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Federalist No. 54

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The Apportionment of Members Among the States
From the New York Packet.
Tuesday, February 12, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection.

In the latter, it has reference to the proportion of wealth, of which it is in no case 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 is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. “We subscribe to the doctrine,” might one of our Southern brethren observe, “that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, 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. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself 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 the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. “This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they 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, that 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 government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? “It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. “This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives.

In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN. “After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea?

Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of 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. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. “For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently 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: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. “Such is the reasoning which an advocate for the Southern interests might employ on this subject; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance 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.

PUBLIUS.

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Federalist No. 54 – Juliette Turner

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Howdy from Texas. This is Juliette Turner (Janine Turner’s 12 year old daughter). I’m subbing for my mother who is very busy reading the HUNDREDS of essays that have been submitted in the We the People 9.17 Contest. She is so excited!

I just have one thing to say about Federalist Paper No. 54.

I heard today on Neil Cavuto’s show that the census is not asking if people or legal or illegal.

So does that mean the people who are in this country illegally are getting “representation without taxation”?

Funny, our Revolution was started because we had “taxation without representation”.

God Bless

Juliette Turner

Wednesday, July 14th, 2010

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Federalist No. 54 – Cathy Gillespie

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“But what is government itself, but the greatest of all reflections on human nature?”

–Federalist No. 51

Federalist No. 54 reminds us of the fact that the United States Constitution was not, and is not, a perfect document. It is a reflection of human nature, and as our founders knew, human beings are not perfect creatures.  Federalist 54 addresses Article I, Section 2, Clause 3 of the United States Constitution, the Three-Fifths clause. The counting of  human beings as 3/5’s of a person, and the preservation of  the institution of slavery for 20 years, are some of the Constitution’s greatest blemishes.  Although 3/5′s was a compromise, with the ultimate goal being the elimination of slavery, it is still a blemish on a document that is a beacon of liberty for our country and the world.

I was curious where else slavery is mentioned specifically in the Constitution and consulted the Heritage Guide to the Constitution (one of my favorite Constitutional resource books). I found that slavery is also addressed in Article I, Section 9, Clause 1 (Slave Trade); Article IV, Section 2, Clause 3 (Fugitive Slave Clause); and Article V (Prohibition on Amendment: Slave Trade).  The Slave Trade clause of the Constitution (Article I, Section 9, Clause 1) did not allow the federal government to prohibit the slave trade until January 1, 1808.  According to Dr. Mathew Spalding in the Heritage Guide, on that very day, January 1, 1808, Congress passed a prohibition of the slave trade, and President Thomas Jefferson signed it into law.   Although they could not ban slavery at the inception of the Constitution, the founders put a mechanism in place to start the country on that path, and banned it as soon as they could.

Through their humility and understanding of human nature, our founders knew the Constitution was not perfect.  They devised the Amendment process to make corrections, adjustments and refinements, a process not too easy, but also not too difficult, a process Madison describes in Federalist 43:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

One of the great characteristics of Americans is that we are always striving to be better, to improve, and to grow.  Many Amendments to the Constitution reflect this growth.

Although we may not always be proud of every step in our journey, we can be proud that as a country we have made corrections from where we started, that our founders recognized we would need to make corrections, and that a process is in place to continue to refine this brilliant, but human, document.

Good night and God Bless,

Cathy Gillespie

Monday, July 12th, 2010

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Federalist No. 54 – The Apportionment of Members Among the States, From the New York Packet (Madison or Hamilton)

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Although the essay’s authorship has been disputed, I am following the broad consensus that Madison wrote it along with the rest of the papers about the organization of the House.

James Madison was a Southern slaveholder. But one might never have surmised that from the curiously detached tone that Publius affects in Federalist 54 in talking about what “our southern brethren [might] observe” and “the reasoning which an advocate for the southern interests might employ,” which argument nevertheless “reconciles me to the scale of representation” adopted. Madison is recorded as having ambivalent feelings about slavery, but, then, most of the Southern elite did, judging by the moral handwringing that runs through many speeches and writings on the issue at the time. One need only look at Jefferson’s thoughts expressed in his Notes on the State of Virginia. The language used on such occasions was so similar that it has led the historian Forrest McDonald to opine that slaveowners developed a nearly rote disclaimer to cleanse the conscience before proceeding to whatever topic was truly at hand.

That said, Madison at least mentions the distasteful “s-word” in Federalist 54, an appellation that the Convention tied itself into euphemistic knots to avoid writing into the Constitution, as he delves into the connections among taxation, representation, and slavery. The first two, taxation and representation, have a long and pronounced relationship in Anglo-American political history and constitutional theory. The movement for independence from the British crown is tied to them through the motto “No taxation without representation” and the events that gave rise to it.

Taxation was seen by Englishmen, as well as Americans, as particularly threatening to individuals’ liberty. By having the potential to reduce people to penury and dependence, and because taking other people’s money for one’s own benefit is an especially strong temptation that mere mortals (even more so, political actors) find difficult to resist, taxation must be done only by consent of those taxed. English constitutional theory stylized this consent into representing a “gift from the commons,” as no one could be forced to share his wealth with others. Note that this applied to direct taxes on one’s person and wealth, not necessarily to indirect levies on voluntary transactions, such as duties on imports or excises on sales of goods. This class-based constitutional theory, made concrete against the King over three centuries, allowed the House of Commons (the only practical repository of popular consent) to bind the commons to pay taxes. The theory reflected the idea that the commoners were represented in the House as a class.

The Americans agreed with the English theory that consent was needed for a constitutional tax. They disagreed with the English theory of virtual representation, which held that the Americans were represented in Parliament as part of the body of commoners. Americans subscribed to a more concrete theory of direct constituent representation, that one was represented by another for whom one had a chance to vote, or at least in whose designated geographic domain one lived.

Recall that “representation” is a crucial aspect of American republicanism. In Federalist 10, Madison exalts representation as the republican principle that ties together the large geographic polity that is the United States without turning it into a tyranny. At the same time, representation, activated by the other republican principle, the vote, protects the political majority from falling victim to an entrenched oligarchy, while also protecting political minorities to some extent from the passing passions of an aroused majority.

But some aspects of republican theory are in tension with slavery—though clearly not in practice through the ages. Tying direct taxes, which reflect wealth and are assessed on the basis of the states’ populations, to representation is easy. Adding slavery to the mix threatens the symbiosis. Slaves are property, that is, wealth. But they are also manifestly human beings.

Direct taxes were imposed on the basis of population, not assessed land values, facts that are not definitively causally related. That could distort the burdens between different states, as Madison recognizes. States with less or poorer land but higher population densities (mostly in the North) would bear a burden proportionately greater than their opposites (mostly in the South). True, most Northern states permitted slavery at the time. The “peculiar institution” (under developing Anglo-American jurisprudence, slavery was not “natural” and could only exist under the peculiar positive enactments of a polity) was much more entrenched and extensive in the South, however.

The political conundrum, as Madison explains, was that the slave interests wanted to include slaves for purposes of representation. Northerners, already fearful that their region would lose relative power to the South due to the greater fecundity of Southerners and the expected greater immigration to the South because of the longer growing season and the claims to larger western territories, objected. At the same time, economic analysis of Southern wealth (of which land was both the most plentiful and the easiest to tax), would likely include the value of slaves (who were taxed as personal property, however).  To exclude slaves, which constituted a great part of the production of Southern wealth, from a wealth-tax census was particularly galling to Northerners. Southerners, on the other hand, argued that the truncated legal rights of slaves nevertheless did not deprive them of their status as “persons” for apportioning representation any more than the truncated rights of children and various others did.

The compromise was to assign to slaves a fractional value for both taxes and representation. That “3/5 clause” preserves the republican connection between representation and taxation, yet it also symbolizes the truncated pyramid of rights that composed the American system of slavery. That solution was not novel. It had been proposed as part of a failed amendment to the Articles of Confederation in 1783 and was part of the Pinckney and Paterson plans presented to the Convention. Nor was that the last time. The Convention was able to reach a compromise that eluded the 1829 Virginia state constitutional convention, at which the elderly Madison tried to push through a 3/5 compromise to settle a simmering conflict over apportionment between the non-slave holding western counties and the slave-holding eastern counties. The eastern planters wanted slaves fully counted, while the western yeomen wanted them excluded. The planters won. That was yet another grievance of powerlessness to be nursed by the residents of what would become West Virginia in 1862, after Virginia seceded from the Union.

Direct taxes have not been used by the federal government. They are difficult to process, as they are assessed against the states, which likely would have to collect them like requisitions under the Articles. Some, such as ancient head taxes, are deemed unfairly regressive. The recent health care law’s individual penalty has the whiff of such a tax and may, therefore, be apportioned unconstitutionally under that law. Federal land taxes are also politically impractical because they penalize population-rich, property-poor states. That said, the targets of wealth taxes are difficult to hide, which is why states and localities still use them.

Federal taxes are usually “indirect” (on conduct through excises and duties on sales or purchases of goods or services) or are income taxes. The last are difficult to assess accurately because income can be hidden. Sales cannot be hidden as easily, and such levies are easy to collect. That is also a feature of the much-discussed value-added tax. On the other hand, the final purchase price can mask the full amount of the VAT, making the tax’s opaqueness a troublesome consequence to the consumer.

The slave holders among the Founders have been accused rather too easily of hypocrisy and posturing for their public attachment to equality, as represented in the Declaration of Independence. The meaning of “equality” is much more complex. We, too, have different understandings of equality. Current conflicts between equality of opportunity versus equality of outcome versus equality of condition are an example. Hypocrisy requires a conscious rejection of principles of right behavior that one espouses. Falling short of one’s professed principles (when one still accepts their rightness) is not hypocrisy. Nor can we accuse the Founders of hypocrisy if their understanding of the principles differed from ours.

Only a few interpretations of equality, not generally so understood by the public at the time, might condemn slavery. Mostly, a general appeal to equality was not inconsistent with maintaining the institution of slavery. The Declaration is clearly rooted in modified Lockeanism. For Locke, basic political equality meant that all were created equal in the sense that none had the natural or divinely-created right of absolute rule over others. The Declaration, with its “consent of the governed” language in immediate proximity to the equality language, bears out this limited understanding of equality. Lack of a natural or divinely-ordained political right to rule does not necessarily foreclose an inequality imposed by peculiar laws (as Madison recognizes in his essay), or in non-political matters.

Equality in the religious society of the Founding meant theological equality before God and metaphysical equality in that all humans were moral actors (as Madison notes regarding slaves) who had to perform moral duties imposed by God and nature. God would judge personal failings in another life. This interpretation, as well, is not inconsistent with slavery on Earth.

Even a view of the term as meaning equality before the law was not incompatible with slavery. As Madison writes in Federalist 54, the slave codes provided a truncated set of legal protections for slaves. These codes became quite exhaustive over time. True, slaves lacked some of the rights of freemen (including, obviously, some crucial ones from our perspective). But so did women, children, indentured servants, criminals, the insane, and others. No one would have considered that this meant those groups were not “created equal” at a sufficiently high level of abstraction.

Americans as a group were not particularly outraged at that time about slavery because it was so common an institution in history and in their society. More immediately, the practice of the institution in the 1780s was comparatively mild, especially in contrast to the abject conditions from which many Americans had emigrated in the not-distant past. Some Americans professed concern. Thomas Jefferson wrote, musing about slavery, “I tremble for my country when I reflect that God is just.” Forrest McDonald responds, “But few of his countrymen trembled with him.”

Monday, July 12th, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

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Federalist No. 61 – Cathy Gillespie

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Greetings from Mt. Vernon, Virginia!

Thank you to Professor Kyle Scott for soaring to 50,000 feet and giving us the aerial view of Hamilton’s important point in Federalist 61!  I was in the weeds, struggling to make sense of where and when elections should be held, and the most important point of this paper sailed right over my head until I read Professor Scott’s essay.

Federalist 61 gives us an important insight and specific example of the founders’ view and intention of the construction of the United States Constitution:  broad principles outlined that provide a structure and framework to guide the specifics of future legislation as time and events require.

Our founders had great wisdom as to what is appropriate for the Congress to decide, the specific powers that should be delegated to the federal government, where the federal government’s limits are, and what needed to be carefully spelled out and guarded in the Constitution.  Reading back through Federalist Papers 52-61, the founders gave Congress many powers when it came to elections: deciding the time of elections, the power to modify election law, even the power to alter the total number of U.S. Representatives.  These are all powers Publius argues are “safe for the legislature to decide.” The important guiding principles, such as the frequency of elections, and who may vote (broadened with Amendments, thanks to the “genius of the people”) are safely embedded in the Constitution.

In Federalist 51, Publius writes:

“In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Giving the government any power over the laws affecting the election of its own members is a tricky proposition.  The founders’ carefully crafted system of checks and balances, including “THE CONSENT OF THE PEOPLE,” (Federalist No. 22) have preserved our liberty for over 200 years.

Let us not forget the words of Federalist No. 60 regarding the ultimate “check” of the people:

“Would they 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 men who would be disposed to avenge the violated majesty of the people?”

Looking forward to hearing everyone’s thoughts and comments today!!

Stay cool!

Cathy Gillespie

Wednesday, July 21st, 2010

 

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