Federalist No. 52 – The House of Representatives, From the New York Packet (Madison or Hamilton)

Let me commence this discussion with an important caveat.  There are two ways in which to evaluate the contributions of the Founding Fathers in drafting and pursuing the ratification of the various Articles and Sections of the United States Constitution.  The first way is by reference to the circumstances of the emerging nation and the knowledge available to the Founders.  The second way is by reference to the circumstances of our time and the accumulated knowledge that is now available.  I shall focus primarily on the first way, given the exigencies of space.

The Federalist, No. 52, written by Hamilton or Madison, explains and justifies Article I, Section 2 of the draft Constitution, with particular regard to the qualifications both of the electors and of those elected to the House of Representatives, and to the length of term for which the representatives were to be elected.  These are centrally important considerations for any Constitution that seeks to establish a Federal Government of strictly enumerated powers, to ensure that elected representatives will faithfully reflect the preferences of a majority of their constituents and yet will not be overly tempted to discriminate against vulnerable minorities.  If the People are to govern, then a suitable definition of the People, and how the People are to impact on government, is of crucial importance.

A key circumstance influencing the Convention was recognition that any shift from the existing Confederation to a new Federation inevitably constituted a fundamental challenge to States’ rights, and must be perceived as a threat to the less populous states.  In order to ratify the Constitution, those issues must be addressed effectively by PUBLIUS.

Naturally, therefore, PUBLIUS emphasized the good sense in requiring that the qualifications of the electors would be the same as those required by each State’s own Constitution for the most numerous branch of that State’s legislature.  Of course, this implied that electoral qualifications might vary across the several States.  Yet, individual States could not manipulate the suffrage by simple legislation to gain advantage in the House of Representatives.  If they engaged in high cost constitutional manipulation, they could do so only by imposing upon their own State legislature any inherent disadvantages of such a manipulation.

Inevitably, norms of the day governed the extent of the suffrage.  For the most part, only propertied male citizens qualified.  Non-citizens (which of course included slaves), male citizens without property, and women need not apply.  This restricted the electorate to some twenty-five percent of the adult population.  But remember that the United States was one of only two emerging democracies.  And Britain, albeit without the taint of slavery, similarly limited the suffrage at that time to a suitably-propertied male minority.

The qualifications of the representatives were a different matter.  They were much less clearly defined by the State Constitutions and more susceptible to uniformity.  PUBLIUS defended the proposal by the Convention that a representative must be at least of the age of twenty-five years, must have been seven years a citizen of the United States, must, at the time of the election, be an inhabitant of the State he was to represent, and, during the time of his service, must be in no office under the United States.  This left the door widely open to would-be candidates, including women and persons without property.  Of course, slaves could not be citizens and, therefore, were excluded from candidacy.

The Convention had decided that the House of Representatives should be composed of Members chosen every second year by the electorate.  This was a truly important judgment, defended by PUBLIUS.  The Founders were well aware of a British history, where monarchs not infrequently had failed to call Parliament for several years when threatened by its fractiousness towards their objectives.  So the regularity of the election would avoid any such deviance on the part of fractious States.  They were also aware that some long-lived parliaments had lost significant contact with their electors, and had culminated in widespread corruption and inefficiencies.

A two-year term was deemed appropriate, in that it would maintain a close linkage between individual representatives and the People without imposing an excessive urgency on their deliberations.  The Founders were not disposed to introduce direct democracy into the federal legislature, recognizing its high cost and limited effectiveness in a geographically dispersed country with a rapidly increasing population of potential voters.

With respect to the two-year term, my judgment is that the Founders were correct.  The House of Representatives would become the engine of the legislature and the Senate, with its six-year staggered terms, would become the brake, especially when transient passions were running high.  Sadly, the great expectations of the Founders regarding the linkage between the People and those that they elected to office would be disappointed.

The Founders failed to anticipate the emergence of powerful political parties that would demand loyalty from their members even when such loyalty conflicted with constituents’ interests.  They failed to anticipate the gerrymandering of districts that would provide incumbent re-election probabilities as high as in many dictatorships.  They failed to anticipate the growth of political action groups and other special interests that would flood political campaigns with funding designed to distort election results away from the interests of the People.  They failed to anticipate the willingness of the United States federal courts to loosen the strictly enumerated powers of the Federal Government by inappropriately redefining key Articles of the Constitution designed to limit the range of collective actions that might impact adversely upon the People.  These developments, however, were products of changing circumstances and advancing political acumen unavailable to the Founders in the dying years of the eighteenth century, and at the very beginning of a great experiment in constitutional republicanism.

Thursday, July 8th, 2010

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is the co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute He blogs at www.charlesrowley.wordpress.com.

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