matters which will call for disbursements out of the national treasury. In one shape or another, a general power of taxation must be interwoven into the frame of the Federal government.
* * *
If revenue is deficient, one of two evils must ensue: either the People must be subjected to continual plunder to supply the public wants, or the government must sink into a fatal atrophy and perish.
* * *
Federal Sources of Revenue Are Essential
Money is the vital principle of the body politic. It sustains its life and motion, which in turn enables it to perform its most essential functions. Thus an indispensable ingredient in every constitution must be the complete power to procure a regular and adequate supply of money so far as the resources of the community will permit.
If revenue is deficient, one of two evils must ensue: either the People must be subjected to continual plunder to supply the public wants, or the government must sink into a fatal atrophy and perish.
The first evil is visible in the Ottoman empire, based in Turkey, where the sovereign – though in other respects absolute master of the lives and fortunes of his subjects – has no right to impose a new tax. To fund the government, the sovereign permits the leaders of provinces to pillage the people without mercy, and then squeezes out of these leaders the sums he needs to satisfy his own exigencies and those of the state.
Likewise in America, under the Articles of Confederation, the national government gradually dwindled into a state of decay and near annihilation. No one can doubt the happiness of the People in both countries would be promoted by competent authorities in the proper hands to secure the revenues which the necessities of the public might require.
It is true that the national government existing prior to ratification of the Constitution possessed an unlimited power of providing for its pecuniary wants. But that government proceeded on an erroneous principle that entirely frustrated this intention. Congress was authorized to ascertain and call for any sums of money it deemed necessary to the service of the United States. Its requisitions – if conformable to the rule of apportionment – were in every constitutional sense obligatory upon the States. In addition, the States had no right to question the propriety of the demand. But the States thereafter exercised discretion – contrary to the tenor of the Articles of Confederation – in devising the ways and means of furnishing the sums demanded. Although this discretion was almost never avowedly claimed, in practice it was constantly exercised. The untoward consequences of this system caused mortification to ourselves and triumph to our enemies, as I explained in Federalist 15 through Federalist 22. So long as the revenues of the Federal government depend on the intermediate agency of State governments, nothing would change.
The only remedy was to replace the fallacious system of quotas and requisitions. The Federal government must be allowed to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government. No human ingenuity can identify any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies to the public treasury.
Sources of Federal Revenue Must Be Both Internal and External
The more intelligent adversaries of the new Constitution admit the force of this reasoning, but they qualify their admission by a distinction between what they call internal and external taxation. External taxation – duties on imported articles – would be conceded to the Federal government. The remaining taxing power – internal taxation – would repose with the individual State governments.
The distinction between internal and external taxes violates the maxim of good sense and sound policy which dictates every power ought to be in proportion to its object. Limiting the Federal government to external taxation would leave it in a kind of tutelage to the State governments, and be inconsistent with every idea of vigor or efficiency. No one can pretend that commercial imposts would equal the present and future exigencies of the United States. Taking into the account the existing foreign and domestic debt, as well as the Federal establishments – which everyone agrees are necessary – we cannot flatter ourselves that external taxes alone would even suffice the current Federal necessities. As future necessities of the Federal government admit not of calculation or limitation, the power of making provision for them as they arise must be equally unconfined, since the history of mankind establishes the necessities of a nation will normally equal or exceed its resources at every stage of its existence.
Relying Only on External Taxes Gives States Excessive Control
If we limit the revenue of the Federal government to external taxes only, we will necessarily require it to rely upon State governments for any shortfall. The Federal government would again depend upon the failed system of requisitions from State governments. The inevitable tendency of such an approach would enfeeble the United States and sow the seeds of discord and contention between the Federal and State governments, and between the States themselves.
The proponents of limiting the Federal taxing power to external taxes presumably believe there is a point in the economy of national affairs where one could safely stop and say: We have given the Federal government all it needs to supply its wants and thereby advance the public happiness of the People, and all beyond this is unworthy of our care or anxiety.
But how can a government that is always half-supplied and necessitous fulfill its purposes of providing for the security, advancing the prosperity, and supporting the reputation of the United States? Can it ever possess energy and stability, dignity and credit, or confidence at home and respectability abroad? Its administration would be nothing else than a succession of temporizing, impotent and disgraceful expedients. It would make a frequent sacrifice of its engagements to immediate necessity. It could not undertake or execute any liberal or enlarged plans of public good.
And what would happen to such a government when it became engaged in its first war? Prior to hostilities, it is fair to assume its revenues – limited to impost duties – would be sufficient to keep current payments on the public debt and to maintain peace establishments. We will next assume the government would have learned from experience the futility of requisitions from the States. If the Federal government is limited in its power to tax – and thus unable by its own authority to lay hold of fresh resources – would not the government, fueled by considerations of national danger, be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the United States?
* * *
The Federal power of creating new funds upon new objects of taxation would enable the Federal government to borrow as far as its necessities might require.
* * *
It would be difficult to avoid a step of this kind. Once taken, it would prove the destruction of the public credit. One must be deluded to imagine that at such a crisis the nation could dispense with credit. It would be the extreme of infatuation. In the modern system of war, even the wealthiest nations are obliged to have recourse to large loans. A smaller country must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing with an act demonstrating the unsteadiness of its revenue stream for repayment? What loans it might be able to procure would be as limited in their extent as burdensome in their conditions? They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors: with a sparing hand but at enormous premiums.
Due to the presently limited resources of the United States, it might seem impossible to avoid diverting established funds in the case of war, notwithstanding the Federal government’s unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head. First, I am sure the full resources of the community will be brought into activity for the benefit of the United States. Second, any deficiency can without difficulty be supplied by loans.
The Federal power of creating new funds upon new objects of taxation would enable the Federal government to borrow as far as its necessities might require. Foreigners – as well as the citizens of the United States – could then reasonably repose confidence in its engagements. But the situation would be reversed if the Federal government were dependent upon the State governments for the means to fulfill its contracts. To believe otherwise would require a degree of credulity not often found in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice.
We Must Act on the Assumption that the United States Will Suffer Its Fair Share of Reversals
The preceding reflections may have trifling weight with individuals who hope to see realized in the United States the halcyon scenes of a poetic or fabulous age. But to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, my reflections are entitled to serious attention. We must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it.
Hamilton
original Federalist 30 Federalist 31: A General Federal Power of Taxation Is Required
Certain Primary Truths Are Indisputable
IN DISQUISITIONS OF EVERY KIND, certain primary truths contain internal evidence commanding the assent of the mind antecedent to all reflection. Upon these all subsequent reasonings must depend. Of this nature are the maxims in geometry, such as the whole is greater than a part, things equal to the same are equal to each other, two straight lines cannot enclose a space, and all right angles are equal to one another.
The objects of geometrical inquiry are so far removed from those pursuits which stir and animate the unruly passions of the human heart that mankind has easily adopted even those abstruse paradoxes which seem at variance with the natural conceptions the mind would entertain in the absence of knowledge. For instance, the infinite divisibility of finite matter – extending even to the minutest atom – is a point agreed among scientists though it is no more comprehensible to common sense than any of those mysteries of religion so industriously assaulted by nonbelievers.
Of the same nature are the accepted maxims of in ethics and politics, including there can be no effect without a cause, the means ought to be proportioned to the end, every power ought to be commensurate with its object, and there should be no limitation of a power destined to effect a purpose which is itself incapable of limitation.
And besides these are other truths in the science of ethics and politics which – though not ranking in the class of axioms – are direct inferences from the first principles. They are so obvious in themselves – and so agreeable to the natural and unsophisticated dictates of common sense – that they demand the assent of a sound and unbiased mind with a degree of force and conviction almost equally irresistible.
* * *
I do not pretend the principles of moral and political knowledge generally have the same degree of certainty as in mathematics. But when applied to the conduct of individuals in particular situations, these principles have more claim to truth than we are disposed to admit. If these principles seem obscure to an individual, much more often it is the fault of the passions and prejudices of the reasoner than in the subject being studied.
* * *
Where these truths produce not these effects, the organs of perception must suffer from some defect or disorder, or be subject to the influence of some strong interest, passion, or prejudice. In the sciences of morals and politics, of course, humans are far less governable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But intractability can be carried too far, and degenerate into obstinacy, perverseness, or disingenuity.
I do not pretend the principles of moral and political knowledge generally have the same degree of certainty as in mathematics. But when applied to the conduct of individuals in particular situations, these principles have more claim to truth than we are disposed to admit. If these principles seem obscure to an individual, much more often it is the fault of the passions and prejudices of the reasoner than in the subject being studied. On too many occasions, individuals decline to give their own thoughts and knowledge fair play. Instead, they yield these to some untoward bias, and thus entangle themselves in words and subtleties.
The Federal Government Requires a General Power of Taxation
The natural human tendencies just described most likely explain why some oppose a general power of taxation in the Federal government. I will assume the objections are sincere, and answer first with a brief recapitulation of the need for a general Federal power of taxation.
A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control except a due regard to the public good and the sense of the People.
The duties of superintending the national defense and of securing the public peace against foreign or domestic violence require advance provisions for casualties and dangers. The power of making these provisions can know no bounds other than the exigencies of the nation and the resources of the community.
Revenue is the essential engine to secure these provisions. As there is no limitation on the Federal power to respond to such national exigencies, neither can there be a limitation on the means by which revenue is secured. The power to secure such revenue is necessarily contained within the power to answer such national exigencies.
Theory and practice conspire to prove a Federal power of procuring revenue is unavailing when exercised over the States in their capacities as States. Thus the Federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.
While I believe the propriety of a general power of taxation in the Federal government can safely rest on the evidence of these propositions alone, the antagonists of that power most zealously oppose the Constitution on this point. Their arguments are in substance these: although the exigencies of the United States may prove unlimited, the Federal power of laying taxes ought to be confined because revenue is as critical to State governments as it is to the Federal government, and State governments are of equal or greater importance to the happiness of the People. State governments therefore ought to command the means of supplying their needs with no less power than the Federal government possesses with respect to the needs of the United States. An indefinite Federal power of taxation eventually might deprive State governments of the means of providing for their own necessities, and subject them entirely to the mercy of Congress. Since the laws of the United States are the supreme law of the land – and the Congress has the power to pass all laws necessary and proper for carrying those laws into execution – the Federal government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. Congress might allege a necessity of doing this in order to give efficacy to the national revenues, and by degrees all the resources of taxation might become the subjects of Federal monopoly, to the entire exclusion and destruction of State governments.
* * *
All observations founded upon the danger of usurpation ought to be referred to the composition and structure of the Federal government, and not to the nature or extent of its powers.
* * *
These arguments spring from two sources, only one of which is grounded in the science of politics, to wit, the view that the structure and composition of the Federal government might gradually lead to a Federal monopoly on tax revenues. The other objection surfaces from the depths of human passion and prejudice, and floods the minds of its adherents with supposed schemes of Federal usurpation.
Those Who Would Limit the Federal Taxing Power Act Out of Jealousy or Timidity
The moment we commence conjecturing about Federal usurpations, we descend into an unfathomable abyss and put ourselves out of the reach of all reason. Imagination can thus allow itself to range at will amidst the labyrinths of an enchanted castle – until the rash adventure bewilders the mind with limitless perplexities. No matter what limits are erected against the powers of the Federal government, it is easy to imagine an endless train of possible dangers. By indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution.
All observations founded upon the danger of usurpation ought to be referred to the composition and structure of the Federal government, and not to the nature or extent of its powers.
* * *
In republics, strength is always on the side of the People.
* * *
Are not State governments invested with complete sovereignty by virtue of their own constitutions? What security counters usurpation from that quarter? Without doubt the answer is found in the manner of their formation and a due reliance upon those who are to administer them upon the People. If the Federal Constitution affords the same species of security, all apprehensions on the score of usurpation should be discarded.
A disposition in the Federal government to encroach upon the rights of State governments is no more probable than a disposition in State governments to encroach upon the rights of the Federal government. The prevailing party is such a contest would likely have the greater means of ensuring success. In republics strength is always on the side of the People. As State governments will commonly possess the most influence over the People, the natural outcome of such contests would benefit State governments at the expense of the Federal government.
But all conjectures of this kind are extremely vague and fallible: the safest course by far is to lay them altogether aside, and confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the People. Since the People hold the scales of justice in their own hands, we must hope they will always take care to preserve the constitutional equilibrium between the Federal and State governments. Upon this truth, the objections to an indefinite power of taxation in the United States must collapse.
Hamilton
original Federalist 31 Federalist 32: With the Sole Exception of Duties on Foreign Imports and Exports, States Retain Full Taxing Authority
SOME STATE GOVERNMENTS MISAPPREHEND A DANGER from a perceived power of the Federal government to control their levies of money. A complete barrier to the oppressive use of such a power, however, exists due to the extreme hazard of (1) provoking the resentments of State governments, and (2) the sense of the People of the utility and necessity of local administrations for local purposes. Individual States possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. Under the Constitution, the States retain that authority in the most absolute and unqualified sense, with the sole exception being duties on imports and exports. Any attempt on the part of the Federal government to abridge that right would be a violent assumption of power, unwarranted by any article or clause in the Constitution.
The Constitution has no aim towards an entire consolidation of the State governments into one complete national sovereignty. Such a plan would imply an entire subordination of the States, with all remaining powers dependent on the general will. But as the Constitution aims only at a partial union or consolidation, the State governments clearly retain all the rights of sovereignty they had before its adoption.
The Three Areas in which the Federal Government Has Exclusive Authority
The only aspects of State governmental sovereignty passing to the Federal government are those rights the States have exclusively delegated to the United States. Viewed another way, this exclusive delegation amounts to an exclusive alienation of certain State rights. It exists in three cases only:
1. Where the Constitution in express terms grants an exclusive authority to the Federal government.
2. Where the Constitution in one instance grants an authority to the Federal government, and in another prohibits State governments from exercising the like authority.
3. Where the Constitution grants an authority to the Federal government, to which a similar authority in State governments would be absolutely and totally contradictory and repugnant. (This situation should be distinguished from those where the exercise of a concurrent federal and state jurisdiction might produce occasional interferences in the policy of any branch of administration, but not involve any direct contradiction or repugnancy in point of constitutional authority.)
These three cases of exclusive jurisdiction in the Federal government may be exemplified by the following instances:
1. Where the Constitution in express terms grants an exclusive authority to the Federal government. The Constitution expressly provides the Federal government shall exercise “exclusive legislation” over the district to be appropriated as the seat of government, to wit: the District of Columbia. Art. I, § 8, cl. 17. By this grant of exclusive authority, the States alienate any authority to legislate over the District of Columbia.
2. Where the Constitution in one instance grants an authority to the Federal government, and in another prohibits the States from exercising the like authority. For instance, the Constitution empowers the Federal government “to lay and collect Taxes, Duties, Imposts and Excises,” Art. I, § 8, cl. 1, while another clause declares: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws.” Art. I, § 10, cl. 2. These clauses result in an exclusive Federal power to lay duties on imports and exports, with the particular exception of State inspection laws. This exclusive power in the Federal government to lay duties on imports and exports is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State. In consequence, the exclusive power in the Federal government to lay duties on imports and exports extends only to imports.
3. Where the Constitution grants an authority to the Federal government, to which a similar authority in State governments would be absolutely and totally contradictory and repugnant. This third case of an alienation of State sovereignty is found in that clause which declares the Federal government shall have power “to establish a uniform rule of Naturalization . . . throughout the United States.” This must necessarily be exclusive, for if each State government had the power to prescribe a distinct rule, there could be no uniform rule.
The Federal power “to lay and collect Taxes, Duties, Imposts and Excises” Art. I, § 8, cl. 1, also raises the distinct concept of dual Federal and State sovereignty with respect to that power. This is manifestly a concurrent and coequal authority in the Federal government and State governments. The power “to lay and collect taxes, duties, imposts and excises” contains no expression making that power exclusive in the Federal government, aside from taxes on imports and exports. Nor does the Constitution include any independent clause or sentence prohibiting State governments from laying and collecting taxes on items other than imports or exports. The inclusion of a restriction on imports and exports implicitly admits that State governments would otherwise possess the power the restriction excludes. It further implies the authority of State governments to impose all other taxes remains undiminished. The restriction in question amounts to a negation of one thing, and an affirmance of another. It is a negation of the authority of State governments to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles.
The Federal and State Powers of Taxation Are Complementary
There is no repugnancy between the Federal and State powers of taxation. No construction of the Constitution would work an exclusion on State governments. It is possible a State government might lay a tax on a particular article which might render it inexpedient that a further tax should be laid on the same article by the Federal government, but it would not imply the constitutional inability to impose a further tax. The quantity of the imposition – and the expediency or inexpediency of an increase on either side – would be questions of mutual prudence, but there would be no direct contradiction of power. The particular policy of the Federal and State systems of finance might now and then not exactly coincide, and might require reciprocal forbearance, but the mere possibility of inconvenience in the exercise of powers cannot alienate and extinguish a pre-existing right of sovereignty. Only an immediate constitutional repugnancy can by implication alienate and extinguish a preexisting right of sovereignty.
* * *
The Federal power “to lay and collect taxes, duties, imposts and excises” also raises the distinct concept of dual Federal and State sovereignty with respect to that power. This is manifestly a concurrent and coequal authority in the Federal government and State governments. The power “to lay and collect taxes, duties, imposts and excises” contains no expression making that power exclusive in the Federal government, aside from taxes on imports and exports. Nor does the Constitution include any independent clause or sentence prohibiting State governments from laying and collecting taxes on items other than imports or exports.
* * *
Dual (Concurrent) Sovereignty Can and Will Exist between the Federal Government and State Governments
The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power. Any State authority which the Constitution does not explicitly divest in favor of the Federal government remains with the State governments in full vigor. This is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the Constitution. We there find – in those cases where it was deemed proper to have exclusive Federal authority – the most pointed care was expended to insert negative clauses prohibiting the exercise of those authorities by the States. Article I, section 10, consists altogether of such provisions. Its three paragraphs provide:
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
These expressions are clear indications of the sense of the Constitutional Convention. It furnishes a rule of interpretation which justifies the position I have advanced and refutes every hypothesis to the contrary.
Hamilton
original Federalist 32Federalist 33: The Plain Meanings of the Necessary and Proper Clause and the Supremacy Clause
The Plain Meanings of the Necessary and Proper Clause and the Supremacy Clause
THE REMAINING ARGUMENTS against the Federal power to tax focus on two clauses that allegedly will harm the States irremediably.
The first clause – the Necessary and Proper Clause – authorizes the Federal legislature “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof.” Art. I, ¶8, cl. 18, emphasis added.
The second– the Supremacy Clause – declares “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.” Art. I, cl. 2, emphasis added.
The Two Clauses Are Neither Extraordinary Nor Harmful
State and local governments have in some instances misrepresented these powers as pernicious engines that will destroy their governments and exterminate the liberties of the People. Some describe a hideous monster whose devouring jaws would spare neither sex nor age, high nor low, sacred nor profane. And yet, after all this clamor, it may be affirmed with perfect confidence that the constitutional operation of the Federal government would be precisely the same whether these clauses were entirely obliterated or repeated in every article.
The clauses simply declare a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a Federal government and vesting it with certain specified powers. The proposition is so clear that moderation itself can scarcely listen to the copious railings vented against it.
* * *
The first clause– known as the Necessary and Proper Clause – authorizes the Federal legislature “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof.”
Art. I, ¶8, cl. 18.
* * *
The Necessary and Proper Clause Explained
What is a power but the ability or faculty of doing a thing?
What is the ability to do a thing but the power of employing the means necessary to its execution?
What is a legislative power but a power of making laws?
What are the means to execute a legislative power but laws?
What is the power of laying and collecting taxes, but simply a legislative power – a power of making laws – to lay and collect taxes?
What are the proper means of executing such a power, but necessary and proper laws?
A power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power. The clause under attack does no more than declare the same truth, to wit, that the Federal government – to whom the power of laying and collecting taxes has been given – might pass all laws necessary and proper to carry into effect the execution of that power.
The Power to Tax Is the Most Important Delegated Power
I have explained the meaning of the Necessary and Proper Clause as applied to the power of taxation because it is the most important of the authorities conferred upon the Federal government. The logic supporting its use inexorably lead to the same result in relation to all other powers declared in the Constitution. And it is expressly to execute those powers that the Constitution authorizes the national legislature to pass all necessary and proper laws. Any objection to this clause ought to be referred to the specific power to which it applies. The Necessary and Proper Clause is itself perfectly harmless.
The Necessary and Proper Clause Was Added to Refute Those Who Would Contend Such Power Does Not Exist
But suspicion might ask: Why was the Necessary and Proper Clause introduced? The answer is: for greater caution to guard against the caviling refinements by those who would curtail and evade the legitimate authorities of the Federal government.
The Convention foresaw the greatest threat to our political welfare would be the resistance of State governments to Federal authority, and that nothing should be left to construction on so cardinal a point. But whatever the inducement to it, the wisdom of the precaution is evident from the cry raised against it.
Congress Shall Have the Initial Say on What Is Necessary and Proper
It also may be asked: Who is to judge the necessity and propriety of the laws to be passed for executing the powers of the Federal government?
In the first instance, the Federal government – like every other – must judge the proper exercise of its own powers.
The People Have the Ultimate Say on What Is Necessary and Proper
In the last instance, the power rests with its constituents. If the Federal government should overpass the bounds of its just authority and make a tyrannical use of its powers, the People – whose creature it is – must take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
The propriety of a law – in a constitutional light – must always be determined by the nature of the powers upon which it is founded. If the Federal legislature attempted to vary the law of descent in any State, it would be evident it had exceeded its jurisdiction and infringed upon the jurisdiction of that State. If the Federal government (upon the pretense of an interference with its revenues) should undertake to abrogate a land tax imposed by the authority of a State government, said abrogation would be an invasion of the concurrent jurisdiction over this species of tax, which the Constitution assumes exist in State governments? Should there ever be a doubt in this type of case, it would be entirely due to those have labored to envelop the plainest and simplest of truths in a cloud of obscurities.
* * *
The second– known as the supremacy clause – declares “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.” Art. VI, cl. 2.
* * *
The Supremacy Clause Is a Logical Statement of Supreme Authority
What inference shall be drawn from the clause stating the laws of the Federal government are to be the supreme law of the land? What would such laws amount to if they were not the supreme law of the land? They would amount to nothing.
A law – by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws the larger may enact – pursuant to the powers entrusted to it by its constitution – must necessarily be supreme over those societies, and the individuals of whom they are composed.
If the laws of the larger society were not supreme, each law would be a mere treaty between the larger and smaller society – dependent on the good faith of the parties – and not a government, which is only another word for political power and supremacy.
The Supremacy Clause Extends to Constitutional Acts Only
It does not follow from the doctrine of supremacy that acts of the large society which are not pursuant to its constitutional powers – but which are invasions of the residuary authorities of the smaller societies – will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.
Like the clause authorizing necessary and proper laws, the clause which declares the supremacy of the laws of the United States only declares a truth which flows immediately and necessarily from the institution of a Federal government. It expressly confines this supremacy to laws made pursuant to the Constitution. This is another instance of caution in the Convention, by including in express terms a limitation that would otherwise be necessarily implied.
A new law laying a tax for use by the Federal government would be supreme in its nature, and could not legally be opposed or controlled. But a law abrogating or preventing the collection of a tax laid by a State (aside from imports and exports) would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of State and Federal taxes on the same object might tend to render the collection difficult or precarious, this would be a mere mutual inconvenience. It would arise from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. I would hope and presume that mutual interest would dictate a concert in this respect which would avoid any material inconvenience.
Under the Constitution, State governments retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need – by every kind of taxation – except duties on imports and exports. In Federalist 34, I will show this concurrent jurisdiction was the only possible substitute for an entire subordination of State taxation authority to that of the Federal government
Hamilton
original Federalist 33Federalist 34: Concurrent Federal and State Power to Tax
The Federal and State Powers to Tax Are Almost Identical, Allowing Both to Satisfy Their Needs
UNDER THE CONSTITUTION, EACH STATE GOVERNMENT has coequal authority with the Federal government to lay and collect taxes, except as to duties on imports. The greatest part of local resources are open to taxation for supplying revenues for the States. The States therefore possess means as abundant as could be desired for the supply of their own wants.
Coequal Taxing Authority Already Exists and Works Well
Relying upon abstract principles, some argue such coequal taxing authority cannot exist. Their suppositions and theories fail when measured against fact and reality. Abstract principles are proper enough to show a thing ought not to exist. But when a thing already exists in fact and reality, and abstract principles are summoned to prove it cannot exist, fact and reality must triumph.
* * *
Abstract principles are proper enough to show a thing ought not to exist. But when a thing already exists in fact and reality, and abstract principles are summoned to prove it cannot exist, fact and reality must triumph.
* * *
The Dual Roman Legislatures Proved Coequal Authority Can Work
In the Roman republic, the legislative authority of last resort resided in two distinct and independent legislatures. Each had the power to annul or repeal the acts of the other. I allude to the comitia centuriata – the Century Assembly – and the comitia tributa – the Tribal Assembly. In the Century Assembly the people voted through representatives known as centuries. It was so arranged to give a superiority to the patrician interest. In the Tribal Assembly numbers prevailed, so the plebian interest was entirely predominant. It would be easy in the abstract to prove the unfitness of granting each the seemingly contradictory authority to annul or repeal the acts of the other, but an inhabitant of ancient Rome who undertook such an exercise would have been regarded as a lunatic. These two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.
Neither the Federal Nor State Governments Can Annul the Acts of the Other
In the case of coequal authority of the Federal government and State governments to lay and collect taxes, neither side has the power to annul the acts of the other. And in practice there is little reason to apprehend any conflict. In the course of time, the wants of the States will naturally reduce themselves within a very narrow compass. In the interim, the United States will probably find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.
* * *
We cannot leave the Federal government entrusted with the care of the national defense without the capacity to provide for the protection of the community against future invasions of the public peace by foreign war or domestic convulsions.
* * *
We can form a more precise judgment of the true merits of this question by comparing the proportion of Federal to State objects requiring taxes to sustain them. We shall discover the Federal objects are altogether unlimited, and the State objects circumscribed within very moderate bounds. While pursuing this inquiry, one must look beyond the present to the future, to our posterity. Constitutions of civil governments are framed not upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. One cannot gauge the extent of any power lodged in a national government by estimating its immediate necessities. There ought to be a capacity to provide for future contingencies as they may happen. Since future contingencies are unlimited by nature, the capacity to respond to such contingencies must also be unlimited.
It is possible that a sufficient computation might be had of the quantity of revenue requisite to discharge the subsisting engagements of the Federal government, and to maintain those establishments in times of peace. While peace is a useful starting point, it would be the extreme of folly to stop there.
We cannot leave the Federal government entrusted with the care of the national defense without the capacity to provide for the protection of the community against future invasions of the public peace by foreign war or domestic convulsions. And once we commence that undertaking, can we stop at anything less than an indefinite power in the Federal government to provide for emergencies as they may arise?
* * *
Judging from the history of mankind, the fiery and destructive passions of war reign more powerfully in the human breast than the mild and beneficent sentiments of peace. To model our political systems upon speculations of lasting tranquility is to calculate on the weaker springs of the human character.
* * *
Some assert it is easy to form a rational judgment of a proper provision against probable dangers. To these individuals we may safely issue a challenge: bring forward your data, so we can confirm your facts are as vague and uncertain as any that could be produced to establish the probable duration of the planet.
Observations confined merely to the prospects of internal attacks deserve no weight. If we mean to be a commercial people, our policy must be to defend that commerce. he support of a navy and of naval wars involve contingencies which baffle all political arithmetic. To its benefit, our Constitution undertakes the novel – and some would say absurd – approach of tying up the hands of government from engaging in an offensive war founded upon reasons of state. Clouds of war have hovered over parts of Europe and the Mediterranean for centuries. If they should again break forth into a storm, who but we can ensure our own safety? Even if the storm fails to reach us, what security have we that our tranquility will remain undisturbed from some other cause or quarter? Peace or war will not always be left to our option, even if we were to practice complete moderation and forsake ambition. Who could have imagined at the conclusion of the Revolutionary War that France and Britain – wearied and exhausted as they both were – would have looked so soon at each other with so hostile an aspect?
The Instinct to Fight Is More Powerful than the Instinct for Peace
Judging from the history of mankind, the fiery and destructive passions of war reign more powerfully in the human breast than the mild and beneficent sentiments of peace. To model our political systems upon speculations of lasting tranquility is to calculate on the weaker springs of the human character.
The Greatest Expense of Any Government Is Preparing for War
In every government, the chief sources of expense are wars, rebellions, and the enormous debts they cause. War and rebellion are the two most mortal diseases of society. The expenses necessary to guard the body politic against them dwarf those relative to the mere domestic police of a state, the support of its legislative, executive, and judicial departments (along with their different appendages), and the encouragement of agriculture and manufactures (which comprehend almost all the objects of state expenditure).
In the kingdom of Great Britain, not above a fifteenth part of its annual income is appropriated to agriculture and manufactures. The rest is absorbed in the payment of the interest of debts contracted for carrying on its wars and maintaining its fleets and armies.
* * *
Peace or war will not always be left to our option, even if we were to practice complete moderation and forsake ambition. Who could have imagined at the conclusion of the Revolutionary War that France and Britain – wearied and exhausted as they both were – would have looked so soon at each other with so hostile an aspect?
* * *
Some might say the necessary expenses of a republic cannot be compared to the expenses incurred in a monarch’s prosecution of ambitious enterprises and vainglorious pursuits. But if we put aside the extra domestic expenses an ostentatious monarchy entails, the expenses it devotes to war would be proportional to those incurred in the defense of a republic.
In Order to Defend against War and Rebellion, the Expenses of the Federal Government Will Exceed Those of State Governments
Even if the United States endures only a common share of the events which disturb the peace of nations, the objects of Federal expenditures will always far exceed the objects of State and local expenditures. As proof, one need consider only the enormous debts incurred by the States to complete our revolutionary war for independence. Once these debts are discharged and the Federal government assumes the burdens of defense, the only call for revenue of any consequence from State governments will be for the sums appropriated annually to pay its own civil list of appointees to the Federal government.
The Potential Expenses of the Federal Government Are Unlimited
We have framed a government for posterity as well as ourselves. For those provisions designed to be permanent, we ought to calculate permanent causes of expense, not temporary ones. If this principle be just, a provision in favor of State governments for an annual sum of about 200,000 British pounds would be proper. The exigencies of the Federal government, on the other hand, are susceptible of no limitation, even in imagination.
In response, some contend State governments ought to command – in perpetuity – an exclusive power to levy taxes to secure revenue for State expenditures beyond the sum of £200,000 needed to pay for their civil lists. But extending the power of the States to the exclusion of the Federal government would unwisely divert the resources of the community away from those most in need of them to secure the public welfare. Such a limitation also ignores the potentially unlimited needs of the Federal government.
It Would Be Improper to Divide Sources of Taxation Based on the Comparative Needs of Governments
If the authors of the Constitution had been inclined to divide the sources of taxation between the State and Federal governments in proportion to their comparative needs, all of the available tax sources would have been either been too much or too little for their present needs, and too much for their future needs. If States were given authority over import duties, they would command two thirds of the resources of the nation to defray from a tenth to a twentieth part of its expenses. The Federal government would be left with one third of the nation’s resources to defray 9/10ths to 19/20ths of its expenses.
* * *
The Constitutional Convention decided concurrent jurisdiction was the only admissible substitute for an entire subordination of State authority to Federal authority in the article of taxation. Had there been any separation of the objects of taxation, the great interests of the United States would have been sacrificed of the great power of the individual States.
* * *
Even if the Constitution granted State governments exclusive power of taxing houses and lands, it would not eliminate the shortage of the means supplied to achieve the end envisioned. State governments would possess one third of the resources of the community to supply one tenth of its wants. If some other fund could have been selected and appropriated, it still would have been inadequate to discharge the existing debts of the particular State governments, leaving them dependent on the Federal government.
The Constitutional Convention decided concurrent jurisdiction was the only admissible substitute for an entire subordination of State authority to Federal authority in the article of taxation. Had there been any separation of the objects of taxation, the great interests of the United States would have been sacrificed of the great power of the individual States. Concurrent jurisdiction was thought preferable to subordination. Concurrent power over taxation reconciles the need for an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities.
Hamilton
original Federalist 34 Federalist 35: Import and Manufacturing Taxes; the Likely and Proper Composition of the House of Representatives
HERE I SHALL DEMONSTRATE why limiting the federal taxing authority to import duties is unwise. I also respond to the sentiment that calls for equal representation of all classes in the national popular assembly.
Federal Tax Revenues Must Not Be Limited to Duties on Imports
Restricting the Federal government’s power of taxation to particular objects would naturally cause an undue proportion of the public burdens to fall upon those objects. Such a restriction also would oppress particular branches of industry and lead to an unequal distribution of taxes among the several States as well as among the citizens of the same State.
The federal power of taxation is indefinite. If that power were confined to duties on imports, the Federal government would extend those duties to an injurious excess due to its inability to command other resources.
Duties Must Be Kept Sufficiently Low to Prevent the Smuggling that Will Undermine Tax Revenue
Some say duties can never be too high because they tend to discourage extravagant consumption, produce a favorable balance of trade, and promote domestic manufactures. The argument favors an extreme – and like all extremes – it tends towards ruin. Exorbitant duties on imported articles naturally beget a general spirit of smuggling. Smuggling always undermines the fair trader, and eventually the tax revenue itself.
High Duties Protect the Manufacturing Classes and Oppress Merchants
High duties result in an improper form of community tribute to the manufacturing classes, who benefit the most from the monopoly of markets excessive tariffs foster. High duties result in artificial price inflation, which oppresses the merchant, who often must pay the duty just to make the sale. While the consumer generally pays the duty when demand equals supply at market, when markets are overstocked, most of the duty falls upon the merchant, who is sometimes forced to exhaust profits and even break in on capital. A division of an import duty between buyer and seller happens more often than commonly imagined. Sometimes it is impossible to raise the price of a commodity in exact proportion to each additional imposition laid upon it. The merchant – especially in a country of small commercial capital – must often keep prices down to expedite a sale. When the merchant is forced to pay the duty to complete a sale, the duty acts as an additional tax upon the importing State.
States Importing Little Would Contribute Less to the National Treasury in Proportion to their Abilities
High duties produce inequalities between States importing much and States importing little, for the citizens of States importing little pay fewer duties, and thereby contribute less to the national treasury in a ratio to their abilities. The higher the duties, the greater the inequality.
Manufacturing States Also Pay Less than their Share Because They Import Less, so Excise Taxes on Their Manufactures Is Appropriate
Confining the federal taxing power to duties or imports only would foster inequality between those States with manufacturing resources and those without. States with manufacturing facilities consume fewer imported articles and thereby contribute less to the public treasury in a ratio to their abilities. To eliminate this disparity, recourse must be had to excises, the proper objects of which are particular kinds of manufactures.
New York is more deeply interested in these considerations than her citizens may be aware. New York, an importing state, is not likely speedily become a manufacturing state. She would suffer doubly by limiting to commercial imposts the jurisdiction of the Federal government.
Necessity often Occasions False Hopes, False Reasoning, and a System of Measures Correspondingly Erroneous
High duties depress consumption and thus the revenue of the taxing authority. This serves as a natural brake on any tendency to raise import duties to an injurious extreme. While this is readily true so as long as other sources of taxation remain open, should those sources be closed – hope – stimulated by necessity, would beget experiments. Fortified by rigorous precautions and additional penalties, these might work at first. But with time comes leisure enough to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, requiring a long course of subsequent experience to correct. And the inequalities mentioned above would still ensue even if duties are not raised to injurious excess.
Import Duties Should Be Administered as a Federal Common Fund
My final point regarding duties is they should be shared among the States. As noted above, where duties are normal, the ultimate purchaser usually pays, whether or not said buyer is situated in the importing State. Thus it is far more equitable that the duties on imports to go into a common stock, than to redound them to the exclusive benefit of the importing State.
And now I turn to the important question of the likely composition of the House of Representatives, and whether there ought to be any quotas or restrictions imposed to ensure the body is fairly representative of the People.
For Good Reasons, the House of Representatives Will Never Include Citizens from Every Class
We often hear the House of Representatives is insufficiently numerous to receive all the different classes of citizens. Those who would increase its size – or require representatives from every class – believe the interests and feelings of every part of the community should be combined, thereby producing a due sympathy between the representative body and its constituents.
This argument is seductive initially but ultimately specious. It is well calculated to lay hold of the prejudices of those to whom it is addressed. If one dissects the argument, it vanishes into nothing but fair sounding words.
To begin with, all that can be reasonably meant by a knowledge of the interests and feelings of the People is an acquaintance with the general genius, habits, and modes of thinking of the citizenry at large, and with the resources of the country. In any other sense the proposition has no meaning at all, or an absurd one.
Freedom of electoral choice naturally leads to the selection of landholders, merchants, and those of the learned professions to representative assemblies, with too few exceptions to have any influence on the spirit of the government.
* * *
As for the noble goal of a due sympathy between the represented and the representative, the composition of popular assemblies always tends toward the merchant by the natural choice of those of the lesser arts.
* * *
The idea that all classes of the People should be represented in the House of Representatives by actual members from each of the classes is altogether visionary. For one thing, it would never take place in practice, unless the Constitution expressly required it.
Its object also is impracticable, for it is impossible to construct or enforce a plan to require a representative from each of the classes.
Merchants Are Natural Representatives of their Own Class, and of the Manufacturing and Mechanical Arts as Well
As for the noble goal of a due sympathy between the represented and the representative, the composition of popular assemblies always tends toward the merchant by the natural choice of those of the lesser arts.
Mechanics and manufacturers will almost always be inclined to give their votes to merchants rather than persons of their own professions or trades. Mechanics and manufacturers furnish the materials of mercantile enterprise and industry. Many are immediately connected with the operations of commerce. They know the merchant is their natural patron and friend, and will more effectually promote their interests than they would themselves. And in a deliberative assembly, the talents of the mechanic and manufacturer are little in demand.
The arguments of merchants carry more weight and influence, rendering them more equal in a contest should any spirit unfriendly to their interests infuse itself into the public councils. Our own experience confirms that both artisans and manufacturers commonly bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.
* * *
The arguments of merchants carry more weight and influence, rendering them more equal in a contest should any spirit unfriendly to their interests infuse itself into the public councils. Our own experience confirms that both artisans and manufacturers commonly bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.
* * *
The Landed Interests Will Represent All Landholders
The landed interests will be perfectly united from the wealthiest landlord to the poorest tenant, particularly in relation to taxes. Any tax laid on land affects the proprietor of millions of acres down to the proprietor of one. Since common interest is the surest bond of sympathy, every landholder desires to keep the taxes on land as low as possible. Even if we suppose the interests the opulent landholder and the middling farmer are distinct, is there any reason to conclude one would stand a better chance than the other of being elected to the Congress? If we look at the legislature of New York, moderate proprietors of land prevail in both its assembly and senate. Those inspiring the greatest confidence naturally receive the most votes, whether they be individuals of large fortunes, moderate property, or no property at all.
Those of the Learned Professions Will Be Elected According to their Skills
All that remain are members of the learned professions, who truly form no distinct interest in society. They will have confidence in and be the choice of each other – and the community – according to their situation and talents.
Requiring Representatives from Every Class Is Unnecessary, for the Most Likely to Be Elected Will Best Serve the Nation’s Interests
The argument in favor of a system or quota to diversify representation of the various classes in Congress assumes in error that merchants, landholders and the learned professions will not understand or attend to the feelings and interests of the community.
Where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these classes of likely representatives, landholders, and the learned professions?
* * *
The argument in favor of a system or quota to diversify representation of the various classes in Congress assumes in error that merchants, landholders and the learned professions will not understand or attend to the feelings and interests of the community. Where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these classes of likely representatives, landholders, and the learned professions?
* * *
Will not the landholder know and feel whatever will promote or insure the interest of landed property? The landholder is imbued with a self-interest prone to resist every attempt to prejudice or encumber that species of property. The merchant, too, will be disposed to understand and cultivate the interests of the mechanic and manufacturing arts, for their commerce is closely allied. And those representatives drawn from the learned professions will likely prove themselves impartial arbiters of the rivalries among industries, standing ready to promote one or the other as shall appear conducive to the general interests of society.
The individual whose situation leads to extensive inquiry and information is more likely to be a competent judge of the nature, extent, and foundation of the momentary humors and dispositions prevailing in particular parts of the society than one whose observation travels not beyond the circle of neighbors and acquaintances.
A candidate for the favor of the People depends upon the votes of fellow citizens for election to and continuance in office. Such an individual naturally takes care to become informed of the dispositions and inclinations of the citizens, and allows them their proper degree of influence upon his or her conduct. This dependence of the representative upon the constituent – plus their mutual obligation to obey the laws to which the representative gives assent – are the only true and strong chords of sympathy between the electors and the elected.
Proper Administration of the Federal Power to Tax Demands that Representatives Be Chosen from the Citizenry at Large
Finally, no part of the administration of government requires more extensive information and thorough knowledge of the principles of political economy than the business of taxation. The representative who understands that the most productive system of finance is the least burdensome will be the least likely to resort to oppressive expedients or to sacrifice any particular class of citizens to the procurement of revenue. Such individuals are more likely to be drawn from citizenry at large than from a particular class or group.
* * *
The representative who understands that the most productive system of finance is the least burdensome will be the least likely to resort to oppressive expedients or to sacrifice any particular class of citizens to the procurement of revenue.
* * *
For a discussion of the related objection based upon the supposedly insufficient number of members in the House or Representatives, I direct the reader to Federalist 55.
Hamilton
original Federalist 35Federalist 36: The Power of Taxing within States Is One of the Most Important Powers of the Federal Government
Representation in Congress will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, all of whom will truly represent the different interests and views of the various classes of the community, as I explained in Federalist 35. While variations do exist in local legislatures, they are exceptions to the rule, and not in sufficient number to influence the general complexion or character of the government.
There are strong minds in every walk of life that rise above the disadvantages of situation. They will command the tribute due to their merit, not only from the classes to which they belong, but from the society in general. The door ought to be equally open to all. To the credit of human nature, I trust we shall see examples of such vigorous plants flourishing in the soil of Federal as well as of State legislation. Occasional instances of this sort, though, do not render less conclusive the reasoning founded upon the general course of things.
Merchants Will Well Represent Manufacturers and Mechanics
Even if the subject of representations is viewed in different lights, the same aspect appears. There is no greater affinity or relation of interest between the carpenter and blacksmith, the linen manufacturer or stocking weaver, than there is between the merchant and all of them. It is well known there are great rivalries between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry. Unless the representative body of Congress were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that representation of all classes would ever be realized in practice. Those who suggest or demand otherwise have fitted their argument with too loose a garb to admit even of an accurate inspection of its real shape or tendency.
* * *
There are strong minds in every walk of life that rise above the disadvantages of situation. They will command the tribute due to their merit, not only from the classes to which they belong, but from the society in general. The door ought to be equally open to all.
* * *
Congress Will Comprehend the Nuances of State Tax Matters
The word “tax” appears several times in the Constitution, with two of the most prominent occasions in Article I, governing the power of Congress.
Article I, section 2, clause 3, provides that “direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, . . . .”
Section 8 of the same article adds: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States . . . .”
Opponents of the Constitution asserted the Federal power of internal taxation cannot be exercised with advantage, from a supposed lack of sufficient knowledge of local circumstances, as well as an interference between the revenue laws of the United States and of the particular States.
The supposition of a want of proper knowledge in the Federal legislature is entirely destitute of foundation. If a State legislature demands a knowledge of local details, undoubtedly it acquires the information from county or municipal members. A like knowledge will be obtained in Congress from the representatives of each State. We ought to presume the individuals sent to Congress will be possessed of the necessary degree of intelligence to be able to communicate that information. As applied to taxation, the knowledge of local circumstances does not require a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State. It more properly requires a general acquaintance with situation and resources of a State, its agriculture, commerce, manufactures, with the nature of its products and consumptions, and the different degrees and kinds of its wealth, property, and industry.
Committees or Individuals Compose Most Initial Taxation Plans
Nations in general – even under governments of the more popular kind – usually commit the administration of their finances to a single individual or to boards composed of a few individuals, who initially digest and prepare the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.
* * *
The supposition of a want of proper knowledge in the Federal legislature is entirely destitute of foundation. If a State legislature demands a knowledge of local details, undoubtedly it acquires the information from county or municipal members. A like knowledge will be obtained in Congress from the representatives of each State. We ought to presume the individuals sent to Congress will be possessed of the necessary degree of intelligence to be able to communicate that information.
* * *
Inquisitive and enlightened statesmen are everywhere deemed the best qualified to make a judicious selection of the objects proper for revenue. This is a clear indication – as far as the sense of mankind can have weight in the question – of the extent of knowledge of national and local circumstances requisite to the purposes of taxation.
The Power to Impose Federal Taxes within States Is Essential
Federal taxes imposed within States are both direct and indirect. As for indirect taxes – that is, duties and excises on articles of consumption – I am at a loss to conceive the nature of any perceived difficulties. The knowledge relating to these items is of a kind suggested by the nature of the article itself, or which can easily be procured from any well-informed individual, especially of the mercantile class.
The circumstances that distinguish one State’s situation from another are few, simple, and easily comprehended. The principal thing to attend to would be avoiding those articles which had been previously appropriated as a revenue source by a particular State. These items are determinable by ascertaining the revenue system of each State, it code of laws, and from information of the members from the several States. Direct taxes seemed to draw the most opposition.
Taxation of Realty and Structures
The objection based on lack of knowledge of local circumstances initially appears to have more foundation when applied to real property or to houses and lands, but even in this view it does not bear a close examination. Land taxes are commonly laid in one of two modes. The first is by actual valuations, either permanent or periodical. The second is by occasional assessments, at the discretion (or according to the best judgment) of officers whose duty it is to make them. In either case, the execution of the business must be devolved upon persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do is to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications, and to draw the general outlines of their powers and duties. There is nothing in all this that cannot be performed by Congress as by a State legislature. The attention of either can only reach to general principles. As just noted, local details must be referred to those who are to execute the plan.
Congress Can Use State Systems to Collect Federal Taxes
A complete answer to all objections based on want of local knowledge is that Congress can lay and collect this species of taxes within each State by using the system of each State within that State.
Federal Taxes Will Be Collected Proportionally from Each State
The proportion of taxes collected within each State is not left to the discretion of Congress. It will be determined by the numbers of each State, based on the actual census (or enumeration) of the People. Art. I, § 2, cl. 3. Guarded circumspection guided the Convention to shut the door to partiality, oppression, or abuse. In addition to this precaution, there is the provision that ‘all duties, imposts, and excises shall be uniform throughout the United States.” Art. I, § 8, cl. 1.
Congress Can Adjust Ineffective Taxation
Those in favor of the Constitution very properly observed in speech and by pen that the system of requisitions from States could be revived if the use of internal taxation of State citizens proved ineffective. As if admitting the existence of a fallback fortress amounts to a concession of anything, opponent of the Constitution triumphantly asked, “Why not omit the power to tax within States in the first instance, and rely solely upon requisitions?” First, as these papers frequently note, the former system of Federal requisitions from States as States almost failed during the Revolution. The power of taxing individual State citizens also will be preferable because it will be more effectual. Furthermore, the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions should they be needed. When each State knows the United States may apply itself without their agency, it will be a powerful motive for exertion on their part.
The Interaction of Federal and State Taxation
We have already seen there can be no clashing or repugnancy of authority between the revenue laws of the United States and of its members. In a strictly legal sense, their laws cannot interfere with each other. It also is far from impossible to avoid an interference even in the policy of their different systems. An effective expedient for this purpose will be the mutual abstention from those objects to which either side may have had recourse to first. As neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an immediate common interest, we may safely count upon its operation. When the particular debts of the States are paid, and their expenses come to be limited within their natural compass, the possibility of interference almost will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.
Double Taxation of the Same Revenue Is Unlikely
To excite the apprehensions of the People, many specters were raised out of the power of internal taxation. Double sets of revenue officers, a duplication of their burdens by double taxation, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. I will expose the fallacious phantoms in turn.
Double Sets of Officers Collecting the Same Revenue Is Unlikely
There are two cases in which there can be no room for double sets of officers: where the right of imposing the tax is exclusively vested in the United States (which applies to the duties on imports), and where the object has not fallen under any State regulation or provision (which may be applicable to a variety of objects). In all other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting an additional imposition. This practice will save expense of collection, and best avoid any occasion of disgust to the State governments and to the People. It is a practicable expedient for avoiding these inconveniences, and nothing more can be required than to show that the predicted evils do not necessarily result from the Constitution itself.
State Revenue Officers Can Collect Federal Taxes
As to any argument derived from a supposed system of Federal influence over the States, it is sufficient to say that it ought not to be presumed. And if such a spirit should infest the councils of the United States, its most certain road to success would be employment of State officers as much as possible, and to attach them to the Federal government by an accumulation of their emoluments. This would result turn the tide of State influence into the channels of the Federal government, instead of making Federal influence flow in an opposite and adverse current. All suppositions of this kind are invidious, however, and answer no other end than to cast a mist over the truth.
Double Taxation Is Illusory
As to the suggestion of double taxation, the answer is plain. The revenue needs of the United States will be supplied in one way or another. If done by the authority of the Federal government, it will not be done under the authority of State governments. The quantity of taxes to be paid by the community will be the same in either case. The capital resource of commercial imposts and duties – the most convenient branch of revenue – can be prudently improved to a much greater extent under Federal than State regulation. This will render it less necessary to recur to more inconvenient methods, like requisitions from States. A further advantage is its tendency towards a disposition of greater care in the choice and arrangement of taxation. Commercial imposts are a rich tributary to the public treasury, and will diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest the government has in the preservation of its own power coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression!
Poll Taxes Are an Anachronism, though Lawful
I, without scruple, confess my disapprobation of poll taxes, which are typically collected on adults prior to voting. As a government revenue stream, they have prevailed from an early period in the States of New England, which have uniformly been most tenacious in defense of their rights. Every State has power to impose taxes of this kind, although in several States poll taxes are unknown in practice. State governments are not stigmatized as tyrannies because they possess this power.
I should lament to see them introduced into practice under the Federal government, but the power ought to exist. If they are lawful in the States, with what propriety can a like power in the Federal government be urged as an obstacle to its adoption?
There are certain emergencies of nations – in which expedients that in the ordinary state of things ought to be forborne – become essential to the public weal. From the possibility of such emergencies, the government always ought to have the option of using them. At present, there is a real scarcity of objects in this country which may be considered as productive sources of revenue. This circumstance is reason enough not to abridge the discretion of the Federal government in this respect. As I know of nothing exempting this portion of the globe from the common calamities that have befallen other parts of it, a poll tax may become an inestimable resource during certain critical and tempestuous conjunctures.
I acknowledge my aversion to every project calculated to disarm the Federal government of a single weapon which might be usefully employed for the general defense and security in any possible contingency.
The Judiciary Will Be Examined Separately, in Federalist 79 through Federalist 81
I have now completed examination of the powers vested in the United States which may be considered as having an immediate relation to the energy of the government, and endeavored to answer the principal objections made to them. I have passed over in silence those minor contentions either too inconsiderable to have been thought worthy of hostilities by the opponents of the Constitution, or of too manifest propriety to admit of controversy.
The mass of judicial power might have claimed an investigation under this heading, but its organization and extent may be more advantageously considered separately, in Federalist 78 through Federalist 81.
Hamilton
original Federalist 36The Brilliance of Constitutional Convention (Federalist 37-40)
Federalist 37: The Considerations Moving the Constitutional Convention
AS THE ULTIMATE OBJECT OF THESE PAPERS is to determine clearly and fully the merits of the Constitution, the plan cannot be complete without taking a more critical and thorough survey of the work of the Constitutional Convention, in which I examine all its sides, compare all its parts, and calculate its probable effects. So that this remaining task is executed under impressions conducive to a just and fair result, some reflections must be indulged.
Public Measures Are Rarely Examined with Moderation
Inseparable from human affairs is the misfortune that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good. This spirit is more apt to be diminished than promoted on those occasions which require an unusual exercise of it.
* * *
As evidenced in their own publications, some scanned the Constitution – not only with a predisposition to censure – but with a predetermination to condemn. Others betrayed the opposite predetermination or bias, which rendered their opinions also of little moment in the question.
* * *
The Constitution Was Not Excepted from Unjustified Criticism
To those who have experienced the tendency to abandon moderation with respect to public measures, it is unsurprising the Constitution excited dispositions unfriendly to a fair discussion and accurate judgment of its merits, both by its opponents and proponents. The Constitution recommended so many important changes and innovations – which could be viewed in many lights and relations – that it touched upon the springs of many passions and interests.
As evidenced in their own publications, some scanned the Constitution – not only with a predisposition to censure – but with a predetermination to condemn. Others betrayed the opposite predetermination or bias, which rendered their opinions also of little moment in the question.
In placing these different characters on a balance with respect to the weight of their opinions, I do not insinuate there was no material difference in the purity of their intentions. The predetermined patron of what has been actually done may have taken his bias from the weight of the considerations that our situation was universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief. Such a person also may have been motivated by considerations of a sinister nature. The predetermined adversary, however, cannot claim that blind opposition was justified as an innocent mistake.
These Papers Are Directed to Impartial Readers, not Partisans
The truth is these papers are not addressed to persons falling under either of these characters. My writings solicit the attention only of those having a sincere zeal for the happiness of our country, and a temper favorable to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the Constitution without having a predisposition to find or to magnify faults, but with the understanding that a faultless plan was not to be expected. These persons will not assign liability for errors stemming from the fallibility of a convention of individuals, of which the Convention was one. Rather, they will also keep in mind that they themselves are but individuals, and ought not to assume an infallibility in reexamining the fallible opinions of others.
The Convention Was Novel Historically
Aside from the difficulties just discussed, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the Convention.
I am immediately struck by the novelty of the undertaking. The then-existing Confederation of States was founded on principles proven to be fallacious. Consequently, it was necessary to rebuild this first foundation, and the superstructure resting upon it.
Other confederacies had been governed by or experienced the same erroneous principles. These historical precedents were but beacons – giving warning of the course to be shunned, but without pointing out the course to be pursued. In such a situation, the most the Convention could do was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences unfold them.
* * *
Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which are the very definition of good government.
* * *
Reconciling Energy versus Stability in Government
A very important difficulty encountered by the Convention was combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, the representatives would have very imperfectly fulfilled the object of their appointment, or the expectation of the public. That this was not easily accomplished is denied only by those willing to betray ignorance of the subject.
Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which are the very definition of good government.
Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the People, which are among the chief blessings of civil society.
Irregular and mutable legislation is more odious than evil to the People. It may be pronounced with assurance that the People of this country – enlightened as they are with regard to the nature – and interested in the effects of good government (as the great body of them are) – will never be satisfied until a good remedy is applied to the vicissitudes and uncertainties which characterize the State administrations.
* * *
Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the People, which are among the chief blessings of civil society.
* * *
Liberty Is Maintained by Comparatively Short Terms
Mingling the valuable ingredients of stability and regard for human nature in due proportion with the vital principles of republican liberty discloses two complementary views. A republican government – composed of representatives – demands that all power should be derived from the People. But liberty insists that those entrusted with the power should be kept in independence from the People. This can be done by limiting the duration of appointments to a relatively short period – and that even during this short period the trust should be placed in a number of hands, not a few.
Stability requires that the hands in which power is lodged should continue for the same length of time, while energy in government requires a certain duration of power, and the execution of it by a single hand. A frequent change of representatives results from frequent elections, and a frequent change of measures results from a frequent change of representatives.
The Convention Undertook an Arduous Endeavor
How far the Convention succeeded in this part of their work will better appear on a more accurate view of it. From the cursory one here taken, it clearly appears it was an arduous effort. Not less arduous was the task of marking the proper line of partition between the authority of the Federal government and that of the State governments. Every person will be aware of the difficulties in proportion to being accustomed to contemplate and discriminate objects extensive and complicated in their nature.
The Workings of the Human Mind Are Not Easily Classified
The faculties of the mind itself have not yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, and imagination are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of vegetable life and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.
When we pass from the works of nature – in which all the delineations are perfectly accurate and appear to be otherwise only from the imperfection of the eye which surveys them – to the institutions of humans, in which the obscurity arises from the object itself as from the organ by which it is contemplated – we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity.
Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judicial; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts at political science.
The Changing Limits of the Law Present their Own Difficulties
The experience of ages has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice, despite the continued and combined labors of the most enlightened legislatures and jurists. The precise extent of the common law, statutory law, maritime law, ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her general and local courts – whether of law, equity, admiralty, and others – is not less a source of frequent and intricate discussions, which denotes the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning is liquidated and ascertained by a series of particular discussions and adjudications.
Aside from the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity thus requires not only that the ideas be distinctly formed, but they be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocal words denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy is greater or less according to the complexity and novelty of the objects defined.
When the Almighty Himself condescends to address mankind in their own languages, His meaning – luminous as it must be – is rendered dim and doubtful by the cloudy medium through which it is communicated.
* * *
Some features of the Constitution reflect these compromises, showing the Convention was compelled to sacrifice theoretical propriety to the force of extraneous considerations.
* * *
The Three Main Sources of Ambiguity in Conveying Meaning
Here, then, are three sources of vague and incorrect definitions: (1) indistinctness of the object, (2) imperfection of the organ of conception, and (3) inadequateness of the vehicle of ideas.
Any one of these must produce a certain degree of obscurity. The Convention experienced the full effect of them all in delineating the boundary between the Federal and State jurisdictions.
The Inherent Conflict Between Large and Small States
To the foregoing we may add the pretensions of the larger and smaller States. We cannot err in supposing the larger States contended for a participation in the government fully proportioned to their superior wealth and importance, while smaller States were not less tenacious of the equality they enjoyed. Neither side would entirely yield to the other, and consequently the struggle was terminated only by compromise.
And once the States agreed a ratio of representation, that very compromise produced a fresh struggle between the same parties concerning the organization of the Federal government and the distribution of its powers among the branches, with each State seeking to increase its importance and influence.
Some features of the Constitution reflect these compromises, showing the Convention was compelled to sacrifice theoretical propriety to the force of extraneous considerations.
Nor were disputes limited to the large and the small. Combinations of States marshaled themselves in opposition to each other on various points. Other combinations – resulting from a difference of local position and policy – created additional difficulties. Just as every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests may have a salutary influence on the administration of a government once formed, they were disruptive in the task of forming it.
* * *
Here, then, are three sources of vague and incorrect definitions: (1) indistinctness of the object, (2) imperfection of the organ of conception, and (3) inadequateness of the vehicle of ideas.
* * *
Providence Rescued the Convention More than Once
It would have been wonderful if, under the pressure of all of these difficulties, the Convention had been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination.
* * *
The real wonder is that so many difficulties were surmounted, and surmounted with a unanimity almost as unprecedented as it was unexpected. It is impossible for any individual of candor to reflect on this circumstance without astonishment. No person of pious reflection failed to perceive in it a finger of that Almighty Hand was so frequently and signally extended to our relief in the critical stages of the Revolution.
* * *
In Federalist 20, I took notice of the repeated trials unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. Indeed, the histories of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is an account of factions, contentions, and disappointments. They may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their luster to darken the gloom of the adverse prospect to which they are contrasted.
In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is the Convention enjoyed a singular exemption from the pestilential influence of party animosities, a disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the Convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments.
The real wonder is that so many difficulties were surmounted, and surmounted with a unanimity almost as unprecedented as it was unexpected. It is impossible for any individual of candor to reflect on this circumstance without astonishment. No person of pious reflection failed to perceive in it a Finger of that Almighty Hand was so frequently and signally extended to our relief in the critical stages of the Revolution.
Madison
original Federalist 37Federalist 38: The States Wisely Deputized Their Wisest Citizens to Form the Constitution
ANCIENT HISTORY REPORTS that in every case where a government was formed with deliberation and consent, the task was undertaken by some individual citizen of preeminent wisdom and approved integrity, rather than an assembly of individuals.
Minos founded the government of Crete, as Zaleucus did for the Locrians. Theseus first – and after him Draco and Solon – instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. Upon the death of Julius Caesar, Brutus had the senate and people ratify a civil administration allegedly designed by Tullius Hostilius.
The same is true for confederate governments. Amphictyon was the author of that which bore his name, and the Achaean league received its first birth from Achaeus, and its second from Aratus.
Throughout History, the Individuals Asked to Draft Plans for a Government often Represented the People
It is less certain whether all of these reputed lawgivers were clothed with the legitimate authority of the people, but in some cases there is no doubt. Draco was entrusted by the people of Athens with indefinite powers to reform its government and laws. The historian Plutarch reports the citizens of that city gave Solon the sole and absolute power to remodel their constitution. The advocates for a regular reform in Sparta all turned toward the singular efforts of the celebrated patriot and sage Lycurgus, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.
How could a people as jealous of their liberty as the Greeks abandon the rules of caution as to place their destiny in the hands of a single citizen? How could the Athenians – a people who required at least ten generals to command its army – consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, rather than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?
These questions cannot be fully answered without supposing that the fears of discord and disunion among a number of counselors exceeded the apprehension of treachery or incapacity in a single individual.
* * *
These lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government. On the other hand, these lessons admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
* * *
History also informs us of the difficulties encountered by these celebrated reformers, and the expedients employed in order to carry their reforms into effect. Solon, who indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition. He secured a final success by a voluntary renunciation, first of his country, and then of his life.
These lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government. On the other hand, these lessons admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
Almost All of the Proposed Amendments to the Former Articles of Confederation Overlooked Its Foundational Problem
It is reasonable to assume any arguable error in the new Constitution resulted from a defect of antecedent experience on this complicated and difficult subject, rather than a want of accuracy or care in the investigation of it, and that we must we await an actual trial before any error appears.
This assumption is rendered probable by the particular case of the Articles of Confederation, as well as by many considerations of a general nature. Among the numerous objections and amendments suggested by the several States when the Articles were submitted for their ratification, not one alluded to the great and radical error that became apparent on actual trial.
As immaterial as the objections were, there is abundant reason to suppose they would have been adhered to with a very dangerous inflexibility in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. Maryland persisted for several years in refusing her concurrence, although for the whole period the enemy remained in the very bowels of our country. In the end, Maryland’s pliancy was effected by the fear of being chargeable with protracting the public calamities, and endangering the Revolution.
Under the Articles of Confederation, the United States Faced a Grave Disorder
Imagine the situation where a patient finds his disorder is daily growing worse and that an efficacious remedy can no longer be delayed without extreme danger. After coolly reviewing his situation with different physicians, he selects and calls in those he judges most capable of administering relief, and best entitled to his confidence. The physicians attend, the patient is carefully examined, a consultation is held, and they unanimously agree that the symptoms are critical, but that a proper and timely remedy may improve his constitution.
But the prescription is no sooner made known, than a number of persons (who do not deny the danger of the disorder) interpose and assure the patient that the prescription will be poison to his constitution, and forbid him to make use of it.
Might not the patient reasonably demand that the authors of this advice at least agree among themselves on some other remedy? If they differed from one another as much as from his first physicians, he would act prudently in rejecting their advice.
The United States was the patient in such a situation before the Constitution was adopted. She was sensible of her malady, and obtained a regular and unanimous advice from persons of her own deliberate choice. She was warned by others against following this advice under pain of the most fatal consequences.
The Objections to the New Constitution Were Numerous and Contradictory
The objectors did not deny the reality of her danger or the necessity of some speedy and powerful remedy, but they could not agree on a substitute remedy. One told us the Constitution ought to be rejected because it is not a confederation of the States, but a government over individuals. Another admitted that there ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third did not object to government over individuals, or to the extent proposed, but that a bill of rights was needed. A fourth concurred in the absolute necessity of a bill of rights, but argued it ought not be declaratory of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth argued a bill of rights of any sort would be superfluous and misplaced, but that a fatal flaw was allowing States to regulate the times and places of election.
An objector in a large State exclaimed loudly that equal representation in the Senate was unreasonable, while an objector in a small State complained equally loudly against a dangerous inequality in the House of Representatives. From one quarter, we were alarmed with the amazing expense of the number of persons to administer the new government. From another quarter – and sometimes from the same quarter – we heard cries that Congress would be but a shadow of a proper representation, and that the government would be far less objectionable if the number and the expense were doubled.
A patriot from a State that does not import or export discerned insuperable objections against the power of direct taxation. A patriotic adversary in a State of great exports and imports was equally dissatisfied that the whole burden of taxes could be thrown on consumption.
* * *
As each delegate came forward with particular explanations, scarcely any two exactly agreed on the same subject.
* * *
One politician discovered in the Constitution a direct and irresistible tendency to monarchy, with a second convinced it surely will end in aristocracy, and a third was puzzled to say which of these shapes it will ultimately assume, but that clearly it must be one or other of them, while a fourth with no less confidence affirmed that the Constitution is so far from having a bias towards either of these dangers that it will be insufficient to keep it upright and firm against its opposite propensities. Another class of adversaries asserted that the intermixing of the legislative, executive, and judicial departments contradicted all ideas of regular government and the requisite precautions in favor of liberty.
As each delegate came forward with particular explanations, scarcely any two exactly agreed on the same subject. In the eyes of one, the junction of the Senate with the President in appointing offices was erroneous, and should be vested in the executive alone. To another, the exclusion of the House of Representatives was equally obnoxious, as its numbers would be a due security against corruption and partiality in the exercise of such a power. With another, the admission of the President into any share of the appointment power would be a dangerous engine in the hands of an executive magistrate, and an unpardonable violation of the maxims of republican jealousy. According to some, no part of the arrangement was more improper than the trial of impeachments by the Senate, for this power clearly belonged to the judicial department. Others purported to “fully concur,” but disagreed that a reference of impeachments to the judiciary would cure the error, due to the extensive powers already lodged in that department.
Even among the zealous patrons of a council of state, the most irreconcilable variances were discovered concerning the mode in which it ought to be constituted. One person demanded that the council should consist of a small number to be appointed by the most numerous branch of Congress, while another would prefer a larger number, with a fundamental condition that the appointment should be made by the President alone.
Would a New Convention Draft a Better Constitution?
Let us suppose the most zealous (and impliedly the most sagacious) adversaries of the Constitution think the delegates to Constitutional Convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose the States concurred in their unfavorable opinion of the Constitutional Convention, and proceeded to form a second convention, with full powers, and for the express purpose of revising and remolding the work of the first. Were the experiment to be seriously made – in light of the discord and ferment of the deliberations described above – would the new delegates depart so widely from the old?
I submit the Constitution as actually drafted by the Convention stands as fair a chance for immortality as the laws Lycurgus gave to Sparta before his departure.
The Adversaries of the Constitution Have Overlooked What Preceded It
It causes both wonder and regret that those opposed to the Constitution never call to mind the defects of that which it replaced. The Constitution need not be perfect. It is sufficient that the Articles of Confederation were more imperfect.
No person refuses to trade brass for silver or gold just because the latter has some alloy in it. No person would refuse to quit a shattered and tottering habitation for a firm and commodious building, on the ground that the stronger structure had no porch, or because some of the rooms might be a little larger or smaller, or ceilings a little higher or lower than the person would have planned them. Putting these illustrations aside, it is clear the main objections urged against the Constitution lie with tenfold weight against the Articles of Confederation.
* * *
I submit the Constitution as actually drafted by the Convention stands as fair a chance for immortality as the laws Lycurgus gave to Sparta before his departure.
* * *
Is an indefinite power to raise money dangerous in the hands of a Federal government? Under the Articles, Congress could make requisitions of any amount it pleased, and the States were bound to furnish them. Congress also could emit bills of credit and borrow both at home and abroad, as long as a shilling would be lent.
Is an indefinite power to raise troops dangerous? The Confederation gave to Congress that power also, which made use of it.
Is it improper and unsafe to intermix the different powers of government in the same body of individuals? Congress under the Confederation was the sole depositary of all Federal powers.
Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation placed them both in the hands of Congress.
Is a bill of rights essential to liberty? The Articles of Confederation had no bill of rights.
Is it a valid objection against the new Constitution, that it empowers the Senate, with the concurrence of the executive, to make treaties which are to be the laws of the land? Under the Articles, Congress could make treaties which they declared to be the supreme law of the land, and which most of the States recognized.
Is the importation of slaves by the Constitution limited to twenty years? By the old it was permitted forever.
* * *
Is the importation of slaves by the Constitution limited to twenty years? By the old it was permitted forever.
* * *
I am told that however dangerous in theory the mixture of powers was under the Articles of Confederation, it was rendered harmless by the dependence of Congress on the States for the means of carrying them into practice.
I respond in the first place that the Articles were chargeable with the still greater folly of declaring certain powers in Congress to be absolutely necessary, while at the same time rendering them absolutely nugatory. In the next place, if no better government had been substituted, effective powers must either have been granted to (or assumed by) the Congress under the Articles.
But this is not all. Out of the lifeless mass of the former Congress had already grown a power tending toward all the dangers that could arise from a defective national government.
It is now no longer a point of speculation or hope that our Western territory is a mine of vast wealth to the United States. Although it is not of such a nature as to extricate us from our present distresses, or to yield any regular supplies for the public expenses for some time to come, under proper management it will effect a gradual discharge of the domestic debt and furnish liberal tributes to the Federal treasury. A very large proportion of this fund has been already surrendered by individual States, and it reasonably may be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. Therefore, we may calculate a rich and fertile country of an area equal to the inhabited extent of the United States will soon become a national stock. From before adoption of the Constitution, Congress had assumed the administration of this stock and begun to render it productive. Congress also proceeded to form new States, to erect temporary governments, appoint officers for them, and prescribe the conditions on which such States shall be admitted into the United States.
All this was done without the least color of constitutional authority. Yet no blame has been whispered, nor alarm sounded. A great and independent fund of revenue was passing into the hands of a single body of men, who could raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time.
And yet there were men who were not only silent spectators of this prospect, but who were advocates for the system which caused it; while at the same time urging objections against the Constitution as proposed. They would have acted with more consistency in advocating for the proposed Constitution as a necessary guard against the future powers and resources of the former Congress, than to save it from the dangers threatened by the impotency of that Assembly.
I mean not to throw censure on the measures which have been pursued by the former Congress by any thing here said. I am sensible they could not have done otherwise. The public interest and the necessity of the case imposed upon them the task of overleaping their constitutional limits. But are not these facts an alarming proof of the dangers resulting when a government does not possess regular powers commensurate to its objects? A dissolution or usurpation was the dreadful dilemma to which it was continually exposed.
Madison
original Federalist 38Federalist 39: The Government of the United States Has Both Federal and National Characteristics, and Is Republican
Characteristics of Republican Governments
WHAT ARE THE DISTINCTIVE CHARACTERISTICS of republican government? No satisfactory answer can be found in the application of the term by political writers to the constitutions of foreign governments. Holland is almost universally denominated a republic, yet no particle of its supreme authority is derived from its People. The same title is bestowed on Venice, but the absolute power over the great body of the people is exercised – in the most absolute manner – by a small body of hereditary nobles. Poland has been dignified with the same appellation, though it is a mixture of aristocracy and monarchy in their worst forms. With equal impropriety the government of England is frequently listed as a republic, though it has but one republican branch, combined with a hereditary aristocracy and monarchy. These examples – as dissimilar to each other as to a genuine republic – show the extremely inaccurate use of the term in political disquisitions. A far better definition of a republic is found by resorting to the different principles on which different forms of government are established.
The Best Definition of a Republic
A republic is a government deriving all its powers directly or indirectly from the great body of the People, and administered by persons holding their offices at the pleasure or the People, for either a limited period or during good behavior.
To qualify as a republic, it is essential the government must be derived from the great body of the society, and not from a limited proportion or a favored class of it. Were it otherwise, a handful of tyrannical nobles – exercising their oppressions by a delegation of their powers – might claim for their government the honorable title of republic.
The People Must Be the Ultimate Source of Power
Whether directly or indirectly, the People must appoint the persons who are to administer the government, and whose tenures must be limited to fixed periods or during good behavior. Were it otherwise, every popular government organized on republican principles would eventually be degraded.
* * *
A republic is a government deriving all its powers directly or indirectly from the great body of the People, and administered by persons holding their offices at the pleasure or the People, for either a limited period or during good behavior.
* * *
The constitutions of every one of the States require at least some of the officers of government be appointed by the People alone, albeit indirectly. In most of the States, the chief executive is so appointed. At least one state constitution extends this mode of appointment to a coordinate branch of the legislature. According to all the constitutions, the tenure of the highest offices is limited to a definite period. Appointments in the legislative and executive departments in many are limited to a period of years. And in most, the members of the judiciary are to retain their offices by the firm tenure of good behavior, a practice condoned by the most respectable and well-received opinions on the subject.
The Constitution Meets Republican Standards
On examining the Constitution, we at once perceive it conforms to the standards here stated. The House of Representatives is elected directly by the great body of the People, as is true in at least one branch of all the State legislatures. The Senate derives its appointment indirectly from the People. The President also is indirectly derived from the choice of the People, as is true with the executive magistrates in most States. Even the judges of the United States – along with all the other officers of the United States – will be the choice – though remote – of the People themselves.
* * *
To qualify as a republic, the government must be derived from the great body of the society, and not from a limited proportion or a favored class of it. Were it otherwise, a handful of tyrannical nobles – exercising their oppressions by a delegation of their powers – might claim for their government the honorable title of republic.
* * *
All Appointments Are for Limited Terms
The duration of their appointments is equally conformable to the republican standard as well as the model of State constitutions. The House of Representatives is periodically elective, as are the popular assemblies in all States. The terms of representatives are limited to two years, as in South Carolina.
Senators are elected to six-year terms, only one more than in the senate of Maryland, and two more than in the senates of New York and Virginia.
The President is to continue in office for the period of four years. In New York and Delaware, the chief executive is elected for three years, in South Carolina two, and in the other States annually.
* * *
Whether directly or indirectly, the People must appoint the persons who are to administer the government, and whose tenures must be limited to fixed periods or during good behavior. Were it otherwise, every popular government organized on republican principles would eventually be degraded.
* * *
Impeachment
Several of the States have no constitutional provision for impeachment of the chief executive, and in Delaware and Virginia the chief executive cannot be impeached until out of office. The President of the United States is impeachable at any time during his continuance in office, thereby more strongly advancing the republican principle that the People control their government.
Judges
Judges of the United States are to hold their places during good behavior, as unquestionably must be the case. The tenure of the ministerial offices in general will be a subject of legal regulations that conform to the reason of the case and the example of the State constitutions.
The Prohibition of Titles of Nobility Is a Republican Principle
If any further proof were required our republican form of government, the most decisive are the absolute prohibition of titles of nobility by both the Federal and State governments, and the Constitution’s express guaranty that every State enjoy a republican form of government.
The Government the Constitution Creates Is Both Federal and National
Adversaries of the Constitution say its adherence to the republican form of government is inadequate because it fails to preserve with equal care the federal form, which regards the United States as a confederacy of the sovereign States. They argue it frames a national government, which regards the United States as an impermissible consolidation of the sovereign States. And they ask: By what authority was this bold and radical innovation undertaken?
The objection requires a precise examination to form a just estimate of its force: first, to ascertain the real character of the government in question; second, to inquire how far the Constitutional Convention was authorized to propose such a government, and third, how far the duty they owed to their country could supply any defect of regular authority. The instant paper conducts the first inquiry. Federalist 40 conducts the other two inquiries.
In order to ascertain the real character of the government United States government, I will consider its relationship to the foundation on which it is established, the sources from which its ordinary powers are drawn, the operation and extent of those powers, and the authority by which future changes in that government are to be introduced.
As to the relationship of the government to its foundation, on the one hand it is founded on the assent and ratification of the People of America, given by their deputies elected for the special purpose. On the other hand, the People’s assent and ratification is given not as individuals composing one entire nation, but as individuals composing the distinct and independent States to which they belong. The Constitution Was Established as a Federal Act
The ultimate assent and ratification of the Constitution is by the several States, whose authority is in turn derived from the People themselves. Therefore, the act of establishing the Constitution is a federal act, not a national one. That ratification is a federal rather than national act is obvious upon viewing the requirement that ratification requires the unanimous assent of the several States that are parties to it. Ratification cannot result from either the decision of a majority of the People of the union or a majority of the States.
If in this transaction the People themselves were regarded as forming one nation, the will of the majority of the whole People of the United States would bind the minority, just as the majority in each State would bind the minority, with that national will being determined by the majority of individual votes or by the majority of States. But both of these approaches were rejected. In ratifying the Constitution, each State acts as a sovereign body – independent of all the others – and is bound only by its own voluntary act. Thus the Constitution is a federal one, not a national one.
The House of Representatives Is a National Body
The sources of the ordinary powers of the Constitution are both national and federal. The House of Representatives will derive its powers from the People of America. The People will be represented in the same proportion – and on the same principle – as they are in the legislature of each particular State. The House of Representatives will therefore be a national body rather than a federal one.
The Senate Is a Federal Body
The Senate, on the other hand, will derive its powers from the States as political and coequal societies. Each State will be represented on the principle of equality in the Senate. The Senate will therefore be a federal body rather than a national one.
Selection of a President Is Both Federal and National
The executive power embodied in the President will be derived from a compound of sources. The immediate election of the President is to be made by the States in their political characters. The votes allotted to each State will be the sum of the equal number of senators and unequal number of representatives to which each is entitled in the Congress. This compound ratio considers each State partly as distinct and coequal societies, and partly as unequal members of the same society. The eventual election of the President is in turn to be made by the national House of 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. The selection of the President is therefore of a mixed character, presenting at least as many federal as national features.
Federal and National Attributes in the Operation and Extent of the Federal Government
With respect to the operation of the government, it is federal to the extent its powers operate on the States in their capacities as political bodies, yet it is national to the extent its powers operate on the citizens of the United States in their individual capacities. In several cases – particularly the trial of controversies to which States may be parties – it may be viewed as federal, since such actions involve States in their collective and political capacities only. But on the whole, the operation of the government in its ordinary and most essential proceedings is upon the People in their individual capacities. Therefore, as to the operation of the government, the Constitution has almost exclusively a national character.
But this national aspect is reversed when we contemplate the extent of the government’s powers. The idea of a national government involves not only an authority over 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, in our case the Congress.
* * *
In this relation, the United States Government cannot be deemed a national one. Its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. The only real exception to this residuary sovereignty of the States involves controversies relating to the boundary between two States.
* * *
Federal Authority Is Limited to Enumerated Powers
Among communities united for particular purposes – such as States and local (county and municipal) governments – governmental power is vested partly in the State legislatures and partly in the local legislatures. Where certain powers are vested in lawful State legislatures, all local authorities are subordinate to the supremacy of the State legislatures, and may be controlled, directed, or abolished by those State legislatures at their pleasure. Conversely, where the local municipal authorities retain distinct and independent portions of the supremacy, they are not subject to State supremacy within those spheres. In this relation, the United States Government cannot be deemed a national one. Its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
The only real exception to this residuary sovereignty of the States involves controversies relating to the boundary between two States. In those disputes the tribunal ultimately deciding the question – the Supreme Court of the United States – derives its authority from the general government of the United States established pursuant to the Constitution. But this does not transform the United States government into a national one. The decision in such disputes is to be impartially made according to the rules of the Constitution, with all the usual and effectual precautions taken to secure this impartiality. Clearly some such tribunal is essential to prevent an appeal to the sword and a dissolution of the Constitution, and no one disputes the decision can be safely made under the national authority alone.
* * *
But amendment of the Constitution is founded on neither of these principles. An amendment requires more than a majority, and it determines that majority by the votes of the States, rather than by the votes of individual citizens. In these respects it departs from the national and advances towards the federal character.
* * *
Amendments Will Be Neither Wholly Federal nor National
Finally, if we examine the how the Constitution may be amended, 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 United States, and this authority would be competent at all times to alter or abolish its established government, as can be accomplished by a majority of every national society.
Were it wholly federal, the concurrence of all of the States would be essential to every alteration that would be binding on all.
But amendment of the Constitution is founded on neither of these principles. An amendment requires more than a majority, and it determines that majority by the votes of the States, rather than by the votes of individual citizens. In these respects it departs from the national and advances towards the federal character. Yet an amendment does not require a unanimous consent of all of the States to be binding upon all. In this respect it loses again the federal and partakes of the national character.
Therefore, the Constitution is 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 those powers, it is again federal, not national. And in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
Madison
original Federalist 39[Ed. note: How could Madison assert the adoption of the Constitution would be unanimous if the assent of only nine of the thirteen States was required for ratification? Article VII provides: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Thus, under Article VII, the Constitution would be unanimous as to the States so ratifying. Once New Hampshire became the ninth State to ratify, the assent was unanimous among the nine ratifying States. The same principle applied when Virginia became the tenth, New York the eleventh, North Carolina the twelfth, and Rhode Island the thirteenth State to ratify.] Federalist 40: The Convention Was Authorized to Propose a New Constitution
THE SECOND POINT to be examined is whether the Convention was authorized to frame and propose the Constitution. The powers of the Convention are best determined by an inspection of the commissions given to the members by their respective constituents. All of the commissions made reference either to the recommendations from the meeting of State delegates at Annapolis in September 1786, or from the Congress at Philadelphia in February 1787. Thus it is sufficient to refer to these particular acts.
The Annapolis Resolution (September 1786)
The act from Annapolis recommended 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 legislatures of every State, will effectually provide for the same.” (In the preceding and following excerpts I have added the emphasis for the benefit of the reader.)
The Philadelphia Congressional Resolution (February 1787)
The recommendatory act of Congress stated in part: “Whereas there is provision in the Articles of Confederation & 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 Statezs, 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.”
The Principal Directives from the Annapolis and Philadelphia Resolutions
From these two acts, it appears:
1st. The object of the Constitutional Convention was to establish, in these States, a firm national government;
2d. This government was to be such as would be adequate to the exigencies of government and the preservation of the Union;
3d. These purposes were to be effected by alterations of 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; and
4th. The alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the Congress and confirmed by the States.
From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the Convention acted. It was 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.
Our Inquiry Is Aided by Common Sense Legal Maxims
There are several applicable rules of construction dictated by plain reason and legal axioms. One is that every part of an expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. Another is that – where several parts cannot be made to coincide – the less important should give way to the more important part. In other words, the means should be sacrificed to the end, rather than the end to the means.
* * *
The delegates were deeply and unanimously impressed with the crisis. With almost one voice, the country had made a singular and solemn experiment to correct the errors of the system. The delegates were no less deeply and unanimously convinced that the Constitution they proposed was absolutely necessary to effect the purposes of their appointment.
* * *
The Convention’s View of Its Charge
The Convention formed the judgment that the expressions defining its authority appeared irreconcilably at variance with each other, since a national and adequate government could not possibly be effected by altering or adding provisions to the Articles of Confederation.
In these circumstances, which part of its directive ought the Convention have embraced, and which rejected? Which was the more important part, and which was the less important? Which part was the end, and which part the means?
Some contended alterations of and additions to the Articles of Confederation could have molded an adequate national government, and that the Articles themselves were originally aimed at the end of national happiness.
Can the adversaries of the Constitution answer whether it was more conducive to the happiness of the People of America to preserve the Articles of Confederation and thereby omit an adequate government, or to disregard the Articles and provide for an adequate government? Was preserving the Articles the end, and a reform of the government the means, or was the establishment of a government adequate to the national happiness the true end, for which the Articles – as an insufficient means – ought to have been sacrificed?
The title of the document upon which the delegates agreed – the “Constitution for the United States of America” – does not, by itself, demonstrate the exercise of a power that was not granted. The Articles of Confederation expressly authorized alterations, as well as new provisions. Here then existed a power to change the title, to insert new articles, and to alter old ones.
Were those powers infringed, so long as a part of the old articles remained? Those who allege infringement at least ought to mark the boundary between authorized and usurped innovations, between the degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government.
Will it be said that any alteration ought not to have touched the substance of the Articles of Confederation? If so, the States never would have appointed a Convention with such solemnity – nor described its objects with so much latitude – if some substantial reform had not been contemplated.
Will it be said that the fundamental principles of the Confederation were not within the purview of the Convention, and ought not to have been varied? I ask: What are these principles?
Did the fundamental principles of the Confederation require the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution.
Did principles require that members of the government derive their appointment from the State legislatures, and not from the People of the States? One branch of the new government – the Senate – is to be appointed by these legislatures. Even under the Confederation, all of the delegates to Congress could have been appointed immediately by the People, and actually were so appointed in Connecticut and Rhode Island.
Did the fundamental principles of the Confederation require the powers of the Federal government act on the States, but not immediately on individuals? In some instances, the powers of the Federal government under the Constitution will act on the States in their collective characters. In other instances – even under the Articles of Confederation – the powers of the government acted immediately on the persons and interests of individual citizens: in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the native tribes; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death could be inflicted without the intervention of a jury, or even of a civil magistrate.
Did fundamental principles require that no tax should be levied without the intermediate agency of the States? The Confederation itself authorized a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source.
Putting aside these instances, it was an acknowledged object of the Convention – and universal expectation of the People – that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue.
The Congress under the Articles did not consider such a measure as inconsistent with the fundamental principles of the Confederation. Every State but one had recognized the principle of the innovation.
Finally, did the fundamental principles of the Confederation require that the powers of the general government have a fixed limit, beyond which the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.
The truth is, that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation.
The misfortune under the Articles was that its principles were so feeble and confined as to justify all the charges of inefficiency urged against them. It was the degree of necessary enlargement which has given the new system the aspect of an entire transformation of the old.
The Constitution Is to Be Approved by the People Directly, rather than by the States
I admit the Convention departed from the tenor of its commission in several particulars. Instead of reporting a plan requiring the confirmation of the legislatures of all the States, it reported a plan which was to be confirmed by the People, and could be carried into effect through ratification by only nine States. An objection on these grounds would have been the most plausible, but was the least urged in the publications which swarmed against the Convention. This forbearance must have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth, Rhode Island, which inflexibly opposed any changes to the Articles. This objection to the Constitution consisted of a “majority” of one sixtieth of the People of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the People of America. Rhode Island’s recalcitrance is still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of this country.
Since any objection to the manner in which the Constitution was approved was in effect waived by those who criticized the powers of the Convention, I dismiss it without further observation.
The Extent of Implied Authority of the Convention
The third inquiry to which I alluded in Federalist 39 is how far considerations of duty arising out of the case itself could have supplied any defect of regular authority of the Convention.
In the preceding two inquiries – to ascertain the real character of the government in question and how far the Convention was authorized to propose such a government – the powers granted to the Convention have been analyzed and tried with the same rigor and by the same rules as if they had been real and final powers delegated for the establishment of a Constitution.
We have seen in what manner they have borne the trial on that supposition. But we must recollect that the powers were merely advisory and recommendatory. The Convention understood this, and accordingly planned and proposed a written Constitution which was to have no consequence unless stamped with the approval of those to whom it was addressed.
This reflection places the subject in an altogether different point of view. It enables us to judge with propriety of the course taken by the Convention, and to view the ground upon which the delegates stood. The delegates were deeply and unanimously impressed with the crisis. With almost one voice, the country had made a singular and solemn experiment to correct the errors of the system. The delegates were no less deeply and unanimously convinced that the Constitution they proposed was absolutely necessary to effect the purposes of their appointment.
The hopes and expectations of the great body of citizens throughout this empire were turned with the keenest anxiety to the event of the deliberations. The delegates had every reason to believe that the contrary sentiments of every external and internal foe to the liberty and prosperity of the United States was agitating the minds and bosoms of its citizens.
The delegates had seen that just a few deputies from just a few States who convened in Annapolis had assumed the liberty of recommending a great and critical object – ostensibly outside the scope of their commission – which was approved by public opinion and actually carried into effect by twelve of the thirteen States in Congress. The delegates also were cognizant that Congress had assumed both recommendatory and operative powers which were warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. The delegates also had seen the introduction and rapid progress of the plan Virginia introduced during the Convention, towards a partial amendment of the Confederation.
Upon reflection, the delegates must have concluded – as is the case in all great changes of established governments – that forms ought to give way to substance. Rigid adherence to forms would render nominal and nugatory the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” as a famous Congress declared in 1776. The delegates knew it would be impossible for the People spontaneously and universally to move in concert towards their object. Therefore, it became essential that such changes be initiated by some informal propositions made by some patriotic and respectable citizen or citizens.
* * *
Upon reflection, the delegates must have concluded – as is the case in all great changes of established governments – that forms ought to give way to substance. Rigid adherence to forms would render nominal and nugatory the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” as a famous Congress declared in 1776.
* * *
The delegates recollected that it was by this irregular and assumed privilege of proposing to the People plans for their safety and happiness that the States had first united against the dangers Britain had threatened to their ancient government, which stimulated formation of committees and congresses to concentrate their efforts and defend their rights, and to elect conventions to establish their constitutions. No ill-timed scruples or zeal for adhering to ordinary forms was anywhere seen among the delegates, except in those who wished to indulge their secret enmity to the substance of reform under these specious masks.
The delegates bore in mind that the Constitution they framed was to be submitted to the People themselves. The People’s disapproval would thereby destroy forever this potentially supreme authority. Approval, on the other hand, would blot out antecedent errors and irregularities.
Even in those delegates whose disposition to debate was dominant, there resided an awareness that neglecting to execute the degree of power vested in the Convention – and still more the failure to recommend any measure whatever – was unwarranted by their commission. Neglect of duty would excite no less criticism than recommending a measure fully commensurate to the national exigencies.
In the midst of all these considerations, had the Convention taken the cold and sullen resolution of sacrificing substance to form and committing the dearest interests of their country to the uncertainties of delay and the hazard of events, instead of pointing out a system capable of securing its happiness, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly?
Even if I grant that the delegates were neither authorized by their commission nor justified by circumstances in proposing a Constitution for their country, does it follow that the Constitution ought to be rejected? If, according to the noble precept, it is lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends?
In all cases, the prudent inquiry ought surely to be, not so much from whom the advice comes, as whether the advice be good. The charge against the Convention of exceeding its powers has no foundation to support it, except in the instance little urged by the objectors. If the delegates exceeded their powers, they were warranted and arguably required – as the confidential servants of their country and by the circumstances – to exercise the liberty which they assumed.
Finally, even if the delegates violated both their powers and their obligations in proposing a Constitution, the result ought nevertheless be embraced as calculated to accomplish the views and happiness of the People of America. How far this character is due to the Constitution, is the subject under investigation.
Madison
original Federalist 40[Ed. note: useful links: Proceedings and recommendations of the commissioners from the Annapolis Convention (11-14 September 1786)Report of the proceedings in Congress assembled at Philadelphia, 21 February 1787Virginia Plan to revise the Articles of Confederation, introduced to the Constitutional Convention on 29 May 1787] Federalist 41-44: Powers Granted to the Federal Government
Federalist 41: Constitutional Powers Provide Security against Foreign Danger
THE CONSTITUTION MAY BE CONSIDERED under two general points of view. The first relates to the sum or quantity of power which it vests in the Federal government, including the restraints imposed on the States. The second relates to the particular structure of the government, and the distribution of this power among its several branches.
Under the first view of the subject – the sum of power vested in the Federal government – two important questions arise:
1. Whether any part of the powers transferred to the general government are unnecessary or improper?
2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?
The Aggregate Power of Federal Government Is Does Not Exceed What Ought to Have Been Vested in It
The authors of arguments against the extensive powers granted to the Federal government very little considered how far these powers were the necessary means of attaining a necessary end. The authors instead chose to dwell on the inconveniences which are unavoidably blended with all political advantages, and on the potential abuses which are incident to every power or trust of which a beneficial use can be made.
This method of handling the subject cannot affect the good sense of the People of America. The method may display the subtlety of the writer, open a boundless field for rhetoric and declamation, inflame the passions of the unthinking, or confirm the prejudices of the misthinking, but cool and candid individuals will immediately reflect that the purest of human blessings have a portion of alloy in them, and that the choice must always be made – if not of the lesser evil – at least of the greater good, which need not be perfect.
In every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. Thus in all cases where power is to be conferred, the point first to be decided is whether such a power is necessary to the public good, as the next point will be – in case of an affirmative decision – to guard as effectually as possible against a perversion of the power to the public detriment.
To form a correct judgment on this subject, it is proper to review the several powers conferred on the Federal government. This is most conveniently done by reducing these powers into different classes as they relate to the different objects:
1. Security against foreign danger;
2. Regulation of the intercourse with foreign nations;
3. Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious acts;
6. Provisions for giving due efficacy to all these powers.
These powers are discussed in this paper and Federalist 42 through Federalist 46.
Security Against Foreign Danger
The first class of powers are those of declaring war and granting letters of marque, of providing armies and fleets, of regulating and calling forth the militia, and of levying and borrowing money.
Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the United States. The powers requisite for attaining it must be effectually confided to the Federal councils.
Is the power of declaring war necessary? No one will answer this question in the negative. Therefore it would be superfluous to enter into a proof of the affirmative. The Articles of Confederation established this power in the most ample form.
* * *
The first class of powers are those of declaring war and granting letters of marque, of providing armies and fleets, of regulating and calling forth the militia, and of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the United States. The powers requisite for attaining it must be effectually confided to the Federal councils.
* * *
Is the power of raising armies and equipping fleets necessary? This power arises from the power to declare war, which necessarily includes the power of self-defense. Further, the Convention believed it necessary to give the Federal government an indefinite power of raising troops as well as providing fleets, and to maintain both in peace as well as in war. The need for these powers was discussed at length in Federalist 24 through Federalist 28.
Peaceful Nations as well as Strong Prepare for War
The force necessary for defense cannot be limited by those who lack the power to limit the force of offense. The Constitution might prudently chain the discretion of its own government and set bounds to the exertions for its own safety only if it could also chain the ambition or set bounds to the exertions of all other nations, which it cannot. How could a readiness for war in time of peace be safely prohibited unless we could prohibit the preparations and establishments of every hostile nation? Our means of security can be regulated only by the means and danger of attack. Security will be ever determined by these rules, and by no others.
It is in vain to impose constitutional barriers to the impulse of self-preservation. Indeed, it is worse than vain because it would plant in the Constitution itself a need to usurp power for self-defense. Every usurpation would be a precedent leading to unnecessary and multiplied repetitions. If one nation constantly maintains a disciplined army – ready for the service of ambition or revenge – it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.
The Example of Military Establishments in Europe
The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII of France. All of Europe followed or was forced to follow the example. Had other nations not followed the example, all of Europe would long ago have worn the chains of a universal monarch. The same event might follow if every nation except France disbanded its peace establishments.
The Example of Rome
The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations. Rome’s forces rendered her the mistress of the world. Not less true is that the liberties of Rome proved the final victim to her military triumphs. The liberties of Europe – so far as they ever existed – have been the price of her military establishments, with few exceptions. A standing force is therefore dangerous at the same time that it may be a necessary. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution.
* * *
It is in vain to impose constitutional barriers to the impulse of self-preservation. Indeed, it is worse than vain because it would plant in the Constitution itself a need to usurp power for self-defense. Every usurpation would be a precedent leading to unnecessary and multiplied repetitions. If one nation constantly maintains a disciplined army – ready for the service of ambition or revenge – it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.
* * *
The Constitution Includes Precautions against the Ill Effects of Military Establishments
A wise nation will combine all of the foregoing considerations. It does not rashly preclude itself from any resource which may become essential to its safety. A wise nation will exert all its prudence in diminishing both the necessity and the danger of resorting to a resource that may be inauspicious to its liberties.
The clearest marks of this prudence are stamped on the Constitution. The union of States it cements and secures, destroys every pretext for a military establishment which could be dangerous. A united America with a handful of troops exhibits a more forbidding posture to foreign ambition than would a disunited America with a hundred thousand veterans ready for combat.
The want of the pretext for military establishments saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able to cheat the public into an extensive peace establishment, whether by real or artificial dangers.
The distance of the United States from the powerful nations of the world gives us the same happy security. A dangerous establishment can never be necessary or plausible so long as we continue a united People. But it can never be forgotten that the People are indebted for this advantage by our union alone. The moment the union dissolved will be the date of a new order of things. The fears of the weaker States or the ambition of the stronger States (or confederacies) will set the same example in the New World as Charles VII did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage Great Britain has derived from hers, the face of America will copy that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes.
The fortunes of a disunited America will be even more disastrous than those of Europe. The sources of evil in Europe are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge.
In America, the miseries springing from her internal jealousies, contentions, and wars would form only a part of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. The picture of the consequences of disunion cannot be too highly colored or too often exhibited. The image ought ever to be in sight before the eyes of every person who loves peace, the nation, and liberty, in order to cherish a heartfelt attachment to the United States and set a due value on the means of preserving it.
A Steady But Circumscribed Source of Revenue Will Maintain the Military
Next to a union, the best possible precaution against danger from standing armies is the two-year limitation of the term for which revenue may be appropriated to their support. I will not repeat here the observations made in Federalist 24 and Federalist 26 which placed this subject in a just and satisfactory light.
But we saw advanced an argument drawn from the policy and practice of Great Britain. It was said the continuance of an army in that kingdom requires an annual vote of the legislature, while our Constitution has lengthened this period to two years. The argument was presented to the public is the form just stated, but is it a fair comparison? Its authors knew it was a fallacy because the British Constitution fixes no limit whatever to the discretion of the legislature, while the American limit ties down Congress to a two-year appropriation.
Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment – though unlimited by the British Constitution – has in practice been limited by parliamentary discretion to a single year. In Great Britain, the House of Commons is elected for seven years. A great proportion of its members are elected by a small proportion of the People, and those electors are often corrupted by the representatives, and the representatives corrupted by the Crown. The representative body – the House of Commons of Great Britain – possesses a power to make appropriations to the army for an indefinite term, but it neither desires or dares to extend the term beyond a single year. Suspicion herself blushes to pretend the members of the House of Representatives of the United States – freely elected by the whole body of the People every two years – cannot safely be entrusted with the discretion over military appropriations, when it is expressly limited to the same short two-year period. A bad argument, case, or cause seldom fails to betray itself.
* * *
Next to a union, the best possible precaution against danger from standing armies is the two-year limitation of the term for which revenue may be appropriated to their support.
* * *
The Opponents of Standing Armies Exaggerated their Concerns to the Point of Drawing Attention to the Efficacy of the Power Attacked
Among all the blunders committed by the opponents of a military force, none is more striking than their attempt to enlist support from the prudent jealousy the People have of standing armies. The attempt awakened fully the public attention to that important subject. It led to investigations which terminated in a thorough and universal conviction that the Constitution has provided the most effectual guards against danger from that quarter.
Nothing short of a Constitution fully adequate to the national defense and the preservation of union will save America from of as many standing armies as states or confederacies that would exist if we were to divide. The progressive augmentation of these establishments also would render them burdensome to the properties and ominous to the liberties of the People. A military establishment that becomes necessary under the united and efficient government set forth in the Constitution will be tolerable to property owners and safe to the liberties of the People.
The Importance of the United States Navy
The palpable necessity of the power to provide and maintain a navy protected its inclusion in the Constitution, from the spirit of censure which has spared few other parts. Art. I, § 8, cl. 13. It must be numbered among the greatest blessings of the United States that her union will be the only source of her maritime strength. It will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety are happily such as can never be turned against our liberties by a perfidious government.
The Benefits of a Federal Navy to the Atlantic Frontier
The inhabitants of the Atlantic frontier are deeply interested in this provision for naval protection. Hitherto their maritime towns and property have remained safe against the predatory spirit of licentious adventurers who could compel ransom from the terrors of a conflagration, or the exactions of daring and sudden invaders. But these instances of good fortune could not have been ascribed to the capacity of the then-existing government for the protection of those from whom it claimed allegiance, but to causes that are fugitive and fallacious.
The Benefits of a Federal Navy to the State of New York
Excepting perhaps Virginia and Maryland – which are peculiarly vulnerable on their eastern frontiers – no part of the United States ought to feel more anxiety on this subject than New York. Her seacoast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce and great reservoir of its wealth lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliance with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians.
Should a war be the result of a precarious situation of European affairs – and all the unruly passions attending it be let loose on the ocean – an escape from all the insults and depredations accompanying it will be truly miraculous.
Under the Confederation, those States more immediately exposed to these calamities had nothing to hope from what was the phantom of the general government. Even if a State’s resources were equal to fortifying itself against the danger, the objects protected would be almost consumed by the costs of protecting them.
Congressional power to maintain a navy adds to the power of regulating and calling forth the militia, and to the power of levying and borrowing money, which is the sinew of that which must be exerted in the national defense.
* * *
Congressional power to maintain a navy adds to the power of regulating and calling forth the militia, and to the power of levying and borrowing money, which is the sinew of that which must be exerted in the national defense.
* * *
Federal Taxes Cannot Be Limited to Duties on Imported Items
I will address one additional reflection to those who contend the power to tax ought to have been restrained to external taxation, that is, taxes on articles imported from other countries. It cannot be doubted this will always be a valuable source of revenue; that for a considerable time it must be a principal source; and that at this moment it is an essential one.
But we may form very mistaken ideas of this subject if our calculations do not call to mind that the extent of revenue drawn from foreign commerce will be variable. Revenue from duties will fluctuate, both in the extent and the kind of imports, since revenue will not correspond to increases in population, which usually is the general measure of public demand. At present agriculture is the sole field of labor, but importation of manufactures will increase as consumers multiply. As soon as domestic manufactures use the hands not needed by agriculture, imported manufactures will decrease as the numbers of people increase.
Farther in the future our imports may consist in large part of raw materials, which will be wrought into articles for exportation. Importation of raw materials ought to be encouraged through economic incentives, rather than loaded with discouraging duties. A system of government which is meant to endure ought to contemplate these revolutions and be able to accommodate itself to them.
* * *
A bad argument, case, or cause seldom fails to betray itself.
* * *
Opponents of the Constitution Purposefully Ignored the Limits It Places on Taxation
Some writers (who conceded the necessity of the power to tax) launched a very fierce attack against the Constitution by taking its language out of context. It was urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounted to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.
No stronger proof of the distress under which these writers labored for objections than their stooping to such a misconstruction. The objection might have had some color if no other enumeration of the powers of the Congress been found in the Constitution.
But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, separated only by a semicolon? Different parts of the same instrument ought to give meaning to every part which will bear it. Shall one part of a sentence be excluded altogether from a share in the meaning of the rest of the sentence? Shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers have been inserted if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common at law than first to use a general phrase, and then to explain and qualify it by a recital of particulars.
* * *
No stronger proof of the distress under which these writers labored for objections than their stooping to such a misconstruction. The objection might have had some color if no other enumeration of the powers of the Congress been found in the Constitution. But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, separated only by a semicolon?
* * *
The idea of an enumeration of particulars which neither explains nor qualifies the general meaning has no other effect than to confound and mislead. It is an absurdity concocted by the authors of the objection. It is even more extraordinary because it is based on language the Convention copied from the Articles of Confederation. The third article thereof described the objects of the union of the States as “their common defence, the security of their Liberties, and their mutual and general welfare.” The eighth article is the same: “All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury . . . .” Similar language again occurs in the ninth article. If these articles were construed by the rules the objectors would apply to the Constitution, the Congress would have had a power to legislate in all cases whatsoever.
What would have been thought of that Congress if had attached itself to these general expressions and exercised an unlimited power of providing for the common defense and general welfare, while disregarding the specifications limiting their import? I ask whether the objectors would have employed the same reasoning in justification of that Congress as they now use against the Convention. How difficult it is for error to escape its own condemnation!
Madison
original Federalist 41Federalist 42: Exclusive Federal Powers Regulating Relations with Foreign Powers and Among States Foster Harmony
THE SECOND AND THIRD CLASSES OF POWERS lodged in the Federal government consist of those which regulate our relations with foreign nations, and those which provide for the harmony of intercourse among the States.
Exclusive Federal Powers Are Necessary to Regulate Our Relations with Foreign Nations
If we are to be one nation in any respect, it ought to be in respect to other nations. This class of powers forms an obvious and essential part of the Federal government.
These include the powers to:
(1) make treaties,
(2) send and receive ambassadors and other public ministers and consuls,
(3) define and punish piracies and felonies committed on the high seas and offenses against the law of nations, and
(4) regulate foreign commerce, including a power to prohibit the importation of slaves after the year 1808, and to lay an intermediate duty of ten dollars per head as a discouragement to such importations.
* * *
The second and third classes of powers lodged in the Federal government consist of those which regulate our relations with foreign nations, and those which provide for the harmony of intercourse among the States.
* * *
The Power to Make Treaties and Send and Receive Ambassadors and Counsels
The powers to make treaties and to send and receive ambassadors need no explanation, for both were contained in the Articles of Confederation. These powers are continued in the Constitution, with two essential differences.
With respect to the power to make treaties, the Constitution removes the former limitations on that power, which had allowed State regulations to frustrate treaties to a substantial degree.
With respect to the power to send and receive ambassadors, the Constitution adds the power of appointing and receiving “other public ministers and consuls.” Formerly, the power was limited to appointing and receiving ambassadors, but Congress has found it expedient to adopt the practice of employing grades of public ministers inferior to ambassadors, and sending and receiving consuls. The Constitution validates this practice.
Gradual and Incremental Usurpations of Power Occur in the Details
The most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. Under the Articles of Confederation, the Congress had in many instances exceeded its chartered authority by appointing lesser grades of public ministers. Rectifying the omission regarding consuls is itself no inconsiderable argument in favor of the Constitution, which corrects the more obvious and striking defects of the old while no less studiously correcting the lesser defects as well.
Felonies on the High Seas and Offenses Against the Law of Nations
A still greater improvement on the Articles of Confederation is the creation of a Federal power to define and punish piracies and felonies committed on the high seas, including offenses against the law of nations. The Articles did not provide for the case of offenses against the law of nations, making it possible for a single State to embroil the Confederacy in disputes with foreign nations.
The expanded Federal power on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies can be left to the laws of nations, although a legislative definition of them is found in most municipal codes.
A definition of felonies on the high seas is required. Felony is a term of loose signification in both the common and statutory law of England, making them dishonorable and illegitimate guides to a proper definition. When one looks to the word as defined in the codes of the several States, a common definition seems impractical. “Felony” is not precisely defined the same way in any two of the States. Further variations appear in each State with every revision of its criminal laws. For the sake of certainty and uniformity, the power of defining felonies in this case was in every respect necessary and proper.
Submitting the regulation of foreign commerce to the Federal government was explained in Federalist 11 and Federalist 22 and thus needs no additional proof.
* * *
It would be a happy event for the unfortunate Africans to have laid before them the prospect of freedom from the oppressions of their European brethren that is equal to what the colonists so recently experienced.
* * *
The Prohibition on the Importation of Slaves Is Postponed for One Generation, so the Barbarous Trade May Be Abolished Forever
The exercise of Federal power to prohibit the importation of slaves is postponed until the year 1808. Preferably there should be no delay, but existing practices explain this temporal restriction on the power of the Federal government to discourage this unnatural and barbaric trade. It will be a great point gained in favor of humanity if – during a period of twenty years – the slave trade in the States terminates forever. Within that generation it will receive a considerable discouragement from the Federal government, and may be totally abolished during that period with the concurrence of the few States which continue the traffic. It would be a happy event for the unfortunate Africans to have laid before them the prospect of freedom from the oppressions of their European brethren that is equal to what the colonists so recently experienced.
* * *
The exercise of Federal power to prohibit the importation of slaves is postponed until the year 1808. Preferably there should be no delay, but existing practices explain this temporal restriction on the power of the Federal government to discourage this unnatural and barbaric trade. It will be a great point gained in favor of humanity if – during a period of twenty years – the slave trade in the States terminates forever.
* * *
The Third Class of Federal Powers Will Provide for Harmony and Proper Intercourse among the States
The restraints against State authority that will advance the harmony and proper intercourse among the States are discussed in Federalist 44. Certain aspects of judicial power will promote the same end, but these are discussed when we arrive at the structure and organization of the Federal judiciary in Federalist 80 and Federalist 81. Presently we confine ourselves to a cursory review of the other powers that will provide for an harmonious intercourse among the States, namely, the powers:
(1) to regulate commerce among the several States and the Indian tribes,
(2) to coin money, regulate the value thereof, and of foreign coin,
(3) to provide for the punishment of counterfeiting the current coin and securities of the United States,
(4) to fix the standard of weights and measures,
(5) to establish a uniform rule of naturalization,
(6) to enact uniform laws of bankruptcy,
(7) to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States, and
(8) to establish post offices and post roads.
The Power to Regulate Interstate Commerce Is Intended to Restrict Injurious Duties
“The Congress shall have the Power . . . [¶] To regulate Commerce . . . among the several States, . . . .” Art. I, § 8, cl 3.
Experience highlights the inadequacy of the prior Federal authority to regulate the commerce among the States. The grant of supplemental power to regulate commerce among the States remedies this defect, and ensures the great and essential power of regulating foreign commerce is no longer incomplete and ineffectual.
One very material object of conferring this power was to relieve States which import and export through other States from the improper contributions levied for the mere transport of goods. If States were at liberty to regulate trade between State and State, one can easily foresee how articles of import and export passing through a State would be loaded with duties which would fall both on the consumers of the imports and the makers of the exports.
* * *
Experience highlights the inadequacy of the prior Federal authority to regulate the commerce among the States. The grant of supplemental power to regulate commerce among the States remedies this defect, and ensures the great and essential power of regulating foreign commerce is no longer incomplete and ineffectual.
* * *
Allowing Duties on Interstate Transport Stimulates Passion rather than Reason
If duties for the mere passage were allowed, experience advises that such practices would be introduced by future contrivances. A common knowledge of human passions and interests further counsels that such contrivances would nourish unceasing animosities. Not improbably such animosities would terminate in serious interruptions of the public tranquility.
Indirect Taxation of the Citizens of Other States Is Improper
The desire of commercial States to collect – in any form – an indirect revenue from their uncommercial neighbors is as impolitic as it is unfair. It would stimulate the injured parties – by resentment as well as interest – to resort to less convenient channels for their foreign trade. In the end, the mild voice of reason – pleading before public bodies the cause of a permanent national interest greater than revenue – is too often drowned by the clamors of an impatient avidity for immediate and immoderate gain.
Foreign Experience with Interstate Duties Demonstrates the Need for Federal Control
Other examples demonstrate the necessity of a superintending authority over the reciprocal trade of confederated unions like the United States. The Swiss Union of confederated cantons obliges on each the free passage of goods among them, without an augmentation of the tolls. The Union of the Netherlands requires its members to obtain permission before establishing imposts disadvantageous to their neighbors. In the German empire, there is a law that princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the general assembly of imperial estates. Unfortunately, as I observed in Federalist 19, that empire has not followed the written law, thereby producing mischiefs similar to those we experienced under the Articles of Confederation.
Regulating Commerce with the Native Tribes
The Constitution delegates to the Congress the power: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Art. I, § 8, cl. 3. By this provision the Federal government is entrusted with the sovereign power to regulate commerce with the Indian tribes. The power is very properly unfettered from two obscure and contradictory limitations in the Articles of Confederation, which had granted Congress “the sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.” Articles of Confederation of 1781, art. IX, ¶ 4.
This provision has resulted in much contention, confusion and perplexity in Federal councils, particularly concerning what Indians should be deemed “members of a State.” And it is absolutely incomprehensible how the trade with Indians – though not members of a State, yet residing within its legislative jurisdiction – can be regulated by an external authority like the United States without intruding on the internal rights of States to enact legislation.
* * *
It is a mathematical impossibility to reconcile a complete sovereignty in State governments with a partial sovereignty in the Federal government. One cannot take away a part and yet let the whole remain. If the whole remains, nothing has been taken away.
* * *
It Is Impossible to Grant a Partial Sovereignty to the Federal Government, Yet Retain a Complete Sovereignty with the States
The immediately-preceding example was not the only case in which the Articles of Confederation inconsiderately endeavored to accomplish impossibilities. It is a mathematical impossibility to reconcile a complete sovereignty in State governments with a partial sovereignty in the Federal government. One cannot take away a part and yet let the whole remain. If the whole remains, nothing has been taken away.
The Exclusive Federal Power to Coin and Regulate the Value of Money
Only one thing need be said on the powers to coin money, to regulate its value, and to regulate the value of foreign coin. Congressional authority pursuant to the Articles of Congress was restrained to the regulation of coin struck by their own authority, or that of the respective States. The exclusive Federal power to regulate the value of foreign coin is new. It was added because the uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.
The Power to Punish Counterfeiting Is Properly Vested in the Federal Government
The punishment for counterfeiting the public securities and the current coin is naturally submitted to that authority which is to secure the value of both.
The Regulation of Weights and Measures
The regulation of weights and measures is transferred from the Articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.
The Rules of Naturalization Must Be under Federal Control
The dissimilarity in the rules of naturalization were long considered a fault in the prior system, as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, with my emphasis, it was declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce . . . .” Articles of Confederation of 1781, art. IV, ¶ 1 (emphasis added).
The confusion of language here is remarkable. Why were the terms free inhabitants are used in one part of the article, free citizens in another, and people in another? What was intended by superadding the phrases “all privileges and immunities of free citizens” and “all the privileges of trade and commerce”? Read literally, the article provides that the free inhabitants of a State – although not citizens of such State – are nonetheless entitled to all the privileges of free citizens while in any other State. These free inhabitants would thus have greater privileges in other States than they may be entitled to in their own State. In order to eliminate these and other disparities, the Constitution has authorized the Federal government to establish a uniform rule of naturalization throughout the United States.
The Power to Regulate Bankruptcies Must Be Federal
The power of establishing uniform laws of bankruptcy is also committed to the Federal government. Art. I, § 8, cl. 4. This power is intimately connected with the regulation of commerce and is necessary to prevent the fraudulent movement of property between States to disadvantage creditors. No one questions its expediency.
The Federal Government Is Properly Granted the Power to Prescribe How the Public Acts, Records and Judicial Proceedings May Be Proved in Another State
The Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1.
The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on its indeterminate counterpart in the Articles of Confederation. The power here established may be rendered a very convenient instrument of justice. It will be particularly beneficial on the borders of contiguous States, where the property and effects liable to justice may be suddenly and secretly removed to the foreign jurisdiction at any stage of the process.
The Power to Establish Post Offices and Post Roads Will Benefit Everyone
Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care. The power of establishing post offices and post roads, Art. I, § 8, cl. 7, is not only a harmless power, but one that will produce many improvements – if judiciously managed.
Madison
original Federalist 42Federalist 43: Miscellaneous Powers Examined
THE FOURTH CLASS OF POWERS lodged in the Federal government comprises several miscellaneous powers I now examine.
The Power to Issue Patents and Copyrights
Congress is granted the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Art. I, § 8, cl. 8. The utility of this power will scarcely be questioned. In Great Britain, the copyright of authors has been solemnly adjudged to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. Protecting the claims of individual authors and inventors fully coincides with the public good. The States acting alone would be unable to make effectual provisions for the protection of either.
* * *
In Great Britain, the copyright of authors has been solemnly adjudged to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. Protecting the claims of individual authors and inventors fully coincides with the public good.
* * *
The Power to Establish the District of Columbia
The next miscellaneous power allows Congress “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” Art. I, § 8, cl. 19.
The indispensable necessity of complete authority at the seat of government carries its own evidence. It is a power exercised by every legislature in the United States – I might say of the world – by virtue of its general supremacy. Without it, the public authority might be insulted and its proceedings interrupted with impunity. Further, the members of the Federal government would depend on the State comprehending the seat of the government for protection in the exercise of their duty, thereby imputing an influence over the national councils, which would be dishonorable to the Federal government and dissatisfactory to the other States.
This consideration carries more weight as public improvements gradually accumulate at the stationary residence of the government. It both would be too great a public pledge left in the hands of a single State, and create many obstacles to a removal of the government.
The extent of this Federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. It is to be appropriated to this use with the consent of the State or States ceding it. As each ceding State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it, the inhabitants will find sufficient inducements of interest to become willing parties to the cession. A municipal legislature for local purposes – derived from their own votes – will of course be allowed its citizens, and thus they will have their voice in the election of the government which is to exercise authority over them. Since the authority for the cession will be derived from the whole people of the State by their ratification of the Constitution, and the both the legislature of the ceding State and the inhabitants of the ceded part will concur in the cession, every imaginable objection seems to be obviated.
The necessity of a similar authority over forts, magazines, and the like is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. It would be improper for the places on which the security of the entire United States may depend to in any degree be dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.
The Power to Declare the Punishment for Treason Does Not Extend to Descendants
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Art. III, § 4, cl 2.
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as novel and artificial treasons have been the great engines by which violent factions – the natural offspring of free government – have alternatively wreaked their malignity on each other, the Convention imposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress in punishing it beyond the consequence of the guilt of its author.
The Power to Admit New States
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” Art. IV, § 3, cl 1.
The Articles of Confederation had no provision on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States. Other colonies – by which were evidently meant the other British colonies – were could be admitted the discretion of nine States. The eventual establishment of new States seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which the Congress was led by it. With great propriety, therefore, has the new system supplied the defect.
The general precaution that no new States shall be formed without the concurrence of Congress and the States concerned is consonant to the principles which ought to govern such transactions. The inclusion of the precaution against the erection of a new State by partitioning an existing one without its consent quiets the jealousy of the larger States, just as jealousy of the smaller States is quieted by a like precaution against a junction of States without their consent.
* * *
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as novel and artificial treasons have been the great engines by which violent factions – the natural offspring of free government – have alternatively wreaked their malignity on each other, the Convention imposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress in punishing it beyond the consequence of the guilt of its author.
* * *
The Power to Regulate the Territories and Property of the United States
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Art. IV, § 3, cl. 2.
This is a power of very great importance and required by considerations similar to concerning formation of new States. The proviso was rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public.
The Guaranty of Republican Government and Protection from Invasion
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Art. IV, § 4.
In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of a confederacy may be, the greater interest have the members in the political institutions of each other, and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.
A right implies a remedy, and where else could the remedy be deposited than the Constitution? Governments composed dissimilar principles and forms have proven less adapted to a federal coalition of any sort, than have those of a kindred nature. “As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphictyons.” In the case of Macedon, the disproportionate force – as well as the monarchical form of the new confederate – undoubtedly had its share of influence on the events.
Some might question the need of a guarantee of a republican government. But if the interposition of the Federal government should not be needed, the provision for such an event in the Constitution will be a harmless superfluity. But who can say what experiments may be produced by the caprice of particular States, the ambition of enterprising leaders, or the intrigues and influence of foreign powers?
To those who say a guarantee may become a pretext for Federal alterations to a State government without the concurrence of the other States, it may be answered that if the Federal government should interpose by virtue of this constitutional authority, it will be bound to pursue the authority. But the authority extends no further than to a guaranty of a republican form of government. This supposes a preexisting government of the form which is to be guaranteed. As long as the existing republican forms are continued by the States, they are guaranteed by the Federal Constitution. Whenever a States chooses to substitute another republican form, they have a right to do so, and to claim the Federal guaranty for the latter. The only restriction imposed on the States is that they shall not exchange republican for antirepublican Constitutions. This restriction will hardly be considered a grievance.
* * *
Some might question the need of a guarantee of a republican government. But if the interposition of the Federal government should not be needed, the provision for such an event in the Constitution will be a harmless superfluity. But who can say what experiments may be produced by the caprice of particular States, the ambition of enterprising leaders, or the intrigues and influence of foreign powers?
* * *
A protection against invasion is due from every society to the parts composing it. The latitude of the expression here secures each State against foreign hostility as well as against ambitious or vindictive enterprises of its more powerful neighbors. The history of ancient and modern confederacies proves the weaker members of a confederate union ought not be insensible to the policy of this article. It follows that protection against domestic violence is added with equal propriety.
Even among the Swiss cantons – although technically not under one government – provision is made for this object. The history of that league informs us mutual aid is frequently claimed and afforded. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature.
From a theoretical republican perspective, a majority has not the right – or a minority the force – to subvert a government, so Federal interposition should never be required. But theoretical reasoning – in this as in most cases – must be qualified by the lessons of practice. Illicit combinations for purposes of violence can be formed in a majority of a county or a district of a State. Similarly, an illicit combination also can form a majority of an entire State, especially a smaller one. Just as the authority of the State ought to protect a municipal government in the case of a local combination, the Federal government ought to support the State in the case of a larger one. Besides, certain parts of State constitutions are so interwoven with the Federal Constitution that a violent blow to one communicates the wound to the other.
* * *
From a theoretical republican perspective, a majority has not the right – or a minority the force – to subvert a government, so Federal interposition should never be required. But theoretical reasoning – in this as in most cases – must be qualified by the lessons of practice.
* * *
Insurrections in a State will rarely induce a Federal interposition unless their number threatens the friends of government. It is much better that the violence in such cases be repressed by the superintending State government than letting the majority maintain their cause by a bloody and obstinate contest. The mere existence of a Federal right to interpose will generally prevent the necessity of exerting it. It is not always true that force and right are necessarily on the same side in republican governments. The minor party may possess such a superiority of pecuniary resources, military talents and experience, or secret succors from foreign powers as to render it superior in an appeal to the sword. A more compact and advantageous position can turn the scale against a superior number that is less capable of a prompt and collected exertion of its strength. In a trial of actual force, nothing is more chimerical than to imagine victory may be calculated by the rules governing a census of inhabitants or the outcome of an election!
* * *
Insurrections in a State will rarely induce a Federal interposition unless their number threatens the friends of government. It is much better that the violence in such cases be repressed by the superintending State government than letting the majority maintain their cause by a bloody and obstinate contest.
* * *
It may happen that a minority of citizens may become a majority of persons by the accession of alien residents, and the casual concourse of adventurers and those unauthorized to vote. And in some of the States there is an unhappy species of population who are sunk below the level of men during the calm of regular government, but who emerge into the human character in the tempestuous scenes of civil violence, and give a superiority of strength to any party with which they may associate themselves. In a case of two violent factions flying to arms and tearing a State to pieces – and there is doubt on which side justice lies – there are no better umpires than the representatives of States not heated by the local flame. The impartiality of neighbors would unite the affection of friends within the affected State. It would be a happy day if all free governments could enjoy such a remedy for its infirmities. Perhaps a project equally effectual could be established for the universal peace of mankind.
In the case of an insurrection pervading all the States with superiority of an entire force, it would be without the compass of human remedies, so fortunately it is not within the compass of human probability. It is a sufficient recommendation of the Constitution that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is “that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.
The Power to Pay Antecedent Debts
“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” Art. VI, cl. 1. This can only be considered as a declaratory proposition inserted primarily for the satisfaction of the foreign creditors of the United States, to dispel doubts that we will adhere to the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.
In the spirit which usually characterizes little critics, it was argued the validity of debts and engagements in favor of the United States also ought to have been included. Its omission has been transformed and magnified into a plot against the national rights. These small critics feign ignorance of the well-known principle that engagements are in their nature reciprocal, and an assertion of their validity on one side necessarily involves a validity on the other side. Since the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. Every constitution must limit its precautions to dangers that are not altogether imaginary. No real danger can exist that the Federal government would even dare to cancel the debts justly due to the public on the pretext here condemned.
The Power to Provide for Amendments to the Constitution
Article V sets forth the methods by which the Constitution may be amended: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
The Convention saw that useful alterations will be suggested by experience, and therefore provided a mode for introducing them, which is stamped with every mark of propriety. By requiring the two-thirds of both chambers of the Congress or two-thirds of State legislatures to initiate the process, Article V guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults. It equally enables the Federal and the State governments to originate the amendment of errors as may be pointed out by the experience on one side or the other.
The exception in favor of the equality of suffrage in the Senate was inserted as a palladium to the smaller States to secure their residuary sovereignty that is implied and secured by that principle of coequal representation in one branch of the legislature. The other exception was admitted on the same considerations which produced the privilege defended by it.
* * *
The Convention saw that useful alterations will be suggested by experience, and therefore provided a mode for introducing them, which is stamped with every mark of propriety. By requiring the two-thirds of both chambers of the Congress or two-thirds of State legislatures to initiate the process, Article V guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults.
* * *
Initial Ratification of the Constitution by Nine States
Article VII provides: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” This article speaks for itself.
Only the express authority of the People through their State Conventions could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked an inexcusable want of foresight in the Convention.
Two questions of a very delicate nature presented themselves on the occasion of the ratification of the Constitution. The first inquires into the basis for superseding the Confederation – a solemn form of a compact among the States – without the unanimous consent of the parties to it. This is answered at once by recurring to the absolute necessity of the case, the great principle of self-preservation, and the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. An answer also appears in the manner by which the Articles of Confederation were ratified. In many States, the Articles received no higher approval than a mere legislative ratification. Under the principle of reciprocity, the obligations of the other States should be reduced to the same standard. A compact between independent sovereigns founded on ordinary acts of legislative authority can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties that all the articles are mutually conditioned on each other, and that a breach of any one article is a breach of the whole treaty. A breach by one of the parties absolves the others, and authorizes them to pronounce the compact violated and void. The Articles were subject to multiple and important infractions.
The second inquiry focuses on the relationship between the States ratifying the Constitution and a State which chooses not to become a party to it. Although no political relation can subsist between the assenting and dissenting States, moral relations will remain uncancelled. Claims of justice will remain in force on both sides, and must be fulfilled. The rights of humanity must in all cases be duly and mutually respected. It is hoped that considerations of a common interest, the remembrance of the endearing scenes of the past, and the anticipation of a speedy triumph over the obstacles to reunion, will not urge in vain moderation on one side and prudence on the other.
Madison
original Federalist 43 Federalist 44: Restrictions on the Authority of the Several States; the Necessary and Proper Clause and the Supremacy Clause Explained
The Fifth Class of Powers: Prohibition of Certain State Activities
A FIFTH CLASS OF PROVISIONS in favor of the Federal authority consists of the following restrictions on the authority of the several States: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Art. I, § 10, cl 1.
Prohibition of Any State Entering into Any Treaty, Alliance or Confederation
The first clause – the prohibition against any treaty, alliance or confederation – needs no explanation.
Prohibition of Any State Granting Letters of Marque
The prohibition of letters of marque was included in the Articles of Confederation, and is extended in the Constitution. According to the old system, letters of marque could be granted by a State after a declaration of war. Under the new system, these licenses must be obtained from the government of the United States both before war and after its declaration. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers. It also is fully justified by the liability of the nation for all those whose conduct the nation itself will bear responsibility.
Prohibition of States Coining Money, and Issuing Bills of Credit or Paper Money
The Constitution takes the right of coining money from the States. It was formerly left in their hands by the Confederation – as a concurrent right with that of Congress – with an agreed exclusive right of Congress to regulate the alloy and value. This new provision is an improvement on the old. The only effect of a right of coinage in States has been multiplication of expensive mints with diversified forms and weights of the circulating pieces. Diversification of forms and weights of circulating pieces defeats one of the purposes why the power was originally submitted to the Federal government. So long as the authority to regulate the alloy and value of coins tends to prevent an inconsistent remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the Federal government.
The Constitution also prohibits States from emitting bills of credit. Since the peace, America’s losses from the pestilent effects of paper money have constituted an enormous debt against the States chargeable with these imprudent measures. It undermines the necessary confidence between human beings and their confidence in the public councils. It also undermines the industry and morals of the People, and even the character of republican government. The States will never satisfy these debts, for they are based on no more than an accumulation of guilt. The debt holders must expiate them by a voluntary sacrifice on the altar of justice, which expiation must include the power which has been the instrument of it.
Just as we must deny to States the power to regulate coin, we must deny to them the power to issue paper money in place of coin. If every State had a right to regulate the value of its coin, there would be as many different currencies as States. Intercourse would be impeded, and retrospective alterations in value would be made, leading to injuries among the citizens of the issuing States and the kindling of animosities among the States themselves. Foreign powers also might suffer from any debasement, and hence the United States would be discredited and embroiled by the indiscretion of a single member. These mischiefs are as incident to a power in the States to coin gold or silver as a power to emit paper money. The power to make any thing but gold and silver a tender in payment of debts is withdrawn from the States on the same principle with that of issuing a paper currency.
Prohibition of Bills of Attainder, Ex Post Facto Laws, and Laws Impairing the Obligation of Contracts
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation. The declarations prefixed to some State constitutions expressly prohibit bills of attainder and ex post facto laws. The spirit and scope of the other constitutions implicitly prohibit them. Moreover, our own experience has taught us we must erect additional fences against these dangers. The Convention very properly added this constitutional bulwark in favor of personal security and private rights. The People of America are weary with fluctuating policies emanating from public councils. The People regret and are indignant with sudden changes and legislative interferences – particularly in those cases affecting personal rights – where they become mere jobs in the hands of enterprising and influential speculators, who are but snares to the more industrious (though less informed) members of the community. The People have also seen that a single legislative interference can be but the first link of a long chain of repetitions, with every subsequent interference being naturally produced by the effects of the preceding. From this they very rightly infer that thorough reform is needed to banish speculations on public measures, and to inspire the general prudence and industry which will give a regular course to the business of society.
Prohibition of Titles of Nobility
The prohibition with respect to titles of nobility, copied from the Articles of Confederation, needs no comment.
Prohibition of State Duties on Imports and Exports
The Constitution provides: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.” Art. I, § 10, cl. 2.
The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the Federal councils. Therefore, it is needless to remark further on this head, other than to note the manner in which the restraint is qualified seems well calculated at once both to secure to the States a reasonable discretion in providing for the convenience of their imports and exports, and to secure to the United States a reasonable check against an abuse of this discretion. (The remaining particulars of this clause fall are either so obvious to reason or have been so fully developed that they may be passed over without remark.)
The Sixth Class of Powers Granted to the Federal Government
The sixth and last class of powers granted to the Federal government consists of the several powers and provisions by which efficacy is given to all the rest.
The Necessary and Proper Clause Is Unassailable
Of these the first is the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Few parts of the Constitution were assailed with more intemperance than this. Yet no part appears more completely invulnerable upon a fair investigation. Without the substance of this power, the whole Constitution would be a dead letter. Those who object to the article as a part of the Constitution can only mean the form of the provision is improper.
The Four Alternatives to the Necessary and Proper Clause
Was there a better solution? The Constitutional Convention considered four alternatives. First, the Convention could have copied the second article of the existing Confederation – which would have prohibited the exercise of any power not expressly delegated. Second, the Convention might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper.” A third option might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition. And finally, the Convention might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
(1) The Possibility of Prohibiting the Exercise of Any Power Not Expressly Delegated
Had the Convention adopted the first method – prohibiting the exercise of any power not expressly delegated – the Congress would be continually exposed to the alternative of construing the term “expressly” with so much rigor as to disarm the government of all real authority, or with so much latitude as to destroy altogether the force of the restriction. As with the experience under the Articles of Confederation, none of the important powers delegated to Congress could have been executed by that body without resorting more or less to the doctrine of construction or implication. Since the powers delegated under the new system are more extensive, the government administering it would find itself still more distressed with the alternatives of betraying the public interest by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but at the same time not expressly granted.
(2) The Possibility of Enumerating Necessary and Proper Powers
Had the Convention chosen the second alternative – a positive enumeration of the powers necessary and proper for carrying their other powers into effect – the attempt would have involved a complete digest of laws on every subject to which the Constitution relates, with accommodation not only to the existing state of things, but to all the possible changes futurity may produce. With every new application of a general power, the particular powers – the means of attaining the object of the general power – would necessarily vary depending on the object, and also vary even when the object remains the same.
(3) The Possibility of Excepting Certain Powers from Those which Are Necessary and Proper
The third option would have been a negative specification of the powers excepted from the general authority to make laws necessary and proper. Of course, every deficiency in the list of excepted powers would be taken as equivalent to a positive grant of authority to the Congress.
To avoid this consequence, the Convention could have attempted a partial enumeration of exceptions, and described the residue by the general terms “not necessary or proper.” Such a partial list naturally would be composed of only the least necessary or proper powers. As a result, the residuum would be less forcibly excepted than if no partial enumeration had been made at all.
(4) The Possibility of Remaining Silent
Finally, had the Constitution been silent on this head, by unavoidable implication all the particular powers requisite to executing the general powers would rest with the Federal government. No axiom is more clearly established in law or reason that wherever a general power to do a thing is given, every particular power necessary for doing it is included. To put it more succinctly: wherever the end is required, the means are authorized. Had the Convention pursued this last method, every objection now urged against the proposed Constitution would remain fully plausible. In times of crisis, these objections would offer a pretext to those who oppose the essential powers of the United States.
The Remedy for Federal Use of Unauthorized Powers Ultimately Rests with the People
One might reasonably ask what consequence would attend if Congress were exercise powers not warranted the true meaning of this clause. The answer would be the same as if the Congress should misconstrue or enlarge any other power vested in it, as if a State legislature should violate its constitutional authority, and as if any legislative body were to violate a general power that had been reduced to particulars.
* * *
The sixth and last class of powers granted to the Federal government consists of the several powers and provisions by which efficacy is given to all the rest. Of these the first is the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Few parts of the Constitution were assailed with more intemperance than this. Yet not part appears more completely invulnerable upon a fair investigation. Without the substance of this power, the whole Constitution would be a dead letter.
* * *
In the first instance, the success of the usurpation will depend on the executive and judicial departments, which are to expound and give effect to legislative acts. In the last resort a remedy lies with the People, who can annul the acts of the usurpers by the election of more faithful representatives. In truth, this ultimate redress is more effective against unconstitutional acts of the Federal government than would a similar act by a State legislature. Every such act of the Federal government will be an invasion of the rights of the States, whose officials will be ever ready to mark the innovation, sound the alarm to the People, and to exert their local influence in replacing their Federal representatives. By comparison, there is no intermediate body between the People and a State legislature, so constitutional violations are more likely to remain unnoticed and unredressed.
* * *
In the last resort a remedy lies with the People, who can annul the acts of the usurpers by the election of more faithful representatives.
* * *
The Supremacy Clause Gives Force to the Constitution’s Provisions
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.
The Constitution’s adversaries – betrayed by the indiscreet zeal of their opposition – attacked this provision, even though without it the Constitution would be evidently and radically defective. To prove this, one need only suppose for a moment that the Convention had included a provision in favor of the supremacy of the State constitutions. In the first place, each of those constitutions had invested their State legislatures with absolute sovereignty in all cases not excepted by the Articles of Confederation. Without this new provision, all the authorities contained in the Constitution – so far as they exceeded those enumerated in the Articles of Confederation – would have been annulled, thus reducing the Congress to the same impotent condition as its predecessors. In the second place, the constitutions of some of the States did not even expressly and fully recognize the powers of the Congress under the Articles of Confederation. In those States, the inclusion of a Federal provision expressly saving of the supremacy of State constitutions would bring into question every power contained in the Constitution. And since State constitutions differ much from each other, it might happen that a treaty or national law of great and equal importance to all the States would interfere with some State constitutions but not others, leaving such treaty or law valid in some States but without effect in others. For the first time in history, the world would have witnessed a system of government founded on an inversion of the fundamental principles of all government: the authority of the whole society everywhere subordinated to the authority of the parts. The Convention would have created a monster, in which the head was under the direction of its members.
The Oath to Support the Constitution Is Important
The third (and final) paragraph of article VI provides: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Some have asked why the Convention thought it necessary to bind by oath State magistrates to support the Federal Constitution, but not to bind the officers of the United States by like oath in favor of the State constitutions. The most obvious and conclusive reason is that members of the Federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution.
The election of the President and Senate will depend in all cases on the legislatures of the several States. And the election of the House of Representatives will equally depend on State legislatures in the first instance, and probably will forever be conducted by the officers and according to the laws of the States.
Other provisions for giving efficacy to the Federal powers belong to the executive and judicial departments, but these are reserved for particular examination in later papers.
We have now reviewed in detail all the articles composing the sum or quantity of power delegated by the Constitution to the Federal government, and we are brought to the undeniable conclusion that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union of the United States.
Madison
original Federalist 44[Ed. note: Article VI of the Articles of Confederation set forth the original prohibition of letters of marque.] Federalist 45-46: Relationships Between the People, the States, and the Federal Government
Federalist 45: The Federal Government Will Be Less Dangerous to State Governments than Vice-Versa
THAT THE POWERS TRANSFERRED to the Federal government are necessary and proper was shown in Federalist 33 and Federalist 44. Now I turn to a secondary issue: whether the whole mass of those Federal powers will be dangerous to that portion of authority left in the States. Opponents of the Constitution tend to exhaust themselves in this secondary inquiry, thereby overlooking or confusing the principal goal, which is to ensure the Constitution has invested the Federal government with the minimum degree of power absolutely necessary for it to function successfully.
I have already shown that the Federal government is essential to the security of the People of America against (1) foreign dangers, (2) contentions and wars among the different States, (3) violent and oppressive factions, which embitter the blessings of liberty, and (4) military establishments, which gradually poison the very fountain of liberty.
In a word, the Federal government is essential to the happiness of the People of America. It is preposterous object to a Federal government because it may lessen the importance of individual State governments.
We Fought the Revolution for Peace, Liberty and Safety, Not to Protect State Officers
Was the precious blood of thousands spilt and the hard-earned substance of millions lavished in the Revolution – not so the People of America should enjoy peace, liberty, and safety – but that State and local governments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?
We have heard of the impious doctrine of the Old World, that the people were made for kings, and not kings for the people. Is the same doctrine to be revived in the New World in another shape? Must the solid happiness of the People be sacrificed to the views of political institutions? Should politicians presume we will forget that the public good – which is the real welfare of the great body of the People – is the supreme object to be pursued?
* * *
Was the precious blood of thousands spilt and the hard-earned substance of millions lavished in the Revolution – not so the People of America should enjoy peace, liberty, and safety – but that State and local governments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?
* * *
The Public Good and Happiness Must Be the Goals of Any Sound Government
No form of government has any value other than as it is fitted for attainment of the public good. I would have rejected the Constitution and the United States if either had been adverse to the public happiness. If the sovereign powers of the States cannot be reconciled to the happiness of the People, the sovereign powers must be sacrificed.
The Extent of the Federal Government Will Not Endanger the Unsacrificed Residue of State Sovereignty
I have in the course of these papers touched upon important considerations which discountenance the supposition that the operation of the Federal government will by degrees prove fatal to the State governments. The more I resolve the subject, the more fully I am persuaded that the balance of sovereignty is much more likely to be disturbed by the States rather than by the Federal government.
Historical Examples Demonstrate the Disruptive Power of Subordinate States
In all the examples of ancient and modern confederacies I have studied, the member states themselves continually demonstrated the strongest tendency to despoil the authority of the general governments, which lacked the capacity to defend themselves against the encroachments. Since the States retain a very extensive portion of active sovereignty under the Constitution, we should not disregard these historical examples.
* * *
We have heard of the impious doctrine of the Old World, that the people were made for kings, and not kings for the people. Is the same doctrine to be revived in the New World in another shape? Must the solid happiness of the People be sacrificed to the views of political institutions? Should politicians presume we will forget that the public good – which is the real welfare of the great body of the People – is the supreme object to be pursued?
* * *
The Achaean League and Lycian Confederacy
In the Achaean league, for instance, the federal head probably had a degree and species of power which gave it a considerable likeness to the government framed by our Constitutional Convention. The Lycian Confederacy bears a still greater analogy to it. Yet history does not inform us that either of these federal leagues ever degenerated – or tended to degenerate – into a single consolidated government, even though external forces pressing the component parts together were much more numerous and powerful than in our case. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions – and finally the disunion – of its subordinate governments.
The Feudal System Failures
We have seen a similar propensity exemplified in the feudal system. Even with the want of proper sympathy in every instance between the local sovereigns and the people, and in some instances between the general sovereign and the people, the local sovereigns usually prevailed in the rivalry for encroachments. Had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would today consist of as many independent princes as there were formerly feudatory barons.
State Governments Have Multiple Advantages over the Federal Government
In the United States, State governments have advantages over the Federal government, whether I compare them in respect to: (1) the immediate dependence of the one on the other, (2) the weight of personal influence which each side will possess, (3) the powers respectively vested in them, (4) the predilection and probable support of the People, and (5) the disposition and faculty of resisting and frustrating the measures of each other. The State governments will be regarded as constituent and essential parts of the Federal government, while the Federal government will in no way be essential to the operation or organization of the State governments.
For example, without the intervention of the State legislatures, the President of the United States cannot be elected at all. State governments must in all cases have a great share in his appointment, and in most cases they will themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the People, will be chosen very much under the influence of that class of individuals whose influence over the People obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the Federal government will owe its existence more or less to the favor of the State governments. It follows that each branch of Federal government will feel a dependence on State governments, and that dependence will likely beget a disposition that is more obsequious than overbearing towards the State governments.
* * *
Due to the number and proximity of State government employees, there will be more personal influence on the side of the States than on the side of Federal government.
* * *
On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the Federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States.
Personal Influence with the People Favors State Officials
Due to the number and proximity of State government employees, there will be more personal influence on the side of the States than on the side of Federal government. The members of the legislative, executive, and judicial departments of the States, together with the State justices of peace, officers of militia, ministerial officers of justice, as well as all the county, corporation, and town officers, will intermix with and have particular acquaintance with every class and circle of persons. They must therefore exceed – beyond all proportion, both in number and influence – those of every description who will be employed in the administration of the Federal system. If we compare the number of members of the legislative, executive and judicial departments of the States with the members of the corresponding departments of the United States, and also compare the number of State militia officers with the number of Federal military officers established now and in futurity, the advantage of the States is decisive.
States Will Have More Revenue Collectors
If the Federal government is to have collectors of revenue, the State governments will have theirs also. Since the Federal collectors of revenue will be principally on the seacoast, and not very numerous, and State collectors of revenue will be spread over the face of the country and much more numerous, the advantage lies with the States.
It is true the Federal government will possess, and may exercise, the power of collecting internal as well as external taxes throughout the States. Resort to this power is improbable except for supplemental purposes of revenue. An option will then be given to the States to supply their quotas by previous collections of their own. The power of taxation will, for the most part, be connected with the power to regulate foreign commerce. The actual collection of revenue pursuant to the immediate authority of the United States will generally be made by officers appointed by the several States.
* * *
The powers reserved to the States will extend to all the objects which – in the ordinary course of affairs – concern the lives, liberties, and properties of the People, and the internal order, improvement, and prosperity of each State.
* * *
State Officers Will Be Clothed with Federal Authority
Just as the exercise of Federal authority by State officers appears in the organization and exercise of the judicial power – where the officers of the States will be clothed with the correspondent authority of the United States – the influence of the whole number of collectors of internal revenue appointed by the Federal government would not compare with that exercised by the multitude of corresponding State officers. For every Federal collector allotted to a district, there would be at least 30 officers of different descriptions – many of them persons of character and weight – whose influence would lie on the side of the State. The powers delegated by the Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The Federal power will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.
The Powers Reserved to the States Are Substantial
The powers reserved to the States will extend to all the objects which – in the ordinary course of affairs – concern the lives, liberties, and properties of the People, and the internal order, improvement, and prosperity of each State. The operations of the Federal government will be most extensive and important in times of war and danger, and those of State governments in times of peace and security. Since times of war and danger will probably bear a small proportion to times of peace and security, the State governments will here enjoy another advantage over the Federal government. Assuming adequate Federal powers are rendered to the national defense, then less frequently will appear those scenes of danger which might favor the ascendancy of the Federal government over the governments of the particular States.
* * *
The changes the new Constitution proposes consist much less in the addition of new powers to the Union than in the invigoration of its original powers.
* * *
The Constitution Reinvigorates the Powers the People Originally Granted
The changes the new Constitution proposes consist much less in the addition of new powers to the Union than in the invigoration of its original powers. While the regulation of commerce is a new power, it seems to be an addition few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, and treaties and finance were all vested in the existing Congress by the former Articles of Confederation. The proposed changes do not enlarge these powers; they merely substitute a more effectual mode of administering them.
Direct Taxation of Individuals Is Authorized
The changes relating to taxation are the most important, yet the Congress under our former government had complete authority to require of the States indefinite supplies of money for the common defense and general welfare, and so too will future Congresses have to same power over individuals. Had the States complied punctually with the Articles of Confederation – or their obligations enforced through peaceable collection from individuals – it is highly doubtful State governments would have thereby lost their constitutional powers and gradually undergone an entire consolidation, as opponents assert will happen to the Federal government. To make such an argument is to say the existence of State governments is incompatible with any system whatever that accomplishes the essential purposes of the United States.
Madison
original Federalist 45Federalist 46: The Ultimate Authority Rests with the People, Not Federal or State Governments
RESUMING THE SUBJECT OF FEDERALIST 45, I now inquire whether the predilection and support of the People will lie with the Federal government or with State governments. Although appointed differently, both governments are substantially dependent on the great body of the citizens of the United States. In fact, the adversaries of the Constitution omitted the People altogether in their reasonings on this topic, thereby ignoring that ultimate authority resides in the People alone. The Federal and State governments are not mutual rivals and enemies, as some contended. The Federal and State governments are but different agents and trustees of the People, constituted with different powers, and designed for different purposes. Thus, the authorities of the Federal and State governments do not depend merely on the comparative ambition or location of each, or whether one will enlarge its sphere of jurisdiction at the expense of the other. Truth and decency require the event in every case will depend on the sentiments and sanction of their common constituents.
The People Will Naturally Favor State Governments
The first and most natural attachment of the People will be to the governments of their respective States. A greater number of individuals will rise into the administration of State governments – and from these a greater number of offices and emoluments will flow – and by the superintending care of these individuals the domestic and personal interests of the People of each State will be provided for and regulated. The People will be more familiar and minutely conversant with the affairs of State officials, with whom they will share greater ties of personal acquaintance, friendship, family and party attachment, than with Federal officials. Therefore the popular bias may well be expected most strongly to incline the People to favor State officials.
Experience speaks the same language. During the Revolutionary War, the Federal administration had as great an activity and importance as it can have in any future circumstance whatever. It was engaged in a course of measures whose object was the protection of everything that was dear, and the acquisition of everything that could be desirable to the People at large. Nevertheless, after the transient enthusiasm for the early Congresses was over, it was invariably found the attention and attachments of the People turned anew to their own State governments. The Federal council was at no time the idol of popular favor. In practice, those who sought to build their political futures on the prepossessions of their fellow-citizens usually opposed enlargement of the Federal sphere.
* * *
The Federal and State governments are not mutual rivals and enemies, as some contended. The Federal and State governments are but different agents and trustees of the People, constituted with different powers, and designed for different purposes.
* * *
If the Federal Government Becomes More Popular than State Governments, It Would Be Due to a Better Administration
If in the future the People should overcome all their antecedent propensities and become more partial to the Federal government than to their State governments, the change could only have resulted from the manifest and irresistible proofs of a better Federal administration. Should that occur, the People ought not be precluded from giving most of their confidence where they discover it is most due. But even in that event, the State governments would have little to apprehend, due to the limited sphere in which the Federal power can be administered advantageously.
State Governments May More Easily Frustrate the Laws of the Federal Government than vice versa
The remaining points of comparison between the Federal and State governments are the disposition and faculty they respectively possess to resist and frustrate the measures of each other. I have already proven the members of the Federal government will be more dependent on the members of the State governments, than vice versa. Furthermore, the prepossessions of the People – on whom both the Federal and State governments depend – will be more on the side of the State governments.
* * *
If in the future the People should overcome all their antecedent propensities and become more partial to the Federal government than to their State governments, the change could only have resulted from the manifest and irresistible proofs of a better Federal administration.
* * *
The prepossessions the members themselves will carry into the Federal government also will be more favorable to the States, while rarely will members of State governments carry into the public councils a bias in favor of the Federal government. Further, a spirit in favor of the States among members of Congress will infallibly exceed a spirit in favor of the Federal government among the legislatures of the States. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage.
Everyone knows most of the errors committed by the members of State legislatures proceed from the disposition of the members to sacrifice the comprehensive and permanent interest of their State to the particular and separate views of the counties or districts in which they reside. And if such members cannot sufficiently enlarge their policy to embrace the collective welfare of their particular State, how will they make the aggregate prosperity of the United States and the dignity and respectability of its government the objects of their affections and consultations? For the same reason members of State legislatures cannot attach themselves sufficiently to State and Federal objects, so too will members of Congress attach themselves too much to local objects. The States will be to the Federal members what counties and towns are to the State members. Measures will too often be decided according to their probable effect on the prejudices, interests, and pursuits of the governments and people of the individual States, rather than on the national prosperity and happiness.
What is the spirit that has in general characterized the proceedings of Congress? Their journals – as well as the candid acknowledgments of those who have been seated there – inform us the members have but too frequently displayed the character of partisans of their respective States rather than impartial guardians of a common interest. For every occasion when improper sacrifices were made of local considerations to the aggrandizement of the Federal government, the great interests of the nation have suffered a hundred losses from an undue attention to the local prejudices, interests, and views of the particular States. These reflections are not intended to insinuate the new Federal government will not embrace a more enlarged plan of policy than the existing government has pursued, or that its views will be as confined as those of the State legislatures. I imply only that the Federal government will partake sufficiently of the spirit of both State and Federal interests, and be disinclined to invade the rights of the individual States, or the prerogatives of their governments. In short, the motives on the part of the State governments to augment their prerogatives by misappropriating Federal powers will not be overruled by reciprocal predispositions in the Federal members.
Even if the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the State governments would still have the advantage in the means of defeating such encroachments. For instance, if a generally popular State action became effective immediately – and should not too grossly violate the oaths of the State officers – it would be enforced on the spot according to State rules, even though the act was unfriendly to the national government. 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. Federal opposition could neither prevent nor repair the evil, except by the use of means which must always be resorted to with reluctance and difficulty.
On the one 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 of the Federal government be so unpopular (which may sometimes be the case), the means of opposition to it are powerful and at hand: (1) the disquietude of the People and their repugnance and possible refusal to cooperate with the officers of the United States, (2) the frowns of the executive magistracy of the State, and (3) the embarrassments created by legislative devices which would often be added on such occasions. In a large State – particularly where the sentiments of several adjoining States happened to be in unison – these interests would present very serious obstructions the Federal government would hardly be willing to encounter.
* * *
Even if the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the State governments would still have the advantage in the means of defeating such encroachments.
* * *
On the other hand, ambitious encroachments of the Federal government on the authority of State governments would be signals of general alarm in all the States. Every government would espouse the common cause. A correspondence would be opened, plans of resistance concerted, and one spirit would animate and conduct the whole. The same combinations that were produced previously by the dread of a foreign yoke would result from an apprehension of a Federal yoke. Unless the projected Federal 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.
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. What would be the contest in the case we are supposing? Who would be the parties? A few Federal representatives of the People would be opposed to the People themselves. More precisely, one set of Federal representatives would be contending against thirteen sets of state representatives, with the whole body of their common constituents on the side of the State governments.
The Right to Bear Arms and Maintain State and Local Governments Are the Best Defenses to Federal Tyranny
The only refuge left for those who prophesy the downfall of State governments is the visionary supposition that the Federal government may accumulate a military force for its projects of ambition. These papers will have been useless indeed if it is now necessary now to disprove the reality of this danger. To imagine the People and the States would elect a sufficiently uninterrupted succession of individuals ready to betray both; that the traitors should uniformly and systematically pursue some fixed plan for the extension of the military establishment throughout this period; that the State 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 everyone 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, however, let it be made. If we assume a regular army fully equal to the resources of the country is formed entirely at the devotion of the Federal government, then State governments – with the People on their side – would be able to repel the danger. According to the best computation, the highest number to which a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls, or one quarter of the number able to bear arms. In the United States, this proportion would not yield an army of more than 25 or 30 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 is doubtful whether a militia thus circumstanced could ever be conquered by such a proportion of regular Federal 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.
First, unlike the People of almost every other nation, Americans have the advantage of being armed. Further, the existence of State and local governments to which the People are attached – and by which the militia officers are appointed – forms a nearly insurmountable barrier against the enterprises of Federal ambition. Consider the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear. Their governments are afraid to trust their inhabitants with arms. But even armed, it is uncertain whether this aid alone would allow them to shake off their yokes. But if those inhabitants possessed the additional advantages of local governments chosen by them – governments which could collect the national will, direct the national force, and appoint militia officers attached both to them and to the militia – the throne of every tyranny in Europe would be speedily overturned notwithstanding the legions surrounding it.
The free and gallant citizens of America would be no less able would than these debased subjects of arbitrary power to defend their rights, particularly since our citizens already will be in actual possession of those rights. Let us no longer insult the People of America with the supposition that they will ever reduce themselves to the use of force as a result of their blind and tame submission to a long train of insidious measures which must precede and produce it.
Either the mode in which the Federal government is constructed will render it sufficiently dependent on the People, or it will not. If dependent on the People, it will be restrained thereby from forming schemes obnoxious to their constituents. If independent of the People, the Federal government will not possess their confidence, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the People.
* * *
Either the mode in which the Federal government is constructed will render it sufficiently dependent on the People, or it will not. If dependent on the People, it will be restrained thereby from forming schemes obnoxious to their constituents. If independent of the People, the Federal government will not possess their confidence, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the People.
* * *
The powers 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 United States. All those alarms sounded about of the eventual annihilation of State governments must be ascribed to the chimerical fears of their authors.
Madison
original Federalist 46 Federalist 47-51: Separation of Powers and Constitutional Amendments
Federalist 47: “Separation of Powers” Defined and Examined
THE ACCUMULATION of the legislative, executive, and judicial powers 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.
No political truth is certainly of greater intrinsic value – or is stamped with the authority of more enlightened patrons of liberty – than the doctrine of separation of powers. This political maxim holds that the legislative, executive, and judicial departments ought to be separate and distinct.
* * *
Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other.
* * *
Separation of Powers as Described by Montesquieu
This invaluable precept in the science of politics was principally recommended to the attention of mankind by the Montesquieu, who is celebrated as the oracle on the subject. Just as the didactic writers on epic poetry considered the immortal bard Homer 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 did Montesquieu view the Constitution of England as the standard – or to use his own expression – “the mirror of political liberty.” From the several characteristic principles of that particular system, he deduced several elementary truths, of which the separation of powers is one. To be sure not to mistake his meaning, I refer to the British Constitution, the source from which the maxim was drawn.
The Constitution of Great Britain Intermingles Powers
Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other. The king – who is the sole executive magistrate – forms an integral part of the legislative authority. The king alone has the prerogative of making treaties with foreign sovereigns, which when made have the force of legislative acts, with certain limitations. All the members of the judiciary are appointed by this magistrate, who can remove them on the address of the two Houses of Parliament, and can form – when the king pleases to consult them – one of the magistrate’s constitutional councils. In the legislative department, one of its branches 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.
Separation of Powers Requires Only that One Department Does Not Wholly Control Another, Not that Departments Be Wholly Separate
When Montesquieu wrote there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, and that the power of judging needs be separated from the legislative and executive powers, he did not mean that the three departments ought to have no partial agency in – or no control over – the acts of each other. As shown by his words and illustrated by the example in his eye, his meaning amounts to no more than this: 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.
In the case of Great Britain, a true violation of separation of powers would exist if the king (as the sole executive magistrate) also possessed the complete legislative power, or the supreme administration of justice. A violation also would occur if the entire legislative body possessed either the supreme judicial authority or the supreme executive authority. These, however, are not among the vices of that constitution.
The king (in whom the whole executive power resides) cannot of himself make a law, although he can put a negative on every law the legislature passes. The king also cannot administer justice in person, although he has the power of appointment of those who do administer it. The judges can exercise no executive prerogative, although though they are shoots from the executive stock. Nor do judges perform any legislative function, although they may offer advice to the legislative councils. The entire legislature can perform no judicial act, although by the joint act of two of its branches a judge may be removed from office, and one of its branches (the House of Lords) is possessed of the judicial power of last resort, as with our Supreme Court. The entire legislature, again, can exercise no executive prerogative, although 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.” These brief passages (to which I have added emphasis) sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
Separation of Powers Applied to the Constitution
Some opposed to the Constitution argued no regard was paid to this essential precaution in favor of liberty in the structure of the Federal government, since the several departments of power are so distributed and blended as 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.
Were the federal Constitution really chargeable with such an accumulation of power – or with a mixture of powers having a dangerous tendency toward such an accumulation – no further arguments would be necessary to inspire a universal reprobation of the system. The charge is unsupported, though, and the maxim on which it relies has been totally misconceived and misapplied.
Separation of Powers in State Constitutions
Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
New Hampshire
New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring, with my emphasis, “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.”
Her constitution accordingly mixes these departments in several respects. The senate – a branch of the legislative department – is also a judicial tribunal for the trial of impeachments. The president – who is the head of the executive department – is the presiding member also of the senate, and has an equal vote in all cases as well as a casting vote in the case of a tie. The executive head is elected every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of the State are also appointed by the legislature. And the members of the judicial department are appointed by the executive department.
Massachusetts
The constitution of Massachusetts has observed a sufficient, though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, and is not violated by the plan of the Convention on any single point. The Massachusetts constitution goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. The same constitution admits a partial mixture of powers. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive department and the judiciary. The members of the judicial department are appointed by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of governmental officers are annually appointed by the legislative department. Since the power to appoint to offices – particularly executive offices – is in its nature an executive function, the compilers of the Massachusetts constitution have in this respect violated the rule established by themselves.
* * *
Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
* * *
Rhode Island and Connecticut
I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution, before the principle under examination had even become an object of political attention.
New York
The constitution of New York contains no declaration on this subject, but it appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. Nevertheless, it gives the executive magistrate a partial control over the legislative department; moreover, it gives a like control to the judicial department, and even blends the executive and judicial departments in the exercise of this control. In its council of appointment, members of the legislative are associated with the executive authority in the appointment of both executive and judicial officers, and its court for the trial of impeachments and correction of errors consists of one branch of the legislature and the principal members of the judiciary.
New Jersey
The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature. He is chancellor and surrogate of the State, a member of the supreme court of appeals, and president (with a deciding vote) of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals. The members of the judicial department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other.Pennsylvania
According to the constitution of Pennsylvania, the president – who is the head of the executive department – is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, the president appoints the members of the judiciary, and forms a court of impeachment for trial of all judicial and executive officers. The judges of the supreme court and justices of the peace seem also to be removable by the legislature, and the executive power of pardoning in certain cases is to be referred to the same department. The members of the executive council are made ex officio justices of peace throughout the State.
Delaware
In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The supreme court of appeals is composed of the executive chief and six others, with three appointed by each of the two legislative branches. The executive is joined with the legislative department in the appointment of the other judges. The members of the executive council and one branch of the legislature are ex officio justices of the peace. (Indeed, throughout the States it appears members of the legislature may at the same time be justices of the peace.) The principal officers of the executive department are appointed by the legislature, and one of its branches forms a court of impeachments. All officers may be removed on address of the legislature.
* * *
Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Notwithstanding this declaration, her constitution gives to the legislative department he power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.
* * *
Maryland
Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Notwithstanding this declaration, her constitution gives to the legislative department the power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.
Virginia
The language of Virginia is still more pointed on this subject. Her constitution declares “the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.” Besides this express exception with respect to the members of the county courts, we also find the chief magistrate and executive council are appointed by the legislature, which also fills all the offices of the executive and judicial, and exercises the executive prerogative of pardon.
North Carolina
The constitution of North Carolina declares “the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other.” Yet in that State the legislative department appoints not only the chief executive chief, but all of the executive offices, as well as those of the judiciary.
South Carolina
Under South Carolina’s constitution, the legislative department selects the executive magistrate, and appoints officers in the executive department all the way down to captains in the State army and navy. The legislature also appoints members of the judicial department, including even justices of the peace and sheriffs.
Georgia
The constitution of Georgia declares “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” Yet we find the executive department is filled by appointments of the legislature, which also exercises the executive prerogative of pardon. Even justices of the peace are appointed by the legislature.
While Many State Constitutions Declare in Favor of Separation of Powers, in Practice Powers Are Often Mixed
In citing these cases in which the legislative, executive, and judicial departments have not been kept totally separate and distinct, I should not be regarded as an advocate for the particular organizations of the several State governments. Although the State constitutions cite many excellent principles, they seemed to have been framed by inexperienced hands moving hastily. In some instances the fundamental principle under consideration has been violated by too great a mixture – even an actual consolidation – of the different powers. And in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. These facts disprove the charge that the proposed Constitution violates the sacred maxim of free government based on the separation of powers. The charge is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in Federalist 48.
Madison
original Federalist 47 Federalist 48: In a Republic, the Legislative Branch Is the Most Likely to Usurp Power
I EXAMINED THE THEORETICAL DIFFERENCES between the legislative, executive and judicial classes of power in Federalist 47, and showed that a wise adherence to the separation of powers doctrine actually does not require the respective departments be wholly unconnected with each other. In fact, the maintenance of a free government requires the separate powers be so far connected and blended as to give to each a constitutional control over the others. (See Federalist 51 and following.)
The Constitutional Convention unanimously concluded that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. Nor should one possess direct or indirect influence to overrule the others in the administration of their respective powers. But how were we to provide some practical security for each against the invasion of the others? The question posed a most difficult problem to solve.
Power Usually Seeks More Power
Power, by its nature, tends to encroach beyond its assigned limits, and thus it must be restrained. Will it be sufficient merely to mark precisely the boundaries of these departments in the Constitution, and then to trust the strength of these parchment barriers against this encroaching spirit of power?
The compilers of most of the State constitutions chose this method, but experience assures us their solution was greatly overrated, and that a more adequate defense is indispensably necessary to protect the more feeble against the more powerful members of the government.
To be sure, the founders of our State governments never for a moment turned their eyes from the danger to liberty created by the overgrown and all-grasping prerogative of a hereditary magistrate, supported and fortified by a hereditary branch of the legislature. But in their zeal against executive usurpations, the State founders never recalled the danger from legislative usurpations. Assembling all power in the same hands always leads to the same tyranny, whether perpetrated by the right of birth, the legislature, the executive, or the judiciary.
* * *
Power, by its nature, tends to encroach beyond its assigned limits, and thus it must be restrained. Will it be sufficient merely to mark precisely the boundaries of these departments in the Constitution, and then to trust the strength of these parchment barriers against this encroaching spirit of power?
* * *
Executive Tyranny Is More Likely in Monarchies and Democracies
In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy a zeal for liberty ought to inspire.
Likewise in a democracy, tyranny may well be apprehended – on some favorable emergency – to start up in the executive quarter. The ambitious intrigues of executive magistrates can interfere with a multitude of individuals exercising legislative functions because they lack capacity for regular deliberation and concerted measures.
The Main Engine of Tyranny in a Republic Is the Legislative Authority
In a republic, the People ought to indulge all their jealousy and exhaust all their precautions against the enterprising ambitions of the legislative department. The legislative power is exercised by an assembly, whose members can feel mutual intrepid confidence in their own strength, usually inspired by a supposed influence over the People.
A representative assembly is generally sufficiently numerous to feel all the passions that can actuate a multitude, yet not so numerous as to be incapable of rationally pursuing the objects of its passions.
The Legislative Vortex
A representative legislature may everywhere extend its sphere of activity and thereby draw all power into its impetuous vortex. This is so because its superiority is derived from many sources. The legislature’s constitutional powers are both more extensive and less susceptible of precise limits than those of the executive or judiciary. Therefore, it can more easily mask – under complicated and indirect measures – the encroachments it makes on the coordinate departments. Nor is this all: the legislative department alone has access to the pockets of the People. In addition, in every State constitution, the legislative power has a prevailing influence – and in some a full discretion – over the pecuniary rewards of those who fill the other departments. The executive and judiciary are thus dependent on the legislature, facilitating its encroachments.
On the other side, executive power is restrained within a narrower compass. By its nature executive power is simpler than legislative power, and its duration is a further limit. Judicial power is limited by landmarks even more easily visible. Projects of usurpation by either of these departments would immediately betray and defeat themselves.
* * *
A representative legislature may everywhere extend its sphere of activity and thereby draw all power into its impetuous vortex. This is so because its superiority is derived from many sources.
* * *
Experience verifies the truth of my observations. Were it necessary to advance particular proofs, they might be multiplied without end. I would certainly find a witness in every citizen who has taken note of the course of our public administrations. I might collect vouchers in abundance from the records and archives of every State in the union. But a more concise and equally satisfactory evidence exists in the example of two States, attested to by unassailable authorities. The first example is from Virginia, whose constitution expressly declares the three great departments ought not to be intermixed. The second example, from Pennsylvania, highlights that legislative tyranny knows no bounds.
Virginia’s Example of Legislative Tyranny Explained by Jefferson
I consider Virginia first because the report is from the pen of Jefferson, who was the Governor of that great Commonwealth, giving him a unique perspective into its legislative maneuvers. To convey fully the ideas his experience impressed upon him, I must quote at length a passage from his very interesting Notes on the State of Virginia, which explain fully the example and include my italics:
“All the powers of a government – legislative, executive, and judicial – concentrated the same hands is precisely the definition of despotic government. That these powers will be exercised by a plurality of hands rather than a single hand is no alleviation. Several hundred despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice.
“It little avails us that our despots are chosen by ourselves, for we did not fight for a government of elective despotism. (Emphasis added.) We fought for a government founded on free principles, with its powers so divided and balanced among several bodies of magistracy that no one could transcend their legal limits without being effectually checked and restrained by the others.
“For this reason, the convention which founded the government for Virginia declared the legislative, executive, and judicial departments should be separate and distinct, so that no person could exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. (Emphasis added,) The judiciary and executive were left dependent on the legislature for their subsistence in office, and in some cases for their continuance in it. If the legislature were to assume executive and judicial powers, no opposition would likely be made – nor if made, be effectual – because their proceedings could be put into the form of Acts of the Assembly, rendering them obligatory on the other branches. Accordingly, the legislative body has in many instances decided rights in controversies which should have been left to a judicial controversy, and habitually directed the executive during the whole time of their session.” (Emphasis added.)
Governor Jefferson’s observations confirm our own regarding the inefficacy of written admonitions alone to counterbalance the power of faction.
Pennsylvania’s Legislative Tyranny
The second proof of the danger of legislative despotism comes from Pennsylvania, and is recorded by its Council of Censors, which was created by their constitution. It was assembled in the years 1783 and 1784, and entrusted “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the People, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution.”
The council compared the legislative and executive proceedings with the constitutional powers of these departments, and concluded the constitution had been flagrantly violated by the legislature.
For instance, the State constitution’s chief precaution against improper acts of legislature was a requirement that all bills of a public nature be previously printed for the consideration of the People, yet without any apparent necessity the legislature passed many laws without printing them beforehand. Powers also were assumed which had not been delegated by the constitution, and the constitutional right to trial by jury violated. Executive powers were usurped. Judicial salaries – which their constitution expressly required to be fixed – were occasionally varied; and cases belonging to the judicial department frequently were drawn within legislative cognizance and determination. While some of these actions may be imputable to peculiar circumstances connected with the Revolutionary War, most were the spontaneous outgrowths of an ill-constituted government.
Tyranny Hides More Easily under Many Hands
It also appears that Pennsylvania’s executive department was not innocent of frequent breaches of their constitution (although most were either produced by the necessities of the War or upon the recommendations of the Congress or the commander-in-chief). In most of the other instances, the constitutional violations conformed to the declared or known sentiments of the legislative department. It should be noted Pennsylvania’s executive department differs from those of other States because it is composed a number of members, rather than one. In this respect, it has more affinity to a legislative assembly or an executive council. Being at once exempt from the restraint of an individual responsibility for the acts of the body – and deriving confidence from mutual example and joint influence – unauthorized measures are more freely hazarded than where the executive department is administered by a single hand, or by a few hands.
The People Cannot Solely Rely on Written Prohibitions to Restrain Tyranny
From these observations I must reaffirm that mere the demarcation on parchment of the constitutional limits of the several departments is insufficient guard against the encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
Madison
original Federalist 48Federalist 49: A Convention of States Is Far More Likely to Exacerbate Constitutional Errors than Correct Them
Jefferson’s Proposal to Rectify Constitutional Errors and Abuses by Appealing to the People Is Brilliant in Theory, but Defective in Practice
Jefferson’s Notes on the State of Virginia appends the draft he prepared in 1783 for a convention to establish a constitution for that Commonwealth. Like everything from the same pen, the plan marks a turn of thinking that is at once original, comprehensive, and accurate. It is even more worthy of attention as it displays a fervent attachment to representative government and an equally enlightened view of the dangerous propensities against which it ought to be guarded.
His ultimate palladium to the weaker departments of power against the invasions of the stronger is this: “Whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose.”
Under the representative theory of government, he reasons, the People are the only legitimate source of power, and the several branches of government derive and hold their power from the constitutional charter approved by them. Since the several departments are perfectly coordinate by the terms of their common commission, none of them can pretend to an exclusive or superior right of settling the boundaries between their respective powers. Returning to the original authority of the People is thus necessary not only to enlarge, diminish, or remodel the powers of the government, but also when any one of the departments commits encroachments on the chartered authorities of the others. How else are the encroachments of the stronger to be prevented – or the wrongs of the weaker to be redressed – without an appeal to the People themselves – the original grantors of the commissions – who alone can declare its true meaning, and enforce its observance?
There is great force in this reasoning. A constitutional road to the decision of the People ought to be marked out and kept open for use on certain great and extraordinary occasions. But there are fatal objections against returning to the People in all cases in order to keep the several departments of power within their constitutional limits.
* * *
The reason of man – like man himself – is timid and cautious when left alone. The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion. When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater.
* * *
Jefferson’s Plan Would Allow Two Departments to Conspire Successfully Against the Third
In the first place, the provision will not apply where two of the departments combine against the third. The legislative authority possesses many means of operating on the motives of the other departments. (See Federalist 48.) Should it be able to gain the interest of only one of the other two – or even one third of its members – the remaining department could not utilize this remedial provision.
Any Appeal to the People Implies a Constitutional Defect, and Frequent Appeals Will Undermine Public Faith in and Support for the Federal Government
The reason of man – like man himself – is timid and cautious when left alone. The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion. When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater.
All governments ultimately depend upon opinion. Every appeal to the People would imply some defect in the Federal government, and frequent appeals would greatly deprive it of that veneration which time bestows on everything, and without which the wisest and freest governments would not possess the requisite stability.
In a nation of philosophers, we could disregard this consideration. A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason. But a nation of philosophers is as unlikely as Plato’s philosophical race of kings. In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side.
Frequent Referrals to the People Would Stir Passions, Embolden Factions, and Threaten Public Tranquility
A still more serious objection against frequently referring constitutional questions to the whole society is the danger to public tranquility arising from public passions too strongly stirred.
The Constitution for the United States – like the several State constitutions – was created in circumstances which repressed those passions most unfriendly to order and concord. A universal resentment and indignation against the old governments produced a universal ardor for new and opposite forms. An enthusiastic confidence of the People in their patriotic leaders stifled the diversity of opinions ordinarily expressed on great national questions. The spirit of party was unconnected to the changes to be made and the abuses to be reformed, and thus did not mingle its leaven in the preparation. The virtue and intelligence of the People of America triumphed.
No equivalent security against these dangers is likely to exist in future situations where revisions to this ingenious agreement are proposed.
* * *
A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason. But a nation of philosophers is as unlikely as Plato’s philosophical race of kings. In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side.
* * *
Rather than Hindering a Majority Faction, Referrals to the People Would Probably Aid It
The greatest objection to referring any constitutional question to the People is that it would fail to restore the constitutional equilibrium of the government.
In representative governments, the legislature – in our case the Congress – tends to aggrandize the powers of the executive and judicial departments, as I explained in Federalist 48. Appeals to the People would therefore usually be made by the executive and judicial departments. Would either enjoy equal advantages with the legislature on the issue referred? Let us view their different situations.
Congress Has More Influence than the President or the Courts
The members of the executive and judicial departments are few in number and personally known only to a small part of the People. Judicial members – by the mode and permanency of their appointment – are too far removed from the People to share much in their prepossessions. Executive officers are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular.
On the other hand, the members of legislative department are numerous. They are distributed and dwell among the People at large. Their connections of blood, friendship, and acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust creates a personal influence among the People, who generally view them as the immediate and confidential guardians of their rights and liberties. With such advantages, the executive or judiciary would have less than an equal chance for a favorable outcome.
A Convention Would Likely Consist of Those Whose Errors Were Being Reviewed
Aside from being able to plead their cause most successfully with the People, members of Congress would themselves probably be constituted the judges. The same influence which had gained them an election into the Congress would gain them a seat in the convention. This would be the case with many representatives and senators, and certainly with those leading characters on whom everything depends in such bodies. Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged. They would thus be parties to the very question to be decided by them.
Even in Cases of Clear Constitutional Error, Parties and Factions Would Infect Any Convention
It might sometimes happen that appeals would be made under circumstances less adverse to the executive and judicial departments. The usurpations of the Congress might be so flagrant and so sudden as to admit of no specious coloring. A strong party in the Congress might side with the other branches. The executive power might be in the hands of a popular favorite of the People. In such a posture of things, the public might be less swayed by arguments in favor of the dominant congressional party. Even so, we can never expect that any constitutional convention would turn on the true merits of the question. It would inevitably be connected with the spirit of preexisting parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very persons who were the agents or opponents of the measures under review.
The passions of the People would sit in judgment, not its reason. The government ought to be controlled by the reason of the People, not its passions. For its part, the government ought to temper the passions of the People.
* * *
Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged. They would thus be parties to the very question to be decided by them.
* * *
In Federalist 48, I explained why mere declarations in written constitutions are insufficient to restrain the several departments within their legal rights. I explained why occasional appeals to the People would be neither proper nor effectual. As for the other provisions of Mr. Jefferson’s draft constitution, some are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.
Madison
original Federalist 49Federalist 50: Periodical Constitutional Conventions Will Prove as Ineffectual as Occasional Ones
Revision of the Constitution at Fixed Periods Is Unwise
I DEMONSTRATED in Federalist 49 that a constitutional convention would not likely rectify a faction’s current transgression of the Constitution. Now I consider whether periodical appeals to the People are the proper and adequate means of preventing and correcting constitutional infractions. I will confine myself to the utility of a convention assembled to enforce the Constitution by keeping the several departments of power within their due bounds.
I also observed in Federalist 49 that the unique circumstances culminating with the issuance of the Constitution for the United States would not present themselves again. I described the pervasive and inclusive spirit of equanimity which permeated the Constitutional Convention. The spirit and leaven of faction were absent from those proceedings, thus permitting construction of the thoughtful and detailed plan of self-government for ourselves and our posterity.
Appeals to the People at fixed periods will be nearly as ineffectual as occasional appeals for preventing and correcting constitutional infractions. If the periods are separated by short intervals, the measures under review will be of recent date. All the circumstances tending to vitiate and pervert the results of occasional revisions will apply with equal force. If the periods of fixed review be distant from each other, the measures to be reviewed and rectified will range from the most recent to the most distant. Review of the most recent measures will suffer from the same infirmities afflicting appeals to the People as the occasion may demand. Review of older measures will be more dispassionate, but this advantage is counterbalanced by disadvantages.
A Faction Will Not Be Dissuaded from Its Goal by Fear of Future Punishment
In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives. Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, abuses which were not complete would still be of long standing, have taken deep root, and not easily be extirpated.
The Pennsylvania Example Proves that an Oppressive Faction or Party Likely Will Dominate Any Convention
As I observed in Federalist 48, the scheme of revising a constitution in order to correct recent breaches was actually tried in Pennsylvania, where its Council of Censors met in 1783 and 1784 to inquire “whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other.” This important and novel experiment in politics merits very particular attention as applied to the case under consideration, since it involves some facts which completely illustrate our reasoning.
First, some of its most active members had also been active and leading characters in the State’s pre-existing parties.
Second, the same active and leading members of the council had been active and influential members of the legislative and executive branches within the period to be reviewed, and some patrons or opponents of the very measures to be tested against their constitution. In the seven years preceding the convention, two of its members had been vice-presidents of the State, and several others members of the executive council. Within the same period, one had been speaker of the legislative assembly, and a number of others distinguished members of that body.
* * *
In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives. Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?
* * *
Third, every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. The council was split into two fixed and violent parties for its duration, a fact they themselves acknowledged and lamented. The face of their proceedings exhibits an equally satisfactory proof. In all questions – however unimportant in themselves or unconnected with each other – the same names stand invariably contrasted in opposite columns. Without impugning either party or its individual members, every unbiased observer unfortunately must infer that passion – not reason – presided over their decisions. When individuals exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions – if they can be so called – will be the same.
Fourth, the decisions of this body in several instances appeared to misconstrue the limits prescribed for the legislative and executive departments, rather than reducing and limiting them within their constitutional boundaries.
Fifth, whether rightly or erroneously formed, the decisions of the council on constitutional questions had little effect on changing legislative practices, and in one instance the dominant faction in the legislature simply rejected the constructions of the council, thereby solidifying its control.
In summary, by its researches, this censorial body proved the existence of the disease, and by its example, the inefficacy of its remedy.
Despite Their Flaws, Opposing Parties Are Preferable to Conformity
These conclusions are not weakened by the assertion that Pennsylvania had long been violently heated and distracted by the rage of party. Is it to be presumed the same or some other State will be free from parties at some future interval? Such an event ought not to be presumed or desired. An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.
* * *
An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.
* * *
Excluding Interested Individuals from a Constitutional Convention Would Lead to the Selection of Their Agents, Who Would Know Less than Their Principals
Nor would difficulties encountered by assemblies elected by the People to revise the preceding administration of the government be obviated by the precaution of excluding all persons who should have been concerned with the government within the given period. The important task would then devolve to persons with inferior capacities who were no more qualified. While they might not have been personally concerned in the administration – and therefore not immediately agents in the measures to be examined – they would have been involved in the parties connected with these measures, and been elected under their auspices.
Madison or Hamilton
original Federalist 50Federalist 51: The Structure of the Federal Government Will Furnish Proper Checks and Balances Between the Different Departments
The Structure of the Constitution Incorporates Internal Controls on the Federal Government
TO WHAT EXPEDIENT shall we finally resort for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution? Since all exterior methods are inadequate, the only answer can be to contrive the interior structure of the government in a way that its several constituent parts keep each other in their proper places.
The Legislative, Executive and Judicial Departments Each Must Have a Will of Its Own
A few general observations will enable us to form a more correct judgment of the principles and structure of the government planned by the Convention. It is admitted to a certain extent by all that a separation of powers is the essential foundation to preserving liberty. In laying this foundation for the separate and distinct exercise of the different powers of government, it is evident each department should have a will of its own. Therefore, each department should have as little agency as possible in the appointment of the members of the others.
It is equally evident the members of each department should be as little dependent as possible on the other departments for the salaries annexed to their offices. Were the executive or judiciary dependent on the Congress in this particular, in every other particular their independence would be merely nominal.
A Complete Separation of Powers Is Not Required in All Instances
Rigorous adherence to the principle of separation of powers would require all appointments to the magistracies of the executive, legislative, and judicial branches be drawn from the same fountain of authority – the People – through channels having no communication whatsoever with one another.
Such a plan would be less difficult in practice than it appears in contemplation. Some deviations from the principle are warranted, however, due to particular circumstances or the expense attending execution of a complete separation of powers.
The Judiciary Would Not Benefit from a Complete Separation of Powers
It would be inexpedient to insist rigorously on a complete separation of powers in constituting the judicial department. Since it is essential that members of the judiciary be particularly qualified, the process of appointment must be one that best secures these qualifications. For instance, judicial appointments under the Constitution are made by the executive with the consent of the Senate, which is one branch of the legislative authority. This is justified because it will best secure qualified appointees, whose permanent tenure upon approval will destroy all sense of dependence on the authorities conferring nomination and approval.
* * *
The greatest security against a gradual concentration of several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.
* * *
Each Department Must Have the Means to Resist Encroachments from the Others
The greatest security against a gradual concentration of several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. As in all other cases, the provision for defense must be commensurate to the danger of attack. Ambition must counteract ambition. The interest of individual officials must be connected with the constitutional rights of the place.
* * *
The People themselves are without doubt the primary control on government. Experience, though, has taught mankind the necessity of auxiliary precautions. Therefore, we must remedy the lack of better motives by supplying opposite and rival interests.
* * *
Human Nature Requires Built-in Defense Mechanisms to Encroachers
That such devices are necessary to control the abuses of government is a reflection on human nature. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, no controls on government would be necessary. But in framing a government to be administered by men over men, we must first enable the government to control the governed, and then oblige the government to control itself.
The People Cannot Rely Upon Their Powers Alone
The People themselves are without doubt the primary control on government. Experience, though, has taught mankind the necessity of auxiliary precautions. Therefore, we must remedy the lack of better motives by supplying opposite and rival interests.
This remedy can be witnessed in the whole system of human affairs, both public and private. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other. The private interest of every individual can be a sentinel over the public rights. These inventions of prudence are no less requisite in the distribution of the supreme powers of the state.
* * *
If men were angels, no government would be necessary. If angels were to govern men, no controls on government would be necessary. But in framing a government to be administered by men over men, we must first enable the government to control the governed, and then oblige the government to control itself.
* * *
The Method of Defense Varies with the Power to be Controlled
It is impossible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. To remedy this, we must divide the legislature into different branches. The use of different modes of election and different principles of action renders the two legislative branches as little connected with each other as the nature of their common functions and their common dependence on the People will admit.
It also is necessary to guard against dangerous encroachments by further precautions. Just as the extent and weight of the legislative authority requires that it should be divided into two chambers, the weakness of the executive department requires it be fortified.
Even though the power of an absolute negative on legislative measures initially appears to be the executive’s natural and best defense – it may be neither altogether safe nor alone sufficient. On ordinary occasions an absolute veto might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused.
The absence of an absolute veto power can be rectified by some qualified connection of the weaker executive department and the Senate, which is the weaker branch of the legislative department. The Senate may support the constitutional rights of the executive, without being too much detached from the rights of its own department.
The Constitution Improves upon State Models Because It Divides Power Multiple Times
If the Constitution is compared with the several State constitutions in regard to separation of powers, the State constitutions will be found infinitely less able to bear such a test. Two considerations distinguish the Constitution for the United States from all others.
First, in a single republic, all the power surrendered by the People is submitted to the administration of a single government, which is divided into distinct and separate departments to guard against the usurpations of the others. In the compound republic of America, the power surrendered by the People is initially divided between two distinct governments – State and Federal – and then the portion allotted to each government is further subdivided among distinct and separate departments. Hence a double security arises to the rights of the People. The different governments will control each other, and at the same time each will be controlled by itself.
* * *
Rigorous adherence to the principle of separation of powers would require all appointments to the magistracies of the executive, legislative, and judicial branches be drawn from the same fountain of authority – the People – through channels having no communication whatsoever with one another.
* * *
Second, a republic must guard the society not only from the oppression of its rulers, but also one part of society against the injustice of the other. Different interests necessarily exist in different classes of citizens. If a majority is united by a common interest, the rights of the minority will be insecure. There are but two precautions against this evil. The first is creating a will in the community independent of the majority, that is, a will independent of society itself. The second is to comprehend in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole either very improbable or impracticable.
The first method – creating a will in the community independent of society itself – prevails in all governments that possess a hereditary or self-appointed authority. This is at best a precarious security, since a power independent of the society may just as likely to espouse the unjust views of the major party as the rightful interests of the minor party. Such an independent will could also be turned against both parties.
The second method – a society composed of as many separate descriptions of citizens as to render unlikely an unjust combination of a majority – will be exemplified in the Federal republic of the United States. The rights of individuals or of the minority will be in little danger from interested combinations of the majority because our society itself will be broken into many parts, interests, and classes of citizens.
The security for civil rights in a free government must be the same as the security for religious rights. In the case of civil rights it consists in the multiplicity of interests. In the case of religious rights it consists in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects, which in turn depends on the extent of territory and the number of people comprehended under the same government. The rights of every class of citizens will be diminished exactly in proportion to extent oppressive majorities may control the territory encompassed within separate confederacies or combinations of States.
The only remaining security against an oppressive majority is proportionately to increase the stability and independence of another member of the government. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society where the stronger faction can readily unite and oppress the weaker, anarchy must reign, as in a state of nature, where the weaker is not secured against the violence of the stronger. But even in nature, the stronger individuals are prompted – from uncertainty of their own condition – to submit to a government which can protect the weak as well as themselves. In human society, the more powerful factions or parties gradually will be induced, by a like motive, to wish for a government which will protect all parties, encompassing the weaker as well as the more powerful.
* * *
The security for civil rights in a free government must be the same as the security for religious rights. In the case of civil rights it consists in the multiplicity of interests. In the case of religious rights it consists in the multiplicity of sects.
* * *
The State of Rhode Island gives example of this. If that State were separated from the union and left to itself, the repeated oppressions of factious majorities against the rights of minor factions would soon result in a demand for some power altogether independent of the People. The voice for such action would most likely emanate from the very factions whose misrule had proved the necessity of it.
In contrast, the extended republic of the United States embraces a great variety of interests, parties, and sects, making a coalition of a majority of the whole society unlikely except on principles of justice and the general good. There being less danger to a minor party from the will of a major party, there also is less pretext to provide for the security of the minority by introducing into the government a will not dependent on the majority.
It is both important and certain that the larger the society is – provided it lie within a practical sphere – the more duly capable it will be of self-government. And happily for the republican cause, that practicable sphere may be carried to a very great extent indeed, by a judicious modification and mixture of the federal principle.
Madison or Hamilton
original Federalist 51Federalist 52-61: The House of Representatives
Federalist 52: Qualifications of the Electors and Elected of the House of Representatives
THE DEFINITION OF THE RIGHT OF SUFFRAGE – the right of an individual (elector) to vote – is very justly regarded as a fundamental article of republican government. It was therefore incumbent on the Convention to define and establish this right in the Constitution.
The Qualification of Voters Is Determined by Existing State Rules
The Convention decided the qualifications of electors are to be the same with those of the electors of the most numerous branch of the State legislatures: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Art. I, § 2, cl. 1.
To have left the qualification of electors open for the occasional regulation of Congress or the legislative discretion of the States would have been improper due to the importance of the right.
Delegating qualifications to State legislatures also would have rendered the House of Representatives too dependent on state officials. The composition of the House of Representatives ought to be dependent on the People alone.
Any attempt to reduce to one uniform rule the different qualifications to vote in the different States would have been as dissatisfactory to some of the States as it would have been difficult to the Convention. The provision the Convention chose was the best option.
The rule the Convention established must be satisfactory to every State because it conforms to the standard already enacted (or may be enacted) by the State itself. It will be safe to the United States because – being fixed by the State constitutions – it is not alterable by the State governments, and it cannot be feared that the People of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution.
* * *
Under these reasonable limitations, the door of this part of the Federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.
* * *
The Qualification of Representatives Was Set by the Convention
The qualifications of the elected – being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity – were very properly considered and regulated by the Convention. A representative of the United States must meet four standards: (1) at least twenty five years old, (2) seven years a citizen of the United States, (3) on the date of election an inhabitant of the State represented, and (4) during the time of service, must be in no office under the United States. Art. I, §2, cl. 2.
Under these reasonable limitations, the door of this part of the Federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.
The Convention Selected a Two-Year Term as Optimum
In order to decide on the length of a representative’s term, two questions were considered: first, whether biennial elections will be safe, and second, whether they be necessary or useful.
As it is essential to liberty that a government should have a common interest with the People, it is particularly essential that the House of Representatives should have an immediate dependence on the People, and an intimate sympathy with them. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectively secured.
However, the particular degree of frequency may be absolutely necessary for the purpose does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances. Experience is the guide that ought always be followed whenever it can be found.
* * *
As it is essential to liberty that a government should have a common interest with the People, it is particularly essential that the House of Representatives should have an immediate dependence on the People, and an intimate sympathy with them. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectively secured.
* * *
The scheme of representation – as a substitute for a meeting of the citizens in person – was at most very imperfectly known to ancient polity. Instructive examples are thus found only in more modern times. And even here, in order to avoid a research too vague and diffusive, it is proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case.
Length of Terms in the House of Commons
The first example is the House of Commons in Great Britain. Prior to adoption of the Magna Carta in 1215, the history of this branch of the English Constitution is too obscure to yield instruction. The very existence of a representative branch is still questioned among political antiquaries. The earliest records of subsequent date prove that parliaments were to sit only every year, not that they were to be elected every year. And even these annual sessions were left so much at the discretion of the monarch that very long and dangerous intermissions were often contrived by royal ambition.
To remedy this grievance, it was provided by a statute in the reign of Charles II (1660-1685) that the intermissions should not be protracted beyond a period of three years. On the accession of William III in 1689 – following a revolution in the government – the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the People that parliaments ought to be held frequently. By another statute passed a few years later in the same reign, the term “frequently” was reduced to a precise meaning: parliament shall be called within three years after the termination of the preceding parliament. This three-year period was lengthened to seven years earlier this century under alarm for the Hanoverian succession.
From these facts, it appears the greatest frequency of elections which has been deemed necessary in that kingdom for binding the representatives to their constituents, does not exceed three years. And if we argue from the degree of liberty retained even under elections held every seven years, a reduction of the period from seven to three years – with the other necessary reforms – would so far extend the influence of the People over their representatives as to satisfy us that federal elections held every two years cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents.
Elections in Ireland
Until recently, elections in Ireland were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince or some other contingent event. The parliament which commenced with George II (1727-1760) continued throughout his whole reign of more than 30 years. The only influence the People had on representatives consisted in the People’s right to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election.
The Irish parliament’s ability to maintain the rights of their constituents was extremely shackled by the crown’s control over the subjects of their deliberation. Recently these shackles were broken, and octennial parliaments established. What effect to be produced by this partial reform must be left to further experience.
The example of Ireland can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that even though the People of that country have been under disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty which depends on a due connection between their representatives and themselves.
* * *
The definition of the right of suffrage – the right of an individual (elector) to vote – is very justly regarded as a fundamental article of republican government. It was therefore incumbent on the Convention to define and establish this right in the Constitution.
* * *
Examples from the States when They Were British Colonies
I bring my inquiry nearer home. The example of the States while British colonies claims particular attention. In all of them, the principle of representation was established in at least one branch of the legislature. But the periods of election were different.
They varied from one to seven years. There is no reason to infer – from the spirit and conduct of the representatives of the People prior to the Revolution – that biennial elections would have been dangerous to the public liberties. The spirit which everywhere displayed itself at the commencement of the struggle – and which vanquished the obstacles to independence – is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement. This remark also holds good with regard to the former colonies whose elections were least frequent, as well as to those whose elections were most frequent.
Elections in Virginia
Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain. It was the first also in espousing the resolution of independence by public act.
In Virginia, nevertheless, elections under the former government were septennial. This particular example is not brought into view as a proof of any advantage in septennial elections, but merely as a very substantial proof that the liberties of the People can be in no danger from biennial elections.
Three Additional Circumstances Confirm Biennial Elections Are Best
These examples are strengthened by three important circumstances. The first is the House of Representatives will possess only a part of that supreme legislative authority which is vested completely in the British Parliament, and which (with a few exceptions) was exercised by the colonial assemblies and the Irish legislature. It is a well-founded maxim that – where no other circumstances affect the case – the greater the power is, the shorter its duration ought to be. Conversely, the smaller the power, the more safely may its duration be protracted.
In the second place, the House of Representatives will not only be restrained by its dependence on the People, it will be watched and controlled by collateral legislatures, which other legislative bodies are not.
And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the Federal government for seducing – if they should be disposed to seduce – the House of Representatives from their duty to the People, and the means of influence over this popular branch possessed by these more permanent branches of the government. With less power to abuse, the House of Representatives will be less tempted on one side, and doubly watched on the other.
Hamilton or Madison
original Federalist 52Federalist 53: Biennial House Elections Are Optimum, and Will Reduce Fraud
“Where annual elections end, tyranny begins,” is a maxim currently popular. If it be true that proverbial sayings are generally founded in reason, it is not less true they are often applied to cases to which the reason does not extend. I need not look for a proof beyond the case before us.
On what reason is this proverbial observation founded? No one will subject himself to the ridicule of pretending that any natural connection subsists between the sun or seasons and the period within which human virtue can resist the temptations of power. Happily for mankind, liberty is not confined to any single point of time, but lies between extremes, which afford sufficient latitude for all the variations required by the situations and circumstances of civil society.
If it were found expedient, the election of magistrates of a government might be annual, monthly, weekly or even daily – and all have been tried. Among the periods established among ourselves for the election of the most numerous branches of the State legislatures, they no more coincide than in the elections of other civil magistrates.
Length of Terms in the Most Numerous Legislative Bodies in the Several States
In Connecticut and Rhode Island, elections are half-yearly. In the other States they are annual, with the exception of South Carolina, which has biennial elections, as the Constitution declares for the House of Representatives. The difference between the longest period (two years) and shortest period (six months) is four to one, yet it is not easy to show Connecticut or Rhode Island is better governed or enjoys a greater share of rational liberty than South Carolina, or that any one of these three States is distinguished for its liberty in comparison to States whose elections are annual.
* * *
“Where annual elections end, tyranny begins,” is a maxim currently popular. If it be true that proverbial sayings are generally founded in reason, it is not less true they are often applied to cases to which the reason does not extend.
* * *
Annual Elections Arose from the Desire for Stability of Government
In searching for the reasons for the maxim that tyranny begins when annual elections end, I can discover only one, yet it is wholly inapplicable to our case.
An important distinction exists between a law established by a government – and therefore alterable by that or a later government – and a Constitution established by the People, which is unalterable by the government. This distinction – so well understood in America – seems little understood and less observed in any other country.
In other countries, the full power to change the form of the government resides with the person or body possessing the supreme power of legislation. Even in Great Britain – where the principles of political and civil liberty have been most discussed, and where we hear the most about the rights of the Constitution – it is maintained that the authority of parliament is transcendent and uncontrollable, both with regard to its constitution and the ordinary objects of legislative provision. Accordingly, parliament has in several instances actually changed some of the most fundamental articles of the government by mere legislative acts. Parliament has on several occasions changed the period of election. Most recently, parliament substituted septennial elections in place of triennial elections, and by the same act continued themselves in place four years beyond the term for which they were elected by the British people!
An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, and led them to seek some security to liberty against the danger to which exposes the People. In the absence of a constitution paramount to the government, some other security was needed. Since elections are the cornerstone of liberty, what better security would the case admit than appealing to some simple and familiar portion of time to measure the danger of innovations, fixing the national sentiment, and uniting patriotic exertions?
The most simple and familiar portion of time applicable to the subject was one year. From this the maxim of annual elections has been inculcated by a laudable zeal, in order to erect a barrier against the gradual innovations of an unlimited government, and to hinder the advance towards tyranny that longer election periods may allow.
But what necessity is there of applying the expedient of a one-year election limit to a Federal government already limited by the authority of a paramount Constitution? Who will pretend the liberties of the People of America will be less secure under biennial elections unalterably fixed the Constitution, than those of any other nation would be under annual or even more frequent elections, subject to alterations by the ordinary power of the government?
Biennial Elections Favor Increased Knowledge of Important Issues
Another important question is whether biennial elections are necessary or useful. The propriety of answering this question in the affirmative appears from several very obvious considerations. No person can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which legislation is to be enacted. A part of this knowledge may be acquired by means of information which lie within the compass of individuals in private as well as public stations. Another part can only be attained – or at least thoroughly attained – by actual experience in the station which requires the use of it. In all cases, therefore, the period of service ought to bear some proportion to the extent of practical knowledge requisite to the due performance of the service.
As we have seen, the period of legislative service established in most of the States for the more numerous legislative branch is one year. The question then may be put into this simple form: does a period of two years result in a greater proportion to the knowledge requisite for legislation than a period of one year does to the knowledge requisite for State legislation? The very statement of the question suggests the answer is yes.
* * *
No person can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which legislation is to be enacted. A part of this knowledge may be acquired by means of information which lie within the compass of individuals in private as well as public stations. Another part can only be attained – or at least thoroughly attained – by actual experience in the station which requires the use of it.
* * *
In a single State, the requisite knowledge relates to existing (and largely uniform) laws – with which all the citizens are more or less conversant – and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of citizen.
The great theater of the United States presents a very different scene. The laws are far from uniform, as they may vary in every State. The public affairs of the union are extremely diversified and spread throughout a very extensive region. The local affairs connected with them can only with difficulty be correctly learned in any place other than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire.
Some knowledge of the affairs of all of the States – and even of their laws – ought to be possessed by the members from each of the States. Foreign trade cannot properly be regulated by uniform laws without some acquaintance with the commerce, the ports, usages, and regulations of the different States. Trade between the different States cannot be duly regulated without some knowledge of their relative situations in these and other respects. How can taxes be judiciously imposed and effectually collected if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? Can uniform regulations for the militia be duly provided without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of legislation, and suggest most forcibly the extensive information which the representatives ought to acquire.
Other objects will require a proportional degree of information with regard to them. By degrees, all these difficulties will be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a code. Improvements on first drafts will every year become easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the United States more and more will become objects of curiosity and conversation among the citizens at large. And the increased intercourse among the different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws.
But even with all these abatements, the business of legislation must continue to exceed – both in novelty and difficulty – the legislative business of a single State, which justifies the longer period of service assigned to those who are to transact it.
Knowledge of Foreign Affairs Also Is Essential
A branch of knowledge which must belong to the acquirements of a representative is that of foreign affairs. In regulating our own commerce, a representative must be acquainted with the treaties between the United States and other nations, and also with the commercial policy and laws of other nations. A representative ought not be altogether ignorant of the laws of other nations, as far as it is a proper object legislation submitted to the government.
Although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, the connection between the several branches of government will frequently deserve attention in the ordinary course of legislation, and sometimes demand particular legislative sanction and cooperation. Some portion of this knowledge may be acquired from personal advisors, but some of it can be derived only from the public sources of information. Both sources will be required to effect a practical attention to the subject during the period of actual service in the House of Representatives.
Travel Distance for Representatives Favors Biennial Elections
There are other considerations not unworthy of notice, although perhaps of less importance, such as the distance which many representatives will be obliged to travel – and the arrangements rendered necessary by that circumstance – which might raise a serious objection from some fit candidates for service, if limited to a one-year term, than one extended to a two-year term.
* * *
An inconvenience mingled with the advantages of annual elections is that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. Whatever the unlawful means actually used, an irregular member who is seated is sure of holding it a sufficient time to answer his purposes. A very pernicious encouragement is thus given to the use of unlawful means to obtain an irregular return.
* * *
No argument can be drawn on this subject from the case of representatives selected prior to the adoption of the Constitution. These delegates were elected annually by their State legislatures, but reelection was considered by the legislative assemblies almost as a matter of course, subject to a limit of three terms in a six-year period. The election of the representatives by the People will not be governed by the same principle. As happens in all such assemblies, a few of the members will possess superior talents. By frequent reelections, they will become members of long standing, thoroughly mastering the public business, and perhaps not unwilling to avail themselves of those advantages, such as ensnaring newer members who possess less information. This last remark also applies to the relation which will subsist between the House of Representatives and the Senate.
Limiting Terms to a Single Year Will Encourage Fraud
An inconvenience mingled with the advantages of annual elections is that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. Whatever the unlawful means actually used, an irregular member who is seated is sure of holding it a sufficient time to answer his purposes. A very pernicious encouragement is thus given to the use of unlawful means to obtain an irregular return.
Were elections for the House of Representatives held annually, this practice might become a very serious abuse, particularly in the more distant States. Each chamber is the judge of the elections, qualifications, and returns of its members, as it necessarily must be. Whatever improvements may be suggested by experience for simplifying and accelerating the process in disputed cases, a great portion of a single year would unavoidably elapse before an illegitimate member could be dispossessed of a seat. The prospect of such an event would be little check to an unfair and illicit means of obtaining a seat. All these considerations warrant us affirming that biennial elections will be as useful to the affairs of the public as they will be safe to the liberty of the People.
Hamilton or Madison
original Federalist 53Federalist 54: Apportionment of Representatives and Taxes Will Be Determined by a Uniform Federal Standard Encompassing Both Persons and Property
I NOW CONSIDER the number of representatives each State shall have, together with the apportionment of direct taxes, which will be determined using the same rule: “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.” Art. I, § 2, form. cl. 3.
The Three-Fifths Compromise
The reference to “three fifths of all other persons” refers to slaves in the southern States, and was agreed to as a compromising expedient between the northern and southern States. I shall refer to it as the Three-Fifths Compromise, for it regards slaves as inhabitants, but divested of two fifths of the rights of a free citizen or one bound to service for a term of years.
Using the number of individual citizens in each State as the standard for regulating the proportion of those who are to represent the People of each State was unobjectionable. The establishment of the same rule for the apportionment of taxes also was little contested.
Though similar in effect, the rules are not founded on the same principle. In the case of counting actual inhabitants, the rule is understood to refer to the personal rights of citizens, with which it has a natural and universal connection. In the case of apportioning taxes, it has reference to the proportion of wealth attributable to those citizens. It is by no means a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it was the least objectionable rule proposed, and had gained support in a recent Congress as an amendment to the Articles of Confederation.
Assuming all this is admitted, does it follow that slaves ought to be included in the numerical rule of representation? The initial argument against counting slaves towards representation was a legal one: since slavery is lawful in the southern States, and slaves are there considered as property – not as persons – slaves ought to be excluded from representation which is regulated by a census of persons, but be included in estimates of taxation founded on property.
A number of southern delegates countered that their laws of their States do not consider slaves merely as property, and in no respect whatever as persons. They argued that slaves partake of both these qualities: being considered by their laws as persons in some respects, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. On the other hand, a slave is protected – in life and limb – against the violence of all others, even the master of his labor and liberty. The slave himself is punishable for all violence committed against others. The slave is no less evidently regarded by the law as a member of the society, not as a part of irrational creation; as a moral person, not as a mere article of property.
Equitable Considerations Precluded Treating Slaves Solely as Property
The question of slaves may be placed in another light. It was agreed on all sides that numbers are the best scale of wealth and taxation, and that numbers are the only proper scale of representation. \ Would the Convention have been impartial or consistent if it had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted?
Could it be reasonably expected the Southern States would concur in a system which considered their slaves in some degree as men when burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred?
Might not some surprise also be expressed that those who reproach the southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend that the Federal government – to which all the States would be parties – ought to consider this unfortunate race more completely in the unnatural light of property than the very laws of which they complain?
These questions tended to expose the inconsistency of those who abhorred slavery, but nonetheless were willing to accept its beneficial legal definitions when arguably applicable.
The response of northern delegates to these questions was with a question of their own: since slaves are not included in the estimate of representatives in any of the States possessing them, and they neither vote themselves nor increase the votes of their masters, upon what principle ought they to be taken into the Federal estimate of representation?
These Questions Were Resolved by a Uniform Federal Rule that Each State Is to Determine the Number of Its Inhabitants
If the Convention had wholly rejected counting slaves as inhabitants to determine representation, it would have appeared to have been following the laws of the southern States. But this approach was rejected by the Convention as against a more fundamental principle of the Constitution – which holds that the aggregate number of representatives allotted to the several States ought to be determined by a uniform Federal rule which aggregates the inhabitants of each State – as counted by each State.
States Have Different Voting Requirements
At present, the count of inhabitants will vary from State to State, based on numbers and qualifications. The qualifications upon which the right of suffrage depend are not the same in any two States, and in some States the difference is very material. In every State a certain proportion of inhabitants are deprived of the right to vote by their respective State constitutions, yet these individuals will still be included in the allotted number of inhabitants each State reports in the first census.
Southern States observed that the principle laid down by the Convention would require that no regard should be had to the policy of particular States towards their own inhabitants, and that slaves – as inhabitants – could have been admitted into the census according to their full number, in like manner with other inhabitants who are not admitted (by the policy of their own State) to all the rights of citizens. But the southern States did not insist on a rigorous adherence to the principle; all they asked was that equal moderation be shown by the northern States.
At bottom, the case of slaves is a peculiar one. The Three-Fifths Compromise counts each slave as an individual inhabitant, but debased by servitude below the level of free inhabitants. The Three-Fifths Compromise regards a slave as divested of two fifths of the value of a free inhabitant or those bound to service for a term of years.
The Federal Constitution, therefore, decides with great propriety when it views slaves in the mixed character of persons and of property. This is in fact the true character bestowed on them by the laws under which they live, since it is only under the pretext that the laws have transformed Negroes into subjects of property, leaving their place disputed in the computation of numbers. It is further admitted that if the laws were to restore the rights which have been taken away, the Negro slaves could no longer be refused an equal share of representation with the other inhabitants.
Representation Properly Encompasses Property Rights
There is another ground on which the Three-Fifths Compromise will admit of a still more ready defense. I have hitherto proceeded on the idea that representation is related to persons only, and not at all to property. But is it a just idea?
Government is instituted no less for the protection of the property than of the protection of persons. Both protection of property and protection of persons may be considered interests to be represented by those who are charged with guiding the government. Upon this principle, in several States – particularly New York – one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government.
The Federal Constitution differs, however, because it commits the rights of the person and the rights of property and into the same hands. From this it follows that those in charge ought to direct some of their attention to property rights as well as to personal rights.
Additionally, the representatives allocated to each State should bear some proportion to the comparative wealth of each State, which would include slaves, even though they are disenfranchised.
The Influence of One State over Another Will Be in Superior Numbers Alone
Unlike individuals, one State cannot possesses influence over another, except in having a higher number of representatives. It is not probable that the richest State in the United States will ever influence the choice of a single representative in any other State. Nor will the representatives of larger and richer States possess any other advantage in Congress over the representatives of other States, other than what may result from their superior number alone. Therefore, as far as their superior wealth and weight may justly entitle them to any advantage, it will be secured to them by a superior share of representation.
Federal Laws Will Be Enacted by Representatives, Not States
In this respect, the new Constitution is materially different from the Articles of Confederation, as well as the laws of the United Netherlands. In that and other similar confederacies, the efficacy of Federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence some states have an unequal influence (even though each state possesses but an equal vote in the public councils), corresponding with the unequal importance of these subsequent and voluntary resolutions.
Under the Federal Constitution, the Federal acts will take effect without the necessary intervention of the individual States. These acts will depend merely on the majority of votes in the Federal legislature, without regard to which State the representative represents. As a consequence, each vote – whether proceeding from a larger or smaller State – or a State more or less wealthy or powerful – will have an equal weight and efficacy.
This is not dissimilar to how votes are given individually in State legislatures by the representatives of unequal counties or districts. Each vote has precise equality of value and effect. If there be any difference, it usually proceeds from differences in the personal character of the individual representative, rather than from any regard to the extent of the district represented.
Using the Same Formula of Counting for Both Representation and Taxation Will Have Beneficial Consequences
The establishment of a common measure for representation and taxation will have a very salutary effect. The accuracy of the initial census obtained by the Congress will necessarily depend on the disposition and cooperation of the States. It thus is greatly important that the States should feel as little bias as possible to swell or to reduce the amount of their numbers.
Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.
Madison
Federalist 55: Total Membership of the House of Representatives
THE MEMBERSHIP AND SIZE of the House of Representatives was assailed by critics. The weight of character and the apparent force of their arguments renders this aspect of the Constitution worthy of attention.
The Constitution requires a census within three years of the first meeting of Congress and every decade thereafter. It then provides for no more than one representative for every 30,000 counted: “The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.” Art. I, § 2, cl. 3.
Summary of Objections to Number of Representatives
There are four charges against this aspect of Article 1, section 2:
(1) the small a number of representatives will be an unsafe depositary of the public interests;
(2) those representatives will not possess a proper knowledge of the local circumstances of their numerous constituents;
(3) representatives will be taken from that class of citizens which will sympathize least with the feelings of the mass of the People, and be most likely to aim at a permanent elevation of the few on the depression of the many; and
(4) as defective as the number will be in the first instance, it will grow more disproportionate through increases in population and the obstacles which will prevent a correspondent increase of the representatives.
In this paper I answer the first objection, and in Federalist 56 through Federalist 58 I answer the other three.
Using State Ratios of Representatives to Inhabitants in order to Determine the Number of House Members Would Result in the Confusion of a Multitude
No political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature. There is no point on which the policy of the several States is more at variance, whether I compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents.
The most numerous branch in Delaware consists of 21 representatives, while in Massachusetts it amounts to between 300 and 400. A very considerable difference also is observable among States nearly equal in population. The Convention determined Pennsylvania and Massachusetts initially would be granted 8 representatives, yet the number of members in Pennsylvania’s largest popular chamber is not more than one fifth of that in Massachusetts. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between Georgia and Delaware or Rhode Island.
In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of 1 for every 4,000 or 5,000. In Rhode Island, they bear a proportion of at least 1 for every 1,000. And according to the constitution of Georgia, the proportion may be carried to 1 to every 10 electors, thereby far exceeding the proportion in any of the other States.
Another general remark worth making is that the ratio between representatives and constituents ought not be the same where the constituents are very numerous as where they are very few. Were the ratio of representatives to constituents in Virginia regulated by the standard in Rhode Island, Virginia’s representatives would amount to between 400 and 500 – and twenty or thirty years hence – to 1,000. On the other hand, applying the ratio Pennsylvania to Delaware would reduce Delaware’s representative assembly to seven or eight members. Nothing is more fallacious than founding our political calculations on arithmetical principles.
Sixty or seventy individuals may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would proportionably be a better depositary. And if we carry on the supposition to six or seven thousand representatives, the whole reasoning ought to be reversed.
The truth revealed by experience demands – in all cases – that a certain number is necessary at least to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes. On the other hand, the number must be kept within a certain limit to avoid the confusion and intemperance of a multitude.
In all very numerous assemblies – of whatever character composed – passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.
* * *
The truth revealed by experience demands – in all cases – that a certain number is necessary at least to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes. On the other hand, the number must be kept within a certain limit to avoid the confusion and intemperance of a multitude.
* * *
The More Restricted Scope of Federal Legislation Justifies Fewer Representatives
The observations I made in Federalist 53 and Federalist 54 concerning the benefits of biennial elections extend to the number of representatives needed in the in the House. For the same reason that less frequent elections than the public might otherwise require are justified by the limited powers of the Congress – as well as by the control of State legislatures – the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies.
With these general ideas in mind, I here respond to the objections stated against the number of members proposed for the House of Representatives.
Anticipated Increases in Population Will Increase the Number of House Members to 400, which Ought Eliminate Fears of Too Few Representatives
At the outset of the Federal government, the number of representatives will be 65. It is said 65 are too few individuals to safely entrust with so much power. However, a census will be taken within three years, after which the number may be augmented to 1 for every 30,000 inhabitants. With every successive 10-year renewal of the census, augmentations may continue under the above limitation.
It is not extravagant or conjectural to estimate the first census will – at the rate of 1 for every 30,000 – raise the number of representatives to at least 100. Estimating the Negroes in the proportion of three fifths, the population of the United States will by that time amount to three million. At the expiration of 25 years, the number of representatives may amount to 200, and by 50 years increased to 400. Four hundred is a number which ought put an end to all fears arising from the smallness of the House of Representatives.
I take for granted here that the number of representatives will be augmented from time to time in the manner provided by the Constitution. If I were to assume the contrary, I should admit the objection would have very great weight indeed. The true question to be decided then, is whether the smallness of the number – as a temporary regulation – is dangerous to the public liberty. Will 65 members for a few years – and 100 or 200 for a few more – be a safe depositary for a limited and well-guarded power of legislating for the United States?
In order to say these numbers would be insufficient, I would first have to obliterate every impression I have received with regard to the present genius of the People of America, the spirit actuating State legislatures, and the principles which are incorporated with the political character of every class of citizens. I am unable to conceive that the People of America – in their present temper or under any circumstances which can speedily happen – will choose and every second year reelect 65 or 100 individuals who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures – which must feel so many motives to watch, and which possess so many means of counteracting, the Federal legislature – would fail either to detect or to defeat a conspiracy of the Federal government against the liberties of their common constituents. I am equally unable to conceive there are in the United States – at this time or any short time – any 65 or 100 individuals capable of recommending themselves to the choice of the People at large, who would either desire or dare – within the short space of two years – to betray the solemn trust committed to them.
What may be produced by changed circumstances, time, and an increase in population requires a prophetic spirit to declare, and makes no part of my pretensions. But judging from the circumstances now before us – and from the probable state of them within a moderate period of time – I must pronounce the liberties of America cannot be unsafe in the number of hands proposed by the Constitution.
* * *
Sixty or seventy individuals may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would proportionably be a better depositary. And if we carry on the supposition to six or seven thousand representatives, the whole reasoning ought to be reversed.
* * *
Our Recent History Provides Evidence that Bribery and Treachery Are Scant Risks
From what quarter can a danger to our liberties proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our Federal leaders and enable them to ensnare and betray their constituents, how are we at this time a free and independent nation? The Congress which conducted us through the Revolution had less members than any Congress will have under the Constitution. Further, the members were not chosen by – nor responsible to – their fellow citizens at large. Although they were appointed from year to year (and recallable at the pleasure of their States), they were generally continued for three years, and for still longer terms prior to ratification of the Articles of Confederation.
The Congress always held its consultations under the veil of secrecy. It had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives. From the greatness of the prize at stake – future control of the United States – and the eagerness of Great Britain to reclaim it – one may well suppose that the use of means other than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny.
The Prospect of a Appointment to a Preexisting Civil Office Holds Little Allurement to Corruption
Is danger to the House of Representatives to be apprehended from other branches of the Federal government? Where are the means to be found by the President, or the Senate, or both? Their emoluments of office will not suffice without a previous corruption of the House of Representatives. Their private fortunes – as is the case for all American citizens – cannot possibly be sources of danger.
The only means the President and Senate and President may possess will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now we are told the fidelity of the other chamber is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government – standing on as different foundations of republican principles and at the same time accountable to the society over which they are placed – ought alone to quiet this apprehension.
The Constitution fortunately provides a still further safeguard. The members of the Congress are ineligible for any civil office that may be created (or of which the emoluments may be increased) during the term of their election. Therefore no offices can be dealt out to the existing members but such as may become vacant by ordinary casualties. To suppose such pre-existing offices would be sufficient to purchase the guardians of the People – who are selected by the People themselves – is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain.
Republican Government Assumes There Is More Virtue than Depravity in Humanity
The sincere friends of liberty who give themselves up to the extravagancies of jealousy are not aware of the injury they do their own cause. There is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, but other qualities in human nature justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures inspired by the political jealousy of some faithful likenesses of the human character, the inference would be there is insufficient virtue among men for self-government, and that nothing less than the chains of despotism can restrain humans from destroying and devouring one another.
Madison or Hamilton
original Federalist 55Federalist 56: Representatives Will Be Satisfactorily Apprised of Local and National Conditions
THE HOUSE OF REPRESENTATIVES will not be too small to possess a due knowledge of the interests of its constituents, contrary to the second objection lodged against this body. The objection proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of its inhabitants, and the diversity of their interests. The objection overlooks the circumstances which distinguish the Congress from other legislative bodies.
The Principal Objects of Federal Legislation Are Commerce, Taxation, and the Militia
It is a sound and important principle that a representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects that are not within the compass of legislation is consistent with every attribute necessary to a due performance of the legislative trust.
In determining the extent of information required in the exercise of a particular authority, recourse must be had to the objects within the purview of that authority. What are to be the objects of Federal legislation? Those which are of most importance – and seem most to require local knowledge – are commerce, taxation, and the militia.
Commerce
A proper regulation of commerce requires much information, but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the Federal councils.
Taxation
In a great measure, taxation will consist of the duties which are involved in the regulation of commerce. As far as it may consist of internal collections within a State, a more diffusive knowledge of the circumstances of the State may be necessary.
This knowledge of internal collections also will be possessed in sufficient degree by a very few intelligent individuals diffusively elected within the State. Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests which will not be within the knowledge of the representative of the district.
Besides this source of information, the laws of a State (as framed by representatives from every part of it) almost will be of themselves a sufficient guide. Furthermore, in every State there have been made (and must continue to be made) regulations on taxes which in many cases will leave little more to be done by the Federal legislature than to review the different laws and reduce them to one general act. A skillful individual with access to all the local codes might compile a law on some subjects of taxation for the whole union, without any aid from oral information. It may be expected that whenever internal taxes may be necessary – and particularly in cases requiring uniformity throughout the States – the more simple objects will be preferred.
An analogy may be drawn between local and State codes on the one side, and State and Federal codes on the other. Suppose for a moment that New York or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. A degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the State legislature, and render a much smaller number of members sufficient for it.
The Federal government will derive a great advantage from another circumstance. The representatives of each State will bring with them a considerable knowledge of its laws and a local knowledge of their respective districts. Many representatives will have been members of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States.
* * *
It is a sound and important principle that a representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects that are not within the compass of legislation is consistent with every attribute necessary to a due performance of the legislative trust.
* * *
State Militias
The observations made on the subject of taxation apply with greater force to the case of State militias. However different the rules of discipline may be in different States, they are the same throughout each particular State, and depend on circumstances which can differ but little in different parts of the same State. The attentive reader will discern that the reasoning used here and in Federalist 55 to prove the sufficiency of a moderate number of representatives does not in any respect contradict what was urged in Federalist 53 with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information – so far as it may relate to local objects – is rendered necessary and difficult not by a difference of laws and local circumstances within a single State – but of those among different States. Taking each State by itself, its laws are the same and its interests but little diversified. A few individuals therefore will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would include a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. But on a comparison of the different States taken together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of Federal legislation, with all of which the Federal representatives ought to have some acquaintance. While a few representatives from each State may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all of the other States.
The Passage of Time Will Increase the Population and Will Diversify State Economies
The changes of time will have an assimilating effect on the comparative situation of the different States. But the effect of time on the internal affairs of individual States will be more rapid. Some of the States are presently little more than a society of farmers. Only a few of the States have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These industries will grow as population in all the States increases, as will the number of representatives. The foresight of the Convention has taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government.
The True Ratios of Representative to Constituent in Britain Show Ours to Be Valid
The experience of Great Britain – which presents to mankind so many exemplary and monitory political lessons – corroborates the reflections I have made regarding the proper number of representatives. The number of inhabitants in the two kingdoms of England and Scotland is not less than eight million. The representatives of these eight million in the House of Commons amount to 538. Of this number, one ninth are elected by 364 persons, and one half by 5,723 persons. Of the one half, it is well known they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. One cannot suppose that the half thus elected – and who do not even reside among the people at large – can add any knowledge of their circumstances and interests in the legislative councils, or to the security of the British people against the government. They might therefore be deducted from the total representatives of the nation, to reach a more accurate total of what I denominate the real number of representatives in those kingdoms. In doing so, I will not extend the deduction to a considerable number of others who do not reside among their constituents, are very faintly connected with them, and have very little particular knowledge of their affairs. Dividing the House of Commons membership of 538 in half leaves 279 persons as the depository of the safety, interest, and happiness of eight million.
* * *
Comparing the example of the House of Commons with House of Representatives, the Constitution’s specification of no more one representative for every 30,000 inhabitants, Art. I, § 2, ¶ 3, cl. 3, will render our House both a safe and competent guardian of the interests which are confided to it.
* * *
In other words, for every 28,670 constituents, only one representative will maintain their rights and explain their situation in an assembly of the kingdoms (the House of Commons) which is exposed to the whole force of executive influence while at the same time it extends its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Nonetheless, it is very certain that a valuable portion of freedom has been preserved under all these circumstances, and that the defects in the British code are in some instances chargeable to the ignorance of the legislature concerning the circumstances of the People in those kingdoms.
Comparing the example of the House of Commons with House of Representatives, the Constitution’s specification of no more one representative for every 30,000 inhabitants, Art. I, § 2, ¶ 3, cl. 3, will render our House both a safe and competent guardian of the interests which are confided to it.
Madison or Hamilton
original Federalist 56Federalist 57: The House of Representatives Will Not Be an Oligarchy, since the Voters are the Greatest Defense to It
THE THIRD CHARGE against the House of Representatives asserts it will be composed of that class of citizens which will have least sympathy with the mass of the People, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections framed against the Constitution, this is perhaps the most extraordinary.
The objection is leveled against a pretended oligarchy. The principle of it also strikes at the very root of republican government. The first aim of every political constitution is (or ought to be) to obtain for rulers individuals who possess the most wisdom to discern the common good of the society and the most virtue to pursue it. In the next place, a political constitution must take the most effectual precautions for keeping rulers virtuous while they continue to hold their public trust.
Republican Government Is Signified by Representative Elections
The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one is a limitation of the term of appointments such as will maintain a proper responsibility to the People. The Great Body of the People of America Will Choose their Representatives
What part of the constitution of the House of Representatives violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens? Who are to be the electors of the Federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the People of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.
* * *
The first aim of every political constitution is (or ought to be) to obtain for rulers individuals who possess the most wisdom to discern the common good of the society and the most virtue to pursue it. In the next place, a political constitution must take the most effectual precautions for keeping rulers virtuous while they continue to hold their public trust.
* * *
House Membership Is Open to All
Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the People. If we consider the situation of the individuals on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents.
Representatives Will Be Distinguished by the Traits which Earned Them Election
In the first place, representatives will be distinguished by the preference of their fellow-citizens, and in general we ought to presume they will be distinguished also by those qualities which earned that preference, and which promise a sincere and scrupulous regard to the nature of their engagements.
* * *
Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the People. If we consider the situation of the individuals on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents.
* * *
Representatives Will Have the Favor of their Constituents
In the second place, representatives will enter into the public service under circumstances which cannot fail to produce a temporary affection, at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which – apart from all considerations of interest – is some pledge for grateful and benevolent returns.
Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment.
Self-interest in Self-Preservation Will Foster Reliance on the People’s Choices
In the third place, those ties which bind representatives to constituents are strengthened by motives of a more selfish nature. Pride and vanity will attach the representative to a form of government favoring those pretensions and give a share in its honors and distinctions. Whatever hopes or projects may be entertained by a few aspiring characters, the great proportion of individuals deriving their advancement from their influence with the People would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the People.
All these securities are strengthened by the restraint of frequent elections.
The House Is Designed for Dependence on the People
Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the People. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised, where they will remain forever unless a faithful discharge of their trust shall have established their title to a renewal of it.
The Laws Will Apply Equally to House Members and Citizens Alike
As a fifth circumstance favoring the fidelity of representatives to the People, they will make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the People together, for it creates between them a communion of interests and sympathy of sentiments. Few governments have furnished examples in history, but without it every government degenerates into tyranny.
* * *
The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the People. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised, where they will remain forever unless a faithful discharge of their trust shall have established their title to a renewal of it.
* * *
If one asks what restrains the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society, I would answer: the genius of the whole system, the nature of just and constitutional laws, and above all, the vigilant and manly spirit which actuates the People of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the Congress as well as the People, the People will be prepared to tolerate anything but liberty. Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the People.
We Must Trust Republican Principles
It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the People? Are they not the identical means on which every State government relies for the attainment of these important ends?
What then is the basis of the objection this paper has combated? What are we to say to the individuals who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it? Are those who pretend to be champions for the right and the capacity of the People to choose their own rulers also maintaining that the People will prefer only those who will immediately and infallibly betray the trust committed to them?
Were the objection that the House will be an oligarchy be heard by an individual who had not seen the mode prescribed by the Constitution for the choice of representatives, that individual would reasonably suppose that a prerequisite to House membership required family or fortune, or that the right to vote was unreasonably restricted, or that some other gross departure from the standards prevalent in the States existed. But none of these is true.
The only difference between State and Federal elections is that each representative of the United States will be elected initially by 5,000 or 6,000 citizens, while some elections the States are left to 500 or 600 electors. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the Federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by reason?
* * *
Representatives will make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the People together, for it creates between them a communion of interests and sympathy of sentiments. Few governments have furnished examples in history, but without it every government degenerates into tyranny.
* * *
Are 5,000 or 6,000 citizens less capable of choosing a fit representative – or more liable to be corrupted by an unfit one – than 500 or 600? On the contrary, reason assures us that a fit representative would most likely be found in the greater number, and that the choice would less likely be diverted by the intrigues of the ambitious or the ambitious or the bribes of the rich.
Further, if we are to assume that 500 or 600 is the highest number of citizens who can jointly exercise the right to elect representatives, does it not follow we must deprive the People of the immediate choice of their public servants in those instances where the administration of the government does not require as many of them as will amount to one for that number of citizens?
It was shown in Federalist 56 that the real representation in the British House of Commons very little exceeds the proportion of 1 for every 30,000 inhabitants. Besides a variety of powerful causes not existing here – and which in Britain favor the pretensions of rank and wealth – no person there is eligible as a representative of a county unless he possess real estate of the value of £600 per year. To represent a city or borough, one must possess real estate of £300 per year. A further qualification in Britain is that the voters in county elections must possess a freehold estate generating an annual value of more than £20,000. Notwithstanding these unfavorable circumstances and other unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many.
Several States Already Have Large Voting Districts
We need not even resort to foreign experience on this subject. Our own is explicit and decisive. The districts for election senators in the State of New Hampshire are nearly as large as will be necessary for election of her representatives in the Congress. The districts of Massachusetts also are larger than will be necessary for that purpose, and those of New York still more so.
The Ratio of Electors to Elected in New York Is Comparable to the Federal Ratio
In New York, the members of the senate for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress. In these districts and counties, an elector votes for a number of representatives at the same time. If the same electors at the same time are capable of choosing four or five representatives for State offices, they cannot be incapable of choosing one Federal representative.
The Same Is True in Pennsylvania and Other States
Pennsylvania is an additional example. Some of the counties which elect her State representatives are almost as large as the districts which will elect Federal representatives. The city of Philadelphia is supposed to contain between 50,000 and 60,000 souls. It will therefore form nearly two districts for the choice of Federal representatives. The city, however, forms but a single county, in which all electors therein vote for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a single member to that State’s executive council. This also is the case in all the other counties in Pennsylvania. These facts are the most satisfactory proofs of the fallacy of the argument that the Federal districts are too large for the election of representatives.
Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the assemblies in New York and Pennsylvania, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the People?
There also are cases of a stronger complexion elsewhere. One branch of the legislature of Connecticut is so constituted that each of its members is elected by the entire electorate of the State. The same is true for the governors of Connecticut, Massachusetts, and New York, and the president of New Hampshire.
I leave every individual to decide whether the result of any one of these experiments can be said to countenance a suspicion that a diffusive mode of choosing representatives of the People tends to elevate traitors and to undermine the public liberty.
Hamilton or Madison
original Federalist 57Federalist 58: The Number Representatives Will Increase as the Growth of Population Demands; and the House Power over the Purse Examined
THE REMAINING CHARGE against the House of Representatives is grounded on the erroneous supposition that the number of members will not be augmented from time to time, as the progress of population will demand. This objection would have had great weight if it were supported, but like most of the other objections against the Constitution, proceedsfrom a partial view of the subject, or from a jealousy which discolors and disfigures every object which it beholds.
The Federal Constitution Compares Favorably to State Constitutions
Those who urge the objection seem not to have recollected that the Federal Constitution provides the security of a gradual augmentation of the number of representatives, and therefore does suffer by a comparison with the provisions of State constitutions.
The number of representatives in the first instance – 65 – is declared to be temporary, with its duration limited to the short term of three years, when an initial census is to be completed. Art. I, § 2, cl. 3. Within every successive term of ten years a census of inhabitants is to be repeated. One unequivocal object of these regulations is to readjust, from time to time, the apportionment of representatives to the number of inhabitants, with the single exception that each State shall have at least one representative. A second object to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every 30,000 inhabitants.
In reviewing the constitutions of the several States, we find that some of them contain no determinate regulations on this subject, others correspond pretty much on this point with the Federal Constitution, and the most effectual security in any of them is resolvable into a mere directory provision.
As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with the increase of the constituents. It appears State representatives have been as ready to concur in augmentations as constituents have called for them.
The House – Representing the People – and the Senate – Representing States – Will Concur in Necessary Augmentations to House Membership
There is a peculiarity in the Constitution which ensures a majority of the People and their representatives will ensure a constitutional augmentation of those representatives. The peculiarity is that one branch of the legislature (the House) is a representation of citizens, while the other branch (the Senate) represents the States. In the House, the larger States will have most weight. The advantage in the Senate will be in favor of the smaller States.
Larger States Will Advocate for More Representatives
From this circumstance, the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. As it happens only four of the largest States will have a majority of the all the votes in the House of Representatives. Should the representatives or the People of the smaller States at any time oppose a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition. A coalition would not fail to take place – notwithstanding rivalries and local prejudices which might prevent it on ordinary occasions – prompted by a common interest and justified by equity and the principles of the Constitution.
Those favoring a steady augmentation of representatives apprehend that smaller States in the Senate may coalesce to oppose augmentation, in order to preserve the power of their current representation. Since Senate concurrence would be indispensable to augmentation, their argument proceeds, the just and constitutional views of the House might be defeated.
Fortunately these fears are among the difficulties which – existing only in appearance – vanish on a close and accurate inspection. The following reflections will be admitted to be conclusive and satisfactory on this point.
The House Will Have the Advantage on Speaking for the People
Notwithstanding the equal authority which subsists between the two chambers of Congress on all legislative subjects (excepting only that the House of Representatives must originate bills requiring appropriation of money), the House of Representatives will have the advantage in a question depending on the comparative firmness of the two houses. The House of Representatives has the greater number of members, and will speak with the known and determined sense of a majority of the People, especially when supported by the more powerful States.
This advantage will be increased by the consciousness felt by the one side of being supported in its demands by right, reason, and the Constitution. The consciousness on the opposite side must contend against the force of all these solemn considerations.
* * *
The People can never err more than in supposing that – by multiplying their representatives beyond a certain limit – they will strengthen the barrier against the government of a few. On the contrary, experience will forever admonish that – after securing a sufficient number of representatives for the purposes of safety, of local information, and of diffusive sympathy with the whole society – additional representatives will counteract those views.
* * *
Augmentation Will Lead to Reapportionment
It is by no means certain that a majority of votes – even in the Senate – would be unfriendly to proper augmentations in the number of representatives. In the gradation between the smallest and largest States, there are several which – although generally likely to arrange themselves among the smaller States – are too little removed in extent and population from the larger States to support an opposition to their just and legitimate pretensions.
It will not be looking too far to add that an expedient too obvious to be overlooked will persuade senators from new States to favor augmentation of House membership. As these new States will advance in population with peculiar rapidity for a great length of time, they will be interested in frequent reapportionments of the representatives to the number of inhabitants.
The Power over the Purse Will Secure the Necessary Reapportionment
The large States prevailing in the House of Representatives will have nothing to do but to make reapportionments and augmentations mutually conditions of each other. The senators from the growing States will be bound to contend for augmentations by the interest their States will have in reapportionment. These considerations will afford ample security on augmentations and reapportionments, and ought alone to satisfy all the doubts and fears which have been voiced. However, should the smaller States pursue an unjust policy against augmentation due to their predominant influence in the councils of the Senate, the larger States will have a constitutional and infallible resource to accomplish their just purposes, for only the House of Representatives can propose the supplies requisite for the support of government. The House holds the power over the purse.
The Power over the Purse Led to the Ascendancy of the House of Commons
In the history of the British Constitution, the power over the purse aided an infant and humble representation of the People in the House of Commons to enlarge the sphere of its activity and importance, and finally to reduce – as far as it seems to have wished – all the overgrown prerogatives of the other branches of that government. The power over the purse may be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the People, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
It was argued that the House of Representatives would be as much interested as the Senate in maintaining the Federal government in its proper functions, and thus be unwilling to stake its existence or reputation on the pliancy of that chamber. In a trial of firmness between the two chambers, it was asked, would not the House be as likely as the Senate to yield first?
These concerns created no difficulty with those who reflected that the Senate – with its smaller membership and the more permanent and conspicuous the station – would have a stronger interest in the concerns of the Federal government, since those who represent the dignity of their country in the eyes of other nations will be particularly sensible to every prospect of public danger or of dishonorable stagnation in public affairs.
To these causes we may ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility in the other branches – although it would have involved every department of the state in general confusion – has neither been apprehended nor experienced. In the United States, the utmost degree of firmness the Senate or President can display will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles.
In this review of the constitution of the House of Representatives, I have passed over the circumstances of the present condition of economy, which had some effect in lessening the temporary number of representatives. A disregard of economic conditions would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed.
I also omit any remarks on the difficulty which might be found, under present circumstances, in engaging in the Federal service a large number of such characters as the People will probably elect.
* * *
In the history of the British Constitution, the power over the purse aided an infant and humble representation of the People in the House of Commons to enlarge the sphere of its activity and importance, and finally to reduce – as far as it seems to have wished – all the overgrown prerogatives of the other branches of that government. The power over the purse may be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the People, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
* * *
The Larger the Popular Assembly, the Fewer the Individuals Controlling It
I must be permitted to add one observation on this subject claiming a very serious attention, in my judgment. This observation is that in all legislative assemblies, the greater the number of members, the fewer will be the individuals who will in fact direct their proceedings.
Passion, Not Reason, Rules Large Assemblies
In the first place, the more numerous an assembly may be – and of whatever characters composed – the greater is known to be the ascendency of passion over reason.
In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. It is precisely on characters of this description that the eloquence and address of the few are now known to act with all their force.
In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a scepter had been placed in a single hand.
On the same principle, the more multitudinous a representative assembly becomes, the more it will partake of the infirmities incident to collective meetings of the People. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.
* * *
The People can never err more than in supposing that – by multiplying their representatives beyond a certain limit – they will strengthen the barrier against the government of a few. On the contrary, experience will forever admonish that – after securing a sufficient number of representatives for the purposes of safety, of local information, and of diffusive sympathy with the whole society – additional representatives will counteract those views.
* * *
The People can never err more than in supposing that – by multiplying their representatives beyond a certain limit – they will strengthen the barrier against the government of a few. On the contrary, experience will forever admonish that – after securing a sufficient number of representatives for the purposes of safety, of local information, and of diffusive sympathy with the whole society – additional representatives will counteract those views.
When a deliberative assembly increases in size, the countenance of the government may appear to become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed.
* * *
When a deliberative assembly increases in size, the countenance of the government may appear to become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed.
* * *
A Quorum Requiring More than a Majority Is Inconvenient
A quorum is the number of representatives made competent for legislative business. The Constitution sets the quorum for conducting business as a majority of each chamber: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.” Art. I, § 5, cl 1.
It was said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. It cannot be denied that some advantages might have resulted from such a precaution. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures.
But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. If more than a majority were required in particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal. In some emergencies, a minority might attempt to extort unreasonable indulgences.
* * *
In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a scepter had been placed in a single hand. On the same principle, the more multitudinous a representative assembly becomes, the more it will partake of the infirmities incident to collective meetings of the People. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.
* * *
Secessions
Lastly, requiring more members for a quorum or particular votes would foster and facilitate the baneful practice of secessions. This practice has shown itself even in States where a only a majority is required. The practice is subversive of all the principles of order and regular government, and has led more directly to public convulsions and the ruin of popular governments than any other which has yet been displayed among us.
Madison or Hamilton
original Federalist 58 Federalist 59: Congress Must Have the Power to Regulate the Election of its Members
THE CONSTITUTION AUTHORIZES THE CONGRESS to regulate, in the last resort, the election of its own members. It is in these words: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, § 4, cl. 1.
This provision was declaimed against not only by those who condemned the Constitution in gross, but by those who objected with less latitude and moderation. In one instance, an individual who advocated every other part of the system found this provision exceptionable.
But there is no article in the whole plan more completely defensible, since its propriety rests upon the plain proposition that every government ought to contain in itself the means of its own preservation.
Every just reasoner must approve an adherence to this rule upon first sight, and disapprove every deviation from it which is not dictated by the necessity of incorporating into it some particular ingredient incompatible with a rigid conformity to the rule, as with the construction of the Senate. And even though a just reasoner may acquiesce in that necessity, yet that reasoner will not cease to regret a departure from so fundamental a principle, and regard it as an imperfection in the system, which may prove the seed of future weakness and perhaps anarchy.
A Discretionary Power over Federal Elections Is Necessary
No one asserted an election law could have been framed and inserted into the Constitution which would apply always to every probable change in the situation of the United States. Therefore, it must be conceded that a discretionary power over elections ought to exist, and that this discretion be placed somewhere.
There are only three ways in which this power reasonably could have been modified and disposed. It could have been lodged:
(1) wholly in the Federal legislature (the Congress),
(2) wholly in the State legislatures, or
(3) primarily in the State legislatures, but ultimately in the Federal legislature.
* * *
The regulation of elections for the Federal government in the first instance is delegated to State legislatures because the administration by State legislatures may be both more convenient and satisfactory in ordinary cases. Nonetheless, the Convention reserved to Congress a right to alter State regulations when extraordinary circumstances or improper views might render such interposition necessary to preserve representation.
* * *
Congress Must Be the Ultimate Arbiter of Federal Elections
The third mode was preferred by the Convention, and for good reasons. The regulation of elections for the Federal government in the first instance is delegated to State legislatures because the administration by State legislatures may be both more convenient and satisfactory in ordinary cases. Nonetheless, the Convention reserved to Congress a right to alter State regulations when extraordinary circumstances or improper views might render such interposition necessary to preserve representation.
Nothing is more evident than that leaving the exclusive power of regulating elections to the House of Representatives in the hands of State legislatures would leave the very existence of the Federal government entirely at the mercy of those legislatures. At any moment, State legislatures could annihilate the Federal government by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say that a neglect or omission of this kind is unlikely. The constitutional possibility of the thing – without an equivalent for the risk – is an unanswerable objection. No satisfactory reason was ever given for incurring the risk of a complete delegation of Federal election control to State legislatures. All that was offered were the extravagant surmises of a distempered jealousy.
If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the Federal government. Is it not more consonant to the rules of a just theory to trust the Federal government with the care of its own existence, than to transfer that care to any other hands?
* * *
Nothing is more evident than that leaving the exclusive power of regulating elections to the House of Representatives in the hands of State legislatures would leave the very existence of the Federal government entirely at the mercy of those legislatures. At any moment, State legislatures could annihilate the Federal government by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say that a neglect or omission of this kind is unlikely. The constitutional possibility of the thing – without an equivalent for the risk – is an unanswerable objection.
* * *
Just as the Federal Government Cannot Control State Elections, State Governments Cannot Control Federal Elections
Suppose an article had been introduced into the Constitution which empowered the Federal government to regulate the elections of the particular States. Would anyone have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? To an unbiased observer, the same would be true for the project of subjecting the regulation of Federal elections to State legislatures. The very existence of the Federal government would be subject to the pleasure of State governments. An impartial view of the matter cannot fail to result in a conviction that any government – whether State or Federal – ought to depend on itself for its own preservation, as far as possible.
The Construction of the Senate Does Not Justify State Regulation of House Elections
As an objection to having Congress be the final authority to regulate the times, places and manner of holding Federal elections, some might say the system applicable to the Senate gives rise to the same danger which could flow from an exclusive power in the State legislatures to regulate Federal elections. That is, by declining the appointment of senators, State legislatures might at any time give a fatal blow to the United States. From this premise it could be argued there ought to be no objection to entrusting State legislatures with the power of regulating elections to the House of Representatives, especially since each State has an interest in maintaining its representation in the national councils. Taken together, the argument might conclude, these factors would be a complete security against State legislatures abusing the trust that a delegation of final regulatory authority would entail.
Though attractive initially, upon examination this argument will not be found solid. It is certainly true that State legislatures – by forbearing the appointment of senators – have the power to destroy the Federal government. But the existence of a power to do so with respect to senatorial appointment does not compel granting the power in every other instance. There are cases in which the harmful tendency of such a power may be far greater, such as with the regulation of elections for the House of Representatives. In the absence of a reason that was equally cogent to the one that supported appointment of senators by State legislatures, the Convention could not recommend ultimate regulation of House members by State legislatures into the system.
So far as the construction of the Senate may expose the Federal government to the possibility of injury from the State legislatures, it is an evil. But it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the Federal government. Had the Convention taken this view, and excluded the States from representation in the Federal government, it would doubtless have been interpreted into an entire dereliction of the federal principle, and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision. However wise it may have been to submit to the inconvenience of having States appoint senators (in order to attain a necessary advantage or a greater good), no inference can be drawn from thence to favor an accumulation of the evil with respect to the House, where neither necessity urges, nor any greater good invites.
The Adverse Risk of State Regulation of House Elections Is Greater than the Risk of State Malfeasance in the Appointment of Senators
The Federal government would run a much greater risk from a power in the State legislatures over the elections of members to the House of Representatives, than from the power of appointing members of the Senate. Senators are to be chosen by State legislatures for a period of six years. This is three times as long as the two-year terms of members of the House of Representatives.
Senators are divided into three classes in order to ensure a rotation, by which the seats of a third part of them are to be vacated and replenished every two years. No State is entitled to more than two senators, and a quorum of the body is to consist of a majority of members, as in the House of Representatives. The joint result of these circumstances is that a temporary combination of a few States to intermit the appointment of senators can neither annul the existence of the Senate nor impair its activity. We have nothing to fear except from either a general or permanent combination of the States with respect to the Senate.
A temporary combination to annul a quorum in the Senate might proceed from sinister designs in the leading members of a few of the State legislatures. A permanent combination of States would suppose a fixed and rooted disaffection in the great body of the People. A permanent combination will either never exist, or proceed from an experience of the ineptitude of the Federal government to the advancement of their happiness, in which event no good citizen could desire its continuance.
State Legislative Control of Federal Elections Would Invite Disorder
With regard to the House of Representatives, there will be a general election of members once in two years. If the State legislatures were invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation. The United States might dissolve if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election.
* * *
Even when the People of America find themselves warmly attached to the Federal government, particular rulers of particular States – stimulated by the natural rivalries of power and hopes of personal aggrandizement – and supported by a strong faction in each of those States – may be in a very opposite temper.
* * *
There is a degree of weight in the observation that the interests of each State – which are to be represented in the Federal councils – will be a security against abuse of Federal elections by State legislatures. But this security will not be considered complete by those who attend to the force of the obvious distinction between the interest of the People in the public felicity, and the interest of the People’s local rulers in the power and consequence of their offices.
Even when the People of America find themselves warmly attached to the Federal government, particular rulers of particular States – stimulated by the natural rivalries of power and hopes of personal aggrandizement – and supported by a strong faction in each of those States – may be in a very opposite temper. At the present moment on the present question, a diversity of sentiment between the majority of the People, on the one hand, and the individuals who have the greatest credit in their councils, on the other, is exemplified in some of the States.
The Prospect of Separate Confederacies Is Contrary to the Common Good
The scheme of separate confederacies – which will always multiply the chances of ambition – will be a never-failing bait to all such influential characters in the State administrations who are as capable of preferring their own emolument and advancement to the public weal.
With so effectual a weapon in their hands as the exclusive power of regulating elections for the Federal government, a combination of a few such individuals – in a few of the most considerable States (where the temptation will always be the strongest) – might attempt to accomplish the destruction of the United States. These actors might seize the opportunity of some casual dissatisfaction among the People – which the members of the combination may themselves have excited – to discontinue the choice of members for the House of Representatives.
Foreign Governments Will Attempt to Subvert the Federal Government
It ought never to be forgotten, that a firm union of this country – under an efficient government – will be an increasing object of jealousy to more than one nation of Europe. Enterprises to subvert the United States will sometimes originate in the intrigues of foreign powers. Such enterprises will seldom fail to be patronized and abetted by one or more foreign governments. Preservation of the United States ought to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust.
Hamilton
original Federalist 59 Federalist 60: The Composition of Congress Will Likely Reflect the Composition of State Legislatures
WE HAVE SEEN THAT AN UNCONTROLLABLE POWER over the elections to the Federal government could not – without hazard – be committed to the State legislatures. But what would be the danger on the other side – that is, from confiding the ultimate right of regulating its own elections to the Federal government itself?
It is not pretended that the Federal government would ever use the right to superintend Federal elections to exclude any State from its share in the representation. In this respect at least, the interest of all would be the security of all.
Nonetheless, some alleged that Federal superintendence of Federal elections might be employed in such a manner as to promote the election of a favorite class of individuals – to the exclusion of others – by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this appears the most chimerical.
The clause which guides our inquiry provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, § 4, cl. 1.
Unreasonable Restrictions on Voting Locations Would Lead to a Popular Revolt
On the one hand, no rational calculation of probabilities leads one to imagine that such a violent and extraordinary disposition could ever find its way into the national councils. On the other hand, if so improper a spirit should ever gain admittance into our national councils, it would display itself in a form altogether different and far more decisive.
It is conceivable that the right to vote may be violated in regard to a particular class of citizens, by a victorious and overbearing majority, during certain turbulent and factious seasons. But it is altogether inconceivable and incredible that so fundamental a privilege of freedom (in a country so situated and enlightened as ours) could be invaded by a deliberate policy of the Federal government, to the prejudice of the great mass of the People, without occasioning a popular revolution.
An attempt to restrict unreasonably the places of election could never be made without causing an immediate revolt of the great body of the People, headed and directed by the State governments. From this alone, one may satisfactorily infer the improbability of any attempted restriction.
* * *
It is conceivable that the right to vote may be violated in regard to a particular class of citizens, by a victorious and overbearing majority, during certain turbulent and factious seasons. But it is altogether inconceivable and incredible that so fundamental a privilege of freedom (in a country so situated and enlightened as ours) could be invaded by a deliberate policy of the Federal government, to the prejudice of the great mass of the People, without occasioning a popular revolution.
* * *
The Federal Government Is Structured in a Way that Decreases the Possibility of Unreasonable State Restrictions on Voting Locations
Considerations of a more precise nature forbid all apprehension on the subject of voting locations. The dissimilarity in the ingredients composing the Federal government – and still more in the manner in which they will be brought into action in its various branches – erect powerful obstacles to a concert of views in any scheme to alter locations of elections.
To begin with, there is sufficient diversity in the distribution of property – and in the genius, manners, and habits of the People of the different States and regions – to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. Although an intimate intercourse under one Federal government will promote a gradual assimilation in some of these respects, there are physical and moral causes which may (in a greater or less degree) permanently nourish different propensities and inclinations.
But the circumstance most likely to have the greatest influence in the matter will be the dissimilar modes of constituting the several component parts of the government. Consider that the House of Representatives is elected immediately by the People, the Senate by the State legislatures, and the President by electors chosen for that purpose by the People. There is little probability of a common interest to cement these different branches in a predilection for any particular class of electors.
Any Attempt to Control the Location of Senate Appointments Would Fail
As to the Senate, it is impossible that any regulation of “time and manner” can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of this sort, a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted.
And what could induce the Senate to concur in a preference in which itself would not be included? To what purpose would it be established, in reference to the House of Representatives, if it could not be extended to the Senate? The composition of the one would in this case counteract that of the other.
We can never suppose that any restrictions on the time and manner of elections – which is all that is submitted to the Federal government with respect to the Senate – would embrace legislative appointments to that body, unless at the same time we suppose State legislatures were to cooperate in a restrictive scheme. If we assume State legislatures were inclined to so cooperate, it would become immaterial whether the power in question is placed in their hands or in those of the Federal government.
The Supposed Objects of a Scheme to Skew Representation Are Ill-Defined
What is to be the object of a capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property?
Will it lean in favor of the landed interest, or the monied interest, or the mercantile interest, or the manufacturing interest?
Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of “the wealthy and the well-born,” to the exclusion and debasement of all the rest of the society?
If a partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, the competition for it undoubtedly will lie between landed individuals and merchants.
But it is infinitely less likely that either landowners or merchants should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils.
The most reasonable inference is that a conduct tending to give an undue preference to either landowners or merchants is much less to be dreaded from the Federal government than from State and local councils.
The Geographical Distribution of Property Will Naturally Mitigate the Influence of One Group over Another
The several States are in various degrees addicted to agriculture and commerce. Agriculture is predominant in almost all of them. But in a few, commerce nearly divides its empire. And in most States, commerce has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation. For this reason, national representation will emanate from a greater variety of interests – and in differing proportions – than are to be found in any single State. The national representation thus will be much less apt to espouse positions that favor landowners or merchants with a decided partiality, than would the representation of any single State.
* * *
What is to be the object of a capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the monied interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of “the wealthy and the well-born,” to the exclusion and debasement of all the rest of the society?
* * *
In a country consisting chiefly of cultivators of land – where the rules of an equal representation obtain – the landed interest must, upon the whole, preponderate in the government. So long as the landed interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It follows that a sacrifice of the landed to the mercantile class will never be a favorite object of the Senate.
In making these observations, I am governed by the consideration that the credulous votaries of State power cannot suspect the State legislatures would be warped from their duty by any external influence.
The same situation will have the same effect in the initial composition House of Representatives. An improper bias towards the mercantile class is as little to be expected from this quarter as from the other.
It Is Unlikely Congress Will Be Partial to Landowners
In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the Federal government, which may dispose it to endeavor to secure a monopoly of the Federal administration to the landed class?
First, it is less likely that any decided partiality should prevail in the councils of the United States than in any individual States. Second, there is little temptation to violate the Constitution in favor of the landed class, because that class would enjoy – in the natural course of things – as great a preponderancy as itself could desire. And third, individuals accustomed to investigate the sources of public prosperity upon a large scale are too convinced of the utility of commerce to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The stream of Federal revenue derived from commerce is an effectual guard against the enmity of Congress, which will be continually importuned by urgent calls of public necessity.
A Supposed Preference for “the Wealthy and the Well-Born” Ignores Reality
I rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property. As far as I understand the objectors, they contemplate a discrimination of another kind. They appear to have in view – as the objects of the preference with which they endeavor to alarm us – those whom they designate by the description of “the wealthy and the well-born.” These, it seems, are to be exalted to an odious preeminence over the rest of their fellow-citizens.
But the contention fails internally. At one time the elevation of this class is to be a necessary consequence of the smallness of the House of Representatives, while at another time the preference it is to be effected by depriving the People at large of the opportunity of exercising their right of suffrage in the choice of their representatives.
Upon what principle is the discrimination of the places of election to be made, in order to answer the preference for the wealthy and the well-born? Are the wealthy and the well-born confined to particular spots in the several States? Have they – by some miraculous instinct or foresight – set apart in each State a common place of residence? Are they only to be met with in the towns or cities? Are not the wealthy and well-born scattered over the face of the country, as avarice or chance may have happened to cast their own lot or that of their predecessors? If they are scattered – as every intelligent person knows it to be – it is evident that a policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account.
The truth is that there is no method of securing the preference in favor of wealth or birth without prescribing qualifications of property either for those who may elect, or those who may be elected. Yet no such power is included in the authority conferred to Congress, which is expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen are defined and fixed in the Constitution, and are unalterable by the Congress.
* * *
Upon what principle is the discrimination of the places of election to be made, in order to answer the preference for the wealthy and the well-born? Are the wealthy and the well-born confined to particular spots in the several States? Have they – by some miraculous instinct or foresight – set apart in each State a common place of residence? Are they only to be met with in the towns or cities? Are not the wealthy and well-born scattered over the face of the country, as avarice or chance may have happened to cast their own lot or that of their predecessors? If they are scattered – as every intelligent person knows it to be – it is evident that a policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account.
* * *
For the sake of argument, I will assume all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire were overcome in the breasts of the national rulers, and that restrictions on the location of elections were enacted. Nonetheless, it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the People.
Military Force Is Better Suited to Usurpation than Election Rigging
The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers. To show in the strongest light the futility of restricting the locations of elections, I shall concede for a moment that such a military force might exist in the Federal government.
What will be the conclusion? With a disposition to invade the essential rights of the community – and with the means of gratifying that disposition – would the persons actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of individuals? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which – in spite of all the precautions that might accompany them – might terminate in the dismission, disgrace, and ruin of their authors?
Would the persons attempting to restrict the location of elections not fear that citizens – not less tenacious than conscious of their rights – would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute individuals who would be disposed to avenge the violated majesty of the People?
Hamilton
original Federalist 60Federalist 61: The Federal Power over Voting Locations and Time Compared to the Same Power in New York
WE CONTINUE TO EXAMINE THE OBJECTIONS to the provision regarding Federal elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, § 4, cl. 1.
It Was Unnecessary to Declare Elections Should Be Held in the Counties Where the Electors Reside
The more candid individuals opposed to this provision – when pressed in argument – will sometimes concede its propriety, but add the qualification that it ought to have been accompanied with a declaration that all elections should be had in the counties where the electors resided. This, say they, is a necessary precaution against an abuse of the power.
A declaration of this nature would certainly have been harmless. So far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But in fact it would have afforded little or no additional security against the danger apprehended. An impartial and judicious examiner would never consider the absence of a provision directing elections be held in the county where the elector resided as a serious – still less as an insuperable – objection to the plan.
The different views taken of the subject in Federalist 59 and Federalist 60 satisfy all dispassionate and discerning individuals that if the public liberty should ever be the victim of the ambition of the national rulers, the power to set election locations will be guiltless of the sacrifice.
Those inclined to consult only their jealousy would find greater disquietude and alarm from the latitude which most of their own States allow in respect to elections, than from the latitude which is granted to the Federal government in the same respect.
New York’s Constitution Offers No Greater Protection than the Federal Constitution
A review of State constitutions removes any ill impressions which may remain in regard to this matter, but as that review would lead into long and tedious details, I shall content myself with the single example of the State of New York.
The constitution of New York makes no provision for locality of elections other than (1) the members of the Assembly shall be elected in the counties, and (2) the members of the Senate shall be elected in the great districts into which the State is or may be divided. At present these are four in number, and each includes from two to six counties.
It is readily perceived that it would be no more difficult for the legislature of New York to defeat the suffrages of the citizens of New York by confining elections to particular places, than for the Congress to defeat by like expedient the suffrages of the citizens of the United States.
* * *
The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws furnishes a ready answer to this question: when the place of election is at an inconvenient distance from the elector, the effect will be the same whether that distance be twenty miles or twenty thousand miles.
* * *
Suppose, for instance, the city of Albany was appointed the sole place of election for the county and district of which it is a part. Would not the inhabitants of that city speedily become the only electors of the members both of the senate and assembly for that county and district?
Can we imagine that the electors who reside in the remote subdivisions of the counties of Albany, Saratoga, Cambridge – or any part of the county of Montgomery – would take the trouble to come to the city of Albany vote for members of the State assembly or senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the House of Representatives?
The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws furnishes a ready answer to this question: when the place of election is at an inconvenient distance from the elector, the effect will be the same whether that distance be twenty miles or twenty thousand miles.
It is apparent that the objections to the Federal power of regulating elections apply with equal force to the like power in the Constitution of New York, and for this reason it is impossible to acquit one and condemn the other.
A similar comparison would lead to the same conclusion in respect to the constitutions of most of the other States. If it should be said that these defects in State constitutions furnish no apology for the comparable Federal provisions, I answer that the State constitutions have never been thought chargeable with inattention to the security of liberty. It is apparent the objections to the Federal power to regulate election locations are the caviling refinements of a predetermined opposition than the well-founded inferences of a candid research after truth.
To those who are inclined to excuse as innocent omissions in the State constitutions what they view as an unpardonable blemish in the Federal Constitution, it is fair to ask them for a substantial reason why the representatives in a single State should be more impregnable to the lust of power (or other sinister motives) than the representatives of all of the United States?
If they cannot do this, they ought at least prove to us it is easier to subvert the liberties of over three million people in the United States – who have the advantage of local governments to head their opposition – than the liberties of two hundred thousand in the State of New York. Finally, they ought to convince us that is less probable for a predominant faction in a single State – in order to maintain its superiority – to prefer a particular class of electors, than for a similar spirit to take possession of the representatives of all the States, which are spread over a vast region and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests.
The Advantage of Uniformity in the Time of Federal Elections
Hitherto my observations have aimed at a vindication of the provision in question only on theoretical grounds, the danger of placing the power elsewhere, and the safety of placing it in the manner proposed.
But there is also a positive advantage which will result from this provision, and which could not have been obtained as well from any other: I allude to the circumstance of uniformity in the time of elections for the Federal House of Representatives.
This uniformity may prove to be of great importance to the public welfare, both as a security against the perpetuation of an improper spirit in the House of Representatives, and as a cure for the diseases of faction.
If each State were permitted to choose its own time for holding a Federal election, there could be at many different periods as months in the year. The times of election in the several States – as they are now established for local purposes – vary between extremes as wide as March and November.
The consequence of these different election times – if applied to the House of Representatives – would mean there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. As there is a contagion in example – which few individuals have sufficient force of mind to resist – the mass of members would likely remain nearly the same, assimilating constantly to itself its gradual accretions.
I am inclined to think that a six-year term for representatives – with the condition of a total dissolution of the body at the same time – might be less formidable to liberty than a two-year term subject to gradual and successive alterations. Nonetheless, since the dangers inherent in a gradual change in membership are merely speculative, it was hardly advisable upon that speculation to establish – as a fundamental point – what would deprive several States of the convenience of having the elections for their own governments and the Federal government at the same epochs.
* * *
The consequence of these different election times – if applied to the House of Representatives – would mean there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession.
* * *
In respect to the Senate, uniformity in the time of elections is no less requisite for executing the idea of a regular rotation of senators, and for conveniently assembling the Congress at a stated period each year.
The Omission of a Precise Time for Federal Elections Leaves It to the Discretion to Congress
If the need for a uniform time is so important, it may be asked: Why was no time fixed in the Constitution? The question may be answered in part with the observation New York’s own constitution – so admired by the most zealous adversaries of the Federal Constitution – also omits a fixed time for the like purpose.
The best answer for the omission is that the power to fix the time for election is a matter which might safely be entrusted to legislative discretion. If a time had been appointed, upon experiment, it might have been found less convenient than some other time.
Hamilton
original Federalist 61Federalist 62-66: The Senate
Federalist 62: Overview of the Senate
HAVING EXAMINED the constitution of the House of Representatives – and answered the principal objections against it – I next examine the Senate. There are five areas of inquiry:
(1) The qualification of senators;
(2) The appointment of them by the State legislatures;
(3) The equality of representation in the Senate;
(4) The number of senators, and the term for which they are to be elected; and
(5) The powers vested in the Senate.
The first four are discussed herein, while the powers of the Senate are discussed in Federalist 63 through Federalist 66.
Qualifications for the Senate
The qualifications for senators consist in a more advanced age – and a longer period of citizenship – than those eligible to be representatives. While a representative must be 25 years old and a citizen for at least 7 years, a senator must be 30 years of age at least and a citizen for at least 9 years.
The propriety of these distinctions is explained by the nature of the senatorial trust, which requires a greater extent of information and stability of character. By the age of 30, a senator ought to have reached a period of life most likely to supply these advantages.
Since a senator is likely to participate immediately in transactions with foreign nations, the nine-year citizenship threshold helps ensure senatorial power is exercised by one who is thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The nine-year requirement is a prudent mediocrity between a total exclusion of adopted citizens – whose merits and talents may claim a share in the public confidence – and a hasty and indiscriminate admission of a new citizen of foreign birth, which might create a channel for foreign influence on the national councils.
* * *
The method of having State legislatures appoint senators will refine the selection process more than would direct election by individual citizens. To this advantage must be added the agency of the States in forming the Federal government – which itself will secure the independent authorities of the States – and by linking the two systems.
* * *
Senators Will Be Chosen by State Legislatures
Among the various modes which might have been devised for constituting the Senate, the one selected is probably the most congenial with public opinion: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” Art. I, § 3, cl. 1.
The method of having State legislatures appoint senators will refine the selection process more than would direct election by individual citizens. To this advantage must be added the agency of the States in forming the Federal government – which itself will secure the independent authorities of the States – and by linking the two systems.
Each State Is to Be Equally Represented in the Senate
Among a People thoroughly incorporated into one nation, every district ought to have a proportional share in the government. Among independent and sovereign states bound together by a simple league, the parties – however unequal in size – ought to have an equal share in the common councils. In a compound republic like the United States – which partakes both of the national and federal character – the Federal government ought to be founded on a mixture of the principles of proportional and equal representation.
But it is superfluous to examine the Senate on a theoretical standard, since all agreed its structure was not the result of theory – but of a spirit of amity – and that mutual deference and concession which the peculiarity of our political situation rendered indispensable. A common government – with powers equal to its objects – is called for by the voice, and still more loudly by the political situation of America.
The equality of representation in the Senate evidently resulted from compromise between the opposite pretensions of the large and the small States. A government founded on principles more consonant to the wishes of the larger States would not likely have been obtained from the smaller States. The only alternatives for the larger States were to agree to equality of representation in the Senate or to a government still more objectionable. Of these, the advice of prudence was to embrace equality of representation among the States, whether large or small.
Instead of indulging a fruitless anticipation of the possible mischiefs which may ensue from equality of representation, it is better to contemplate the advantages which flow from the sacrifice by the larger States.
* * *
No law or resolution can now be passed without the concurrence, first, of a majority of the People (through House approval), and then of a majority of the States (through Senate approval). This complicated check on legislation may in some instances be injurious as well as beneficial. If exercised rationally, it is a defense the smaller States may utilize if any interests common to them – and distinct from those of the other States – would otherwise be exposed to a peculiar danger.
* * *
Equality of Senatorial Power Acknowledges and Preserves Residuary State Sovereign Powers
The equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. This equality ought to be no less acceptable to the large than to the small States, since they are not less solicitous to guard against – by every possible expedient – an improper consolidation of the States into one simple republic.
A Majority of the Senate also Is a Majority of the States, which May Block Improper Legislation
Another advantage accruing from the ingredient of State representation in the Senate is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the People (through House approval), and then of a majority of the States (through Senate approval). This complicated check on legislation may in some instances be injurious as well as beneficial. If exercised rationally, it is a defense the smaller States may utilize if any interests common to them – and distinct from those of the other States – would otherwise be exposed to a peculiar danger. But the larger States will always be able – by their power over supplies – to defeat unreasonable exertions of this prerogative by the lesser States. And as the faculty and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
In order to form an accurate judgment on both of these points, it is proper to inquire into the purposes which are to be answered by a Senate. In order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
It is a misfortune incident to republican government – though in a less degree than to other governments – that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. A Senate – as a second and distinct branch of the legislative assembly – must be in all cases a salutary check on the government. It doubles the security to the People by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This precaution is founded on such clear principles – so well understood in the United States – that it would be superfluous to enlarge on it.
The improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies. Thus, it is politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
* * *
It is a misfortune incident to republican government – though in a less degree than to other governments – that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. A senate – as a second and distinct branch of the legislative assembly – must be in all cases a salutary check on the government.
* * *
A Single and Numerous Assembly Is Susceptible to Sudden and Violent Passions, which a Senate Can Hinder
The necessity of a senate is also indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions, as explained in Federalist 58. Examples on this subject might be cited without number from proceedings within the United States as well as from the history of other nations.
Representatives Will Be Less Acquainted than Senators with the Objects and Principles of Legislation
Another defect to be supplied by a senate lies in a typical representative’s want of a due acquaintance with the objects and principles of legislation. For the most part, representatives are called from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to study of the laws, affairs, and comprehensive interests of their country. It is impossible that such an assembly of individuals – if left wholly to themselves – should escape a variety of important errors in the exercise of their legislative trust.
No small share of the present embarrassments of America is to be charged on the blunders of our governments, though most have proceeded from the heads rather than the hearts of their authors. What indeed are all the repealing, explaining, and amending of laws – which fill and disgrace our voluminous codes – but so many monuments of deficient wisdom, so many impeachments by a succeeding session against a preceding session, and ultimately so many admonitions to the People of the value of a well-constituted senate?
In order to correct the infirmities of the representative assembly, a senate ought itself to (1) be free from it, (2) be less numerous, (3) possess great firmness, and (4) hold its authority by a tenure of considerable duration.
Senators Will Have Greater Knowledge of the Best Means to Promote the Happiness of the People
A good government requires two things: first, fidelity to the object of government, which is the happiness of the People; and second, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities. Most governments are deficient in fidelity to the happiness of the People. In our State governments, however, too little attention has been paid to the knowledge of the means of attaining that happiness.
The Federal Constitution avoids this error. By creating the Senate, the Constitution adds to knowledge of the means by which the happiness of the People can be best attained, in a mode which increases the security for that object.
As Mutability of Government Increases, the Respect and Confidence of Other Nations Decreases
The mutability in public councils arising from a rapid succession of new members – however qualified they may be – points out the necessity of some stable institution in the government. In the States, every new election appears to change half the representatives. From this change of individuals must proceed a change of opinions, and from a change of opinions, a change of measures. Yet a continual change of measures – even good measures – is inconsistent with every rule of prudence and every prospect of success. Experience verifies this in private life. Constancy is more just – and more important – in national transactions.
* * *
A good government requires two things: first, fidelity to the object of government, which is the happiness of the People; and second, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities. Most governments are deficient in fidelity to the happiness of the People. In our State governments, however, too little attention has been paid to the knowledge of the means of attaining that happiness.
* * *
To trace the mischievous effects of a mutable government would fill a volume. I refer to a few only, each of which will remind us of innumerable others.
In the first place, mutability forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans – or perhaps to carry on his affairs without any plan at all – is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his.
One nation is to another what one individual is to another, with this melancholy distinction perhaps, that a nation (having fewer of the benevolent emotions of an individual) is under fewer restraints from also taking undue advantage from the indiscretions of another nation. Consequently, a nation whose affairs betray a want of wisdom and stability may calculate its losses resulting from the more systematic policy of its wiser neighbors.
The best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds she is held in no respect by her friends; she is derided by her enemies; and she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
* * *
An individual who is observed to be inconstant to his plans – or perhaps to carry on his affairs without any plan at all – is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his.
* * *
The internal effects of a mutable policy are still more calamitous, for it poisons the blessing of liberty itself. It will be of little solace to the People that the laws are made by individuals of their own choice, if the laws be so voluminous they cannot be read, or so incoherent they cannot be understood; or if the laws are repealed or revised before they are promulgated, or undergo such incessant changes that no person knowing what the law is today can guess what it will be tomorrow.
Law is defined to be a rule of action. But how can law be a rule, when it little known, and less fixed?
Public Instability Favors the Sagacious, the Enterprising, and the Monied
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the monied few over the industrious and uniformed mass of the People. Every new regulation concerning commerce or revenue – or in any way affecting the value of the different species of property – presents a new harvest to those who watch the change, and can trace its consequences – a harvest not reared by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
* * *
What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
* * *
In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the People, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government – any more than an individual – will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.
Madison or Hamilton
original Federalist 62Federalist 63: The Necessity of a Senate
The Senate Will Aid in the Development and Stability of Our National Character
A FIFTH DESIDERATUM illustrating the utility of the Senate is our want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will be forfeited by an unenlightened and variable policy, which will proceed from the causes already mentioned. Furthermore, our national councils will not possess that sensibility to the opinion of the world, an opinion which is initially necessary to merit – and thereafter to obtain – its respect and confidence.
The Judgment of Other Nations
Attention to the judgment of other nations is important to every government for two reasons. First – and independently of the merits of any particular plan or measure – it is desirable on various accounts that it should appear to other nations as the offspring of a wise and honorable policy. The second reason is the presumed or known opinion of the impartial world may be the best guide that can be followed in doubtful cases, particularly where our national councils may be warped by some strong passion or momentary interest.
How many errors and follies would America have avoided if the justice and propriety of all of her measures had been previously tried by the light in which they would probably appear to the unbiased part of mankind?
The Example of Rhode Island
In Rhode Island, its half-yearly representatives would have been little affected in their deliberations of various iniquitous measures by arguments drawn from the light in which such would be viewed by foreign nations, or even by sister States. It can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided State is now laboring.
* * *
Attention to the judgment of other nations is important to every government for two reasons. First – and independently of the merits of any particular plan or measure– it is desirable on various accounts that it should appear to other nations as the offspring of a wise and honorable policy.
The second reason is the presumed or known opinion of the impartial world may be the best guide that can be followed in doubtful cases, particularly where our national councils may be warped by some strong passion or momentary interest.
* * *
A Numerous and Changeable Body Cannot Supply the Requisite Stability
However requisite a sense of national character may be, it can never be sufficiently possessed by a numerous and changeable body like the House of Representatives. The requisite stability can be found only in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual, or in an assembly so durably invested with public trust that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.
The Senate Will Foster and Sustain a Due Responsibility of the Federal Government to the People
A sixth reason favoring creation of a Senate is that the Federal government may lack a due responsibility to the People in some important cases. This lack of responsibility can arise as a result of the frequency of elections. Since elections establish a due responsibility in the first place, this remark may appear not only new, but paradoxical. When explained, it must nevertheless be acknowledged to be as undeniable as it is important.
* * *
However requisite a sense of national character may be, it can never be sufficiently possessed by a numerous and changeable body like the House of Representatives.
* * *
Legislative Responsibility to the Objects of Government
The objects of government may be divided into two general classes. In the first class are measures which singly have an immediate and sensible operation. The second class of governmental objectives requires a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation.
The importance of the second class of measures to the collective and permanent welfare of every country needs no explanation. It is evident that an assembly elected for a term of two years will be unable to provide more than one or two links in a chain of measures on which the general welfare may essentially depend. The membership of the House ought not to be answerable for the final result, any more than a steward or tenant for a one-year period could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.
Since it is sufficiently difficult to preserve a personal responsibility in the members of a numerous body for acts of the first class – those having an immediate, detached, and palpable operation on constituents – it is practically impossible for citizens to estimate the share of influence which their annual or biennial assemblies may have on events resulting from the mixed transactions of several years.
Responsibility – in order to be reasonable – must be limited to objects within the power of the responsible party. In order to be effectual, responsibility must relate to operations of that power, of which a ready and proper judgment can be formed by constituents.
The remedy for this defect in popular assemblies must be an additional body in the legislative department which – having sufficient permanency to provide for such objects as require a continued attention with a train of measures – may be justly and effectually answerable for the attainment of those objects.
* * *
What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have overcome the indelible reproach of decreeing to the same citizens hemlock on one day and statues on the next.
* * *
The Senate Will Be a Check on House Excesses
Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only insofar as they relate to the House of Representatives. To this I will add that an institution such as the Senate sometimes may be necessary as a defense to the People against their own temporary errors and delusions. As the cool and deliberate sense of the community ought to prevail in all governments – and actually will, in all free governments – so too are there particular moments in public affairs when the People themselves – stimulated by some irregular passion, seeking some illicit advantage, or having been misled by the artful misrepresentations of interested persons – may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, the interference of some temperate and respectable body of citizens may suspend the blow meditated by the People against themselves, until reason, justice, and truth have regained their authority over the public mind.
What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have overcome the indelible reproach of decreeing to the same citizens hemlock on one day and statues on the next.
* * *
To this I will add that an institution such as the Senate sometimes may be necessary as a defense to the People against their own temporary errors and delusions. As the cool and deliberate sense of the community ought to prevail in all governments – and actually will, in all free governments – so too are there particular moments in public affairs when the People themselves – stimulated by some irregular passion, seeking some illicit advantage, or having been misled by the artful misrepresentations of interested persons – may call for measures which they themselves will afterwards be the most ready to lament and condemn.
* * *
The Geographical Size of the United States Will Not Prevent Popular Delusions
Some may suggest that – unlike the crowded inhabitants of a small district – a people spread over an extensive region like the United States cannot be subject to the infection of violent passions or to the danger of combining in pursuit of unjust measures. I do not deny that this is a distinction of peculiar importance, and in Federalist 10, I endeavored to show it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not be considered as superseding the use of auxiliary precautions. The same extended situation which will exempt the People of America from some of the dangers incident to lesser republics, also will expose the People to the inconvenience of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested individuals may succeed in distributing among them.
* * *
The same extended situation which will exempt the People of America from some of the dangers incident to lesser republics, also will expose the People to the inconvenience of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested individuals may succeed in distributing among them.
* * *
The Senate Will Add Longevity to Our Republic
It adds no small weight to all these considerations that history informs us of no long-lived republic which did not have a senate. Sparta, Rome, and Carthage are the only states to whom that character can be applied. In both Sparta and Rome there was a senate for life. The constitution of the senate in Carthage is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain that it had some quality or other which rendered it an anchor against popular fluctuations. In addition, a smaller council – drawn out of the senate itself – was appointed not only for life, but filled up its own vacancies. Although these examples are unfit for imitation, as they are repugnant to the genius of America, they are very instructive proofs of the necessity of some institution that will blend stability with liberty, especially when compared with the fugitive and turbulent existence of other ancient republics.
* * *
Although the People can never willfully betray their own interests, they may possibly be betrayed by their representatives.
* * *
The circumstances which distinguish the American from other popular governments – ancient as well as modern – render extreme circumspection necessary in reasoning from the one case to the other. But after allowing due weight to this consideration, there are many points of similitude which render these examples not unworthy of our attention.
As we have seen, many of the defects common to a numerous assembly frequently elected by the People – and to the People themselves – can only be remedied by a senatorial institution. There are others peculiar to a numerous assembly which require the control of such an institution. Although the People can never willfully betray their own interests, they may possibly be betrayed by their representatives. The danger will be evidently greater where the whole legislative trust is lodged in the hands of only one body of individuals, than where the concurrence of separate and dissimilar bodies is required in every public act.
The Principle of Representation Was Present in Long-Lived Republics
Those who question the analogy of our own republic to ancient ones assert the principle of representation was unknown in those ancient states. But this is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts.
The Archons of Athens
In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the People in their executive capacity.
Prior to the reform of Solon, Athens was governed by nine Archons, annually elected by the people at large. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly – first of four hundred members, later increased to six – annually elected by the people; and partially representing the people in their legislative capacity. The Archons were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people.
The Senate of Carthage
The senate of Carthage – whatever the scope of its power or duration of appointments – appears to have been elective by the suffrages of the people. Similar instances might be traced in most (if not all) the popular governments of antiquity.
The Ephori of Sparta, the Tribunes of Rome, and the Cosmi of Crete
Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually elected by the whole body of the people, and considered as the representatives of the people, almost in their plenipotentiary capacity. The Cosmi of Crete were also annually elected by the people, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only: that in the election of that representative body the right of suffrage was communicated only to a part of the people.
From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The representatives of the people were not totally excluded from the administration of ancient republics. The true distinction between these and our Federal government lies in the total exclusion of the People – in their collective capacity – from any share in the Federal government, and not in the total exclusion of the representatives of the people from the administration of the government in the ancient republics. This distinction leaves a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from our other advantage: an extensive territory. For it is unbelievable that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece.
In answer to all these arguments – suggested by reason, illustrated by examples, and enforced by our own experience – the jealous adversary of the Constitution will probably be content repeating that a Senate – not appointed immediately by the People and for the term of six years – must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy.
* * *
From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The representatives of the people were not totally excluded from the administration of ancient republics.
* * *
To this general answer, a general reply is sufficient: that liberty may be endangered by the abuses of liberty as well as by the abuses of power; history offers numerous instances of both; and that abuses of liberty (rather than of power) are most to be apprehended by the United States.
But a more particular reply may be given. Before such a revolution can be effected, the Senate must in the first place corrupt itself. In the next place it must corrupt the State legislatures. The Senate must then corrupt the House of Representatives, and finally it must corrupt the voting public.
It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the People themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there anyone who can be persuaded to believe the Senate can arrive (by any possible means within the compass of human address) at the object of a lawless ambition, through all these obstructions?
The Experience of the Senate of Maryland Disproves Fears of Tyranny
If reason condemns the suspicion of potential tyranny, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of Maryland is elected indirectly by the People, for a five-year term, which is only one year less than the Federal Senate. It is also distinguished by the remarkable prerogative of filling up its own vacancies within the term of its appointment. At the same time, it is not under the control of any such rotation as is provided for the Federal Senate. If the Federal Senate really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by individuals of the same description with those who view with terror the correspondent part of the Federal Constitution, have been gradually extinguished by the progress of the experiment. From the salutary operation of this part of it, the Maryland constitution is daily deriving a reputation which will probably not be rivaled by that of any State in the Union.
* * *
It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny.
* * *
The British Example of an Upper House
But if any thing could silence the jealousies on this subject, it ought to be the British example of the House of Lords, which is that nation's equivalent to the Federal Senate. Instead of being elected for a term of six years and of being unconfined to particular families or fortunes (as with our Federal Senate), the House of Lords is a hereditary assembly of opulent nobles. The British popular assembly – its House of Commons – instead of being elected for two years and by the whole body of the people (as in the United States) – is elected for seven years, and often by a very small proportion of the people. In these circumstances, we ought to see on full display the aristocratic usurpations and tyranny which are predicted to be exemplified in the United States at some future period. British history, on the contrary, informs us that this hereditary assembly has been unable to defend itself against the continual encroachments of the House of Commons, and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.
As far as antiquity can instruct us, its examples support the reasoning we have employed. In Sparta, the Ephori – the annual representatives of the people – were found an overmatch for the senate for life, and continually gained on its authority and finally drew all power into their own hands.
* * *
British history, on the contrary, informs us that this hereditary assembly has been unable to defend itself against the continual encroachments of the House of Commons, and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.
* * *
It is well known that the Tribunes of Rome – the representatives of the people – prevailed in almost every contest with the senate for life, and in the end gained the most complete triumph over it. This fact is the more remarkable because unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate – according to the testimony of Polybius – instead of drawing all power into its vortex, had lost almost the whole of its original portion by the commencement of the second Punic War.
The Senate Will Never Become an Aristocracy
The conclusive evidence presented above establishes the Senate will never be able to transform itself – by gradual usurpations – into an independent and aristocratic body. If such a revolution should ever happen – from causes against which the foresight of man cannot guard – we are warranted in believing the House of Representatives – with the People on their side – will at all times be able to bring back the Constitution to its primitive form and principles.
Against the force of the immediate representatives of the People, nothing will be able to maintain the constitutional authority of the Senate except a display of enlightened policy and attachment to the public good as will divide with that branch of the legislature the affections and support of the entire body of the People themselves.
Madison or Hamilton
original Federalist 63 Federalist 64: Why Approval of Treaties Is Delegated to the Senate
ENEMIES OF PARTICULAR PERSONS and opponents to particular measures seldom confine their censures to things worthy of blame. This principle alone can explain the motives of those who condemn the Constitution in the aggregate and treat with severity some of its most unexceptionable articles.
The Presidential Power to Make Treaties with the Concurrence of Two Thirds of the Senators Present Is Essential
One such provision of the Constitution gives power to the President, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” Art. II, § 2, cl. 2 (emphasis added).
The power of making treaties is an important one – especially as it relates to war, peace and commerce – and it should be delegated in a mode that includes precautions to afford the highest security for its exercise by individuals best qualified for the purpose and in the manner most conducive to the public good.
The Staggered Terms of Senatorial Appointments Establishes a Superior System for Promoting and Protecting Our Trade and Navigation
In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The Value of the Accumulated Knowledge of Senators
A term of six years gives a senator the opportunity to accumulate the political information and experience to benefit the country. And by staggering the terms of senators, the Constitution leaves a considerable residue of the old ones in place, thereby promoting uniformity and order while reserving a constant succession of official information.
* * *
In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.
* * *
Political information developed over time is particularly important in the affairs of trade and navigation. These should be regulated by a system cautiously formed and steadily pursued. Our treaties and laws should correspond with and promote this system. The Constitution strengthens the conformity of treaties and laws by requiring Senate concurrence for the approval of both.
Those with the Power to Negotiate and Approve Treaties Must Be Allowed to Proceed with Speed and Secrecy
In the negotiation of treaties of any nature, perfect secrecy and immediate dispatch are sometimes required. For instance, one may obtain the most useful intelligence if the person possessing it can be relieved from apprehension of discovery, which operates whether the person is a mercenary or a friend. Many of both descriptions would choose to rely upon the secrecy offered by the President, but decline to confide in a Senator, and still less so to a member of a popular assembly like the House of Representatives. This consideration alone sufficiently explains why the power of making treaties must not be committed to a popular assembly composed of members constantly coming and going in quick succession. Such a body must necessarily be inadequate to the attain those great objects requiring steady contemplation in all their relations and circumstances. Those objects can only be approached and achieved with talents, exact information, and time.
The affairs of humans are marked by tides of irregular duration, strength, and direction, seldom running twice exactly in the same manner or measure. To discern and profit by these tides in national affairs is the business of those who preside over them. The most experienced negotiators inform us there are frequent occasions when days or hours are precious. The loss of a battle, death of a prince, removal of a minister, or other circumstances can intervene to change the present posture and aspect of affairs and turn the most favorable tide against our wishes. As in the field, so in the cabinet, with moments to be seized as they pass. Those who preside in either should be given the capacity to improve the situation.
* * *
The affairs of humans are marked by tides of irregular duration, strength, and direction, seldom running twice exactly in the same manner or measure. To discern and profit by these tides in national affairs is the business of those who preside over them.
* * *
The People May Delegate the Power to Negotiate and Approve Treaties on the Federal Government’s Behalf to a Select Body of Citizens
Some are displeased that treaties are to have the force of law, and say treaties should be made only by individuals invested with legislative authority. The provision in question states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.
All constitutional acts of power – whether in the executive or the judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself. The Constitution of New York, for instance, declares the judgments issued by its courts (the judicial authority) and the commissions issued by its governor (the executive authority) are as valid as and binding as the laws passed by its legislature (the legislative authority). To put it another way, the People’s delegation of the power to make laws to a legislative authority does not authorize the legislature to do every other act of sovereignty by which the citizens are to be bound and affected.
Whatever name be given to the power of making treaties – or however obligatory the treaties may be when made – it is certain the People may properly commit that power to a body distinct from the legislative, executive, or judicial branches.
* * *
All constitutional acts of power – whether in the executive department or the judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself.
* * *
Treaties Have Always Superseded National Laws
Some oppose the provision that declares treaties are to be the supreme law of the land. They profess to believe treaties are repealable at pleasure, like the acts of the legislature. This idea seems to be new and peculiar to this country. But just as new truths often appear, so too do new errors.
A treaty is only another name for a bargain. What nation would make any bargain with us if it binds them absolutely, but us only for as long and far as we think to be bound? Laws may be amended or repealed, as treaties may be altered or cancelled. But treaties are not made by one party alone. Two parties are required, and at first the consent of both is essential to formation of the treaty. As the consent of both parties is required at the outset, so it must afterwards be to alter or cancel the agreement. The Constitution does not change in the least the obligations of treaties. Treaties remain just as binding and beyond the lawful reach of legislative acts now as they will be at any future period under any form of government.
* * *
Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances.
* * *
Fears of Tyranny and Corruption Are Unfounded
Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances. It can produce the fears and apprehensions of those who contend the President and Senate will make treaties without an equal eye to the interests of all the States, or that two thirds of them will oppress the remaining third. The opponents ask: who shall punish individual corruption, and how are we to scuttle disadvantageous treaties?
The possibility of a tyranny by the majority is negated by several facts. First, the States are equally represented in the Senate, and by individuals the most able and the most willing to promote the interests of their constituents. So long as the States continue to be careful in appointing proper persons – and insisting on their punctual attendance – they will all have an equal degree of influence in that body. Second, as the United States assumes more of a national form and character, so will the good of the whole be more and more an object of attention. A government must be a weak one indeed if it should forget the good of the whole can only be promoted by advancing the good of each of its parts or members.
Neither a president nor a senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community. Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.
As to corruption, a person must either have been very unfortunate in his intercourse with the world – or possess a heart susceptible to such impressions – who can think it probable the president and two thirds of the Senate would ever be capable of such unworthy conduct. It is difficult even to entertain so gross and invidious a thought. But if such a case should ever happen, the treaty so obtained from us would be – like all other fraudulent contracts – null and void by the law of nations.
* * *
Neither a president nor a senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community. Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.
* * *
With respect to their responsibility, how can it be increased? Every influence on the human mind – such as the love of country, family affections and attachments, reputations, oaths, honor, and conscience – afford security for their fidelity. The Constitution has taken the utmost care to ensure presidents and senators shall be individuals of talents and integrity. I am persuaded the treaties they make will be as advantageous as could be made under the circumstances. And to the extent the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on impeachments. Art. II, § 4.
Jay
original Federalist 64Federalist 65: The Power to Judge Articles of Impeachment Is Properly Vested in the Senate
THE REMAINING POWERS THE CONSTITUTION allots to the Senate – in a distinct capacity – are comprised in (1) its participation with the executive in the appointment of officers, and (2) its judicial character as a court for the trial of impeachments.
The appointment power is primarily exercised by the President – who selects and nominates potential appointees and – upon favorable advice and consent of the Senate – issues commissions of appointment. The provisions relating to it are more properly discussed in the examination of the executive department, particularly Federalist 76 and Federalist 77. The remainder of this paper will focus on the judicial character of the Senate.
Impeachment is a Political Act to Redress Injury Done to Society Itself, and the Judges of the Charges Must Be Those Most Likely to Remain Impartial and Be Readily Available
In a wholly-elective government like that of the United States, a well-constituted court for the trial of impeachments is more easily desirable than obtainable.
Impeachment encompasses those offenses which proceed from the misconduct of a public official in the abuse or violation of some public trust. Impeachable offenses are of a nature which may with peculiar propriety be denominated political, since they relate chiefly to injuries done immediately to the society itself. For this reason, the prosecution of an allegedly impeachable offense will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or opposed to the accused.
The impeachment power encompasses acts of “[t]he President, Vice President and all civil Officers of the United States,” who “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, § 4.
The House of Representatives will possess the sole right of instituting impeachments, Art. I, § 2, cl. 5, and the Senate will have the power of determining them. Art. I, § 3, cl. 6.
* * *
Impeachment encompasses those offenses which proceed from the misconduct of a public official in the abuse or violation of some public trust. Impeachable offenses are of a nature which may with peculiar propriety be denominated political, since they relate chiefly to injuries done immediately to the society itself. For this reason, the prosecution of an allegedly impeachable offense will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or opposed to the accused.
* * *
Claims of an Impeachable Act Will Often Connect with Pre-existing Factions
In many cases the claim of an impeachable act will connect itself with pre-existing factions, which will enlist all their animosities, partialities, influence, and interests on one side or the other.
The greatest danger in such cases will always be that the decision will be regulated less by real demonstrations of innocence or guilt than by the comparative strength of parties.
The Senate Was Selected as the Most Impartial Tribunal for an Impeachment Trial
The delicacy and magnitude of the trust which so deeply concerns the political reputation and existence of every person engaged in the administration of public affairs speak for themselves. In a government resting entirely on the basis of periodical elections, the difficulty of placing it rightly is readily perceived upon the realization that the most conspicuous characters in it will too often be the leaders or the tools of the most cunning or the most numerous faction. On this account, they hardly can be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
The Constitutional Convention thought the Senate would be the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of an impeachment trial will be least hasty in condemning the Convention’s opinion, and will be most inclined to allow due weight to the arguments which produced it.
Impeachment Is a National Inquest into the Conduct of Public Officials
What is the true spirit of impeachment? Is it not designed as a method of national inquest into the conduct of public officials? Since this is the design of it, ought not the proper inquisitors on the nation’s behalf be representatives of the nation itself?
There was no dispute that the power of originating the inquiry into the existence of an impeachable act ought to be lodged in the hands of one branch of the legislative body which is elected directly by the People: the House of Representatives. Thus, the Constitution specifies: “The House of Representatives . . . shall have the sole Power of Impeachment.” Art. I, § 2, cl. 5.
The reasons demonstrating the propriety of this arrangement strongly pleaded for an admission of the other branch of that body – the Senate – to a share of the inquiry. Thus, “The Senate shall have the sole Power to try all Impeachments.” Art. I, § 3, cl. 6.
The Mechanism for Impeachment Is Drawn from the British Example and Several State Constitutions Emulating It
In Great Britain, it is the province of the House of Commons to refer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. They seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?
Where else than in the Senate could have been found a tribunal sufficiently dignified – or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve – unawed and uninfluenced – the necessary impartiality between the accused individual and the representatives of the People, his accusers?
Trial in the Supreme Court Was Rejected as Unsatisfactory
Could the Supreme Court have been relied upon as answering this description? It is doubtful the members of that tribunal would at all times be endowed with so eminent a portion of fortitude that would be called for in the execution of so difficult a task.
It is still more doubtful whether they would possess the degree of credit and authority which occasionally would be indispensable towards reconciling the People to a decision that clashed with an accusation brought by their immediate representatives.
A deficiency in fortitude would be fatal to the accused. If the Supreme Court lacked credit or authority, it would be dangerous to the public tranquility. The hazard in both these respects would be avoidable – if at all – by increasing the size of the Supreme Court. But this would have rendered that tribunal more numerous than a reasonable attention to economy permits.
The Trial of the Charge of an Impeachable Offense Requires a Numerous Body
The necessity of a numerous court for the trial of impeachments is dictated by the nature of the proceeding. Impeachment can never be tied down by strict rules, either in the delineation of the offense by the prosecutors or in the construction of the offense by the judges of impeachment, which in other cases limits the discretion of courts in favor of the personal security of the judge. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.
The awful discretion which a court of impeachments must necessarily have – to doom to honor or to infamy the most confidential and the most distinguished characters of the community – forbids the commitment of the trust to a small number of persons.
These considerations are alone sufficient to conclude the Supreme Court would have been an improper substitute for the Senate as a court of impeachments.
* * *
In many cases the claim of an impeachable act will connect itself with pre-existing factions, which will enlist all their animosities, partialities, influence, and interests on one side or the other. The greatest danger in such cases will always be that the decision will be regulated less by real demonstrations of innocence or guilt than by the comparative strength of parties.
* * *
The Scope of Impeachment Is Limited; Any Subsequent Criminal or Civil Action Must Be Directed to a Different Tribunal
There remains a further consideration which strengthen this conclusion: the punishment which may be the consequence of conviction upon impeachment does not terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem, confidence, honors and emoluments of his country, the person impeached will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who in one trial had disposed of an individual’s fame and most valuable rights as a citizen, also be the disposers of the person’s life and his fortune in a second trial for the same offense? Would there not be the greatest reason to apprehend that any error in the impeachment proceeding would be the parent of error in the second action? The strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision.
Those who know anything of human nature will perceive that by making the same persons the judges in both cases, those who might happen to be the objects of prosecution would be deprived (in great measure) of the double security intended to be preserved by a double trial. Impeachment – which is nothing more than dismissal from a present office and disqualification for a future one – would often virtually include a sentence resulting in loss of life and estate.
The intervention of a jury in the second instance would not obviate the danger. Juries are frequently influenced by the opinions of judges. While a jury is sometimes induced to find special verdicts – which refer the main question to the decision of the court – would any person be willing to stake his life and estate upon the verdict of a jury acting under the auspices of judges who had predetermined the accused’s liability and guilt?
Combining the Senate and Supreme Court Would Not Alleviate the Risks of Double Punishment
Would it have been an improvement to have united the Supreme Court with the Senate in the formation of the court of impeachments? This union certainly would have several advantages, but would they have been overbalanced by the signal disadvantage arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of a union of the Supreme Court and the Senate in the trial of impeachments will be obtained from making the Chief Justice of the Supreme Court the president of the court of impeachments, as the Convention decided. This will substantially avoid the inconveniences of an entire incorporation of the Supreme Court into the Senate, which would also have given additional pretext for clamor against the judiciary.
The Convention Rejected a Wholly Distinct Body to Try Impeachments
Would it have been desirable to have composed the court for the trial of impeachments of persons wholly distinct from the other departments of the government? Weighty arguments both favored and opposed such a plan. To some, it was no trivial objection that such a body would tend to increase the complexity of the political machine by adding a new spring to the government, the utility of which would at best be questionable. Further objections were that a court formed upon such a plan would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. Such a tribunal would either consist of permanent officers stationed at the seat of government (and of course entitled to fixed and regular stipends), or of certain officers of the State governments to be called upon whenever an impeachment was actually pending.
* * *
What is the true spirit of impeachment? Is it not designed as a method of national inquest into the conduct of public officials? Since this is the design of it, ought not the proper inquisitors on the nation’s behalf be representatives of the nation itself?
* * *
As the court of impeachments ought to be numerous (for reasons stated above), the scheme for a permanent body will be reprobated by every individual who can compare the extent of the public wants with the means of supplying them. The scheme relying on State officers to assemble and decide impeachment was met with caution by those who seriously considered: (1) the difficulty of collecting individuals dispersed over the whole United States; (2) the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; (3) the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and (4) in some cases the detriment to the United States, from the prolonged inaction of individuals whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives.
Though the supposition of persecution may seem harsh, and difficult to verify, it ought not be forgotten that – at certain seasons – the demon of faction will extend his scepter over all numerous bodies of men.
Even though one or the other of the substitutes examined above (or some other that might be devised) should be thought preferable to the plan reported by the Convention, the Constitution ought not to be rejected for this reason. If mankind were to resolve to agree in no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.
* * *
Though the supposition of persecution may seem harsh, and difficult to verify, it ought not be forgotten that – at certain seasons – the demon of faction will extend his scepter over all numerous bodies of men.
* * *
And where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community regarding impeachment, and to prevail upon one conceited projector to renounce his infallible criterion for what he sees as the fallible criterion of his more conceited neighbor? The adversaries of the Constitution ought to prove – not merely that particular provisions in it are not the best which might have been imagined – but that the plan of the Convention on the whole is bad and pernicious.
Hamilton
original Federalist 65 Federalist 66: Refutation of Remaining Objections to the Senate as a Court of Impeachments
THE OBSERVATIONS in Federalist 65 prove it was not easy to find a more fit receptacle for the power of determining impeachments than the Senate, and the hypothetical dread of it having excessive power ought to be discarded from our reasonings.
A review of the principal objections urged against the Senate as the court for the trial of impeachments will not improbably eradicate any remaining unfavorable impression regarding this matter.
* * *
The ablest adepts at political science admit that an absolute or qualified negative in the executive upon the acts of the legislative body is an indispensable barrier against the encroachments of the legislature upon the executive. By the same reasoning, the powers relating to impeachments are an essential check in the hands of the legislature upon the encroachments of the executive.
* * *
The Separation of Powers Doctrine Is No Bar to the Senate Deciding Impeachments
The first objection is that the provision governing impeachments confounds legislative and judicial authorities in the same body, in violation of that important and well established maxim which requires a separation between the different departments of power. The true meaning of this maxim was discussed and ascertained in Federalist 47 and Federalist 48, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, in the main preserving them as distinct and unconnected. This partial intermixture is not only proper, but necessary in some cases to the mutual defense of the several members of the government against each other.
Impeachment Is a Legislative Check on Executive Abuses
The ablest adepts at political science admit that an absolute or qualified negative in the executive upon the acts of the legislative body is an indispensable barrier against the encroachments of the legislature upon the executive. By the same reasoning, the powers relating to impeachments are an essential check in the hands of the legislature upon the encroachments of the executive.
The decision to divide the powers of impeachment between the two branches of the legislature – assigning to the House of Representatives the right of accusing and to the Senate the right of judging – avoids the inconvenience of making the same persons both accusers and judges. It further guards against the danger of persecution from the prevalence of a factious spirit in either legislative chamber. These securities to innocence will be enhanced by requiring two thirds of the senators present to convict.
New Yorkers Overlook their Own Constitution regarding Impeachments Resembles the Federal One
It was curious to observe the vehemence with which the plan for impeachments was assailed – as violating separation of powers – by those who professed to admire – without exception – the constitution of New York. But that constitution makes the New York Senate – together with the chancellor and judges of its highest court – the ultimate tribunal in the entire State, in all causes, both civil and criminal. Since the chancellor and judges in New York are only an inconsiderable number when compared to senators, it may be said with truth the judicial authority of New York in the last resort resides in its Senate. If the Federal Constitution in this respect be chargeable with a departure from the maxim of separation of powers – so often mentioned yet so little understood – how much more culpable must be the constitution of New York?
The same can be said of New Jersey, in which the final judicial authority is in a branch of the legislature, as in New York. Similarly, one branch of the legislature is the court for the trial of impeachments in New Hampshire, Massachusetts, Pennsylvania, and South Carolina.
Delegation to the Senate of the Power to Try Impeachments Will Not Lead to an Aristocratic Senate
A second objection to the Senate as a court of impeachments is that it will contribute to an undue accumulation of power in that body, tending to give to the Federal government a countenance too aristocratic. Since the Senate is already to have concurrent authority with the executive in the formation of treaties and in the appointment to offices, the argument proceeds, adding to these prerogatives the power of deciding all cases of impeachment will give a decided predominance to senatorial influence.
To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal for determining what will give the Senate too much, too little, or barely the proper degree of influence?
* * *
With respect to impeachments, the House will possess the sole right of instituting them. Is this not a complete counterbalance to the Senate’s power of determining them?
* * *
Will it not be more safe – as well as more simple – to dismiss such vague and uncertain calculations, and instead examine each power by itself, using general principles to decide where it may be deposited with most advantage and least inconvenience? This course will lead to a more intelligible and more certain result.
The hypothesis of excessive power has already been refuted by my remarks in Federalist 62 concerning the duration of Senators in office. It was there shown – with the credit of historical examples supporting the reason of the thing – that the most popular branch of every republican government (the House of Representatives, in our case) – being generally the favorite of the People – will be a full match (if not an overmatch) for every other member of the Federal government.
* * *
More importantly, the exclusive privilege of originating money bills will belong to the House of Representatives. The same house will be the umpire in all elections of the President which do not unite the suffrages of a majority of the whole number of electors. It cannot be doubted this will sometimes happen, if not frequently.
* * *
The Powers Granted to the House Balance Those Given to the Senate
But independently of the active and operative principle that the national House of Representatives will generally be a match to every other member of the Federal government, the Constitutional Convention provided the House with several important counterpoises to the additional authorities conferred upon the Senate, in order to secure the equilibrium of the legislative bodies.
With respect to impeachments, the House will possess the sole right of instituting them. Is this not a complete counterbalance to the Senate’s power of determining them?
More importantly, the exclusive privilege of originating money bills will belong to the House of Representatives. The same house will be the umpire in all elections of the President which do not unite the suffrages of a majority of the whole number of electors. It cannot be doubted this will sometimes happen, if not frequently. The constant possibility of the thing will be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate (though contingent) power of deciding the competitions of the most illustrious citizens of the United States for the first office in it. As a mean of influence, some will find it outweighs all the peculiar attributes of the Senate.
The Senate’s Agency in Appointments Will Not Undermine Its Duty to Impeach When Appropriate
A third objection to the Senate as a court of impeachments is drawn from the agency they are to have in appointments to office, discussed in more detail in Federalist 76 and Federalist 77.
Some may imagine that senators would be too indulgent in judging the conduct of individuals in whose official creation they had participated. But the premise of this objection would condemn a practice seen in all of the State governments: that of rendering those who hold office during pleasure dependent on the pleasure of those who appoint them.
With equal plausibility it might be alleged that the favoritism of the appointing senators would always be an asylum for the misbehavior of the persons appointed. But if that were to occur, it would be contrary to the presumption that the responsibility of those who appoint for the fitness and competency of the persons on whom they bestow their choice – and the interest they will have in the respectable and prosperous administration of affairs – will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Although facts may not always correspond with it, if this presumption be in the main just, it must destroy the supposition that the Senate, who will merely sanction the choice of the President, should feel a bias towards the objects of that choice strong enough to blind them to the evidences of guilt so extraordinary as to have induced the representatives of the nation to become its accusers.
The Senate’s Lack of Choice over Appointments Negates Any Latent Bias
If any further argument was necessary to evince the improbability of a bias in favor of an appointee charged with impeachment, it would be found in the nature of the agency of the Senate in the business of appointments.
It will be the office of the President to nominate – and, with the advice and consent of the Senate – to appoint. There will be no exertion of choice on the part of the Senate. They may defeat one choice of the chief executive, and oblige the choice of another; but they cannot themselves choose. The Senate can only ratify or reject the choice of the President. The Senate might even entertain a preference to some other person – at the very moment they were assenting to the one proposed – because there might be no positive ground of opposition to the nominee; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen that the majority of the Senate would feel towards the object of an appointment anything other than as appearances of merit might inspire, or proofs of the want of it destroy.
* * *
It will be the office of the President to nominate – and, with the advice and consent of the Senate – to appoint. There will be no exertion of choice on the part of the Senate. They may defeat one choice of the chief executive, and oblige the choice of another; but they cannot themselves choose.
* * *
The Senate’s Role in Making Treaties Will Not Undermine Impeachment
A fourth objection to the Senate in the capacity of a court of impeachments is derived from its union with the President in the power of making treaties. I examined this union in Federalist 64. Those who object say that bestowing the power to impeach to the Senate would constitute the senators as their own judges in every case of a corrupt or perfidious execution of that trust. They ask: what prospect would there be – after having combined with the President in betraying the interests of the nation in a ruinous treaty – of the betraying senators being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty?
This objection was circulated with more earnestness and greater reason than any other which appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.
The security the Constitution provides against corruption and treachery in the formation of treaties is to be sought in the numbers and characters of those who are to make them. The joint agency of the President – and two thirds of the members of the Senate – which is selected by the collective wisdom of the legislatures of the several States – is designed to be the pledge for the fidelity of the national councils in this particular.
With propriety, the Convention might have meditated punishing a President who deviated from the Senate’s instructions, or lacked integrity in the conduct of negotiations committed to the President. The Convention might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption.
But the Convention could not have contemplated with equal propriety the impeachment and punishment of two thirds of a Senate that consented to an improper treaty, any more than it could have contemplated impeachment of a majority of the members of either chamber for the act of consenting to a pernicious or unconstitutional law. This principle, I believe, has never been admitted into any government.
In fact, how could a majority in the House of Representatives impeach themselves? Evidently, not better than two thirds of the Senate might try themselves.
And what reason is there to believe a majority of the House of Representatives – after sacrificing the interests of the society by an unjust and tyrannical act of legislation – should escape with impunity, while two thirds of the Senate – sacrificing the same interests in an injurious treaty with a foreign power – should not?
The truth is: it is essential to the freedom and to the necessary independence of the deliberations of a legislative body, that in all cases the members of it should be exempt from punishment for acts done in a collective capacity.
The security to society must depend on the care which is taken to confide the trust to proper hands – as well as making it in their interest to execute it with fidelity – and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.
If the President were to pervert the instructions of the Senate or to contravene its views, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may count upon the pride of senators, if not upon their virtue.
* * *
The truth is: it is essential to the freedom and to the necessary independence of the deliberations of a legislative body, that in all cases the members of it should be exempt from punishment for acts done in a collective capacity.
* * *
Human Nature Will Tend to Expose the Perpetrators of Misconduct
Even as might concern the corruption of leading senators – by whose arts and influence the majority may have been inveigled into measures odious to the community – if the proofs of that corruption are satisfactory, the usual propensity of human nature will lead us to conclude there would be commonly no defect of inclination of members of the Senate to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.
Hamilton
original Federalist 66 The President: Federalist 67-77
Federalist 67: Opponents of the Constitution Will Always Denigrate the Office of President
We Must Ascertain the True Nature of the Office of President
THE COMPOSITION OF THE EXECUTIVE department of the Federal government next claims our attention. No part of the Federal system was attended with greater difficulty in its arrangement than this, and none criticized with less candor and judgment.
The writers against the Constitution here took pains to signal their talent of misrepresentation. Calculating upon the aversion of the People to monarchy, they endeavored to enlist all of the People's jealousies and apprehensions in opposition to the office of President of the United States – and not merely as the embryo – but the full-grown progeny of that detested parent. To establish the pretended affinity, they did not scruple to draw resources even from the regions of fiction.
The powers of the chief executive of the United States – the President – are in a few instances greater and in some instances less than those of a governor of New York. Yet they were magnified into more than royal prerogatives, with attributes superior in dignity and splendor to those of a monarch of Great Britain. We saw images of an imaginary President, standing with a diadem sparkling upon his brow and imperial purple flowing in his train, or seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. Images of Asiatic despotism and voluptuousness could scarcely have been wanting to crown the exaggerated scene.
The extravagant attempts we saw to disfigure and metamorphose the President into a despotic monarch render it necessary to take an accurate view of the real nature and form of the Federal executive, in order to ascertain its true aspect and genuine appearance, and to unmask the lies and expose the fallacy of the counterfeit resemblances that were so insidiously and industriously propagated.
The Opponents of the Presidency Will Lie if Needed
In the execution of this task, all will find it arduous to behold with moderation – let alone treat with seriousness – the devices (not less weak than wicked) which were contrived to pervert the opinion of the People. These devices so far exceeded the usual (though unjustifiable) license of party artifice that even those with a candid and tolerant disposition will be forced to abandon those sentiments favoring indulgence toward political adversaries, in favor of a voluntary and unreserved indignation.
It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a supposed similarity between a monarch of Great Britain and a magistrate of the character marked out for that of the President of the United States. Further proof is shown by the rash and barefaced expedients employed to misrepresent the powers of the President.
* * *
We saw images of an imaginary President, standing with a diadem sparkling upon his brow and imperial purple flowing in his train, or seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. Images of Asiatic despotism and voluptuousness could scarcely have been wanting to crown the exaggerated scene.
* * *
One Example of Deceit Will Serve to Highlight Them All
A writer in opposition offered a sample of the temerity that ascribed to the President of the United States a power the Constitution expressly allots to the executives of the individual States. I refer to the power of filling casual vacancies in the Senate. This bold experiment upon the discernment of the People was hazarded by a writer who had some share in the applause of his party and who – upon this false and unfounded suggestion – built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the shameful outrage he has offered to the dictates of truth and the rules of fair dealing.
The Appointments Clause empowers the President of the United States to “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of United States whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]” Art. II, § 2, ¶ 2, cl. 2 (emphasis added).
Immediately after this clause follows another – the Recess Appointments Clause: “The President shall have power to fill up all vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, § 2, cl. 3 (emphasis added).
It is from the Recess Appointments Clause that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses and the obvious meaning of the terms will satisfy us that the deduction is not even colorable.
* * *
The writers against the Constitution here took pains to signal their talent of misrepresentation. Calculating upon the aversion of the People to monarchy, they endeavored to enlist all of the People's jealousies and apprehensions in opposition to the office of President of the United States – and not merely as the embryo – but the full-grown progeny of that detested parent. To establish the pretended affinity, they did not scruple to draw resources even from the regions of fiction.
* * *
The Appointments Clause provides a mode for appointing only such officers whose appointments are not otherwise provided for in the Constitution, and which shall be established by law. On its face it cannot extend to the appointments of senators, whose appointments (1) are otherwise provided for in the Constitution, Art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof”), and (2) are established by law because the Constitution itself establishes them, so no future establishment by law is required. This position is incontestable.
The Recess Appointments Clause Merely Supplements the Appointments Clause
It is equally clear that the Recess Appointments Clause cannot be understood to comprehend the power of filling vacancies in the Senate, for several reasons.
First – The relation in which the Recess Appointments Clause stands in relation to the Appointments Clause – which declares the general mode of appointing officers of the United States – denotes it to be nothing more than a supplement to Appointments Clause, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.
The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised while the Senate is in session. It would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess. During a recess, it might be necessary for continuity of public service for President alone “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Art. II, § 2, cl. 3.
Second – If the Recess Appointments Clause is to be considered as supplementary to the Appointments Clause, the vacancies of which it speaks must be construed to relate to the “officers” described in the Recess Appointments Clause. I have described how the Appointments Clause excludes from its description the members of the Senate.
Third – The time within which the power is to operate – “during the Recess of the Senate” – and the duration of the appointments – “to the End of the next session” of that body – conspire to elucidate the sense of the provision. If the Recess Appointments Clause had been intended to comprehend Senators, it naturally would have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not the recess of the national Senate, who are to have no concern in those appointments. It also would have extended the duration in office of the temporary Senators to the next session of the legislature of the State – in whose representation the vacancies had happened – instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments – the State legislatures – would of course govern the modification of a power which related to the temporary appointments.
Finally – Two other provisions not only obviate all possibility of doubt, but destroy the pretext of misconception. The first provides: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years[,]” Art. I, § 3, cl. 1 (emphasis added), while the second directs “if Vacancies happen by resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.” Art. I, § 3, cl. 2 (emphasis added).
Here an express power is given in clear and unambiguous terms to the State executives to fill casual vacancies in the Senate by temporary appointments. This not only invalidates the supposition that the Appointments Clause could have been intended to confer that power upon the President of the United States, but proves that this supposition – destitute as it is even of the merit of plausibility – must have originated in an intention to deceive the People, for it is too palpable to be obscured by sophistry, and too atrocious to be palliated by mere hypocrisy.
I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the Constitution whether language can furnish epithets of too much asperity for so shameless and prostitute an attempt to deceive the citizens of America.
Hamilton
original Federalist 67 [Ed. Note Federalist 67: Hamilton's observations regarding attacks on the executive arguably apply to just about every President since Washington. Contrary to his expressed desire to minimize questioning the motives of the opponents of the Constitution (see Federalist 1), Hamilton cannot contain his exasperation dealing with those who falsely characterized the executive branch as monarchical. The unnamed object of his scorn was the writer identifying as "Cato" in Cato V] Federalist 68: The Constitution's Mode of Selecting a President Is Almost Perfect
THE MODE OF APPOINTMENT OF THE CHIEF MAGISTRATE OF THE UNITED STATES – the President – is almost the only part of the system of the Constitution to escape severe censure and receive only the slightest mark of disapproval from its opponents. I will venture somewhat further – and not hesitate to affirm – that if the manner of appointment is not perfect, it is at least excellent, and unites in an eminent degree all possible advantages.
The People Must Have a Voice in Selection
It was determined the sense of the People should operate in the choice of the person to whom so important a trust was to be confided. This end was answered by committing the right of making it to individuals chosen by the People for a special purpose at a particular conjuncture, rather than any preexisting body.
The Electors Will Be the Most Qualified
It was equally desirable that the immediate election be made by individuals who are the most capable of analyzing the qualities adapted to the station of President, and acting under circumstances favorable to deliberation, resulting in a judicious combination of all the reasons and inducements which are proper to govern their choice. A small number of persons – selected by their fellow-citizens from the general mass – will be the most likely to possess the information and discernment requisite to such complicated investigations.
* * *
Nothing was more desired than to put in place every practicable obstacle to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally be expected to make their approaches from many quarters, but chiefly from the desire in foreign powers to gain an improper ascendancy in our councils.
* * *
Avoiding Tumult and Disorder Is a Priority
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder, which are evils to be dreaded in the election of a magistrate who will have so important an agency in the administration of the government of the United States. The precautions which have been so happily concerted in the system of the Constitution promise an effectual security against these mischiefs.
The choice of voting for several electors to an intermediate body will be much less apt to convulse the community with any extraordinary or violent movements, than would the direct choice of the individual who was be the final object of the public wishes. A further barrier to confusion is erected by requiring the electors to be chosen in each State, and to assemble and vote in the State in which they are chosen. This detached and divided situation will expose the electors to far less of the heats and ferments that would naturally occur if they were all to be convened at one time and in one place, a situation that can increase public agitation.
The Highest Goal Is the Avoidance of Cabal, Intrigue or Corruption
Nothing was more desired than to put in place every practicable obstacle to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally be expected to make their approaches from many quarters, but chiefly from the desire in foreign powers to gain an improper ascendancy in our councils.
How could they better gratify this than by raising a creature of their own to the presidency of the United States? The Constitution guards against all danger of this sort with the most provident and judicious attention.
A Special Body (the Electoral College) Will Appoint the President, Rather than a Preexisting (and Thus Corruptible) One
The election of the President does not to depend on any preexisting bodies of individuals, who might be tampered with beforehand to prostitute their votes. The election is referred in the first instance to an immediate act of the People of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. Excluded from eligibility to this trust are all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States can be of the numbers of the electors. Art. II, § 1, ¶ 2.
* * *
Another and no less important goal was that a President’s re-election to office should depend on nothing but the favor of the People themselves.
* * *
The immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence and detached situation afford a satisfactory prospect of their continuing so to the conclusion of it. The business of corruption – when it is to embrace so considerable a number of individual electors – requires time as well as means. It would not be found easy suddenly to embark them – dispersed as they would be over all the States – in any combinations founded upon motives of a nature to mislead them from their duty, if not to corrupt them.
A President Seeking Re-Election Need Depend Only on the Favor of the People
Another and no less important goal was that a President’s re-election to office should depend on nothing but the favor of the People themselves. Otherwise the President might be tempted to sacrifice duty to complaisance for those whose favor was necessary to the longevity of presidential service. This advantage will be secured by making re-election also depend upon a special body of representatives – the newly-elected members of the Electoral College – who will again be deputed by the People for the single purpose of making the important choice of President.
The Electoral College Will Advance Outstanding Candidates and Suppress the Evils Attendant to the Election of a President
All these advantages happily combine in the plan set forth in the Constitution, which is: the People of each State shall choose a number of persons as electors that is equal to the number of senators and representatives of such State in the Federal government. The electors shall assemble within their State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the Federal government, and the person who may happen to have a majority of the whole number of votes will be the President. Art. II, § 3.
But as a majority of the votes might not always happen to center on one individual – and as it might be unsafe to permit less than a majority to be conclusive – it is provided that in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the person who in their opinion may be best qualified for the office.
The process of presidential appointment affords a moral certainty that the office of President will never fall to the lot of any individual who is not endowed with the requisite qualifications in an eminent degree. Talents for low intrigue or the simple art of popularity may alone suffice to elevate a person to the first honors in a single State, but it will require other talents – and a different kind of merit – to establish an individual in the esteem and confidence of the entire United States, or of so considerable a portion of it as would be necessary to make for a successful candidate for the distinguished office of President of the United States. There ought to be a constant probability of seeing the station filled by individuals of ability and virtue. This is not an inconsiderable recommendation of the Constitution to those persons who can accurately estimate the effect which the executive in every government must necessarily have in its good or ill administration.
Although I cannot agree with the political heresy of the poet who says: “For forms of government let fools contest, for that which is best administered is best,” I may safely pronounce that the true test of a good government is its aptitude and tendency to produce a good administration.
* * *
Talents for low intrigue or the simple art of popularity may alone suffice to elevate a person to the first honors in a single State, but it will require other talents – and a different kind of merit – to establish an individual in the esteem and confidence of the entire United States, or of so considerable a portion of it as would be necessary to make for a successful candidate for the distinguished office of President of the United States.
* * *
The Vice-President Shall Be Chosen Almost in the Same Manner as the President
The Vice-President is to be chosen in the same manner as the President, by the electors delegated to that purpose, with the only difference being that the Senate, rather than the House of Representatives, will make the appointment if no candidate receives a majority of electoral votes.
Some objected to appointment of an extraordinary person to be Vice-President as superfluous, if not mischievous. Others preferred to have authorized the Senate to elect out of their own body a person to fill the office of Vice-President. Two considerations justify the mechanism set forth in the Constitution. First, the Vice-President is also President of the Senate, but in that capacity casts a vote only in the event of deadlock. If a senator of any State were to become President of the Senate, it would exchange – in regard to the State from which that Senator came – a constant vote for a contingent vote. The other consideration is that the Vice-President may occasionally become a substitute for the President in the supreme executive magistracy, so all the reasons recommending the mode of election prescribed for the President apply with great if not with equal force to the manner of appointing a potential successor.
Those from New York who disputed the mode of selecting the Vice-President remarkably overlooked that their objections would lie against the constitution of their own States. New York has a Lieutenant-Governor, chosen by the electorate, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President.
Hamilton
original Federalist 68 [Ed. note: Following the 1800 election – in which two candidates from the same party received the same number of electoral votes for President – Amendment XII was ratified to distinguish between electoral votes for President and Vice-President. Article II (complete).] Federalist 69: Presidential Powers Are Far Less than Those of the British Monarch
I PROCEED NOW to trace the real character of the executive branch as marked out in Article II of the Constitution, thereby exposing the unfair misrepresentations made regarding it.
The Executive Department Will Be Administered by a Single Person
The first thing to strike the attention is the executive authority is vested in a single magistrate – the President – with a few exceptions. For those who unfavorably compare the President to the royal sovereign of Great Britain, they could have as easily made a comparison to the sultan of Turkey, the khan of Tartary, the emperor of Rome, or the governor of New York.
* * *
For those who unfavorably compare the President to the royal sovereign of Great Britain, they could have as easily made a comparison to the sultan of Turkey, the khan of Tartary, the emperor of Rome, or the governor of New York.
* * *
A Four-Year Presidential Term Is Less Dangerous than a Three-Year New York Governorship
The President is to be elected for four years, and may be re-elected as often as the People of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between the President and a monarch of Great Britain, presently George III, who is a hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever. There is a closer analogy between a monarch and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission. If we consider it would require less time to establish a dangerous influence in a single State than establishing a like influence throughout the United States, we must conclude that a duration of four years for the President of the United States is a degree of permanency far less to be dreaded in that office than a three-year duration of a corresponding office in a single State.
The President May Be Impeached and Removed
The President of the United States would be liable to be impeached, tried, and – upon conviction of treason, bribery, or other high crimes or misdemeanors – removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of law.
In contrast, the individual monarch of Great Britain is sacred and inviolable, for there is no constitutional tribunal to which he or she is amenable, and no punishment may be imposed without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of the United States would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
The Veto Power Is Not Absolute, as It Is in Great Britain
The President of the United States has the power to return for reconsideration a bill passed by the Congress, and the bill so returned shall become a law following reconsideration if two thirds of both houses approve it. The monarch of Great Britain, by contrast, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence. The disuse may be wholly ascribed to the crown's having found the means of substituting the power of influence to that of its authority, or the art of gaining a majority in one or the other of the two houses, to avoid the necessity of exerting its veto prerogative (which could seldom be exerted without hazarding some degree of national agitation).
The qualified negative of the President differs widely from this absolute negative of the British monarch. The limited veto power matches exactly the authority of the New York’s Council of Revision, of which the state's governor is a constituent part. The veto power of the President would exceed that of the governor of New York, who shares that power with a chancellor and judges, but it would be precisely the same as that of the governor of Massachusetts, whose constitution was the original the Constitutional Convention apparently copied.
* * *
In most of these particulars, the power of the President will resemble equally that of the monarch of Great Britain and of the governor of New York.
* * *
The Powers of the President
The President (1) is the "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States, (2) has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; (3) may recommend to the consideration of Congress such measures as he shall judge necessary and expedient; (4) may convene both houses of Congress, or either of them, on extraordinary occasions, (5) in cases of disagreement between houses with respect to the time of adjournment, may adjourn the Congress to such time as is thought proper to take care that the laws be faithfully executed, and (6) shall commission all officers of the United States.
In most of these particulars, the power of the President will resemble equally that of the monarch of Great Britain and of the governor of New York. I now turn to the most material points of difference.
The President’s Power to Call the Militia into Service Requires Legislation
The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the United States. The monarch of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.
* * *
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the monarch of Great Britain, but in substance much inferior to it.
* * *
The President’s Power as Commander in Chief Is Limited by Congress
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the monarch of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the United States, while the power of the British monarch extends to the declaring of war and to the raising and regulating of fleets and armies, all of which the Constitution delegates to the Congress.
While the governor of New York is vested only with the command of its militia and navy, the constitutions of several other States expressly declare their governors to be commanders-in-chief of the army as well as the navy, and it may be argued that New Hampshire and Massachusetts confer larger powers upon their respective governors in this instance than could be claimed by a President of the United States.
The Power of the President to Pardon Is Less than that of a Governor of New York
The power of the President in respect to pardons extends to all cases except those of impeachment. The governor of New York may pardon in all cases, including those of impeachment, except for treason and murder. On a calculation of political consequences, is not the power of the governor greater than that of the President?
* * *
All conspiracies and plots against the government which have not been matured into actual treason may be screened from punishment of every kind by a pardon.
* * *
All conspiracies and plots against the government which have not matured into actual treason may be screened from punishment of every kind by a pardon. If a governor of New York should be at the head of any such conspiracy, he or she could protect accomplices and adherents with an entire impunity, at least until the design had been ripened into actual hostility.
Although a President of the United States may pardon even treason when prosecuted in the ordinary course of law, the offender would have no shelter from the effects of impeachment and conviction. It seems likely the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation should the scheme should miscarry. And would this last expectation have any influence when the probability was computed that the person who was to afford that exemption (a treasonous President) might be incapacitated from affording the desired impunity?
The Power to Adjourn Congress Is Limited to Disputes concerning the Date of Adjournment
The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may dissolve the Parliament it altogether, or prorogue it by discontinuing it without dissolving it. The Governor of New York also may prorogue the legislature for a limited time, which is a power that may be employed to very important purposes in certain situations. The President does not have the power to prorogue the Congress.
The Treaty Power of the President Requires Senate Approval
The President is to have power – with the advice and consent of the Senate – to make treaties – provided two thirds of the senators present concur.
The monarch of Great Britain, on the other hand, is the sole and absolute representative of the nation in all foreign transactions, and can of its own accord make treaties of peace, commerce, alliance, and of every other description, contrary to those who have insinuated that the monarch’s authority in this respect is inconclusive, and that conventions with foreign powers are subject to the revision and ratification of Parliament. The suggestion is false, for as everyone acquainted with its Constitution knows, the prerogative of making treaties exists in the crown in its utmost plentitude, and compacts entered into by royal authority have the most complete legal validity and perfection independent of any other approval or sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty, and this probably gave birth to the idea that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made to them by the operation of the treaty, and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder.
There is no comparison between the treaty power of the President and the actual power of the British monarch. The monarch can perform alone what the President can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the President exceeds that of any state executive, but this arises naturally from the sovereign power which relates to treaties. If the Confederacy had been dissolved without adoption of Constitution, a question would have arisen whether the executives of the several States were not solely invested with that delicate and important prerogative.
* * *
There is no comparison between the treaty power of the President and the actual power of the British monarch. The monarch can perform alone what the President can do only with the concurrence of a branch of the legislature.
* * *
The Authorization to Receive Ambassadors Is Ordinary
The President is authorized to receive ambassadors and other public ministers. Although this power has been a rich theme of declamation, it is more a matter of dignity than of authority. It is a circumstance without consequence in the administration of the Federal government, and it was far more convenient to arrange in this manner to convene the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.
The Appointment Power Is Subject to Senate Approval
The President is to nominate – and with the advice and consent of the Senate – to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution.
The monarch of Great Britain, by comparison, is emphatically and truly styled the fountain of honor, not only appointing all officers, but creating new offices. The monarch can confer titles of nobility at pleasure, and has the disposal of an immense number of church preferments.
There exists great inferiority in the power of the President to that of the British monarch in this particular; nor is it equal to that of the governor of New York, if we interpret the meaning of its constitution by the practice which has obtained under it. The power of appointment in New York is lodged in a council, composed of the governor and four members of the State senate, chosen by the State assembly. The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. If I assume the governor actually possesses the right under law of nominating, the governor’s authority is in this respect equal to that of the President, and exceeds it due to the additional power of casting a vote.
In the Federal government, if the Senate should be divided, no appointment could be made. In the government of New York, if the council should be divided, the governor can turn the scale with a confirming vote on the nominee.
If we further compare the publicity which must necessarily attend the mode of a national appointment requiring the concurrence of the President and the Senate, with the privacy in the mode of appointment of the governor of New York – closeted in a secret apartment with at most four, and frequently with only two persons – and if we at the same time consider how much more easy it must be to influence a small number on a council of appointment than a considerable number in the Senate, I do not hesitate to pronounce that the power of the governor of New York to appoint officers must, in practice, be greatly superior to that of the President of the United States.
Any Attempt to Compare the President to the British Monarch Must Fail
Aside from treaty negotiations, it would be difficult to determine whether the President, in the aggregate, possesses more or less power than a governor of New York. More unequivocally one can see no pretense for the parallel which has been attempted between the President and the monarch of Great Britain.
To render the contrast in this respect still more striking, I will throw the principal circumstances of dissimilitude into a closer group:
The President of the United States is an officer elected by the People for four years; the monarch of Great Britain is perpetual and hereditary.
One would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.
One would have a qualified negative upon the acts of the legislative body; the other has an absolute negative.
One would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his or her own authority.
One would have a concurrent power with one branch of the legislature in the formation of treaties; and the other is the sole possessor of the power of making treaties.
One would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.
One can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies.
One can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, regulate weights and measures, lay embargoes for a limited time, coin money, and authorize or prohibit the circulation of foreign coin.
One has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church!
What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government – the whole power of which would be in the hands of the elective and periodical servants of the People – is an aristocracy, a monarchy, and a despotism.
Hamilton
original Federalist 69Federalist 70: An Energetic Executive Is Essential to the Success of Any Government
THERE IS AN IDEA – not without advocates – that a vigorous executive is inconsistent with the genius of republican (representative) government. These enlightened advocates of a weak executive must at least hope their supposition is destitute of foundation, for if true it would condemn their own principles.
Energy in the executive is a leading character in the definition of good government. Energy is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enterprises and assaults of ambition, faction and anarchy.
Everyone at least conversant in Roman story knows how often that republic was obliged to take refuge in the absolute power of a single man – under the formidable title of Dictator – against not only the intrigues of ambitious individuals who aspired to tyranny, but the seditions of whole classes of the community – whose conduct threatened the existence of all government – and against as well the invasions of external enemies who menaced the conquest and destruction of Rome.
There can be no need to multiply arguments or examples on this head. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution. A government executed poorly – whatever it may be in theory – in practice must be a bad government.
I shall take for granted that all persons of good sense will agree in the necessity of an energetic executive, with but several remaining inquiries: what are the ingredients constituting this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the Constitution?
* * *
Energy in the executive is a leading character in the definition of good government. Energy is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enterprises and assaults of ambition, faction and anarchy.
* * *
Energy Requires Unity, Time, Provisions, and Powers
The ingredients constituting energy in the executive are (1) unity, (2) duration, (3) adequate provisions for its support, and (4) competent powers. The ingredients which constitute safety in the republican sense are a due dependence on the People and a due responsibility to them. Those politicians and statesmen most celebrated for the soundness of their principles and the justice of their views have declared in favor of a single executive and a numerous legislature. With great propriety, they have considered energy as the most necessary qualification of the executive, and regarded energy as most applicable to power in a single hand. With equal propriety, they considered a single executive as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.
Unity in the Executive Is Indispensable
That unity is conducive to energy is indisputable. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one person in a much more eminent degree than the proceedings of any greater number, and in proportion as the number is increased, these qualities will be diminished.
* * *
That unity is conducive to energy is indisputable. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one person in a much more eminent degree than the proceedings of any greater number, and in proportion as the number is increased, these qualities will be diminished.
* * *
How to Destroy Unity in the Executive
Unity of the executive may be destroyed in two ways. First, the executive power may be vested in two or more magistrates of equal dignity and authority. Second, although the power is ostensibly vested in one person, that person is subject – in whole or in part – to the control and cooperation of others – usually in their capacity as counselors. Both means are liable to equal or to similar objections, and may be examined in conjunction.
The Few Historical Examples Favor a Single Executive
The experience of other nations affords little instruction on this head. As far as it teaches anything, it teaches us not to be enamored of plurality in the executive.
We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one.
The two Consuls of Rome also serve as an example of the disunity that results from more than one coequal executive. Although Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls – or between the military Tribunes, who were at times substituted for the Consuls – it gives us no specimens of any peculiar advantages derived to the republic from the circumstance of the plurality of those magistrates. It is a matter of astonishment that dissensions between them were not more frequent or more fatal, until we recall the singular position in which the republic was almost continually placed, and as well as the Consuls’ prudent policy of making a division of the government between them.
The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities. The Consuls – who were generally chosen from the patricians – were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this unifying motive of personal interest, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot, with one of them remaining at Rome to govern the city and its environs, the other taking the command in the more distant provinces. This expedient undoubtedly had great influence in preventing those collisions and rivalries which might otherwise have embroiled the peace of that republic.
But quitting the dim light of historical research – and attaching ourselves purely to the dictates of reason and good sense – we shall discover much greater cause to reject than to approve the idea of plurality in the executive, under any modification whatever.
* * *
Individuals often oppose a thing merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. Moreover, if they have been consulted, and happened to have disapproved, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor – and by all the motives of personal infallibility – to defeat the success of what has been resolved upon contrary to their sentiments.
* * *
More than One Executive Will Promote Dissension
Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office – in which they are clothed with equal dignity and authority – there is peculiar danger of personal emulation and even animosity. The most bitter dissensions are apt to spring from either. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.
Opposition Based upon Personal Animosity Is an Unfortunate Human Trait
Individuals often oppose a thing merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. Moreover, if they have been consulted, and happened to have disapproved, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor – and by all the motives of personal infallibility – to defeat the success of what has been resolved upon contrary to their sentiments.
Persons of upright and benevolent tempers have often remarked with horror at the desperate lengths to which this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, conceit, and obstinacy of individuals whose passions and caprices have interested the People. Opposition to the Constitution afforded melancholy proofs of the effects of this despicable frailty – or rather detestable vice – in the human character.
The Dissension Wrought by Unreasonable Opposition Ought to Be Resolved in the Legislative Branch, Not the Executive
Upon the principles of a free government, the inconveniences of opposition resulting from personal animosity and the like must necessarily be submitted to the legislative branch. But it is unnecessary, and therefore unwise, to introduce them into the constitution of the executive, where dissension may be most pernicious.
In a legislature – of which the Congress is one – a prompt decision is more often evil than a benefit. In the legislative branch of government, the differences of opinion and jarrings of parties – although they may sometimes obstruct salutary plans – yet often promote deliberation and circumspection, and serve to check excesses in the majority. Once a resolution is taken by enacting a law, however, the opposition must be put to an end, with resistance to it being punishable.
No such favorable circumstances can lessen the disadvantageous effects of dissension in the executive department. Motives there fueled by personal animosity are pure and unmixed. There is no point at which they cease to operate. They can serve to embarrass and weaken the execution of the plan or measure to which they relate, from its first step to final conclusion. The effects of dissension constantly counteract those qualities needed in an executive – vigor and expedition – without offering any counterbalancing good. In the conduct of war – in which the energy of the executive is the bulwark of the national security – more than one executive would cause fear and apprehension in everything.
These observations apply with principal weight to the situation where a plurality of magistrates have equal dignity and authority. They also apply with considerable weight to the project of a council whose concurrence is made constitutionally necessary to the operations of the ostensible executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness.
More Than One Executive Conceals Faults and Destroys Responsibility
One of the weightiest objections to a plurality in the executive is that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds: censure and punishment. Censure is the more important of the two, especially in an elective office. A person holding a public trust will much more frequently act in a manner contrary to that trust – which may cause public censure and disapproval – than in a manner contrary to law – which may result in legal punishment. In either situation, the existence of more than one executive would add to the difficulty of detecting either censurable or punishable conduct.
It often becomes impossible – amidst mutual accusations – to determine on whom the blame or the punishment ought really to fall for a pernicious measure or series of pernicious measures. Blame may shifted from one to another with so much dexterity – and under such plausible appearances – that the public opinion is left in suspense about the real author.
The circumstances which may lead to any national miscarriage or misfortune are sometimes so complicated that a number of actors may have had different degrees and kinds of agency. Although the People may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account any evil is truly chargeable. Excuses would abound: “I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.” Whether true or false, these and similar pretexts are constantly at hand. We Cannot Expect Individual Citizens to Track Down the Sources of Governmental Malfeasance
Who will either take the trouble or incur the odium of a strict scrutiny into the secret springs of a transaction against the national interest? If there could be found a citizen zealous enough to undertake the unpromising task – and should there happen to be collusion between the parties being investigated – it would be easy to clothe the circumstances with so much ambiguity as to render uncertain the precise conduct of any of those parties.
State Examples Demonstrate the Drawbacks of Executive Councils
If I recollect correctly, New York and New Jersey are the only States which have entrusted the executive authority wholly to a single individual. New Jersey has a council whom the governor may consult, but from the terms of its constitution, their resolutions are not binding.
In New York, the single instance in which the governor is coupled with a council – that is, in the appointment to officers – I detailed its mischiefs in Federalist 69. Scandalous appointments to important offices have been made. Indeed, some cases have been so flagrant that all parties have agreed in the impropriety of the thing. When inquiry actually has been made, the members of the council have laid blame on the governor’s nomination, while the governor has blamed the members of the council. The People, meanwhile, remain altogether at a loss to determine by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I will forbear to descend into particulars.
* * *
Responsibility is of two kinds: censure and punishment. Censure is the more important of the two, especially in an elective office. A person holding a public trust will much more frequently act in a manner contrary to that trust – which may cause public censure and disapproval – than in a manner contrary to law – which may result in legal punishment.
* * *
Multiple Executives Tend to Deprive the People of Their Security for Performance
It is evident from the preceding considerations that a plurality of the executive tends to deprive the People of the two greatest securities they can have for the faithful exercise of any delegated power. First, multiple executives weaken the restraints of public opinion, which lose their efficacy with respect to bad measures due to the division of the censure among a number, as well as the uncertainty on whom it ought to fall. Second, the multiplicity of actors diminishes the People’s ability to discover with facility and clearness the misconduct of the persons they trust, in order either to remove them from office or to their actual punishment in proper cases.
An Executive Council Is Better Suited to a Monarchy than a Chief Executive or Magistrate Like the President
In Britain, the monarch is a perpetual magistrate. For the sake of the public peace, his or her person is sacred and unaccountable for poor administration. In that kingdom, therefore, nothing is wiser than to annex to the king or queen a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department, which is an inadmissible idea in a free government.
In practice, the monarch of Britain is not bound by the resolutions of his or her council, although they are answerable for the advice they give. The British monarch is the absolute master of his or her own conduct in the exercise of office, and has the sole discretion to observe or disregard the advice and counsel given.
The reasons why the British Constitution dictates the propriety of an executive council do not apply in a republic, where every magistrate ought to be personally responsible for his or her behavior in office. In the monarchy of Great Britain, an executive council accepts the responsibility that would be assigned to the chief magistrate in a republic. In some degree the British executive council serves as a hostage to the national justice for the good behavior of the monarch. In the American republic, an executive council would serve to destroy – or greatly diminish – the intended and necessary responsibility of the chief magistrate personally.
An Executive Branch Run by a Council – Though Based on a Republican Jealousy Favoring Security – Raises More Risks than Rewards
The idea of a council to the executive – which has so generally obtained in the State constitutions – has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of persons than of a single one. If the maxim is applied to the case, the advantage on that side would not counterbalance the numerous disadvantages on the opposite side.
However, I do not think the rule applies at all to the executive power. In this particular, I clearly concur in opinion of Jean-Louis de Lome – whom the celebrated Junius pronounces to be “deep, solid, and ingenious” – that “the executive power is more easily confined when it is one” – and that it is far safer for a single object to attract the jealousy and watchfulness of the People – in a word, that all multiplication of the executive is more dangerous than friendly to liberty.
* * *
The reasons why the British Constitution dictates the propriety of an executive council do not apply in a republic, where every magistrate ought to be personally responsible for his or her behavior in office.
***
The Threat of Intrigue and Cabal Is Higher in an Executive Council
It takes only a little consideration to satisfy ourselves that the species of security sought for in the multiplication of the executive is unattainable. The number of members must be great enough as to render an evil combination difficult, or the council would become more a source of danger than of security. Combining that credit and influence of several individuals is more formidable to liberty than the credit and influence of any of them separately. When power is placed in the hands of a sufficiently small number of persons as to admit of their interests and views being easily combined in a common enterprise by an artful leader, it becomes more liable to abuse – and more dangerous when abused – than if it be lodged in the hands of one person – who from the very circumstance of being alone will be more narrowly watched and more readily suspected – and who cannot unite so great a mass of influence as when associated with others.
The Decemvirs of Rome, whose name denotes their number – 10 – were more to be dreaded in their usurpation than any single one of them would have been. No person would think of proposing an executive much more numerous than that body, and from six to a dozen have been suggested for the number of such a council. These numbers are not too many to prevent an easy combination from embarking on a wicked project, and America would have more to fear from such a combination than from the ambition of any single individual.
A council to the President – who is individually responsible for what he or she does – generally would be a clog upon a President’s good intentions, often would be the instruments and accomplices of a President’s bad intentions, and are almost always a cloak to a President’s faults.
The Expense of an Executive Council Would Outweigh the Benefits
I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members – who must be drawn from their homes to reside at the seat of government – would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent person from any of the States, who did not admit, as the result of experience, that the unity of the executive in New York was one of the best of the distinguishing features of its constitution.
Hamilton
original Federalist 70Federalist 71: A Four-Year Presidential Term Is Long Enough for Action But Too Short for Complete Tyranny
DURATION IN OFFICE is the second requisite to the energy of the executive authority. Duration relates to two objects: (1) the personal firmness of the executive magistrate in the employment of constitutional powers, and (2) the stability of the system of administration adopted under the magistrate’s auspices.
Uncertainty as to Duration of an Executive Term Undermines Its Energy
With regard to fidelity to constitutional powers, the longer the President stays in office, the greater the probability of obtaining so important an advantage.
It is a general principle of human nature that a man will be interested in whatever he possesses in proportion to the firmness or precariousness of the tenure by which he holds it. He will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable and more certain title, and naturally he will be willing to risk more for the sake of the more certain possession. This remark applies to any article of ordinary property, of course, and even more so to a political privilege, honor, or trust.
The inference from it is: that a person acting in the capacity of chief magistrate – under a consciousness that in a very short time he must lay down his office – will be apt to feel himself too little interested in it to hazard censure or difficulties resulting from the independent exertion of his or her powers or encountering the ill-humors (however transient) which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the Congress.
If the case should only be that the President might lay down powers – unless continued by a new choice – and if the President should be desirous of being continued – his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the characteristics of the station.
* * *
There are some who regard the servile pliancy of the executive to the prevailing currents – either in the community or in the legislature – as its best recommendation. But such persons entertain very crude notions of the purposes for which government is instituted, and of the true means by which the public happiness may be promoted.
* * *
The President, Like Representatives, Ought to Ameliorate the Vicissitudes of Public Opinion
There are some who regard the servile pliancy of the executive to the prevailing currents – either in the community or in the legislature – as its best recommendation. But such persons entertain very crude notions of the purposes for which government is instituted, and of the true means by which the public happiness may be promoted.
It is a true republican principle that demands the deliberate sense of community should govern the conduct of those to whom they entrust the management of their affairs. The principle does not, however, require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the People may receive from the arts of men, who flatter their prejudices to betray their interests.
It is a just observation that the People commonly intend the public good even when they err. But the good sense of the People would despise the adulator who should pretend that they always reason right about the means of promoting it.
The People know from experience they sometimes err, at a surprisingly infrequent rate, since they are continually beset by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, and the desperate, by the artifices of those who obtain their confidence more than they deserve, and by those who would rather possess the People’s confidence than deserve it.
When occasions present themselves in which the interests of the People are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion, in order to give the People time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the People from the fatal consequences of their own mistakes, and earned lasting monuments of gratitude to the individuals who had courage and magnanimity enough to serve them at the peril of their displeasure.
* * *
It is a true republican principle that demands the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs. The principle does not, however, require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the People may receive from the arts of men, who flatter their prejudices to betray their interests.
* * *
The People's Representatives in Congress Sometimes Mistakenly Believe They Are Themselves the People
However inclined I might be to insist upon an unbounded complaisance in the executive to the inclinations of the People, we can with no propriety contend for a like complaisance to the humors of a legislature like the Congress. A legislature may sometimes stand in opposition to the executive, and at other times the People's representatives may be entirely neutral. In either situation, the executive should be able to dare to act on his own opinion with vigor and decision.
The tendency of the legislative authority to absorb every other has been fully displayed and illustrated in preceding numbers, particularly Federalist 48. This tendency is almost irresistible in purely representative governments.
The representatives of the People sometimes seem to fancy they are the People themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter, as if the exercise of rights by either the executive or the judiciary were a breach of their privilege and an outrage to their dignity. Such representatives often appear disposed to exert an imperious control over the other departments, and as they commonly have the People on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
Separation of Powers Is Distinct from Subordination of Powers
The doctrine of separation of powers teaches the propriety of a partition between the various branches of power. (See Federalist 47 and Federalist 48.) It likewise dictates this partition should be so contrived as to render each one independent of the other. Why separate the executive department or the judiciary from the legislature, if both the executive and the judiciary are constituted so they are at the absolute devotion of the legislature? Such a separation would be in name only, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. Subordination of men to law comports with fundamental principles of good government; subordination of one branch to another violates these same principles, for it unites all power in the same hands, whatever may be the forms of the Constitution.
Some have asked how the shortness of the duration in office can affect the independence of an executive where the legislature does not possess the power of appointing or displacing the executive. One answer, identified above, is the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer – perhaps more obvious though not more conclusive – results from the influence the legislative body has over the People. Such influence might be employed to prevent the re-election of a person who – by an upright resistance to any sinister project of that body – has become obnoxious to its resentment.
* * *
The representatives of the People sometimes seem to fancy they are the People themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter, as if the exercise of rights by either the executive or the judiciary were a breach of their privilege and an outrage to their dignity. Such representatives often appear disposed to exert an imperious control over the other departments, and as they commonly have the People on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
* * *
Four Years Is the Proper Length of a Presidential Term
It may be asked whether a duration of four years would answer the end proposed; and if not, whether a shorter period d at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate.
It cannot be affirmed that a duration of four years – or of any other limited duration – would completely answer the end proposed, but it would contribute towards it in a degree to have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there will always be a considerable interval in which the prospect of annihilation is sufficiently remote not to have an improper effect upon the conduct of an executive imbued with a tolerable portion of fortitude, during which he might reasonably promise himself there would be time enough before it arrived to make the community sensible of the propriety of the measures he might incline to pursue. Although it be probable that – as he approached the moment when the public was, by a new election, to signify their sense of his conduct – his confidence – and with it his firmness – would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him to establish himself in the esteem and good-will of the People. He might then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens.
A duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition, yet it is not enough to justify any alarm for the public liberty.
* * *
A duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very valuable ingredient in the composition, yet it is not enough to justify any alarm for the public liberty.
* * *
The British Experience with Its House of Commons Demonstrates Jealousy of an Executive Power Is Overstated
From its feeble beginnings, the British House of Commons – by using the mere power of assenting or disagreeing to the imposition of any new tax – have by rapid strides reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived as compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the British legislature. If the House of Commons has been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments in the Church as well as State; what is to be feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States? What, but that the President might be unequal to the task which the Constitution assigns? If the duration of four years leaves a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.
Hamilton
original Federalist 71Federalist 72: Presidential Term Limits Were Rejected As Unduly Restrictive
THE ADMINISTRATION OF GOVERNMENT – in its largest sense – comprehends all the operations of the body politic, whether legislative, executive, or judicial. In its most usual – and perhaps its most precise signification – it is limited to executive details, and falls peculiarly within the province of the executive department.
Presidential administration of the Federal government includes: (1) the actual conduct of foreign negotiations, (2) the preparatory plans of finance, application and disbursement of the public moneys in conformity to the general appropriations of the Congress, (3) the arrangement of the army and navy, (4) the directions of the operations of war, and (5) other matters of a like nature.
The persons to whose immediate management these different matters are committed ought to be considered as the assistants or deputies of the President. On this account, they derive their offices from presidential appointment and should be subject to the President’s superintendence. This view of the subject at once suggests the intimate connection between the duration of the President in office and the stability of the system of administration.
* * *
Presidential administration of the Federal government includes: (1) the actual conduct of foreign negotiations, (2) the preparatory plans of finance, application and disbursement of the public moneys in conformity to the general appropriations of the Congress, (3) the arrangement of the army and navy, (4) the directions of the operations of war, and (5) other matters of a like nature.
* * *
New Administrations Tend to Undo the Acts of Preceding Administrations
To reverse and undo what has been done by a predecessor is very often considered by a successor as the best proof to be given of his own capacity and desert. In addition to this propensity, where the alteration has been the result of public choice through elections, the person substituted is warranted in supposing that the dismissal of the predecessor proceeded from a dislike to the predecessor’s measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations – and the influence of personal confidences and attachments – would be likely to induce every new President to promote a change of persons to fill the subordinate stations. When combined, these causes could not fail to occasion a potentially disgraceful and ruinous mutability in the administration of the Federal government.
Limiting or Excluding a President from Re-Election Is Unwise
The four-year duration of a presidential term is necessary to give to the President the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The option of re-election is necessary to enable the People – when they see reason to approve of the President’s conduct – to continue the President in station, both to prolong the utility of his talents and virtues, and to secure to the Federal government the advantage of permanency in a wise system of administration.
The Negative Effects of Exclusion Outweigh the Positive Ones
Nothing appears more plausible at first sight – nor more ill-founded upon close inspection – than a scheme of continuing the President in office for a certain time and then excluding him from it – whether for a limited period or forever after. Whether temporary or perpetual, exclusion from office would have nearly the same effects, and those effects would be for the most part pernicious rather than salutary.
* * *
The option of re-election is necessary to enable the People – when they see reason to approve of the President’s conduct – to continue the President in station, both to prolong the utility of his talents and virtues, and to secure to the Federal government the advantage of permanency in a wise system of administration.
* * *
The Desires for Reward and Fame Are Powerful Inducements to Good Conduct
One ill effect of limiting a President’s eligibility for re-election would be a diminution of the inducements to good behavior. Few persons would feel much zeal in the discharge of a duty when conscious that the advantages of the station connected with the duty must be relinquished at a determinate period, when compared to zeal they would feel if permitted to entertain a hope of obtaining, by merit, a continuance of them. This position is indisputable, since the desire of reward is one of the strongest incentives of human conduct. Together with having a person's interests coincide with duty, it is the best security for fidelity to duty.
Even the love of fame – the ruling passion of the noblest minds – would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit – even those requiring considerable time to mature and perfect them – if he could flatter himself with the prospect of being allowed to finish what he had begun. On the contrary, he would be deterred from the undertaking when he foresaw that he must quit the scene before he could accomplish the work, and must commit that work – together with his own reputation – to hands which might be unequal or unfriendly to the task. The most to be expected from a person in such a situation is the negative merit of not doing harm, instead of the positive merit of doing good.
* * *
One ill effect of limiting a President’s eligibility for re-election would be a diminution of the inducements to good behavior. Few persons would feel much zeal in the discharge of a duty when conscious that the advantages of the station connected with the duty must be relinquished at a determinate period, when compared to zeal they would feel if permitted to entertain a hope of meriting a continuance of them.
* * *
A Limit on Presidential Terms Can Induce Unscrupulous Policies and Acts
Another ill effect of exclusion would be the temptation to sordid views, speculation, and in some instances, usurpation. An avaricious person – looking forward to a time when he must at all events yield up the emoluments enjoyed as President – might feel a propensity (not easily to be resisted by such a person) to make the best use of the opportunity he enjoys while it lasts, and have recourse to the most corrupt expedients to make his harvest as abundant as it would be transitory.
Avarice Can Guard Avarice
The same person, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. If the same person also is vain or ambitious – but could expect to prolong his honors by good conduct – he might sacrifice his appetite for gain. But with the prospect before him of an approaching and inevitable annihilation, his avarice would be likely to get the victory over his caution, vanity, or ambition.
An ambitious man, when seated on the summit of his country's honors – and looking forward to the time when he must descend from the exalted eminence forever – and knowing also that no exertion of merit on his part could save him from the unwelcome reverse – such a man would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power (at every personal hazard) than if he had the probability of answering the same end by doing his duty.
Would it promote the peace of the community or the stability of the government to have half a dozen or so former Presidents wandering among the People like discontented ghosts, and sighing for a place they were destined nevermore to possess?
Limiting Presidential Terms Can Deprive the People of an Experienced and Popular Magistrate
A third ill effect of the exclusion would deprive the People of the advantage of the experience gained by the President in the exercise of his office. “Experience is the parent of wisdom” is a truthful adage recognized by the wisest as well as the simplest of mankind. What quality is more desirable or essential than experience in the government of nations? Where is experience more desirable or essential than in the first magistrate of a nation? It is unwise to diminish the desirable and essential quality of experience by declaring that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted. This is the precise import of all those regulations which would exclude individuals from serving their country – by the choice of their fellow citizens – after they have by a course of service fitted themselves for doing it with a greater degree of utility.
Limiting Presidential Terms Might Unnecessarily Exclude Great Leaders
A fourth ill effect of limiting Presidential terms would be the banishment of persons from stations and offices in which their presence might be of the greatest moment to the public interest or safety, especially in certain emergencies. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular individuals in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance prohibiting a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances!
Requiring a change of the President due to a time or term limitation leaves open the possibility that a the change might happen to coincide with a war breaking out, or any similar crisis. Even without supposing the existing President was essential, the substitution of someone else – even of equal merit – would at all times be detrimental to the community, inasmuch as it would substitute inexperience for experience, and would tend to unhinge and set afloat the already-settled train of administration.
* * *
A fourth ill effect of limiting Presidential terms would be the banishment of persons from stations and offices in which their presence might be of the greatest moment to the public interest or safety, especially in certain emergencies.
* * *
Presidential Term Limits Undermine Stability
A fifth ill effect of the exclusion would be its operation as a constitutional interdiction of stability in the administration of the Federal government. Necessitating a change of President necessitates mutability of his measures, for in the usual course of things it is not generally expected that men will vary and measures remain uniform.
We need not be apprehensive about too much stability, so long as there is the option of changing administrations through Presidential elections. Nor should we desire to prohibit the People from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. The disadvantages flowing from the principle of exclusion, apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.
The Advantages of Presidential Term Limits Are Overstated
There are two asserted advantages principally advanced to support Presidential term limits: greater independence in the magistrate, and greater security to the People. As for greater independence of the President, it would only apply if the exclusion were perpetual.
But even in the case of an absolute bar after service of one or two terms, is there no object beyond his present station, to which he may sacrifice his independence? Will he have no connections or friends for whom he may sacrifice it?
* * *
Would it promote the peace of the community or the stability of the government to have half a dozen or so former Presidents wandering among the People like discontented ghosts, and sighing for a place they were destined nevermore to possess?
* * *
Would not a President be less willing to make personal enemies through firm conduct, when acting under the impression that a time is fast approaching when he not only may, but must, be exposed to their resentments, upon an equal or perhaps inferior footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.
As to the greater security that Presidential term limits supposedly afford the People, there are still greater reasons to entertain doubts concerning it. Assuming a perpetual exclusion existed, a man of irregular ambition would be infinitely reluctant to yield to the necessity of forever taking leave of a post in which his passion for power and preeminence had acquired the force of habit. And if such a President had been fortunate or adroit enough to conciliate the goodwill of the People, he might induce the People to consider any presidential term limit to be an odious and unjustifiable restraint upon themselves, and contend it was calculated to debar them of the right of giving a fresh proof of their attachment to him. An artful induction of disgust for term limits among the People, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary votes of the community, exercising a constitutional privilege.
* * *
As to the greater security that Presidential term limits supposedly afford the People, there are still greater reasons to entertain doubts concerning it.
* * *
There is an excess of refinement in the idea of disabling the People from continuing in office persons who have entitled themselves to the People’s approval and confidence. The advantages of limits are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.
Hamilton
original Federalist 72 [Ed. note: Amendment XXII, ratified in 1951, provides: "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term."]Federalist 73: The President Must Have Adequate Financial Support and Means for Self-Defense
THE THIRD INGREDIENT towards constituting the vigor of the executive is an adequate provision for its support. Without support, separation of the executive department from the legislative department would be nominal and nugatory. The Congress – having a discretionary power over the salary and emoluments of the President – could render the President obsequious to their will.
In most cases, the Congress might either reduce him by famine or tempt him by largess to effect a surrender of his judgment and discretion to their inclinations. While there are some who could neither be distressed nor won into a sacrifice of duty, this stern virtue is the growth of few soils. In the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting – even in this country – of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body.
The Prohibition of Any Salary Reduction Will Insulate the President
I therefore cannot commend too highly the judicious attention paid to this subject in the Constitution, where it is there provided: “The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II, § 1, cl. 7 (emphasis added).
It is impossible to imagine any provision more eligible for inclusion than this. Upon the appointment of a President, the Congress is once and for all to declare what shall be the compensation for services during the time for which he shall have been elected. This done, they will have no power to alter it – either by increase or diminution – until a new period o service by a new election commences.
By this rule, the Congress can neither weaken the President’s fortitude by depleting his necessities, nor corrupt his integrity by appealing to his greed and avarice. Neither the United States nor any individual State will be at liberty to give or receive any other emolument than that determined by the first act of setting compensation.
The President, of course, can have no pecuniary inducement to renounce or desert the independence the Constitution intends for the chief executive.
The Presidential Power to Veto Is Essential to Executive Energy
Competent powers are the last of the requisites to energy in the executive.
The first thing we see is the qualified negative of the President upon the acts or resolutions of the Congress. The President has the power of returning all bills with objections, which will prevent their becoming law, unless two thirds of both the Senate and House of Representatives afterwards ratify the measure, in which event the vetoed measure becomes law. From the perspective of the President, if more than one third of either half of the Congress agrees with the veto, the veto stands.
* * *
From these clear and indubitable principles, it is proper to give the executive a negative power – either absolute or qualified – upon the acts of the legislative department.
* * *
I have already noted in Federalist 48 the propensity of the legislative department to intrude upon the rights and absorb the powers of the executive and judicial departments, the insufficiency of mere paper or parchment delineations of the boundaries of each, and the necessity of furnishing each with Constitutional arms for its own defense.
From these clear and indubitable principles, it is proper to give the executive a negative power – either absolute or qualified – upon the acts of the legislative department. Without either an absolute or qualified veto power, the President would be completely unable to defend against the depredations of the Congress. The President might gradually be stripped of authorities by successive resolutions, or annihilated by a single vote. Whether one or the other, the legislative and executive powers might speedily come to be blended in the same hands.
The Veto Power Is Premised Not on Presidential Superiority, But Legislative Fallibility
Some objected to a presidential negative on the ground that a single individual would not possess more virtue and wisdom than a number of them, as in a legislative body. When examined, this observation proved more specious than solid.
The propriety of an executive veto power is not based on a supposed superior wisdom or virtue of a President acting alone. Instead it supposes the Congress will not be infallible; that the love of power may sometimes betray a legislature into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself would condemn upon more mature reflection.
One Department Ought Not Have the Opportunity to Dominate Another
Even in the absence of a legislative propensity to invade the rights of the executive, the rules of just reasoning and theoretic propriety teach us the executive ought not to be left to the mercy of the legislature, but must possess a constitutional and effectual power of self-defense.
The Limited Presidential Veto Power Can Forestall and Prevent Bad Laws, and Ameliorate Misguided Factions
The primary inducement to conferring veto power upon the President is to enable a self-defense against legislative encroachments. The veto power has a further use, for it not only serves as a shield to the President, but furnishes an additional security against the enactment of improper laws. It establishes a salutary check upon the Congress, calculated to guard the community against the effects of faction, precipitancy, or any impulse unfriendly to the public good then happening to influence a majority of that Legislative body.
This secondary purpose of the executive veto power favors the community against the passage of bad laws, whether through haste, inadvertence, or design. The more often a proposed measure is brought under examination, the more will be the diverse situations of those who examine it, and the less will be the danger of those errors which flow from want of due deliberation, or those missteps which proceed from the contagion of some common passion or interest. It is less likely these errors would infect all the parts of the Federal government at the same moment and in relation to the same object. It is more likely that a common passion or interest would govern and mislead each department in turn.
* * *
The propriety of an executive veto power is not based on a supposed superior wisdom or virtue of a President acting alone. Instead it supposes the Congress will not be infallible.
* * *
The Veto Power Will Not Defeat Good Laws
Those opposed to an executive veto power have said the power of preventing bad laws includes the power of preventing good ones, and may be used to the one purpose as well the other. But this objection has little weight with those who can properly estimate the mischiefs caused by inconstancy and mutability in the laws, which are the greatest blemishes upon the character and genius of our governments. Those familiar with these defects would consider as beneficial every institution calculated to restrain the excesses of lawmaking and to promote continuity at any given period, since it greatly favors the stability required in any competent legislative system.
Any injury which may possibly be done by defeating a few good laws will be amply compensated by the advantages of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the legislative body in a free government – and the hazard to the executive who seeks a trial of strength with that body – afford a satisfactory security that a veto will be issued with great caution, so that a President will more often be accused of timidity rather than rashness in use of the Veto Clause.
The British Monarch Rarely Exercises Veto Power, and only as a Last Resort
The monarch of Great Britain – possessing a train of sovereign attributes and all the influence drawn from a thousand sources – would hesitate to put a negative upon the joint resolutions of the two houses of Parliament. A king or queen would not fail to exert the utmost resources of that influence to strangle a disagreeable measure in its progress to the throne, in order to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body.
Should the British monarch ultimately venture to exert a negative prerogative, it invariably is limited to cases of manifest propriety or extreme necessity, with very considerable periods between its use.
The British Example Demonstrates Presidential Vetoes Will Be Infrequent
If an executive magistrate as powerful and well fortified as a British monarch would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a Federal government wholly and purely representative of the People?
In the situation where the President possesses only a common share of firmness, there would be a greater danger that the Veto Clause would not be invoked when necessary, than it would be used too often or too much. Drawing on this, clever opponents to the veto power argued it was a power odious in appearance and useless in practice.
Simply because a power might be rarely exercised, it does not follow that it would never be exercised. In the cases for which the Veto Clause is chiefly designed – an immediate attack upon the Constitutional rights of the executive, or a case in which the public good was evidently and palpably sacrificed – a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility.
In the case of an immediate attack upon the executive’s constitutional rights, the President’s fortitude would be stimulated by an immediate interest in preserving the power of his office.
In the case where the public good was evidently and palpably to be sacrificed, the President would be induced to exercise a veto due to the probability of sanction by constituents at the next election. While the People naturally incline to the legislative body in a doubtful case, they would hardly suffer their partiality to delude them in a very plain case.
These remarks are inapplicable to those executives who will have the courage to do their duty at every hazard under any circumstances.
* * *
The primary inducement to conferring veto power upon the President is to enable a self-defense against legislative encroachments. The secondary purpose of the executive veto power favors the community against the passage of bad laws, whether through haste, inadvertence, or design.
* * *
The Legislative Authority to Overturn a Presidential Veto Is a Sound Check on Executive Abuse
The Constitutional Convention sought a mean between the extremes of an absolute veto or no veto at all. While the initial exercise of the veto power is vested in the executive, its efficacy depends on the sense of a considerable part of the legislative body. Instead of an absolute negative, the executive has the qualified negative already described.
A qualified negative is a power much more readily exercised than an absolute negative. A President who might be afraid to defeat a law by a single veto, might not scruple to return the measure for reconsideration, since final rejection would depend on more than one third of the Senators or Representatives concurring in the sufficiency of the President’s objections. The direct and categorical negative of an absolute veto is more harsh and apt to irritate than the President’s suggestion of argumentative objections to be approved or disapproved by the Congress.
A President will be encouraged by the reflection that a veto will succeed only if a very respectable proportion of Senators or Representatives unite in supporting the propriety of the President’s conduct in the public opinion.
The less the veto power is apt to offend, the more apt it is to be exercised, and for this reason will be more effectual in practice. It will not often happen that improper views will govern so large a proportion as two thirds of both chambers of the Congress at the same time, and even less so considering the countervailing weight of the executive. It is far more likely that erroneous views will taint the resolutions and conduct of only a bare majority.
The power of a negative in the executive will often have a silent and unperceived – yet forcible – operation. When persons engaged in unjustifiable pursuits are aware that obstructions may come from a quarter they cannot control, the bare apprehension of opposition will often restrain them from doing what they would eagerly do if no such external impediments were to be feared.
The Success of New York’s Qualified Executive Veto Power
In New York, the veto power is vested in an executive council consisting of the governor and the judges on the State’s highest court, who have freely employed the veto upon a variety of occasions, and frequently with success. Its utility became so apparent that persons who once violently opposed it later become its declared admirers through experience.
* * *
The power of a negative in the executive will often have a silent and unperceived – yet forcible – operation. When persons engaged in unjustifiable pursuits are aware that obstructions may come from a quarter they cannot control, the bare apprehension of opposition will often restrain them from doing what they would eagerly do if no such external impediments were to be feared.
* * *
The Qualified Veto Power of Massachusetts Was Ultimately Found Most Suitable
I remarked in Federalist 69 that the Constitutional Convention departed from the New York veto model in favor of the Massachusetts model. Two strong reasons justified this preference. One is that judges – who are interpreters of the law – might be improperly biased from having previously given an opinion in their revisionary capacities. The other reason is that judges are often associated with the executive, which might induce them to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judicial departments.
It is impossible to keep judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive.
Hamilton
original Federalist 73 [Ed. note: The pertinent part of the Veto Clause provides: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. . . .” (Art. I, § 7, cl. 2.)]Federalist 74: A President May Pardon All Except Those Who Are Impeached
THE PRESIDENT OF THE UNITED STATES is the “commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.” Art. II, § 2, cl. 1 (emphasis added). The propriety of this provision is self-evident and consonant with the precedents of the State constitutions. Even those State constitutions that join the chief executive with a council in the exercise of powers have for the most part concentrated the military authority in the chief executive alone.
The President Must Control the Conduct of War
Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war requires direction of the common strength. The power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.
The President May Require Official Reports from Executive Officers
The President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Art. II, § 2, cl. 2. This is a mere redundancy included for clarity, since the right it authorizes would result from the office itself.
The Broad Pardon Power Is Best Exercised by a Single Person
The President is granted the “Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.” Art. II, § 2, cl. 1 (emphasis added).
Both humanity and good policy dictate the benign prerogative of pardoning should be shackled or impeded as little as possible. The criminal codes of every country are so severe that justice would wear a countenance too bloodthirsty and cruel without an easy access to exceptions in favor of unfortunate guilt.
A sense of responsibility is always strongest when undivided. Thus an individual would be the most apt to attend to those forces which might plead for a mitigation of the rigor of the law, and the least apt to yield to those considerations calculated to shelter a fit object of the law’s vengeance. Knowing that the fate of a fellow creature depended on his sole fiat would naturally inspire scrupulousness and caution in the President. The dread of being accused of weakness or connivance in granting a pardon would beget an equal circumspection, though of a different kind.
* * *
Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war requires direction of the common strength. The power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.
* * *
Groups of Individuals Are More Prone to Abuse the Pardon Power More Often
Groups of individuals generally derive confidence from their numbers. On the one hand, they might often encourage each other to be unyielding and hard-hearted in the exercise of the pardon power. On the other hand, a group holding the pardon power might be less aware of the suspicion and censure an injudicious or predetermined clemency would arouse in the community.
On these accounts, the mercy of government should be dispensed by one individual rather than a group of them.
The Pardon Power Properly Extends to Treason
Treason is a crime directed at the government itself. Once the guilt of the offender is ascertained, it would seem fit to refer an act of mercy towards that offender to the judgment of the Federal legislature. Further, the possibility always exists that the chief Executive – our President – might connive with the offender to effect a pardon. For these reasons, some proposed that the power to pardon treason ought to require the assent of one or both chambers of the Congress.
But these concerns are outweighed by strong objections to a plan to vest the pardon power all or part of the Federal legislature. A single individual of prudence and good sense is better fitted than a body of any number to balance the motives which may plead for and against the remission of the punishment in what might be delicate circumstances.
* * *
A single individual of prudence and good sense is better fitted than a body of any number to balance the motives which may plead for and against the remission of the punishment in what might be delicate circumstances.
* * *
Treason will often be connected with seditions that can embrace a large proportion of the community, as happened recently in Massachusetts, when economic difficulties led to a popular rebellion against Federal and State authorities.
In every such case, we might expect to see the representatives of the People tainted with the same spirit which had given birth to the offense.
Where a sedition proceeds from causes that inflame the resentments of the major party, the same representatives might be found obstinate and inexorable towards the offending minor party, when sound policy actually demanded forbearance and clemency.
Where the parties are pretty well equally matched, the friends and sympathizers of the condemned person – availing themselves of the weakness of some good-natured representatives – might persuade them to bestow the impunity of a pardon, when in fact the terror of an example was needed.
* * *
Where a sedition proceeds from causes that inflame the resentments of the major party, the same representatives might be found obstinate and inexorable towards the offending minor party, when sound policy actually demanded forbearance and clemency.
* * *
The Occasional Need for Swift Action Is the Ultimate Reason the Executive Alone Controls the Pardon Power
The decisive reason for reposing the power of pardon to the President is this: in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth. Should one or more of these moments pass without action, they become impossible to recall. The dilatory process of convening one or both branches of Congress to obtain approval of a pardon would frequently let slip the golden opportunity. The loss of a week, a day, or even an hour may sometimes prove fatal.
Congress Ought to Have No Say at All in the Final Decision to Pardon
As for the suggestion that one or both branches of the Federal legislature might be vested with the power to pardon – subject to occasionally conferring it to the President in such emergencies – in the first place it is questionable whether the legislative department could delegate one of its powers to another department under our limited Constitution. In the second place, it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity to the offenders. The act of conferring such power out of the usual course would likely be construed as timidity or weakness, and would have a tendency to embolden guilt.
Hamilton
original Federalist 74 Federalist 75: The Power to Make Treaties Rests with the President and Senate in a Distinct Federal Department
The President has the power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” Art. II, § 2, cl. 2.
The President Is an Integral Part of Treaty Negotiations
Although this provision was assailed on different grounds with no small degree of vehemence, it is well considered and unexceptionable. One objection rested on the trite topic of improper intermixture of powers. Some argued the President ought alone to possess the power of making treaties, while others proposed the Senate as the exclusive repository of this power. Others disapproved of the relatively small number of individuals involved in the process, urging participation of the House of Representatives. Still others contended approval should require two thirds of all members of the Senate, rather than two thirds of those present.
The provision in question was discussed in Federalist 64, and I flatter myself the observations made there suffice to place it in a very favorable light to a discerning eye. Hence here I shall content myself with offering only some supplementary remarks regarding the objections just stated.
With regard to the asserted improper intermixture of powers, I refer to Federalist 47 and Federalist 48, which discuss the application of the doctrine of separation of powers to the Constitution. From those numbers I shall take it for granted that the union of the executive with the Senate is no infringement of that rule with respect to treaties. I venture to add that the particular nature of the power of making treaties establishes the propriety of that union.
Although several writers on the subject of government have placed the power of making treaties in the class of powers belonging to the executive, this is an arbitrary disposition. If we attend carefully to its operation, the power partakes more of the legislative than of the executive character, although it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, that is, to prescribe rules for the regulation of the society. The essence of the executive authority is to execute those laws using the common strength or the common defense.
* * *
Treaties are contracts with foreign nations. These contracts have the force of law, but they derive this force from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power of making treaties forms a distinct department that properly belongs to neither the legislative nor the executive.
* * *
Treaties Are Contracts Negotiated Between Sovereigns
The power of making treaties is distinct from both. The power does not relate to the execution of existing laws, nor to the enactment of new ones, and even less to an exertion of the common strength.
Treaties are contracts with foreign nations. These contracts have the force of law, but they derive this force from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power of making treaties forms a distinct department that properly belongs to neither the legislative nor the executive.
The indispensable qualities for the management of foreign negotiations – explained in Federalist 63 and Federalist 64 – identify the President as the most fit agent in those transactions, while the vast importance of the trust involved and the operation of treaties as laws demand the participation of the whole or part the legislative body in making them.
The Treaty-Making Power Cannot Rest with the President Alone
The President alone must not have the entire power of making treaties. While that power might safely or properly be given to an executive magistrate in a hereditary monarchy, it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years’ duration. A hereditary monarch – though often an oppressor of the people – has too much stake personally in the government to be corrupted by foreign powers in any material way. But an individual raised from the station of a private citizen to the rank of President – possessed perhaps of a moderate or slender fortune, and envisioning a return to that station in the near future – might sometimes be under temptation to sacrifice duty to interest, a situation only superlative virtue could withstand.
An avaricious individual be tempted to betray the interests of the People to the acquisition of wealth. An ambitious individual might solicit the aid of a foreign power for his own benefit, the price of his treachery to his constituents. The history of human conduct warrants no exalted opinion of human virtue. It would be unwise for a nation to commit its interests concerning dealings with the rest of the world – often both delicate and momentous – to the sole disposal of an individual who serves as a President of the United States.
The Treaty-Making Power Cannot Rest with the Senate Alone
Similarly, entrusting the power of making treaties to the Senate alone would relinquish the benefits of the Constitutional agency of the President in the conduct of foreign negotiations. While presumably the Senate could employ the President as a negotiator, pique or cabal might induce it to forego this option.
Besides this, the President – being merely a ministerial servant of the Senate – would be unable to act with the degree of weight or efficacy accorded an individual holding constitutional authority. Foreign powers would naturally have less confidence in and respect for the President’s authority, and the United States thereby would lose a considerable advantage in the management of its external concerns. And in turn the People would be deprived of the additional safety that would result from the cooperation of the President.
The President and Senate Working Together Is Better than Either Acting Alone
Anyone who maturely weighs the circumstances which must occur for the appointment of a President (see Federalist 68) will be satisfied the office will always bid fair to be filled by individuals of wisdom and integrity, rendering their concurrence in the formation of treaties peculiarly desirable. In sum, the joint possession of the power of making treaties by the President and Senate will afford a greater prospect of security than the separate possession of that power by either of them.
* * *
The history of human conduct warrants no exalted opinion of human virtue. It would be unwise for a nation to commit its interests concerning dealings with the rest of the world – often both delicate and momentous – to the sole disposal of an individual who serves as a President of the United States.
* * *
The House of Representatives Is Properly Excluded from Treaty Negotiations and Approval
As for the admission of the House of Representatives to a share in the formation of treaties, my remarks in Federalist 64 reject that option with conclusive force. Taking future increases of that body into account, its multitudinous and fluctuating composition forbid us to expect it to possess those qualities essential to the proper execution of such a trust. The qualities essential to making treaties – accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a delicate and uniform sensibility to national character, secrecy, decision, and dispatch – are incompatible with the genius of a body so variable and so numerous. Adding the concurrence of the House of Representatives to that of the President and Senate would itself complicate the business of making treaties. It would require both more frequent calls upon House members and more time to keep them together when convened to obtain their sanction in the progressive stages of a treaty. The inconvenience and expense alone ought to condemn the project.
* * *
The qualities essential to making treaties – accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a delicate and uniform sensibility to national character, secrecy, decision, and dispatch – are incompatible with the genius of a body so variable and so numerous as the House of Representatives.
* * *
Requiring Treaty Approval by Two Thirds of Senators Present Works Better than Requiring Two Thirds of All Senators
The remaining objection to Senate concurrence would have substituted the proportion of two thirds of the entire Senate for two thirds of the members present, as the Constitution specifies.
All provisions requiring more than the majority of any body to its resolutions have a direct tendency to impede its operations and an indirect tendency to subject the sense of the majority to that of the minority. This consideration alone was sufficient to determine the Constitution goes as far as necessary to secure the advantage of numbers in the formation of treaties as can be reconciled with either the activity of the public councils or a reasonable regard to the major sense of the community.
If two thirds of the entire Senate were required for treaty approval, in practice it would require near unanimity if some members chose not to attend. Demanding the approval of two thirds of all Senators is simply a demand for higher proportion of those Senators already in attendance. The history of every political establishment where this principle has prevailed is one of impotence, perplexity, and disorder. Proofs might be adduced from the examples of the Roman tribuneship, the Polish diet, and the states-general of the Netherlands, but examples from our own experience make foreign precedents unnecessary.
* * *
If two thirds of the entire Senate were required for treaty approval, in practice it would require near unanimity if some members chose not to attend.
* * *
Requiring Two Thirds of Senators Present Promotes Punctual Attendance
The motives to punctual attendance are diminished by a continuing demand for one’s presence at all times. But a body that depends on a proportion of those present has the opposite effect, since the presence or absence of a single member can make all the difference. As this tends to promote punctuality, it tends to keep the body complete. In all likelihood, the same number of Senators will be present for the vote whether the requirement is two thirds of the whole or two thirds of those present. With the members voting individually, the active voices in the Senate would rarely fall short in number of active voices present in the Congress under the Articles of Confederation.
When we add to these considerations the participation of the President, the People of America would have greater security against an improper use of the power of making treaties than existed prior to adoption of the Constitution. And when finally we envision the likely erections of new States and the consequent addition of Senators, we can have even greater confidence in the sufficiency of members to whose agency the power of making treaties will be entrusted, as well as the knowledge that a body more numerous than the Senate would very little fit for the proper discharge of the trust.
Hamilton
original Federalist 75Federalist 76: The Power to Appoint U.S. Officers Is Best Posited in a Single Individual - the President - with the Concurrence of a Select Legislative Body - the Senate
Constitutional Provisions regarding the Appointment Power
THE PRESIDENT “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . . .” Art. II, § 2, cl. 2, (emphasis added). “[B]ut the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Ibid. In addition, the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Ibid. (emphasis added).
I observed in Federalist 68 that “the true test of a good government is its aptitude and tendency to produce a good administration.” If the justness of this observation be admitted, the mode of appointing the officers of the United States set forth in the foregoing clauses is particularly commendable. It is not easy to conceive of a plan better calculated than this to promote a judicious choice of individuals for filling the offices of the Federal government, and upon which it must essentially depend for the character of its administration.
Vesting the Appointment Power in the People Collectively Was Rejected as Impractical
Some consideration was given to vesting the appointment power in the People collectively, who from their number and dispersed situation are less susceptible to the regulation of their movements by the systematic spirit of cabal and intrigue that can effect any assembly or body of individuals. This option, though, was readily admitted to be impracticable; as waiving every other consideration, it would leave the People little time to do anything else. It was thus decided the power to appoint federal officers be delegated to their elected representatives.
The Three Ways to Exercise the Appointment Power
It was agreed on all hands that the power of appointment could be vested in three ways: (1) in a single individual, (2) in a select assembly of a moderate number, or (3) in a single individual, with the concurrence of such an assembly.
An Individual Is Better Suited than a Committee to Select Officers
Those who have themselves reflected upon the subject (or who have attended to the observations made in other parts of these Papers) in relation to the appointment of the President – I presume will agree to the position, that there would always be great probability of having the place supplied by an individual of at least respectable abilities. On this premise, I proceed to lay it down as a rule – that one individual of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of individuals of equal or perhaps even of superior discernment.
* * *
It was agreed on all hands that the power of appointment could be vested in three ways: (1) in a single individual, (2) in a select assembly of a moderate number, or (3) in a single individual, with the concurrence of such an assembly.
* * *
The sole and undivided responsibility of one individual will naturally beget a livelier sense of duty and a more exact regard to reputation. A single individual will – on this account – feel under stronger obligations – and be more interested to investigate with care the qualities requisite to the stations to be filled – and thus to prefer with impartiality the persons who may have the fairest pretensions. A single individual will have fewer personal attachments to gratify than a body of individuals – each of whom may reasonably be supposed to have an equal number of attachments. The President will therefore be much less liable to be misled by the sentiments of friendship and of affection. A single individual – directed by a single understanding – will be less likely to be distracted by that diversity of views, feelings, and interests which frequently warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations – whether they relate to ourselves or to others who are to be the objects of our choice or preference. Hence in every exercise of the power of appointing to offices by an assembly of persons, we must expect to see a full display of all their private and party likes and dislikes, partialities and antipathies, attachments and animosities felt by those who compose the assembly.
* * *
A single individual – directed by a single understanding – will be less likely to be distracted by that diversity of views, feelings, and interests which frequently warp the resolutions of a collective body.
* * *
Nomination by Committee Results in Party Battle and Compromise
The collective choice to be made under such circumstances will be the result either of a victory gained by one party over the other, or a compromise between the parties. In either case, the intrinsic merit of the candidate will too often be obscured. In the case of a party victory – the qualifications will be those best adapted to uniting the votes of the majority party – rather than those which fit the person for the station. In a party compromise, the coalition will commonly turn upon the trade of an equivalent appointment: “Give us the person we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. Whether the appointment results from a party victory or compromise, rarely will the advancement of the public service be the primary object.
All the Advantages of Vesting the Appointment Power in the President Alone Are Retained Even Though Senate Approval Is Required
Some suggested the President ought solely to have the power of appointments. But it is easy to show that every advantage to be expected from such an arrangement would be derived from the power of nomination alone, while several disadvantages attending the absolute power of appointment in the hands of a single individual would be avoided.
* * *
Even if the President’s nominee fails to obtain Senate approval, this would only make place for another nomination by the President. The person ultimately appointed must be the object of presidential preference, though perhaps not in the first degree.
* * *
In the act of nomination, only the President’s judgment would be exercised – and having the sole duty to point out the person who should fill an office – the exercise of responsibility would be as complete as if making the final appointment. In this view, there is no difference between nominating and appointing. The same motives influencing a proper discharge of duty in one case would exist in the other. And since no one can be appointed but on the President’s nomination, every person who might be appointed would actually be the President’s choice.
Even if the President’s nominee fails to obtain Senate approval, this would only make place for another nomination by the President. The person ultimately appointed must be the object of presidential preference, though perhaps not in the first degree. It is also improbable that the President’s nomination would often be overruled. The Senate will not be tempted to reject the one proposed by any preference they might feel to another because they could not assure themselves that the person they might wish for would be brought forward by a second or by any subsequent nomination. Dissenting Senators could not even be certain that a future nomination would present a candidate in any degree more acceptable to them. Finally – as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the President – it unlikely their sanction would often be refused – except where there were special and strong reasons for the refusal.
Senate Approval Will Check Presidential Favoritism and Bias
Why then require the co-operation of the Senate? The answer is the necessity of their concurrence will have a powerful (though generally silent) operation. Senate concurrence will be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters due to bias in favor of one or more States, or from family connection, personal attachment, or even a view to popularity. Senate approval also provides an efficacious source of stability in the administration.
It is readily apparent that an individual who alone controlled the disposition of offices would be governed much more by personal inclinations and interests than when bound to submit the propriety of the choice to the discussion and determination of a different and independent body – and that body is an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. Further, the danger to the President’s own reputation and political existence from betraying a spirit of favoritism or an unbecoming pursuit of popularity to the observation of the Senate – a body whose opinion would have great weight in forming that public opinion – could not fail to operate as a barrier to favoritism or popularity. A President would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of (1) coming from the same State to which the President belonged, (2) being in some way or other personally allied to the President, or (3) possessing the necessary insignificance and pliancy to render them the obsequious instruments of the President’s pleasure.
* * *
It is readily apparent that an individual who alone controlled the disposition of offices would be governed much more by personal inclinations and interests than when bound to submit the propriety of the choice to the discussion and determination of a different and independent body – and that body is an entire branch of the legislature.
* * *
Fears that a President Will Overpower the Senate Are Unfounded
Some suggested the President – by the influence of the power of nomination – may secure Senate approval of the nominee.
This argument rests on the erroneous supposition of universal venality in human nature. It is little less an error in political reasoning than the supposition of universal rectitude.
The institution of delegated power implies there is a portion of virtue and honor among mankind which gives a reasonable foundation of confidence in upright behavior. Experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
The venality of the British House of Commons has been long a topic of accusation against that body, both in that country and this. It cannot be doubted the charge is well founded to a considerable extent. But it is as little to be doubted there is always a large proportion of the body – consisting of independent and public-spirited individuals – who have an influential weight in the councils of that nation. Hence the sense of that body is often seen to control the inclinations of the monarch, both with regard to individuals and to measures. So even supposing the President might occasionally influence some individuals in the Senate, it is forced and improbable to suppose the President could purchase the integrity of the whole body.
A person disposed to view human nature as it is – without either flattering its virtues or exaggerating its vices - will see sufficient ground of confidence in the probity of the Senate to rest satisfied – not only that it will be impracticable to the executive to corrupt or seduce a majority of its members – but that the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of the President.
* * *
The institution of delegated power implies there is a portion of virtue and honor among mankind which gives a reasonable foundation of confidence in upright behavior. Experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
* * *
Restrictions on New Office or Emoluments Are a Further Security
Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body, for it declares: “No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.” Art. I, § 6, cl. 2 (emphasis added).
This provision severely restricts movement from the Senate to the executive branch and vice-versa.
Hamilton
original Federalist 76 Federalist 77: Senate Concurrence in the Appointment of Officers Far Surpasses the Alternatives
Concurrence Fosters Stability of Administration
ONE OF THE ADVANTAGES from the cooperation of the Senate in the business of appointments will be its contribution to the stability of the administration, since the consent of the Senate would be necessary to displace as well as to appoint. Therefore, a change of the chief magistrate (the President) would not occasion so violent or general a revolution in the officers of the Federal government as might be expected the President were the sole disposer of offices.
Where an individual in any station of government has given satisfactory evidence of his or her fitness for it, a new President would be restrained from attempting a change in favor of a more agreeable person by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon the Presidency.
Those who can best estimate the value of a steady administration will most prize a provision which connects the individual appointed with the approval or disapproval of the Senate, which – from the greater permanency of its own composition – will in all probability be less subject to inconstancy than any other part of the Federal government.
It Is Unlikely the President or Senate Will Wield Undue Influence Over One Another
The union of the Senate with the President in the article of appointments led some to say it would give the President an undue influence over the Senate, while others proposed it would have an opposite tendency, a strong proof that neither suggestion is true.
To restate the first contention in its proper form is to refute it. It amounts to this: the President would have an improper influence over the Senate, because the Senate would have the power of restraining the President. This is absurd, for a President could much more effectually to establish a dangerous empire over the Senate if granted the entire power of appointment, rather than a mere power of nomination subject to Senate control.
Consider the converse suggestion: the Senate would influence the President. The objection is so indistinct it forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person – in the sense here used – implies a power of conferring a benefit. How could the Senate confer a benefit upon the President by employing its right to approve or reject nominations? Some pointed to the possibility the Senate might gratify the President by acquiescence in a favorite choice even though public motives might dictate different conduct. My answer is the instances in which the President could be personally interested in the result would be too few to effect a material advantage to the Senate.
The power which originates the disposition of honors and emoluments is more likely to attract than to be attracted by the power which can merely obstruct their course. So if by “influencing the President” is meant the power of restraint, this is precisely what must have been intended.
It has been shown the restraint would be salutary, while not destroying a single advantage that might be gained if the President had the sole power of appointment. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils.
* * *
Those who can best estimate the value of a steady administration will most prize a provision which connects the individual appointed with the approval or disapproval of the Senate, which – from the greater permanency of its own composition – will in all probability be less subject to inconstancy than any other part of the Federal government.
* * *
The Constitution's System of Appointments Far Surpasses that of New York
If one compares the mode of appointment of officers of the United States with that of New York, a decided advantage appears in the Federal government. First, the power of nomination is unequivocally vested in the executive. And since it is necessary to submit each nomination to the judgment of the Senate (an entire branch of the legislature), the circumstances attending an appointment would naturally become well known, and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate, particularly if the rejection counteracted the good intentions of the executive. If an ill appointment should be made – the executive for nominating – and the Senate for approving – would participate in the opprobrium and disgrace, though in different degrees.
The reverse of all this characterizes the manner of appointment in New York. Its council of appointment consists of from three to five persons, of whom the governor is always one. This small body – shut up in a private apartment impenetrable to the public eye – proceed to the execution of the trust committed to them. The governor claims the right of nomination – upon the strength of some ambiguous expressions in the constitution – but it is not known to what extent or in what manner the governor exercises it, nor upon what occasions the governor may be contradicted or opposed. The censure of a bad appointment – due to uncertainty of its author and want of a determinate object – has neither poignancy nor duration. An unbounded field for cabal and intrigue lies open, while all idea of responsibility is lost. The most the public can know is (1) the governor claims the right of nomination; (2) at least two of the three four others can often be managed with little difficulty; (3) if some of the members should be of an uncomplying character, their opposition can be overcome by regulating the times of meetings to render their attendance inconvenient; and (4) from whatever cause it may proceed, a great number of very improper appointments are from time to time made.
Whether a governor of New York prefers individuals who are best qualified for their offices – or prostitutes power to the advancement of persons whose chief merit is their implicit devotion to the governor’s will – and to the support of a despicable and dangerous system of personal influence – can only be the subjects of speculation and conjecture for the public.
The Convention Rejected the Alternative of Forming a Separate Council of Appointment
However constituted, every council of appointment will be a conclave in which cabal and intrigue will have their full scope. The number of council members cannot be made large enough to preclude a facility of combination without a corresponding unwarrantable increase of expense. Each member will likely have friends and connections to provide for, so the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one individual might easily be satisfied; but to satisfy the private attachments of a dozen or twenty individuals would occasion a monopoly of all the principal employments of the government in a few families, leading more directly to an aristocracy or an oligarchy than any measure a cabal could contrive. While it might be possible to avoid such an accumulation of offices by frequently changing the persons who were to compose the council, the mischiefs of a mutable administration would fully appear.
A council smaller in size than the Senate would also be more liable to executive influence due to their fewer number, and also would act less immediately under public inspection. To substitute such a council for the Senate would produce an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the President. The House of Representatives Is Too Mutable and Numerous to Serve Any Role in Appointments
Some argued in favor of uniting the House of Representatives in the power of making appointments, but that body so fluctuating – and at the same time so numerous – it can never be deemed proper for the exercise of the power of appointment or ratification. In half a century it may consist of three or four hundred persons. All the advantages of the stability – of both the President and Senate – would be defeated by this union. Infinite delays and embarrassments would be occasioned. The examples of most of the States in their local constitutions confirm this.
* * *
A council smaller in size than the Senate would also be more liable to executive influence due to their fewer number, and also would act less immediately under public inspection.
* * *
The Remaining Executive Powers Are Unexceptionable
The only remaining powers of the executive are comprehended (1) in giving information to Congress of the state of the Union; (2) in recommending to their consideration such measures as the President shall judge expedient; (3) in convening them, or either branch, upon extraordinary occasions; (4) in adjourning them when they cannot themselves agree upon the time of adjournment; (5) in receiving ambassadors and other public ministers; (6) in faithfully executing the laws; and (7) in commissioning all the officers of the United States.
The only objections were invented by an insatiable avidity for censure. Some questioned the power of convening either the House or the Senate. With respect to the Senate, a good reason is readily apparent: since this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives.
A few cavils were raised as to the reception of ambassadors, but these were answered in Federalist 69.
The Executive Department Balances the Republican Requisites of Energy, Safety, Responsibility, and Due Dependence on the People
My survey of the structure and powers of the executive department is now complete. I have shown how it combines – as far as republican principles will admit – all the requisites to energy. The remaining inquiry is: does it also combine – in the republican sense – the requisites to safety, a due dependence on the People, and a due responsibility?
The answers to these questions must be in the affirmative. The President will be elected or re-elected once every four years by persons immediately chosen by the People for that purpose. The President will at all times liable to impeachment, trial, dismissal from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. Finally, in those instances in which the abuse of the executive authority was materially to be feared – treason, bribery, or other high crimes and misdemeanors – the President would be subject to the control of the Senate. What more could an enlightened and reasonable People desire?
Hamilton
original Federalist 77Federalist 78-83: The Judiciary
Federalist 78: Overview of the Judiciary
WE NOW EXAMINE THE JUDICIAL DEPARTMENT of the United States. The manner of constituting embraces three main objects:
1st. The mode of appointing judges.
2d. The tenure by which they are to hold their places.
3d. The partition of the judicial authority between different courts, and their relations to each other.
Judges Are Appointed in the Same Manner as Officers of the United States
As to the mode of appointing judges, it is the same as that of appointing officers of the United States in general, and has been fully discussed in Federalist 76 and Federalist 77.
Judges Are to Hold Office During Good Behavior
Second, the tenure by which the judges are to hold their places chiefly concerns their duration in office, the provisions for their support, and the precautions for their responsibility. According to the plan of the Convention, all judges who may be appointed by the United States are to hold their offices during good behavior. This standard conforms to the method used in the state constitutions held in the highest repute, and is one of the most valuable modern improvements in the practice of government. In a monarchy, it is an excellent barrier to despotism of the prince. In a republic, it is a no less excellent barrier to encroachments and oppressions of the representative body. It is the best expedient to secure a steady, upright, and impartial administration of the laws.
The Judiciary Is the Weakest of the Three Branches of Government
In a government where the different departments of power are separate from each other, the judiciary will always be the least able to annoy or injure the political rights of the constitution. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen to be are regulated. The judiciary, on the contrary, can take no active resolution whatever. It has no power over either the sword or the purse, nor can it direct the strength or wealth of the society. The judiciary has neither force nor will, but merely judgment. Ultimately it depends upon the aid of the executive arm to enforce those judgments.
The judiciary is beyond comparison the weakest of the three departments of power. When comparing it to the executive and legislative power, Montesquieu declared “the judiciary is next to nothing.” Since it can never successfully attack either the executive or legislative branch, all possible care is required to enable the judiciary to defend itself against their attacks.
* * *
In a government where the different departments of power are separate from each other, the judiciary will always be the least able to annoy or injure the political rights of the constitution. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen to be are regulated.
* * *
Individual oppression may now and then proceed from the courts of justice, but the general liberty of the People can never be endangered from that quarter, so long as the judiciary remains truly distinct from both the legislature and executive. On the other hand, if the power of judging is not separated from the legislative and executive powers, reasons Montesquieu, “there is no liberty.” Therefore, we would have everything to fear from the union of the judiciary with either of the other departments, but liberty can have nothing to fear from the judiciary alone.
A union between the judiciary and one of the other two branches could only ensue from the dependence of the judiciary on either of these other branches, notwithstanding a nominal and apparent separation. Due to the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches. Nothing can contribute more to its independence and firmness as permanency in office. This quality is justly regarded as indispensable to its constitution as the citadel of public justice and security.
* * *
The complete independence of the judiciary is particularly essential because the Constitution limits legislative authority, such as prohibiting the passage bills of attainder, ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
* * *
The Judiciary Has the Power to Declare Legislative Acts Void if Unconstitutional
The complete independence of the judiciary is particularly essential because the Constitution limits legislative authority, such as prohibiting the passage bills of attainder, ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some have imagined the right of the courts to pronounce legislative acts void as contrary to the Constitution implies a superiority of the judiciary to the legislature, since the authority to declare the acts of another department void appears superior to the authority of the department whose acts may be declared void. Having perplexed some, this argument merits consideration. With respect to the judiciary’s power to declare acts of another department void, it is clear that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the People are superior to the People themselves, and that those representatives may do not only what their powers do not authorize, but what they forbid. From these premises, it is apparent that no legislative act contrary to the Constitution can be valid.
* * *
With respect to the judiciary’s power to declare acts of another department void, it is clear that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the People are superior to the People themselves, and that those representatives may do not only what their powers do not authorize, but what they forbid.
* * *
Congress Does Not Have the Final Say on the Constitutionality of Its Measures
To those who say the legislature is itself the constitutional judge of its own power – and that its judgments are conclusive upon the other departments – I answer that no constitutional provision supports the presumption of legislative superiority to the judiciary in assessing compliance with the Constitution. The argument is akin to suggesting the Constitution enables the representatives of the People to substitute their will to that of their constituents, even though the Constitution is silent on the point. Is it not far more rational to suppose that the courts were designed to be an intermediate body between the People and the legislature, in order to keep the legislature within the limits assigned to their authority? The interpretation of the laws is the proper and peculiar province of the courts. A constitution is a fundamental law and must be so regarded by judges. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between a law and the Constitution, the Constitution ought to be preferred to the statute, for the intention of the People is superior to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the People is superior to both. Where the will of Congress – declared in its statutes – stands in opposition to the will of the People – as declared in the Constitution – the Constitution ought to govern the statute. In turn, judges ought to regulate their decisions by fundamental laws rather than by those which are not fundamental.
* * *
If there should happen to be an irreconcilable variance between a law and the Constitution, the Constitution ought to be preferred to the statute, for the intention of the People is superior to the intention of their agents.
* * *
This exercise of judicial discretion is exemplified in cases where two statutes clash in whole or in part with each other, and neither contains any repealing clause or expression. It is the province of the courts in such a case to liquidate and fix their meaning and operation. So far as they can be reconciled to each other by any fair construction, reason and law conspire to dictate this should be done. Where this is impracticable, it becomes a matter of necessity to give effect to one to the exclusion of the other. In determining their relative validity, the courts usually apply the rule that the statute last in order of time shall be preferred to the first. This rule is not derived from any positive law enjoined upon the courts by legislative provision. It is a mere rule of construction adopted by the judges themselves as being consonant to truth and propriety, based on the nature and reason of the thing, for the direction of their conduct as interpreters of the law. In reviewing the conflicting acts of an equal authority, they have thought it reasonable to give preference to the latest indication of legislative will.
The opposite of that rule should apply in cases where the acts of a superior and subordinate authority conflict. The prior act of a superior authority ought to be preferred to the subsequent act of an inferior and subordinate authority. Accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the Constitution and to disregard the statute.
Some might argue this rule permits courts to substitute their own pleasure to the constitutional intentions of the legislative branch. But the same argument could be made in every case where a court decides between two contradictory statutes, and even where it decides the meaning of a single statute. Courts must declare the sense of the law in every case, so if a judge should be disposed to exercise will instead of judgment in deciding the intent of a law, said exercise of judicial will effectively substitutes itself for the legislative will, whether the law was founded on the Constitution or a statute. The objection proves anything, it would be that there ought to be no judges distinct from the legislature.
A Lifetime Appointment Will Help Secure Judicial Independence
For the courts of justice to stand as the bulwarks of a limited Constitution against the encroachments of Congress, nothing less than permanent tenure of judicial offices is required. This alone can foster that independent spirit in the judges which is essential to the faithful performance of so difficult a duty.
This independence of judges is equally required to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing individuals (or the influence of particular conjunctures) sometimes disseminate among the People themselves. Although such ill humors speedily give place to better information and more deliberate reflection, in the meantime they have a tendency to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Although it a fundamental principle of republican government that the People have the right to alter or abolish the established Constitution whenever they find it inconsistent with their happiness, it is not to be inferred from this principle that the representatives of the People would be justified in violating the existing Constitution whenever a momentary inclination incompatible with its provisions happens to lay hold of a majority of their constituents. Similarly, the courts would be under no greater obligation to connive at infractions in this shape, than had they proceeded wholly from the cabals of the representative body.
Until the People have annulled or changed the Constitution by a solemn and authoritative act, it is binding upon themselves collectively, as well as individually. No presumption – or even knowledge – of their sentiments, can warrant their representatives in a departure from it. Nonetheless, it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions had been instigated by the major voice of the community.
* * *
This independence of judges is equally required to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing individuals (or the influence of particular conjunctures) sometimes disseminate among the People themselves.
* * *
An Independent Judiciary Discourages Legislative Excesses
The independence of judges may also be an essential safeguard against the effects of occasional ill humors in society which do not amount to infractions of the Constitution. These sometimes extend no farther than to the injury to the private rights of particular classes of citizens caused by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those laws which may have been passed, but it operates as a check upon the legislative body in passing them. Those who perceive that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled to qualify their attempts by the very motives of the injustice they meditate.
The benefits of the integrity of the judiciary is a circumstance calculated to have more influence upon the character of our governments, and its moderating influence already has been felt in more States than one. Though displeasing to those whose sinister expectations were disappointed, their decisions must have commanded the esteem and applause of all the virtuous and disinterested. Individual citizens of every description ought to prize whatever will tend to beget or fortify integrity in the courts, for no one can be sure to escape a spirit of injustice which can make a gainer today a victim tomorrow. And every individual must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
* * *
Individual citizens of every description ought to prize whatever will tend to beget or fortify integrity in the courts, for no one can be sure to escape a spirit of injustice which can make a gainer today a victim tomorrow. And every individual must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
* * *
Temporary Judicial Appointments Can Undermine Judicial Integrity
Judges who hold their offices by a temporary commission cannot be expected to maintain that inflexible and uniform adherence to the rights of the Constitution – and of individuals – which we perceive to be indispensable in the courts of justice. Periodical appointments – however regulated or by whomsoever made – would in some way or other be fatal to their necessary independence. If the power of making temporary appointments were committed either to the executive or legislative branch, there would be danger of an improper complaisance to the branch which possessed it. If the power were assigned to both branches, there would be an unwillingness to hazard the displeasure of either. If the power were committed to the People – or to persons chosen by them for the special purpose – there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
A Lifetime Tenure Is Essential to Attracting Qualified Judicial Candidates
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently been remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and to point out their duty in every particular case that comes before them. Considering the variety of controversies which grow out of the folly and wickedness of mankind, the records of those precedents must unavoidably swell to a very considerable bulk, which in turn must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few individuals in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
These considerations apprise us that the government can have no great option between fit characters. A temporary duration in office would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench. It would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear. The experience of Great Britain also affords an illustrious comment on the excellence of the institution of tenure during good behavior.
* * *
Hence it is, that there can be but few individuals in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
* * *
Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices. So far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government.
Hamilton
original Federalist 78 Federalist 79: The Salaries of Judges Cannot Be Diminished
A Provision against Diminution of Judicial Salaries Is Necessary
NEXT TO PERMANENCY IN OFFICE, nothing can contribute more to the independence of the judges than a fixed provision for their support. In the general course of human nature, a power over an individual’s subsistence amounts to a power over the individual’s will. We can never hope to see the reality of a complete separation of the judicial power from the legislative power in any system which leaves the judiciary dependent on the legislature for occasional grants pecuniary resources. The enlightened friends to good government in every State lament the want of precise and explicit precautions on this point, and some have even declared that permanent salaries should be established for the judges. But experience has shown that such legislative expressions were insufficiently definite to preclude legislative evasions in some instances.
* * *
In the general course of human nature, a power over an individual’s subsistence amounts to a power over the individual’s will.
* * *
Something still more positive and unequivocal has been evinced to be requisite. The Convention accordingly provided that the judges of the United States “shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” Art. III, § 1, cl. 2 (emphasis added).
This provision for the support of the judges bears every mark of prudence and efficacy. Together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges. Considering all the circumstances, it is the most eligible provision that could have been devised.
A Fixed Judicial Salary Would Be Subject to the Vicissitudes of the Value of Money
Fluctuations in the value of money and the state of society rendered a fixed rate of compensation untenable. What might seem extravagant today could become penurious and inadequate in half a century. Thus it was left to the discretion of the Congress to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A judge may then be sure of a financial grounding upon which the judge stands, and can never be deterred from duty by the apprehension of being placed in a less eligible situation. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office.
Unlike the Salary of the President, Judicial Salaries May Be Increased
The compensation of judges and the President differ under the convention’s plan. The compensation of the President cannot be diminished or increased. The compensation of judges cannot be diminished, but it may be increased. The difference is based on the tenure of each office. The President is to be elected for no more than four years. An adequate salary fixed at the beginning of that period rarely would fail to be such to its end. But judges will be secure in their offices for life if they behave properly. A stipend that was sufficient at their first appointment would become too small in the progress of their service.
* * *
But judges will be secure in their offices for life if they behave properly. A stipend that was sufficient at their first appointment would become too small in the progress of their service.
* * *
Impeachment Will Deter Judicial Misbehavior
The best precaution against the irresponsible behavior of judges is impeachment. Judges may be impeached for misbehavior by the House of Representatives, tried by the Senate, dismissed from office if convicted, and disqualified for holding any other office. Since this is only precaution consistent with the necessary independence of the judicial character, it is only one we find in the proposed Constitution.
To those who question the absence of a provision allowing removal of judges on account of inability, due consideration will reveal such a provision is more liable to abuse than to answer any good purpose. The measurement of the mind’s faculties has as yet found no place in the catalogue of known arts. Any attempt to fix the boundary between the regions of ability and inability would more often give scope to personal and party attachments and enmities than to advance the interests of justice or the public good. The result would for the most part be arbitrary, except in the case of insanity, which may be safely pronounced to be a virtual disqualification even without any formal or express provision.
* * *
To those who question the absence of a provision allowing removal of judges on account of inability, due consideration will reveal such a provision is more liable to abuse than to answer any good purpose.
* * *
In order to avoid such vague and dangerous investigations, the constitution of New York takes a particular age as the criterion of inability: no one can be a judge beyond sixty. Few approve of this provision, since there is no station to which it is less proper than that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in those who survive it. Considering how few outlive their season of intellectual vigor – and how improbable any considerable portion of the bench would be in such a situation at the same time – we can readily conclude limitations of this sort have little to recommend them. In a republic – where neither salaries are affluent nor pensions expedient – the dismissal of judges from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood – ought to have some better apology to humanity than one founded in the imaginary danger of a superannuated bench.
Hamilton
original Federalist 79 Federalist 80: Legal Disputes Subject to Federal Jurisdiction
Federal Judicial Authority
THE CONSTITUTION DESCRIBES THE ENTIRE MASS of the judicial authority of the United States as follows: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – between a State and Citizens of another State; – between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Art. III, § 2, cl 1.
The Six Principal Objects of Federal Judicial Authority
These Federal powers are roughly divisible into six principal objects, for which Federal judicial superintendence is necessary:
1. All cases concerning express provisions of the Constitution;
2. All cases arising from the laws of Congress passed pursuant to its just and constitutional powers of legislation;
3. All cases in which the United States is a party;
4. All cases involving the peace of the United States, whether related to dealings between the United States and foreign nations, or dealings between the States themselves;
5. All cases originating on the high seas which are of admiralty or maritime jurisdiction; and
6. All those cases where State tribunals cannot be supposed to be impartial and unbiased.
Cases concerning Express Constitutional Provisions
As to the first class – all cases concerning the execution of express provisions of the Constitution – there must always be a constitutional method of enforcing valid Federal provisions. Under the Constitution, the States are prohibited from doing a variety of things which are incompatible with the interests of the union or the principles of good government, such as the imposition of duties on imported articles and the emission of paper money. No one with good sense believes such prohibitions would be rigorously enforced without Federal power. This power must be either a direct negative on the State laws or an authority in the Federal courts to overrule such laws as might clearly contravene the Constitution. There is no third course. The Constitution authorizes federal courts to overrule unconstitutional State laws, a remedy more preferable to the States than a direct negative of their laws.
* * *
The Constitution authorizes federal courts to overrule unconstitutional State laws, a remedy more preferable to the States than a direct negative of their laws.
* * *
Cases arising out of the Laws of the United States
As to the second class – all cases arising out of the laws of the United States – clearly the judicial power of a government must be coextensive with its legislative power. The necessity of uniformity in the interpretation of the national laws decides the question. If any number of State courts of final jurisdiction could differently decide the same causes arising upon the same laws, the resulting procession of contradiction and confusion would be a hydra, not a government.
As for the difference between “cases arising under the Constitution,” and those “arising under the laws of the United States,” the clearest examples are those restrictions on the authority of State legislatures. For instance, if States were to emit paper money in violation of the constitutional interdiction, the responsive Federal action would arise under the Constitution, not the laws of the United States. This may serve as a sample of the whole.
Federal Judicial Power Extends to Cases Arising in Equity
The judicial power properly includes cases arising in equity as well as those arising under law. Some may question whether equitable causes can grow out of the Constitution and laws of the United States, but rarely does any subject of litigation between individuals fail to involve the equitable ingredients of fraud, accident, trust, or hardship. For instance, it is the peculiar province of a court of equity to give relief against what are called hard bargains: contracts with no direct fraud or deceit sufficient to invalidate them in a court of law, yet involving some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases – especially where foreigners are concerned on either side – it would be impossible for the Federal courts to do justice without an equitable as well as a legal jurisdiction.
The need for an equitable jurisdiction in the Federal courts would also arise in disputes over agreements to convey lands claimed under the grants of different States.
* * *
The judicial power properly includes cases arising in equity as well as those arising under law. Some may question whether equitable causes can grow out of the Constitution and laws of the United States, but rarely does any subject of litigation between individuals fail to involve the equitable ingredients of fraud, accident, trust, or hardship.
* * *
Cases between the United States and Foreign Nations, and between the States Themselves
The fourth aspect – Federal jurisdiction of all cases related to dealings between the United States and foreign nations and dealings between the States themselves – rests on the proposition that the peace of the whole union ought not to be left at the disposal of one or more of its parts. The United States will undoubtedly be answerable to foreign powers for the conduct of its members; therefore it should to have the faculty of preventing those injuries in the first place. Since the denial or corruption of justice by courts is with reason classed as a just cause of war, the Federal judiciary also ought to have cognizance of all causes where citizens of other countries are concerned. This is essential to preserving the public faith and securing the public tranquility. There also should be no distinction between those cases arising from treaties or the laws of nations and those cases which stand only on the footing of State or local law. An unjust judgment against a foreigner – if unredressed – would be an aggression upon the foreigner’s sovereign. To this one might add the immense difficulty of making a practical distinction between the cases of one complexion and those of the other. As the majority of the cases in which foreigners are parties involve national questions, it is by far safest and most expedient to refer all such cases to the national tribunals.
* * *
The fourth aspect – Federal jurisdiction of all cases related to dealings between the United States and foreign nations and dealings between the States themselves – rests on the proposition that the peace of the whole union ought not to be left at the disposal of one or more of its parts.
* * *
Cases in which the United States Is a Party
Still less need be said about the third class of class of cases, in which the United States is a party. Controversies between a nation and its members or citizens can be properly referred only to national tribunals. Any other plan would be contrary to reason, precedent and decorum.
Cases between States, between a State and Citizens of Another State, and Diversity Jurisdiction
Equally essential to the peace of the union is a Federal power to determine causes between two States, between one State and the citizens of another, and between the citizens of different States. The efficacy of courts invested with final authority to decide disputes between interests from different geographical areas was proven by the institution in Germany of the Imperial Chamber of Justice towards the close of the fifteenth century. Dissensions and private wars distracted and desolated the country before this action, but these were appeased and tranquility was reestablished afterwards.
Territorial disputes and interfering claims of boundary are fertile sources of bickering and animosity between the States, and have led to enactment of fraudulent laws to substantiate claims. The Constitution establishes particular guards against these, and anticipates the spirit which produced them will assume new shapes. Practices having a tendency to disturb the harmony between the States are proper objects of Federal superintendence and control.
The Privileges and Immunities Clause of Article IV
Since every government ought to possess the means of executing its own provisions by its own authority, the Constitution declares, in the Privileges and Immunities Clause: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, § 2, cl. 1. To maintain inviolate this equality of the Privileges and Immunities Clause, the national judiciary must preside in all cases where one State or its citizens are opposed to another State or its citizens. Having no local attachments, the national tribunals will likely be impartial between the different States and their citizens, and disinclined to engage in any evasion or subterfuge regarding the fundamental importance of that constitutional provision. I also note that the national judiciary – owing its official existence to the United States – will never be likely to feel any bias against the principles on which it was founded.
Cases Originating on the High Seas of Admiralty or Maritime Jurisdiction
The fifth point – cases arising on the high seas which are of admiralty or maritime jurisdiction – is conceded even by most bigoted idolizers of State authority. These cases so generally depend on the laws of nations – and so commonly affect the rights of foreigners – that jurisdiction is proper if only to keep the public peace. The most important of these cases were already subject to Federal jurisdiction under the Articles of Confederation.
* * *
To maintain inviolate this equality of the Privileges and Immunities Clause, the national judiciary must preside in all cases where one State or its citizens are opposed to another State or its citizens. Having no local attachments, the national tribunals will likely be impartial between the different States and their citizens, and disinclined to engage in any evasion or subterfuge regarding the fundamental importance of that constitutional provision.
* * *
All Cases where State Tribunals Cannot Be Supposed to Be Impartial or Unbiased
The sixth point – the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial – speaks for itself. No one can be a judge in his own cause, or in any in which he has the least interest or bias. This principle supports designating the Federal courts as the proper tribunals for the determination of controversies between different States and their citizens. In some cases, it should apply between citizens of the same State. For example, in cases involving conflicting land grants or boundaries of different States, the courts of neither granting State could be expected to be unbiased. State laws may have even prejudged the question, and tied State courts down to decisions in favor of their grants. And even where this had not been done, it would be natural that the judges – as humans – should feel a strong predilection to the claims of their own government.
All the particular powers of the Federal judiciary marked out in the Constitution conform to the principles necessary to govern the structure of that department and to perfect the system. If minor difficulties appear, the Congress – as the national legislature – will have ample authority to make such exceptions and prescribe such regulations as will obviate or remove them. To a well informed mind, the possibility of particular mischiefs can never be viewed as a solid objection to a general principle calculated to avoid general mischiefs and to obtain general advantages.
Hamilton
original Federalist 80 Federalist 81: The Structure of the Federal Court System
To assist comprehension, I have added numbered and lettered headings, in the form I might employ in a court of law or equity.
I. A National Supreme Court Is Required
I now turn to the partition of the judicial authority between different courts, and their relations to each other. Article I, section 3, of the Constitution provides: “The judicial power of the United States is to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”
The word jurisdiction is composed of jus – the law – and dictio – to speak. Jurisdiction simply means speaking or pronouncing the law. No one contests the need for one court of supreme and final jurisdiction. The reasons for it were discussed in Federalist 80, and are too obvious to need repetition.
* * *
The word jurisdiction is composed of jus – the law – and diction – to speak. Jurisdiction simply means speaking or pronouncing the law.
* * *
A. The Supreme Court Must Be Independent of Congress
1. Fears of an Uncontrollable Supreme Court Are Unfounded
The only question raised is whether the Supreme Court ought to be a distinct body or merely a part of the legislature, from which individuals would be drawn to serve as members of the court. Those who desire to vest judicial powers in a part of the legislature assert the authority of a separate and independent Supreme Court would be superior to that of the legislature. They fear the Supreme Court would have the power to construe laws according to the spirit of the Constitution, enabling it to mold them into whatever shape it thinks proper, especially since its decisions will not be in any manner subject to revision or correction by Congress. This is asserted to be unprecedented and dangerous because the errors and usurpations of the Supreme Court would be uncontrollable and remediless. The votaries of this objection prefer the systems of Britain and several of the States, where the judicial power of last resort resides in their legislatures, which are assumed to have the power to rectify by law the unacceptable decisions of their respective high courts.
These objections to the Supreme Court of the United States are made up altogether of false reasonings upon misconceived facts.
a. The Constitution Is Silent on Constitutional Interpretation
The Constitution utters not a single syllable directly empowering the national courts to construe the laws according to the spirit of the Constitution, or of giving them any greater latitude in this respect than may be claimed by the courts of every State.
b. Congressional Acts Must Give Way When Evidently Opposed to the Constitution, and the Supreme Court Is the Final Arbiter as to the Act Before It
The Constitution must be the standard against which the laws of Congress are tested, and those laws must give way to the Constitution wherever there is an evident opposition. Although this doctrine is not set forth in Constitution itself, it is central to the theory and nature of a limited constitution. As far as it is true, it applies equally to most if not all State governments. On this account, any objection that would lie against an independent Federal judicial branch would lie against State and local judicial branches as well, and would serve to condemn every constitution that has or ever will attempt to set bounds to legislative discretion.
2. The Separation of Powers Doctrine Requires the Supreme Court Be a Separate and Distinct Branch of Government, Not an Outgrowth of the Legislative Branch
The force of the objection to the existence of a separate Supreme Court is directed to its composition as a distinct body of magistrates – one of three separate branches of government. The opponents of a separate and distinct high court would have the Supreme Court be an outgrowth of the legislative branch, instead of being its own branch connected to the tree comprising the activity of the People, who are the root of all power, as explained with more detail in Federalist 84. These opponents prefer the system prevailing in the governments of Great Britain and New York.
a. Making the Supreme Court a Department of the Congress Would Improperly Intermix the Powers Delegated to Both
To argue the Supreme Court should be a department of the Congress is to renounce allegiance to the doctrine that the departments of power should be separate. Yet the principal advocates of a scheme that would vest the ultimate decision of all judicial causes in a part of the legislative body object to having the Senate sit as a court of impeachments on the ground it would be an improper intermixture of separate powers. They are mistaken as to both.
b. While the Scheme Would Not Necessarily Directly Violate the Separation of Powers Doctrine, It Would Result in Indirect Violations
I will concede the doctrine of separation of powers – as explained in Federalist 47 and Federalist 48 – would not be violated by vesting the ultimate power of judging in a part of the legislative body. But though this be not an absolute violation of that excellent rule, it verges so nearly upon it to be on this account alone to be less eligible than the mode set forth in the Constitution.
(1) Constitutional Violations Would Be Unremedied
Rarely could we expect a body that had even a partial agency in passing bad laws to sit in temper or moderation in deciding whether they were authorized by powers granted to the national government through the Constitution. The same spirit which had operated in making the laws would pervade their interpretation. Still less should we expect individuals who had infringed the Constitution in the character of legislators to be disposed to repair the breach while sitting as judges. Nor is this all.
(2) Individuals Elected to Limited Terms Should Not Review Decisions by Lower Court Judges Who Are Appointed for Life
Every reason in favor of a lifetime tenure for judges during good behavior opposes placing the judicial power of last resort in a body composed of individuals chosen for a limited period. It would be absurd to refer the determination of causes in the first instance to judges of permanent standing, and in the last to those of a temporary and mutable duration.
(3) Judges Are Selected for Legal Acumen and Training, while Legislators Are Not
A still greater absurdity is subjecting the decisions of individuals selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of individuals who lack that knowledge for want of the same experience. Rarely are members of the legislature chosen with a view to those qualifications which fit individuals for the station of judge.
(4) Party Factions Inevitably Would Diminish Impartiality
The natural propensity of legislative bodies is to party divisions, and when afflicted with the consequences of ill information, we may fear the pestilential breath of faction will poison the fountains of justice. The legislative habit of continually marshaling forces on opposite sides will be too apt to stifle the voices of both law and of equity.
c. Over Two Thirds of State Supreme Courts Are Separate from Their Legislatures
All of these considerations lead us to applaud the wisdom of those States which have committed the judicial power of last resort to bodies of individuals distinct and independent from the legislature. In this respect the Constitution is neither novel nor unprecedented, as it simply a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, all of which are the preferred exemplars for an independent judiciary.
d. Even in Governments Where the Judicial Power of Last Resort Is Vested in a Part of the Legislature, the Rest of the Legislature Is Without Power to Correct Erroneous Judicial Decisions in Particular Cases
Neither the Parliament of Great Britain nor the similarly composed State legislatures can rectify objectionable decisions of their respective courts in any sense other than might be done by a future legislature of the United States. Nothing in the British or State constitutions authorizes revisal of a judicial sentence by a legislative act. The Constitution is to the same effect. Under all of these systems, a legislature cannot reverse a determination once made in a particular case without exceeding its province, although it may prescribe a new rule for future cases. No express provision commands this: the sole obstacle is its impropriety under general principles of law and reason, and it applies to State governments in exactly the same manner and extent as it would to the national government. There is not the least difference in any view of the subject.
e. The Threat of Judicial Usurpation of Legislative Power Is Minimal
In the last place, the supposed danger of the judiciary encroaching on legislative authority is in reality a phantom. While judicial officers may now and then misconstrue or contravene the will of the legislature, their errors can never be so extensive or frequent as to affect the order of the political system to any noticeable degree. This follows from the general nature of the judicial power, the objects to which it relates, the manner in which it is exercised, its comparative weakness, and its total incapacity to support its usurpations by force. In addition, the power to institute impeachments in the House of Representatives and to determine them in the Senate is a complete security against judicial usurpations. A series of deliberate judicial usurpations of legislative authority would hazard the united resentment of the legislative branch, which possesses the means of punishing their presumption by degrading them from their stations. This not only removes all apprehensions on the subject, it affords a cogent argument for constituting the Senate a court for the trial of impeachments.
* * *
In the last place, the supposed danger of the judiciary encroaching on legislative authority is in reality a phantom. While judicial officers may now and then misconstrue or contravene the will of the legislature, their errors can never be so extensive or frequent as to affect the order of the political system to any noticeable degree.
* * *
B. The Original Jurisdiction of the Supreme Court Is Limited
The Supreme Court’s original jurisdiction is confined to two classes of causes of a nature rarely to occur: “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Art. III, § 2, cl. 2 (emphasis added).
Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with preserving the public peace and maintaining respect for the sovereignties they represent that expediency and propriety dictate such questions be submitted in the first instance to the highest court of the nation. Although consuls are not strictly diplomats, they are the public agents of the nations to which they belong, so the same observations are applicable to them.
C. The Supreme Court’s Appellate Jurisdiction Must Extend to Factual as Well As Legal Issues, Since Appellate Jurisdiction of Facts Will Not Interfere with the Right to Trial by Jury
Aside from those cases of original jurisdiction, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Art. III, § 2, cl. 3 (emphasis added). This would include all the classes of cases subject to Federal jurisdiction discussed in Federalist 80.
The propriety of appellate jurisdiction in regard to matters of law is unquestioned, but loud clamors of opposition are heard as to review of matters of fact. The objection depends in part on a mistaken notion that derives from the language and forms which obtain in New York courts, but not all others. In New York courts, the term “appellate” is commonly used in reference to appeals in the course of the civil law. From this technical meaning, some have deduced that the grant of “appellate Jurisdiction, both as to Law and Fact,” supersedes the right to trial by jury, leaving only trials without a jury, as in cases of admiralty, probate, and chancery in this State.
* * *
As for cases in which a State happens to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.
* * *
But the same meaning would not be given to “appellate” in any part of New England. There an appeal from one jury to another is familiar both in language and practice. Such “appeals” even occur as a matter of course until there have been two verdicts on one side. Thus the word “appellate” cannot be understood in the same sense in New England as in New York. This observation also demonstrates the impropriety of deriving a technical interpretation of a term in the Constitution from the jurisprudence of any particular State.
Viewed in the abstract, the expression of “appellate Jurisdiction, both as to Law and Fact,” denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom. In a new government like ours, it must depend on legislative provision. In either situation, the review may be with the aid of a jury, or without it, as the legislature deems advisable.
In New York, a claim of error brought from a lower court to a higher court confers jurisdiction to the higher court of the facts as well as the law. The higher court cannot institute a new factual inquiry, but it does take cognizance of those facts as they appear on the record, and pronounces the law arising upon it. This is jurisdiction of both fact and law; it is impossible to separate them. Similarly, the common law courts of this State unquestionably have jurisdiction of both fact and law, since those courts may proceed to judgment without a jury trial when the facts are undisputed. Where the facts are disputed a jury ascertains them.
Under the Constitution, the grant of “appellate jurisdiction, both as to Law and Fact” to the Supreme Court will not permit it to reexamine a fact once ascertained by a jury. If the Constitution ever should permit the Supreme Court to reexamine a fact once determined by a jury, it could either remand the cause to the court below for a second trial of the fact by a jury, or by directing a factual issue out of the Supreme Court for determination.
With respect to jurisdiction as to facts, the Convention may have reasoned that the appellate jurisdiction of the Supreme Court would extend to causes determined under both the common law and the civil law. In common law cases, the proper province of the Supreme Court would generally be limited to revising the law. In civil law cases, reexamination of the fact might be agreeable to usage. In some cases – prize causes for instance – reexamination of the facts might be essential to the preservation of the public peace. In those cases, appellate jurisdiction should extend in the broadest sense to matters of fact.
The Convention could have made an express exception to the grant of jurisdiction in those cases originally tried by a jury, but this was impractical because in some of the States all causes are tried to a jury, and such an exception would preclude any revision of fact, whether proper or not. To avoid all these difficulties, the safest course was to declare generally Supreme Court appellate jurisdiction both as to law and fact, subject to such exceptions and regulations as the national legislature (i.e., Congress) may prescribe. This enables the government to modify it in such a manner as will best answer the ends of public justice and security.
From this viewpoint, it is obvious the supposed abolition of the trial by jury through the grant of appellate jurisdiction to the Supreme Court is fallacious and untrue. The Federal legislature certainly has full power to provide there should be no reexamination of facts in appeals from causes originally tried by juries. This would certainly be an authorized exception. If it should be thought too extensive an exception, it might be qualified with a limitation to causes determinable at common law by a jury.
II. Lower Courts and Their Relations with the Supreme Court
A. The Power to Create Inferior Courts Should Be Used to Create National Courts Across State Boundaries
Turning to how the judicial authority is to be distributed between the supreme and the inferior courts of the union, the Constitution authorizes Congress to create “tribunals inferior to the Supreme Court.” Art. I, § 8, cl. 9. The evident design of the provision is to enable the institution of local Federal courts, subordinate to the Supreme Court, either in States or larger districts, and to obviate the necessity of having recourse to the Supreme Court in every case of Federal cognizance. It is intended to enable the national government to institute or authorize – in each State or district of the United States – a tribunal competent to the determination of matters of national jurisdiction within its limits.
B. Federal District Courts Are Necessary, for the Agency of State Courts Is an Inadequate Alternative
It will be found highly expedient and useful to divide the United States into four to six districts and to institute a Federal court in each rather than one in every State. The judges of these courts, with the aid of State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice may be administered through them with ease and dispatch, with appeals safely circumscribed within a narrow compass. This plan appears the most eligible of any that could be adopted. It requires the power of constituting inferior courts be exercised to the fullest permissible extent under the Constitution. The want of such a power would have been a great defect in the plan.
It might be said the same purpose could be accomplished by the instrumentality of the State courts. The power to create “tribunals inferior to the Supreme Court” is broad enough to permit it, and the utmost latitude must be allowed as the fitness and competency of those courts.
But ought not a more direct and explicit provision have been made in favor of the State courts? The substance of the power in question must be regarded as a necessary part of the plan, if it only to empower the national legislature to commit to national courts the cognizance of causes arising out of the national Constitution. There also are substantial reasons against such a provision in favor of State courts. State judges – holding their offices during pleasure or from year to year – will be too little independent to be relied upon for an inflexible execution of the national laws. The most discerning individuals cannot foresee how far a prevailing local spirit may disqualify the local tribunals from the jurisdiction of national causes.
* * *
State judges – holding their offices during pleasure or from year to year – will be too little independent to be relied upon for an inflexible execution of the national laws. The most discerning individuals cannot foresee how far a prevailing local spirit may disqualify the local tribunals from the jurisdiction of national causes.
* * *
C. Assuming State Courts Are Utilized to Resolve Causes Involving National Laws, the Availability of Appellate Review Should Depend on the Confidence of Congress in those State Courts
If there is need for confiding the original cognizance of causes arising under national laws to State courts, there would be a correspondent necessity for leaving the door of appeal open as widely as possible. The facility or difficulty of appeals should be proportionate to the confidence in, or distrust of, the subordinate tribunals. I am well satisfied with the propriety of the appellate jurisdiction in the several classes of causes to which it is extended by the Constitution. However, everything calculated to give practice to an unrestrained course to appeals would be a source of public and private inconvenience.
D. Federal Jurisdiction Will Not Abrogate State Sovereign Immunity
In order to arouse State opposition to the Constitution, some have suggested citizens from one State should be able to utilize the Federal courts to prosecute claims against a State which had issued them securities. Although this issue digresses from the immediate subject of this paper, it has excited some alarm and merits refutation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without his or her consent. This is the general sense and practice of mankind, and exemption from such suits is now enjoyed by the government of every State in the union. Unless this immunity is surrendered in the Constitution, it will remain with the States, and the danger will exist merely as an idea. The circumstances necessary to produce an alienation of State sovereignty were discussed in connected with taxation in Federalist 31 and others, and need not be repeated here. The principles there established satisfy us the Constitution will divest no State government of the privilege of paying their own debts in their own way, free from every constraint save those flowing from the obligations of good faith.
The contracts between a nation and individuals are only binding on the conscience of the sovereign, with no pretension to a compulsive force. They confer no right of action, independent of the sovereign will. It advances no purpose to authorize suits against sovereign States for the debts they owe. No recovery could be had without waging war against the contracting State. The Constitution does not destroy the preexisting sovereign right of the State governments, and it is altogether forced and unwarranted to ascribe to the Federal courts a power with such a consequence.
The summary of the observations hitherto made on the authority of the judicial department is this: the judicial authority has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the new judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
Hamilton
original Federalist 81 Federalist 82: Concurrent Federal and State Court Jurisdiction
WHATEVER CARE OR WISDOM may distinguish the erection of a new government, it cannot fail to originate questions of intricacy and nicety, particularly where its constitution is founded upon the total or partial incorporation of a number of distinct sovereignties. Time alone can mature and perfect so compound a system, solidify the meaning of all the parts, and adjust them to each other in a harmonious and consistent whole.
State Courts Retain Concurrent Jurisdiction
Such questions have arisen concerning the judicial department. The principal of these are position of State courts regarding those causes subject to Federal jurisdiction. Is there to be an exclusive Federal jurisdiction, or do the State courts possess a concurrent jurisdiction, and if so, in what relation will they stand to the national tribunals?
The principles established in Federalist 31 teach us the States retain all preexisting authorities not exclusively delegated to the Federal government, and this exclusive delegation can exist only in one of three cases:
1. Where an exclusive authority is granted to the Federal government in express terms;
2. Where a particular authority is granted to the Federal government and the exercise of a like authority is prohibited to the States; and
3. Where an authority is granted to the Federal government, and the exercise of a similar authority by the States would be utterly incompatible.
Although these principles may not apply to the Federal judicial power with the same force as they do to the Federal legislative power, in general they justly apply to both. And from this it follows the State courts retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.
* * *
Nonetheless, State courts will be divested of no part of their preexisting jurisdiction, other than may relate to the appeal of Federal issues.
* * *
The only thing in the Constitution appearing to confine the causes of Federal cognizance to the Federal courts is contained in this passage: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.” Art. III, § 1 (emphasis added).
This sentence could signify simply that the organs of the Federal judiciary are one Supreme Court and as many subordinate courts as Congress should think proper to appoint. Or it could signify the supreme and subordinate courts of the United States alone have the power of deciding those causes to which their authority extends. The first view admits concurrent State court jurisdiction; the second view excludes it. Since an exclusion of concurrent State court jurisdiction would amount to an alienation of State power by implication, the first view – concurrent State court jurisdiction – appears the most natural and defensible construction.
This construction in favor of concurrent jurisdiction most clearly applies to those causes which were cognizable in State courts prior to ratification of the Constitution. It is not so evident as to cases which grow out of and are based on the Constitution. It can hardly be considered an abridgment of a preexisting authority to deny the State courts a right of jurisdiction in such cases. The Congress may commit the decision of causes arising upon a particular regulation to the Federal courts alone if such a measure should be deemed expedient. Nonetheless, State courts will be divested of no part of their preexisting jurisdiction, other than may relate to the appeal of Federal issues. Unless expressly excluded by the future acts of the national legislature, State courts will of course take cognizance of the causes to which those acts may give birth. This follows from the nature of judicial power, as well as the general genius of the judicial system. The judicial power of every government looks beyond its own local or municipal laws. In civil cases, it considers all the subjects of the litigation between the parties within its jurisdiction, even though the causes of the dispute may relate to the laws of the most distant part of the globe. For instance, the laws of Japan – not less than of New York – may furnish the objects of legal discussion to our courts.
When we further consider that the State governments and the Federal government are truly kindred systems – parts of one whole – it seems conclusive that State courts would have a concurrent jurisdiction in all cases arising under the laws of the United States, unless expressly prohibited.
An Appeal Will Lie from State Courts to Federal Courts in Cases of Concurrent Jurisdiction
Turning to the relationship between the Federal and State courts in cases of concurrent jurisdiction, an appeal would certainly lie from the State courts to the Supreme Court of the United States. The Constitution in direct terms gives the Supreme Court appellate jurisdiction in all the enumerated cases of Federal cognizance in which it is not to have original jurisdiction, without a single expression to confine its operation to the inferior Federal courts. It states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Art. III, § 2, cl. 2.
* * *
When we further consider that the State governments and the Federal government are truly kindred systems – parts of one whole – it seems conclusive that State courts would have a concurrent jurisdiction in all cases arising under the laws of the United States, unless expressly prohibited.
* * *
The objects of an appeal – not the tribunals from which it is to be made – are alone contemplated. Both reason and circumstance favor extending the appellate jurisdiction of the Supreme Court to causes arising in State tribunals. Since the national and State systems should be regarded as one whole, the State courts will of course be natural auxiliaries to the execution of the laws of the United States, and an appeal from them will as naturally lie to that tribunal — the Supreme Court – which is destined to unite and assimilate the principles of national justice and the rules of national decisions. Were there no right to appeal, the State courts would have to be excluded from concurrent jurisdiction in matters of national concern, for otherwise every plaintiff and prosecutor could elude the judiciary of the United States at their pleasure. These consequences would defeat some of the most important and avowed purposes of the Federal government, and essentially embarrass its measures.
The evident aim of the constitutional provision is to ensure all the causes of Federal jurisdiction shall – for weighty public reasons – receive their original or final determination in the courts of the United States. To confine the appellate jurisdiction of the Supreme Court only to appeals from subordinate Federal courts would abridge the terms and subvert the intent of the provision granting the Supreme Court appellate jurisdiction of Federal issues.
* * *
Whether their authority shall be original or appellate – or both – is not declared, with all this being left to the discretion of the Federal legislature. This being so, there exists no impediment to the establishment of an appeal from State courts to the subordinate national tribunals.
* * *
A more difficult question is whether an appeal could be made to lie from the State courts to the subordinate Federal courts. The following considerations countenance the affirmative. In the first place, the Constitution authorizes the Congress “to constitute tribunals inferior to the Supreme Court.” Art. I, § 8, cl. 9. It declares, in the next place, that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish.” Art. III, § 1 (emphasis added). It then proceeds to enumerate the cases to which this judicial power shall extend. Art. III, § 2. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of the subordinate courts, other than they shall be “inferior to the Supreme Court,” and that they shall not exceed the specified limits of the Federal judiciary. Whether their authority shall be original or appellate – or both – is not declared, with all this being left to the discretion of the Federal legislature. This being so, there exists no impediment to the establishment of an appeal from State courts to the subordinate national tribunals. This would diminish the need to multiply Federal courts, and to refine the causes the Supreme Court would consider pursuant to its appellate jurisdiction. State tribunals would be left with a more entire charge of Federal causes. In cases where an appeal is deemed proper, they would be made to lie to the subordinate Federal courts instead of the Supreme Court.
Hamilton
original Federalist 82 Federalist 83: Trial by Jury in Federal Courts
THE OBJECTION which met with the most success in New York – and perhaps several other States – is the absence of a constitutional provision for the trial by jury in civil cases. This objection was repeatedly exposed as disingenuous, but continues to be pursued by opponents of the Constitution, who propose the mere silence of the Constitution in regard to civil causes amounts to an abolition of the trial by jury. This erroneous pretext is artfully calculated to induce the belief that this pretended abolition is complete and universal, and extends not only to every species of civil cases, but even to criminal causes.
The provision at issue is in set forth in the first clause of the third paragraph of Article III: “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; . . . .”
To refute the false claim of abolition of a jury trial in regard to criminal cases would be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force a mental conviction, assuming they are expressed in language adapted to convey their meaning.
Opponents of the Constitution Have Misapplied Maxims of Legal Interpretation
With regard to civil cases, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is merely not provided for is entirely abolished. Every person of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation – which they have perverted from their true meaning – it may not be wholly useless to explore the ground they have taken.
One of the maxims relied upon is that “a specification of particulars is an exclusion of generals” – or stated slightly differently – “the expression of one thing is the exclusion of another.” The Constitution specifies the right trial by jury in criminal cases, yet is silent in respect to civil cases. This silence, say they, denotes an implied prohibition of trial by jury in civil cases.
The rules or maxims of legal interpretation adopted by the courts in the construction of laws are based on common sense. Therefore, the true test of a just application of a legal maxim is its conformity to the source from which it is derived. This being the case, is it consistent with common sense to suppose that a provision obliging the legislative authority to commit the trial of criminal cases to juries deprives that same authority of its right to permit jury trials in other cases? Is it natural to suppose that a command to do one thing is a prohibition of the doing of another, especially where a previous power existed which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others.
* * *
To refute the false claim of abolition of a jury trial in regard to criminal cases would be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force a mental conviction, assuming they are expressed in language adapted to convey their meaning.
* * *
A power to constitute courts includes a power to prescribe the mode of trial. Consequently, if the Constitution said nothing on the subject of juries, the legislative authority of each State would be at liberty either to adopt that institution or to let it alone. In regard to criminal cases, however, this discretion is abridged by the express requirement of trial by jury in all such cases. In regard to civil cases, there is a total silence, thereby leaving it at large in relation to civil cases.
The specification of an obligation to try all criminal cases in a particular mode merely excludes the obligation to employ the same mode in civil cases, but it does not abridge the power of a State legislature to exercise that mode if it should be thought proper.
The contention that the national legislature would not be at full liberty to submit all the civil cases of federal cognizance to the determination of juries is thus no more than a pretense destitute of all just foundation.
From these observations, one must conclude that trial by jury in civil cases would not be abolished; and that the attempted use of the maxims quoted above is contrary to reason and common sense.
Even if these maxims had a precise technical sense corresponding with the idea of those who employ them upon the present occasion, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions is the true criterion of construction, apart from any technical rules.
* * *
The rules or maxims of legal interpretation adopted by the courts in the construction of laws are based on common sense. Therefore, the true test of a just application of a legal maxim is its conformity to the source from which it is derived.
* * *
Proper Application of the Maxim that the Specific Excludes the General
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor through examples to ascertain their proper use and true meaning as applied to the Constitution.
The Constitution declares the power of Congress – the national legislature – shall extend to certain enumerated cases. This specification of particulars excludes all pretension to a general legislative authority, and is consistent with the maxim that “a specification of particulars is an exclusion of generals.” An affirmative grant of special powers would be absurd – as well as useless – if a general authority was intended.
In like manner the authority of the federal judiciary is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction. Since the objects within the cognizance of the federal judiciary are enumerated, said specification would be nugatory if it did not exclude all ideas of more extensive authority.
From these observations it is unquestionably true that trial by jury is in no case abolished by the Constitution. It is equally true that in those civil controversies between individuals, the ability to try the case before a jury will remain precisely the same as it now is under the State constitutions, and will be in no degree altered or influenced by the adoption of the federal Constitution. The national judiciary will have no cognizance of them, and as such those cases will remain determinable (as heretofore) by the State courts only, and in the manner which the State constitutions and laws prescribe.
* * *
The contention that the national legislature would not be at full liberty to submit all the civil cases of federal cognizance to the determination of juries is thus no more than a pretense destitute of all just foundation.
* * *
Most Civil Suits Will Arise under State Law, and thereby Be Subject to State Laws regarding Trial by Jury
All land cases will belong exclusively to the jurisdiction of the State tribunals, except where claims under the grants of different States come into question. All other controversies between the citizens of the same State – unless they depend upon positive violations of the Constitution – will be decided in accordance with the mode of trial enacted by the State legislature. I might add that in New York, admiralty cases and almost cases invoking equity jurisdiction are determinable without the intervention of a jury.
On the whole, the most reasonable inference will be that the right to a jury trial – as it exists with us at present – cannot possibly be affected to any great extent by the federal Constitution.
* * *
On the whole, the most reasonable inference will be that the right to a jury trial – as it exists with us at present – cannot possibly be affected to any great extent by the federal Constitution.
* * *
The Value of the Right to Trial by Jury
The friends and adversaries of the Constitution – if they agree on nothing else – concur at least in the value they set upon the trial by jury. If there is any difference between them it consists in this: those supporting the Constitution regard the right to trial by jury in criminal cases as a valuable safeguard to liberty, while those in opposition view the right to a jury trial as the very palladium of a free government.
For my own part, the more the operation of jury trials has fallen under my observation, the more reason I have discovered for holding it in high estimation. It would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defense against the oppressions of a hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.
Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern an inseparable connection between the existence of liberty and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings.
The right to a trial by jury in criminal cases – aided by the habeas corpus act – seems therefore to be alone concerned in the question. And both of these are provided for most amply in the Constitution. For in addition to the requirement of jury trial in criminal cases, Congress may not suspend habeas corpus except in limited circumstances: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Art. I, § 9, cl. 2.
Trial by Jury in regard to the Power of Taxation
Some have observed that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed.
It is evident that the right to trial by jury can have no influence upon a legislative body in regard to the amount of taxes to be laid, the objects upon which they are to be imposed, or the rule by which they are to be apportioned. Therefore, if the right to jury trial it can have any influence, it must be upon the mode of collection, and the conduct of the officers entrusted with the execution of the revenue laws.
As to the mode of collection in New York, trial by jury is in most cases out of use under its constitution. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And all acknowledge that this is essential to the efficacy of the revenue laws.
The dilatory course of a trial at law to recover the taxes imposed on individuals would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied.
And as to the conduct of the officers of the revenue, the security desired is afforded by the provision in favor of trial by jury in criminal cases. Wilful abuses of a public authority to the oppression of the subject – and every species of official extortion – are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case.
* * *
And as to the conduct of the officers of the revenue, the security desired is afforded by the provision in favor of trial by jury in criminal cases. Wilful abuses of a public authority to the oppression of the subject – and every species of official extortion – are offenses against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case.
* * *
While it Does Not Appear a Jury Trial in Civil Cases Is Essential to Liberty, It Makes Corruption More Difficult
The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the body of magistrates than to a jury.
The force of this consideration is diminished by others, however. Both the sheriff (who is the summoner of ordinary juries) and the clerk of the court (who nominates special juries) are themselves standing officers. Acting individually, each may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see that it would be in the power of sheriffs and clerks to select jurors who would serve the purposes of the party as well as would a corrupted bench. It also fairly may be supposed that there would be less difficulty in gaining the assistance of some jurors – promiscuously taken from the public mass – than in gaining individual judges, who had been chosen by the government for their probity and good character.
But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption, since it greatly multiplies the impediments to its success. At present, it would be necessary to corrupt both the court and the jury, for where a jury has gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice corruption upon a jury unless the court could be likewise gained. Here then is a double security: this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.
The temptations to prostitution which judges might have to surmount must certainly be much fewer where the cooperation of a jury is necessary, than they might be if judges alone had the exclusive determination of all cases.
A Constitutional Provision Requiring a Jury in Civil Actions Would Raise Many Difficulties
Notwithstanding the doubts I have expressed that trial by jury in civil cases is essential to liberty, I admit that in most cases (and under proper regulations) it is an excellent method of determining questions of property.
On this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended.
There is great difficulty in this in all cases, however. Individuals not blinded by enthusiasm must be sensible that in a federal government – which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other – that difficulty must be not a little augmented.
At every new view I take of the subject, I become more convinced of the reality of the obstacles which prevented the insertion of a provision for jury trials in civil cases in the Constitution. There are great differences in the States on the limits of the jury trial that are not generally understood, yet merit examination, in order to explain the omission in the Constitution of a provision for civil jury trials.
New York’s judicial establishments more closely resemble those of Great Britain than of any other State. New York has courts of common law, probate courts (analogous in certain matters to the spiritual courts in England), as well as admiralty courts and chancery courts. Trial by jury prevails only in the courts of common law, with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.
New Jersey has a court of chancery like that of New York, but neither a court of admiralty nor of probates, which are instead cognizable in its courts of common law. Jury trials are more extensive in New Jersey than New York.
Pennsylvania has no court of chancery, for its common law courts have equity jurisdiction. It has a court of admiralty, but none of probates.
Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; and South Carolina to Virginia. I believe in some of those States which have distinct courts of admiralty, the cases pending in them are triable by juries.
In Georgia there are only courts at common law, and an appeal lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out.
Connecticut has no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of cases. Their common law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further than in any other State yet mentioned.
In this particular, Rhode Island is much in the situation of Connecticut. Massachusetts and New Hampshire – in regard to the blending of law, equity, and admiralty jurisdictions – are in a similar predicament.
In these four eastern States, trial by jury not only stands upon a broader foundation than in the other States, but there is an appeal as a right from one jury to another until there have been two verdicts out of three on one side.
From this sketch it appears that there is a material diversity in the several States of the institution of trial by jury in civil cases. And from this fact several obvious reflections flow: first, no general rule could have been fixed upon by the Constitutional Convention which would have corresponded with the circumstances of all of the States. And secondly, if the Convention had taken the system of any one State for a standard, it would have hazarded at least as much or more than by omitting a provision altogether and leaving the matter to the regulation of State legislatures.
The Proposal of the Pennsylvania Minority
The propositions made for supplying the omission illustrate rather than obviate the difficulties presented. A minority of the Convention’s representatives from Pennsylvania, proposed this expression: “Trial by jury shall be as heretofore.” This expression is both senseless and nugatory, for the United States – in their united or collective capacity – are the object to which all general provisions in the Constitution must necessarily refer.
Although it is evident that trial by jury is known in each State individually, in the United States, as such, it is at this time altogether unknown, because the federal government operating under the Articles of Confederation has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty.
Just as the form of the provision would not fulfil the intent of its proposers, the substance of it would itself be inexpedient. The mode of trial in federal courts would be similar to that in the state courts; that is to say, admiralty cases would be tried in Connecticut by a jury, in New York without one.
The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every well regulated judgment towards it. Whether the case should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties.
Some Cases, such as Prize Causes, Ought Not Be Tried by a Jury
But the greatest objection, in my estimation, is that there are many cases which should be ineligible for a jury trial. This is particularly so in cases which concern the public peace with foreign nations, that is, in most cases where the question turns wholly on the laws of nations. Of this nature are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries.
There would of course always be the danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries is to determine matters of fact – rather than the law – yet in most cases the legal consequences are complicated with fact in such a manner as to render a separation impracticable.
It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the facts as well as the law undergo a reexamination. This alone demonstrates the impropriety of inserting a fundamental provision in the Constitution which would make the state systems a standard for the national government, and the danger of encumbering the government with any constitutional provisions which lack indisputable propriety.
A Case in Equity Ought Not Be Tried before a Jury
My convictions are equally strong that the great advantages which result from separating equitable from legal jurisdiction would diminish if equitable cases were committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules.
To unite jurisdiction of cases sounding in equity with those of ordinary jurisdiction necessarily tends to unsettle the general rules, and to subject every such case to a special determination, while separation of the two has the contrary effect of rendering one a sentinel over the other, and of keeping each within expedient limits.
Aside from this, the circumstances constituting cases proper for courts of equity are in many instances so nice and intricate as to be incompatible with the genius of a trial by jury. Cases in equity often require long, deliberate, and critical investigations, which are impracticable for jurors taken from their occupations for an extended period. Litigations usual in courts of equity frequently comprehend a long train of minute and independent particulars. The simplicity and expedition which are the distinguishing characters of most jury trials will require the matter be reduced to some single and obvious point.
* * *
To unite jurisdiction of cases sounding in equity with those of ordinary jurisdiction necessarily tends to unsettle the general rules, and to subject every such case to a special determination, while separation of the two has the contrary effect of rendering one a sentinel over the other, and of keeping each within expedient limits.
* * *
It is true that the separation of equity cases from legal cases is peculiar to the English system of jurisprudence, which was the model followed in several of the States. But it is equally true that trial by jury has been unknown where the equitable case has been united the legal one. And that separation is essential to the preservation of equity jurisdiction in its pristine purity.
The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law, but the attempt to extend the jurisdiction of the courts of law to matters of equity does not produce the advantages which may be derived from courts of equity. Extending equity jurisdiction will tend gradually to change the nature of the courts of law, and to undermine the advantages of trial by jury, by introducing questions too complicated for a decision in that mode.
These were the conclusive reasons against incorporating the systems of all the States in the formation of the national judiciary, according to the attempt of the Pennsylvania minority.
The Massachusetts Proposal
Delegates from Massachusetts also proposed a remedy to the supposed defect, in this form: “In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.” Emphasis added.
At best, this proposition is confined to one description of cases. From this it is fair to infer that the Massachusetts delegates believed either that this was the only class of federal cases in which a right to trial by jury would be proper or – if desirous of a more extensive provision – they found it impracticable to devise one which would properly answer the end.
In the first place, the omission of a regulation respecting the limited class of cases identified in the Massachusetts proposal cannot be considered a material imperfection in the overall system. In the second place, if the limitation resulted from the inability to fashion a more extensive provision, it affords a strong corroboration of the extreme difficulty of the thing.
But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States – and the different powers exercised by them – there are no expressions more vague and indeterminate than those which have been employed to characterize that species of cases entitled to a trial by jury.
In New York, the boundaries between actions at common law and actions of equitable jurisdiction are ascertained in conformity to the rules which prevail in England. In many of the other States the boundaries are less precise. In some States every case is to be tried in a court of common law. Upon that foundation, every action – considered as one at common law – is to be determined by a jury, if either of the parties choose it. Hence the same irregularity and confusion would be introduced by a compliance with the Massachusetts proposal as would arise from the regulation proposed by the Pennsylvania minority.
In one State a case would receive its determination from a jury, if either party requested it; but in another State, the exact same case would be decided without the intervention of a jury, simply because the two States varied as to common law jurisdiction.
It is obvious that the Massachusetts proposition cannot operate as a general regulation until some uniform plan shall be adopted by the different States regarding the limits of common law and equity jurisdictions. To devise a plan of that kind is a task arduous in itself, and would require much time and reflection to mature. It would be extremely difficult (if not impossible) to suggest any general regulation that would be acceptable to all of the States, or that would perfectly quadrate with the several State institutions.
Referral to the Law of a Single State Would Have Raised Insuperable Objections
It may be asked, “Why could not a reference have been made to the constitution of New York as a standard for the United States?” First, it is improbable that other States would entertain the same opinion of New York’s institutions as do New Yorkers themselves. It is natural to suppose that other States are more attached to their own laws, and that each would have struggled for the preference. If the Convention thought of taking one State as a model for the whole, it must be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each State representation to favor its own laws. It is also uncertain which State would have been taken as the model. Even if a judicious selection could have been effected in the Convention, still there would have been a great danger of jealousy and disgust in the other States at the partiality which had been shown to the institutions of one. Furthermore, the enemies of the Constitution would have been furnished with a fine pretext for raising a host of local prejudices against it, which might have prevented its final establishment.
Requiring a Jury Trial in All Cases Would Have Been Be Improper
Individuals of enthusiastic tempers suggested the right to trial by jury ought to embrace all cases, so as to avoid the embarrassments of a more limited definition. There is, however, no precedent for so broad a right in any State, and the considerations stated in discussing the proposition of the minority of Pennsylvania ought to satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan.
In short, the more it is considered, the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable, or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.
I am persuaded that the different lights in which the subject has been placed in the course of these observations will go far towards removing in candid minds the apprehensions they may have entertained on the point. These observations have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the Constitution. Even in the greatest proportion of civil cases – in which the great body of the community is most likely to be interested – the right to jury trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the Constitution, which in no case is abolished.
The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails.
For my part, I acknowledge myself to be convinced that even in New York the right to trial by jury might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. All reasonable individuals concede it ought not to obtain in every case. The examples of innovations which have narrowed its ancient limits in several States as well in Great Britain afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it will be impossible (due to the nature of the thing) to fix the salutary point at which the right to a jury trial ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the Federal or State legislatures.
* * *
In short, the more it is considered, the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable, or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.
* * *
This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut. Nonetheless, numerous encroachments have been made upon the right to trial by jury in New York since the Revolution – even though it is provided for by a positive article of New York’s constitution – than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the individuals who have endeavored to persuade the People they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career.
The truth is that the general genius of a government is all that can be substantially relied upon for permanent effects. Particular provisions – though not altogether useless – have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be – with individuals of sound discernment – a decisive objection to any plan which exhibits the leading characters of a good government.
It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution – which expressly establishes the trial by jury in criminal cases – because it does not do it in civil cases also, particularly where it is a notorious fact that Connecticut – which has been always regarded as the State where the popular will most prevails – can boast of no constitutional provision for either.
Hamilton
original Federalist 83 Proposal of the Pennsylvania minority[Ed. note: The Seventh Amendment was the response of the States to the concerns of Hamilton, for it preserves the right to a jury trial in many civil cases: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” Summary of the history of the 7th Amendment]Federalist 84: Why the Constitution Is Itself a Bill of Rights
The Constitution Already Contains Provisions that Would Be Included in a Bill of Rights
I HAVE NOTICED AND ANSWERED most of the objections against the Constitution in the course of reviewing it. The few remaining ones either did not fall naturally under any particular head or were forgotten in their proper places. I shall consult brevity to comprise all my observations on these miscellaneous points in a single paper.
The most considerable remaining objection is the absence of a bill of rights in the Constitution. Indeed, some of the most ardent partisans of a bill of rights are from New York, even though its constitution contains no bill of rights, like those in several other States.
To justify the inconsistency, these intemperate zealots assert the reason why New York needs no bill of rights is the presence of certain provisions in favor of particular privileges and rights which amount to the same thing as a bill of rights, since its constitution fully adopts the common and statutory law of Great Britain, through which many other rights are equally secured, even though unexpressed in the New York constitution itself.
In the first place, the Constitution – like the constitution of New York – already contains a number of provisions that would be included in a bill of rights.
The Constitution Establishes the Writ of Habeas Corpus, and Prohibits Ex Post Facto Laws and Titles of Nobility
We find the following in Article I, section 3, clause 7: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Article I, section 9, clause 2 provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Clause 3 of the same section provides: “No Bill of Attainder or ex-post-facto Law shall be passed.”
And clause 8 thereof adds: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Article III, section 2, paragraph 3 provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
Article III, section 3, paragraph 1 provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. ”
Paragraph 2 of the same section adds: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
These provisions are of equal importance with any found in the constitution of New York. Three of them – the establishment of the writ of habeas corpus (to determine who has control of a petitioner's body) and the prohibitions of both ex post facto laws (criminalization of an act after it is done) and titles of nobility (which purport to rank some individuals higher than others) – are greater securities to liberty and republicanism than any found in New York’s constitution.
* * *
Throughout the ages, the favorite and most formidable instruments of tyranny are arbitrary imprisonments, and the creation of crimes after the commission of the fact, thereby subjecting persons to punishment for acts which breached no law when done.
* * *
Habeas Corpus Is an Essential Defense Against Arbitrary Imprisonments
Throughout the ages, the favorite and most formidable instruments of tyranny are arbitrary imprisonments, and the creation of crimes after the commission of the act, thereby subjecting persons to punishment for acts which breached no law when done. The observations of the judicious Blackstone on arbitrary imprisonments are worthy of recital: “To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” Blackstone repeatedly emphasized the remedy for this fatal evil he is the habeas corpus act, which in one place he called “the bulwark of the British Constitution.”
Prohibiting Titles of Nobility Preserves Power to the People
The importance of the prohibition of titles of nobility needs no illustration. This is the cornerstone of republican government. So long as titles of nobility are excluded, the government will not be any other than that of the People.
New York's Vaunted Bill of Rights Is Subject to Legislative Revision
As for the pretended establishment of common and statutory law in the New York constitution, it is expressly made subject to such alterations as the legislature shall from time to time make. These supposed protections are at any moment liable to repeal by ordinary legislative power, thereby negating any constitutional sanction.
The only real use of the declaration was to recognize the ancient law and to remove doubts occasioned by the Revolution. This is not a true declaration of rights, which under our constitutions are declarations intended as limitations on the power of the government itself.
The Magna Carta and Subsequent Acts Wrested Privileges from the Absolute Prerogative of Monarchs
Bills of rights are, in their origin, stipulations between kings and their subjects. They abridge prerogative in favor of privilege. All rights not surrendered by the prince are reserved.
Such was the Magna Carta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. So too was the Petition of Right assented to by Charles I at the commencement of his reign.
Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights.
The Constitution Assumes All Power Rests with the People
These primitive acts cannot apply to constitutions professedly founded upon the power of the People, and executed by their immediate representatives and servants. Strictly speaking, the People of America surrender nothing, and therefore retain everything. No reservation of rights is necessary:
"We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (Emphasis added.)
These 30 words at the commencement of the Constitution better recognize popular rights than those innumerable volumes whose aphorisms make the principal figure in several State bills of rights, and would sound much better in a treatise on ethics than in a constitution of government.
The Constitution of the United States needs no minute detail of particular rights. It is intended merely to regulate the general political interests of the nation. It is not a constitution that regulates every species of personal and private concerns. If the loud clamors from New York for a bill of rights are well founded, then no epithet would be too strong for the constitution of that State. But the truth is both of them contain all which, in relation to their objects, is reasonably to be desired.
* * *
“We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” These 30 words better recognize popular rights than those innumerable volumes whose aphorisms make the principal figure in several State bills of rights, and would sound much better in a treatise on ethics than in a constitution of government.
* * *
A Bill of Rights Can Imply that Power Has Been Granted to the Government Where It Has Not
A bill of rights in our Constitution is unnecessary. It would even be dangerous. It would contain various exceptions to powers not granted to the Federal government. This would afford a colorable pretext to claim more powers were granted than actually were. Why declare that things shall not be done when there is no power to do them?
Why, for instance, should the Constitution say the liberty of the press shall not be restrained? No power is given to impose restrictions. An expression in favor of liberty of the press would furnish a plausible pretense for those who would usurp to claim the power to restrain it. They might argue the Constitution should not be charged with the absurdity of having provided against the abuse of an authority that was never given, and that the inclusion of a provision against restraining the liberty of the press clearly implies an intent to vest in the Federal government a power to prescribe proper regulations concerning it. This is only one specimen of the numerous handles that will be given to the doctrine of constructive powers. Such is the indulgence of an injudicious zeal for bills of rights.
* * *
New York’s constitution utters no syllable on liberty of the press, and whatever has been said about it in any other State amounts to nothing. What does a declaration that the liberty of the press shall be inviolably preserved signify? What is the liberty of the press? Who can give it a definition that cannot be evaded? It is impossible.
* * *
Liberty of the Press Cannot Be Defined
New York’s constitution utters no syllable on liberty of the press, and whatever has been said about it in any other State amounts to nothing. What does a declaration that the liberty of the press shall be inviolably preserved signify? What is the liberty of the press? Who can give it a definition that cannot be evaded? It is impossible. The security of the freedom of the press depends altogether on public opinion, and on the general spirit of the People and their government, no matter what fine declarations are inserted in any constitution respecting it. The only solid basis of all of our rights is the People.
The Taxing Power Does Not Limit Freedom of the Press
Some pretend the power of taxation affects the liberty of the press, since duties may be laid so high as to prohibit publications. Yet we know newspapers are taxed in Great Britain, and it is notorious that the press nowhere enjoys greater liberty. The extent of the duties depends on legislative discretion, since duties of any kind may be laid without a violation of the liberty of the press. From this it is evident the declarations in State constitutions in favor of the freedom of the press are no constitutional impediment to the imposition such duties by State legislatures. To express it differently: these declarations give no greater security to the press because the legislative invasions may be as easily effected under the State constitutions containing such declarations as under the Constitution, which has nothing of the kind. In sum, an expression that the liberty of the press ought not be restrained would have the same utility as a declaration that government ought to be free and taxes not excessive.
* * *
Some pretend the power of taxation affects the liberty of the press, since duties may be laid so high as to prohibit publications. Yet we know newspapers are taxed in Great Britain, and it is notorious that the press nowhere enjoys greater liberty.
* * *
Like the Constitutions of State Governments, the Federal Constitution Is Itself a Bill of Rights
After all the declamations have subsided, the truth is the Constitution is itself a bill of rights, in every rational sense, and to every useful purpose. The Constitution of Great Britain is its composed of its several bills of rights. The constitution of each State is its bill of rights. And the Constitution will be the bill of rights of the United States.
* * *
In sum, an expression that the liberty of the press ought not be restrained would have the same utility as a declaration that government ought to be free and taxes not excessive.
* * *
Is not one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the Constitution. It comprehends various precautions for the public security not to be found in any of the State constitutions. Another object of a bill of rights is to define certain immunities and modes of proceeding relative to personal and private concerns. The Constitution attends to these in a variety of cases, and it is absurd to allege otherwise. Some may say it goes not far enough, but this is untrue. If the rights of the citizens are found in the instrument which establishes the government, as here, the mode of ordering those rights is immaterial. Much of what has been said on this subject rests merely on verbal and nominal distinctions which are entirely foreign from the substance of the thing.
The Geographical Distance Between the Seats of the Federal Government and the States Will Not Diminish Rights
Another objection to the Constitution was that it conferred large powers upon a Federal government whose seat was too remote from many of the States to convey to citizens a proper knowledge of the conduct of their representative body. If this objection proved anything, it was that there ought to be no general government whatever. Yet all hands agreed that certain powers ought properly to be vested in the United States, in a representative body which is under every requisite control.
Objections based on distance were palpable illusions of the imagination. Consider those States where some counties are far removed from the seat of power. By what sources of information will the People of a distant county regulate their judgment of the conduct of their representatives in the State legislatures? They cannot benefit from personal observation because this is confined to the citizens on the spot. Therefore they must depend on the information of intelligent persons whom they trust. And how do these intelligent persons obtain their information? Evidently from the proposed measures themselves, the public discourse, and correspondences with their representatives and other persons who reside at the place of the deliberations. These factors apply to all the counties at any considerable distance from the seat of their State governments. The same sources of information are open to the People in relation to the conduct of their representatives in the Federal government. The impediments to a prompt communication which distance may be supposed to create will be overbalanced by the effects of the vigilance of the State governments.
The executive and legislative bodies of each State are so many sentinels over the persons employed in every department of the Federal government. It will be in their power to adopt and pursue a regular and effectual system of intelligence, so they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the People. If only from their rivalry for power, these leaders are predisposed to apprise the community of potential prejudice to their interests from other quarters. Through that channel, the People will be better informed of the conduct of their national representatives than by any means they now possess to monitor the conduct of their State representatives. Citizens who inhabit the country near the seat of government will stand ready to sound the alarm and point out the actors in any pernicious project, since these citizens will have the same interest as those who are at a distance on all questions affecting the general liberty and prosperity. Finally, the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the United States.
The United States Will Be Responsible for the Debts of Its Predecessor
The most extraordinary and least colorable of all the curious objections to the Constitution was its supposed want of some provision respecting the debts due to the United States. Inflammatory newspapers represented this as a tacit relinquishment of those debts, and as a wicked contrivance to hide a public default. The suggestion was entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. It is a plain dictate of common sense and established doctrine of political law that States neither lose any of their rights – nor are discharged from any of their obligations, by a change in the form of their civil government.
The Likely Expenses of the Federal Government Are Necessary for Its Purposes
The last objection of any consequence turned upon the expense of the Federal government. Even assuming the adoption of the Constitution would occasion a considerable increase of expense, the objection was without weight. The great bulk of the citizens of America were with reason convinced that the formation of the United States would be the basis of their political happiness. With few exceptions, sensible persons of all parties agreed that our union could not be preserved under the former system, absent radical alterations. New and extensive powers granted to the Federal government required its complete reorganization. In conceding all this, the question of expense had to be given up, for it was impossible to narrow the foundation upon which the Federal system was to stand with any degree of safety. The two branches of the Federal legislature initially consist of only 65 persons, which was the same number of members comprising Congress under the former government. This will naturally increase to keep pace with the progress of the population and resources of the country. Just as a lesser number of representatives would be unsafe at the outset, a continuance of the present number would be a very inadequate representation of the People in a more advanced stage of population.
And from whence was the dreaded augmentation of expense to spring? One source indicated the multiplication of offices under the new government, but it was evident the principal departments of the administration under the United States were the same required under the former national government, which had a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury consisting of three persons, a Treasurer, assistants, clerks, and others. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the Constitution makes no difference other than to render their characters and where they reside more respectable, and their services more useful. As to persons to be employed in the collection of revenues, it is unquestionably true that they will form a very considerable addition to the number of Federal officers, but it does not follow they will occasion an increase of public expense. In most cases it will be nothing more than an exchange of State for national officers. Since all duties will be collected by persons employed by the Federal government, States will stand in no need of any for this purpose. What difference does it make in overall expense whether officers of the customs are appointed by the State or by the Federal government? There is no good reason to suppose the numbers or salaries of Federal officers will exceed those of the current State officers.
* * *
Bills of rights are, in their origin, stipulations between kings and their subjects. They abridge prerogative in favor of privilege. All rights not surrendered by the prince are reserved. Such was the Magna Carta, obtained by the barons, sword in hand, from King John.
Such were the subsequent confirmations of that charter by succeeding princes. So too was the Petition of Right assented to by Charles I at the commencement of his reign.
Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights.
These primitive acts cannot apply to constitutions professedly founded upon the power of the People, and executed by their immediate representatives and servants. Strictly speaking, the People of America surrender nothing, and therefore retain everything. No reservation is necessary.
* * *
The only item that will cause an increase of expense is the support of the judges of the United States. (I do not add the President because there formerly was a president of the Congress, whose expenses were not far short of those to be incurred by the President of the United States.) The extent of the extra expense for the support of the judges depends on the particular plan adopted. It will not amount to a sum of material consequence once a reasonable plan is approved.
The extra expense attending the establishment of the Federal government will be counterbalanced by savings to the States. A great part of the business which had kept Congress sitting through the year will be transacted by the President. The management of foreign negotiations will naturally devolve upon the President, according to general principles concerted with the Senate, and subject to their final concurrence. Three months should suffice for the session of the Senate, and four to six months for that of the House of Representatives. The Senate will find extra occupation in the business of treaties and appointments. Until the House of Representatives is increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant sessions held under the articles of Confederation and the temporary sessions of future Congresses.
Another circumstance of savings is that the Congress under the new government will do all the business of the United States itself, without resorting to State legislatures, who were hitherto occupied with congressional requisitions, which protracted the sessions of the State legislatures greatly beyond what was necessary for the execution of their local business. Henceforth State legislatures will have only to attend to the affairs of their particular States. Shorter sessions of the State legislatures provide clear gains, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense occasioned by the adoption of the new system.
The sources of additional expense from the establishment of the Constitution are much fewer than may have been imagined. They are counterbalanced by considerable objects of saving. Even if the expenses outweigh the savings, a less expensive Federal government would be incompetent to the purposes of the United States.
Hamilton
original Federalist 84[Ed. note: Hamilton here makes one his best closing arguments, ultimately observing the Constitution is one for the government, created by the properly deputed representatives of the citizens entitled to vote. Perhaps that explains why the words written above the Constitution, and in extra large font, designate its authors and grantors to be "We the People." In the law, font size matters. Who might We the People comprise? Is it everyone in the U.S.? U.S. citizens only? Yes to both. Citizens elect representatives, and representatives naturally consider the views and interests of all inhabitants. (See Federalist 35) In the end, representatives selected by voters (electors) act as deputies of those electors. Hamilton also shows the laws of Great Britain are based on a misconception, namely, that core human rights (e.g., self-defense Federalist 28) are privileges that are "granted" by a sovereign individual or government, rather than arising from the will of a free and sovereign People, as expressed through their elected representatives. (While it may have been (and still must be) a disappointment for subjects of the Crown to read Hamilton's refutation of their conception of government, there is hope, for the Constitution and these papers fashion a template for those longing for a republican form of the executive.) Hamilton does agree with many of the legal principles developed in Britain, particularly the writ of habeas corpus (a court directive to an inmate's jailor requiring the jailor to show cause for the continuance of any arbitrary, unlawful, and sometimes secret imprisonment, or to release the inmate). In the end, Hamilton proves to be the People's champion, for he pronounces without equivocation that all power to create government rests with the People, as if decreed by nature, which suggests that it, too, is a core right of humans.]Federalist 85: Concluding Remarks
ACCORDING TO THE FORMAL DIVISION OF SUBJECTS announced in Federalist 1, two points appear to remain for discussion: (1) the analogy of the proposed government to your own State constitution, and (2) “the additional security which its adoption will afford to republican government, to liberty, and to property.” A review the of these papers shows I have fully anticipated and exhausted my points on these heads in the progress of the work, so at this advanced stage of the question, it would scarcely be possible to do anything more than repeat in a more dilated form what has been heretofore said.
The Alleged Defects of the U.S. Constitution Are Also Present in New York's Constitution
The proposed Constitution remarkably resembles the act organizing the government of New York, both with respect to their excellences and their supposed defects. Among the pretended defects of the Federal Constitution are the re-eligibility of the executive, the want of an executive council, the omission of a formal bill of rights, and the omission of a provision respecting the liberty of the press. These and other defects noted in the course of our inquiries (see primarily Federalist 72 and Federalist 84) are as much chargeable to the existing Constitution of New York as to the Constitution for the United States. An individual who can rail at the Federal constitution for imperfections but easily excuse the same in his own constitution has slender pretensions to consistency. Is there a better proof to establish the insincerity and affectation of those zealous adversaries of the Federal constitution? They profess devotion to their State constitution, yet with fury attack the Federal constitution for defects of which their own is more vulnerable.
Additional Securities to Republican Government, Liberty, and Property
The Constitution and preservation of the Union will provide additional securities to republican government, to liberty and to property. It will:
1. Restrain local factions and insurrections, and impose on the ambition of powerful individuals in single states, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the People;
2. Diminish the opportunities for foreign intrigue, which the dissolution of the Confederacy would invite and facilitate;
3. Prevent extensive military establishments, which would grow out of wars between disunited States;
4. Guarantee expressly to each a republican form of government;
5. Exclude absolutely and universally titles of nobility; and
6. Take precautions against the repetition of those practices by State governments which have undermined the foundations of property and credit, planted mutual distrust in the breasts of all classes of citizens, and occasioned an almost universal prostration of morals.
I have, my fellow citizens, executed the task I assigned to myself. With what success, your conduct must determine. I trust at least I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted, addressing myself purely to your judgments, and studiously attempting to avoid those asperities which are too apt to disgrace political disputants of all parties. I must confess, I have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the People has been indiscriminately brought against the advocates of the plan. The charge has something in it too wanton and too malignant not to excite the indignation of everyone who desires a refutation of the calumny.
The perpetual charges rung upon the wealthy, the well-born, and the great inspire the disgust of all sensible individuals. All those of honesty reprove the unwarranted misrepresentations practiced to keep the truth from the public eye. These circumstances may have occasionally betrayed me into intemperances of expression. It is certain I have frequently felt a struggle between sensibility and moderation over the course of these papers.
Let us pause now and ask ourselves whether the proposed Constitution is vindicated from the aspersions thrown upon it, is worthy of public approbation, and necessary to the public safety and prosperity?
Everyone is bound to answer these questions according to the best of their conscience and understanding, and to act agreeably to the genuine and sober dictates of that judgment. This is a solemn duty – constrained by all the obligations forming the bands of society – to be discharged sincerely and honestly, without dispensation from any source. There is no justification for an improper selection. No pride of opinion, no temporary passion or prejudice, no partial motive, no particular interest, no obstinate adherence to party; no particular interest of the community, instead: the very existence of the nation. And let the citizens of New York remember a majority of America has already given its sanction to the plan which is to be approved or rejected.
The Pursuit of a “Perfect Plan” Ultimately Proves Fruitless
I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the Revolution has produced.
Some enemies have felt triumph over the seeming concession that the proposed Constitution does not claim absolute perfection. “Why,” say they, “should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?”
While these seem like plausible questions, they assume and greatly exaggerate concessions not made, to argue the plan is radically defective and needs material alterations or the rights and the interests of the community cannot safely be confided to it. But every advocate declares the system is a good one that promises every species of security a reasonable People can desire, and that while it may not be perfect in every part, on the whole it is the best the present views and circumstances of the country permit.
In the next place, the chimerical pursuit of a perfect plan would prolong the precarious state of our national affairs and expose the existing Union to the jeopardy of successive experiments.
To begin with, I never expect to see a perfect work from imperfect man. Further, the result of the deliberations of all collective bodies must necessarily be a compound – and include the errors and prejudices as well as the good sense and wisdom of the individuals composing it.
A compact which embraces many distinct States in a common bond of amity and union must necessarily be a compromise of many dissimilar interests and inclinations. How can perfection spring from such materials?
Amending the Constitution Prior to Ratification Is more Difficult than Amending It Afterwards
That it will be far easier to amend the Constitution after ratification rather than before is absolutely demonstrable. The moment an alteration is made in proposed Constitution, it becomes a new one for purpose of adoption, and must undergo a new decision of each State. It will therefore require the concurrence of all thirteen States to complete its establishment throughout the union.
But if the proposed Constitution is ratified by all thirteen States, only two thirds of the States are needed to propose an alteration, and three fourths to effect it. The chances of successful amendment are thus higher after ratification than before.
Attempting to Amend the Constitution before Ratification Will Upset the Balance Among Competing Interests
This is not all. Every proposed Federal constitution will inevitably consist of a great variety of particulars, in which States are to be accommodated in their interests – or in their opinion of their interests.
In any body of individuals charged with formation of an original constitution, we see very different combinations of the parts upon different points. Many of those who form a majority on one question may become part of the minority on a second, and form a dissimilar majority on a third. Hence the necessity of molding and arranging all the particulars which are to compose the whole. All the parties to the compact must be satisfied. The number of particulars and the number of parties must be multiplied to grasp the difficulties and casualties in obtaining the collective assent to a final act.
But once the Constitution is established, every amendment would be a single proposition brought forward singly. Management and compromise – the giving or taking of points – would be unnecessary. The will of the requisite number of States would at once bring the matter to a decisive issue. When the requisite number of States are united in the desire for a particular amendment, that amendment must infallibly take place. The facility of affecting an amendment is infinitely easier than establishing a complete constitution in the first instance.
I see no weight in the assertion that the persons delegated to the administration of the Federal government – upon ratification of an amendment – always will be disinclined to yield up any portion of the authority of which they were once possessed. Upon mature consideration, any amendments thought useful will be applicable to the organization of the government, and not to the mass of its powers.
I also think there is little weight is due to the intrinsic difficulty of governing numerous states – independently of calculations upon an ordinary degree of public spirit and integrity – which necessarily will impose on the national rulers a spirit of accommodation to the reasonable expectations of their constituents.
A Duly Ratified Amendment Will Overcome Federal Resistance
But yet a further consideration proves beyond the possibility of a doubt that persons delegated to the administration of the national government will not yield authority: whenever two thirds of the states concur, the national rulers will have no option upon the subject. Article Five of the Constitution requires Congress – on the application of the legislatures of two thirds of the States – to call a convention for proposing amendments, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures or conventions of three fourths of the states. The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. With that, all declamations about the disinclination to change vanish into air. However difficult it may be to unite two thirds or three fourths of the state legislatures on amendments affecting local interests, can there be any room to apprehend any such difficulty on amendments for the general liberty or security of the People? We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.
If this is untrue, I am myself deceived by it, for it is one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. To those who see the matter in the same light with me – however zealously they desire amendments – the most direct road to their own object is through amendment after the Constitution is ratified.
The zeal to amend prior to ratification must abate in every individual who is ready to accede to the truth of the solid and ingenious observations of Hume: “To balance a large state or society – whether it be monarchical or republican – on general laws, is a work of so great difficulty that no human genius, however comprehensive, can effect it by the mere dint of reason and reflection. The judgments of many must unite in the work, experience must guide their labor, and time must bring it to perfection. The first trials and experiments will inevitably result in mistakes and difficulties, which must be corrected and overcome.”
These judicious reflections are a lesson of moderation to all the sincere lovers of the union, and ought to put them on guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagoguery, in the pursuit of what they are not likely to obtain but from time and experience.
I cannot entertain an equal tranquility with those who treat the dangers of continuing in our present situation as imaginary. A nation without a national government is an awful spectacle. To have composed a Constitution in a time of profound peace by the voluntary consent of a whole people is a prodigy. I look forward to its ratification with trembling anxiety. No rule of prudence permits us to let go of the hold we now have and to recommence the course in so arduous an enterprise. I dread the consequences of new attempts, because I know that powerful individuals in New York and in other States are enemies to a general national government in every possible shape.
Hamilton
original Federalist 85 247federalistpapers.com©2014-2024 Mark J. Shusted, Esq.