The Judiciary Continued in Relation to Trial by Jury
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to CRIMINAL CAUSES. To argue with respect to the latter would, however, 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 conviction, when expressed in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man 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.
The maxims on which they rely are of this nature: “A specification of particulars is an exclusion of generals”; or, “The expression of one thing is the exclusion of another.” Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and 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.
A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation.
From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures 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, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature.
From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and 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 an 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 the 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 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, in the most ample manner, in the plan of the convention.
It has been 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 it can have no influence upon the legislature, in regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be imposed, or to the RULE by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, 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 provision in favor of trial by jury in criminal cases, will afford the security aimed at. 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.
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 former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, 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 those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men 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. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that 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 the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.
Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that 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, however, in all cases, great difficulty in this; and men 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. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this 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. [1] In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. 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; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course 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. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. 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. Rhode Island is, I believe, in this particular, pretty 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 the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal OF COURSE from one jury to another, till there have been two verdicts out of three on one side.
From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation.
The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose “Trial by jury shall be as heretofore” and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government 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.
As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should 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 cause 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.
But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly 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, among others, 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 be always 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 be to determine matters of fact, yet in most cases 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 fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable.
My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS [2] to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a SPECIAL determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.
It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.
It is 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.”
This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, 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 of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize THAT species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it 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 the States in the Union, or that would perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.
To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must 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 cannot but persuade myself, on the other hand, 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. They 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 plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished [3] by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States.
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 this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as 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 to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our 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 men who endeavor 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 men 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 also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either.
PUBLIUS.
1. It has been erroneously insinuated. with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question.
2. It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules.
3. Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted.
Federalist No. 1
Federalist Paper 01, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 01General Introduction
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.
This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.
Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.
It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable–the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.
In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.
I propose, in a series of papers, to discuss the following interesting particulars:
THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY.
In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention.
It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole. This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.
PUBLIUS.
Federalist No. 2
Federalist Paper 02, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 02Concerning Dangers from Foreign Force and Influence
For the Independent Journal.
Author: John Jay
To the People of the State of New York:
WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident.
Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.
It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy.
It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.
With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people–a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.
This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.
Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.
A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and wellbalanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.
This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being pursuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration.
This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, 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; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.
Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to pursuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so.
They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable.
These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience.
It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.”
PUBLIUS.
Federalist No. 3
Federalist Paper 03, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 03The Same Subject Continued: Concerning Dangers From Foreign Force and Influence
For the Independent Journal.
Author: John Jay
To the People of the State of New York:
IT IS not a new observation that the people of any country (if, like the Americans, intelligent and wellinformed) seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests. That consideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all general and national purposes.
The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive.
Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first. The SAFETY of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively.
At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine 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 this remark be just, it becomes useful to inquire whether so many JUST causes of war are likely to be given by UNITED AMERICA as by DISUNITED America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations.
The JUST causes of war, for the most part, arise either from violation of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to.
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 that 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.
Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,–especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national 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.
Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,–whereas, adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended.
Because 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; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning.
Because, even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national 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.
So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford JUST causes of war, they 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, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter.
Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.
The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested.
But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but 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 are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power.
In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to FRANCE, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other POWERFUL nation?
PUBLIUS.
Federalist No. 4
Federalist Paper 04, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 04The Same Subject Continued: Concerning Dangers from Foreign Force and Influence
For the Independent Journal.
Author: John Jay
To the People of the State of New York:
MY LAST paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by JUST causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies.
But 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; for it need not be observed that there are PRETENDED as well as just causes of war.
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; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the 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, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances.
With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish.
With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it.
In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them.
The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns.
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; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic.
From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure.
The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country.
As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever.
One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and 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 that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.
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? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would?
We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen–if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet–let Scotland have its navigation and fleet–let Wales have its navigation and fleet–let Ireland have its navigation and fleet–let those four of the constituent parts of the British empire be be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance.
Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments–what armies could they raise and pay–what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again.
But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people.
But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.
PUBLIUS.
Federalist No. 5
Federalist Paper 05, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 05The Same Subject Continued: Concerning Dangers from Foreign Force and Influence
For the Independent Journal.
Author: John Jay
To the People of the State of New York:
QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: “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.” “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 doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION.”
It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted.
The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other.
Should 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, and the partial interests of each confederacy, instead of the general interests of all America, 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 live in the constant apprehension of them.
The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years.
Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.
The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the NORTHERN HIVE would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.
They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH OTHER.
From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies.
When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be DISTINCT NATIONS. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the SOUTHERN confederacy might be at war would be the one with whom the NORTHERN confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.
Nay, 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. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect.
Let candid men 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.
PUBLIUS.
Federalist No. 6
Federalist Paper 06, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 06Concerning Dangers from Dissensions Between the States
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind–those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation.
A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of 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 ages.
The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion–the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.
The celebrated Pericles, in compliance with the resentment of a prostitute, [1] at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the SAMNIANS. The same man, stimulated by private pique against the MEGARENSIANS, [2] another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice of a supposed theft of the statuary Phidias, [3] or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, [4] or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth.
The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown, [5] entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe.
The influence which the bigotry of one female, [6] the petulance of another, [7] and the cabals of a third, [8] had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known.
To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts would have been plunged into a civil war.
But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though 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, 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.
Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by MEN as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? 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 appealed to for an answer to these inquiries.
Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a wellregulated camp; and Rome was never sated of carnage and conquest.
Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had 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 the commonwealth.
Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league, [9] which gave a deadly blow to the power and pride of this haughty republic.
The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV.
In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people.
There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their 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, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader, [10] 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 these two last-mentioned nations 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 what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present 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? Is it not time to awake from the deceitful dream of a golden age, and to 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?
Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare–!
So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: “NEIGHBORING NATIONS (says he) 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.” [11] This passage, at the same time, points out the EVIL and suggests the REMEDY.
PUBLIUS.
Federalist No. 7
Federalist Paper 07, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 07The Same Subject Continued: Concerning Dangers from Dissensions Between the States
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
IT IS sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to this question to say–precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But, unfortunately for us, the question admits of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed.
Territorial disputes have at all times been found one of the most fertile sources of hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were comprised have claimed them as their property, the others have contended that the rights of the crown in this article devolved upon the Union; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dismemberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment.
In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage.
Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited.
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. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars.
The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative.
The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity. How would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamour; 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.
Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes–the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.
Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice.
The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera [1] must be the motto of every nation that either hates or fears us. [2]
PUBLIUS.
Federalist No. 8
Federalist Paper 08, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 08The Consequences of Hostilities Between the States
From the New York Packet.
Tuesday, November 20, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
ASSUMING it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity, with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation.
War between the States, in the first period of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy’s country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires overturned, but of towns taken and retaken; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition.
In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one state open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits.
This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. [1] Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.
The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard.
These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs.
It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, 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, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility.
There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose 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.
In a country in the predicament last described, 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 theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.
The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, 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 be, at this day, a victim to the absolute power of a single man. ‘T is possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom.
If we are wise enough to preserve the Union 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, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, 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.
This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable.
PUBLIUS.
Federalist No. 9
Federalist Paper 09, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 09The Union as a Safeguard Against Domestic Faction and Insurrection
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated.
From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors.
But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. 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; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place.
The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence.
When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America.
Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested.
So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.
“It is very probable,” (says he [1] ) “that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC.
“This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.
“A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.
“If a single member should attempt to usurp the supreme authority, 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.
“Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.
“As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection.
A distinction, more subtle than accurate, has been raised between a CONFEDERACY and a CONSOLIDATION of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government.
The definition of a CONFEDERATE REPUBLIC seems simply to be “an assemblage of societies,” or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.
In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to THREE votes in the COMMON COUNCIL, those of the middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: “Were I to give a model of an excellent Confederate Republic, it would be that of Lycia.” Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory.
PUBLIUS.
Federalist No. 10
Federalist Paper 10, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 10The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection
From the New York Packet.
Friday, November 23, 1787.
Author: James Madison
To the People of the State of New York:
AMONG the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been 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, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which 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; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.
By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.
From this view of the subject it may be concluded that a pure democracy, by which I mean 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. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.
The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:
In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.
In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.
It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.
The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
Federalist No. 11
Federalist Paper 11, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 11The Utility of the Union in Respect to Commercial Relations and a Navy
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other.
There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial character of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carrying trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They foresee the dangers that may threaten their American dominions from the neighborhood of States, which have all the dispositions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would answer the threefold purpose of preventing our interference in their navigation, of monopolizing the profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers.
If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people–increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so–to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? 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? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions 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? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce?
A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre-possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade.
A further resource for influencing the conduct of European nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government would put it in our power, at a period not very distant, 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 more peculiarly the case in relation to operations in the West Indies. 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, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to 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, erelong, 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.
But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant 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, despicable by its weakness, forfeits even the privilege of being neutral.
Under a vigorous national 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. This situation would even take away the motive to such combinations, by inducing an impracticability of success. 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 the little politicians to control or vary the irresistible and unchangeable course of nature.
But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be 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 p rsecutors. That unequaled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, 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.
There are rights of great moment to the trade of America which are rights of the Union–I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors?
This branch of trade ought not to be considered as a partial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable.
To this great national object, a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores–tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy.
An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have 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, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions.
It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government.
There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America–that even dogs cease to bark after having breathed awhile in our atmosphere.[1] Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his 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 and the new world!
PUBLIUS.
Federalist No. 12
Federalist Paper 12, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 12The Utility of the Union In Respect to Revenue
From the New York Packet.
Tuesday, November 27, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
THE effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its tendency to promote the interests of revenue will be the subject of our present inquiry.
The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multipying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened otherwise? Could that which procures a freer vent for the products of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state–could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted? It is astonishing that so simple a truth should ever have had an adversary; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction.
The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war.
But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that 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. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them.
No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description.
In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the inperceptible agency of taxes on consumption.
If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade.
The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash there shores; the facility of communication in every direction; the affinity of language and manners; the familiar habits of intercourse; –all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice.
In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country.
If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard–the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but 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 through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment.
It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion. [1] There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits.
What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. 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. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But 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.
PUBLIUS.
Federalist No. 13
Federalist Paper 13, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 13Advantage of the Union in Respect to Economy in Government
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
As CONNECTED with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and there will be so much the less to be drawn from the pockets of the people. If the States are united under one government, there will be but one national civil list to support; if they are divided into several confederacies, there will 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. The entire separation of the States into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies–one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there would be a greater number. According to this distribution, each confederacy would comprise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institutions than that which has been proposed by the convention. 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. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent; and can, in a manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions.
The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. 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. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State.
Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground.
If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part.
PUBLIUS.
Federalist No. 14
Federalist Paper 14, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 14Objections to the Proposed Constitution From Extent of Territory Answered
From the New York Packet.
Friday, November 30, 1787.
Author: James Madison
To the People of the State of New York:
WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by 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 will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find.
The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that 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, consequently, will be confined to a small spot. A republic may be extended over a large region.
To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.
Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.
As 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 the natural limit of a republic is that distance from the centre 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? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress.
That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. 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. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, 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 Union.
Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory.
In the first place it is to be remembered that the general government is not to be 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 governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.
A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task.
Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.
A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.
I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that 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; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellowcitizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that 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. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.
PUBLIUS.
Federalist No. 15
Federalist Paper 15, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 15The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
IN THE course of the preceding papers, I have endeavored, my fellow-citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch.
In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the “insufficiency of the present Confederation to the preservation of the Union.” It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union.
We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government. [1] Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes?
This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity.
It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.
The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.
It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy.
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, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion.
If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us.
But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.
Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them 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 become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.
There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.
In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature.
If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; 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. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits.
In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins.
PUBLIUS.
Federalist No. 16
Federalist Paper 16, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 16The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
From the New York Packet.
Tuesday, December 4, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers.
This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.
It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.
This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying 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. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. 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, of partiality, and of oppression, in the majority that happened to prevail in the national council.
It seems to require no pains to prove that the 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. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union 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. Whoever 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. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity.
Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances 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.
The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, 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. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.
To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.
The pausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it 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, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. 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 a constitution in any degree competent to its own defense, and 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, unless in cases of a tyrannical exercise of the federal authority.
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 magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. 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 dismemberments 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 would be idle to object to a government because it could not perform impossibilities.
PUBLIUS.
Federalist No. 17
Federalist Paper 17, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 17The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.
Tuesday, December 4, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.
But let it be admitted, for argument’s sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people; a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty.
The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed.
It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.
This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation.
The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.
There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,–I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, 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, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.
The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating 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 reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them.
Though the ancient feudal systems were not, strictly speaking, confederacies, yet they 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 of whom they held it. Each principal vassal was a kind of sovereign, within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy.
When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and 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, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority.
This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom.
The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITS, in one case at the disposal of individuals, in the other case at the disposal of political bodies.
A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers.
PUBLIUS.
Federalist No. 18
Federalist Paper 18, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 18The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.
Author: Alexander Hamilton and James Madison
To the People of the State of New York:
AMONG the confederacies of antiquity, the most considerable was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States.
The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve whatever it judged necessary for the common welfare of Greece; to declare and carry on war; to decide, in the last resort, all controversies between the members; to fine the aggressing party; to employ the whole force of the confederacy against the disobedient; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple.
In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions.
Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination.
It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party.
Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes convulsions, and carnage.
After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, 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 become, in fact, satellites of the orbs of primary magnitude.
Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it.
As a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip 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, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy.
Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, 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, as it is called, was another society of Grecian republics, which supplies us with valuable instruction.
The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it.
The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred.
It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems.
It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted.
One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of 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. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.
We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic.
Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awaken their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the 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, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league.
The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakenened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse 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; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among it members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty [1] throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour.
I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head.
PUBLIUS.
Federalist No. 19
Federalist Paper 19, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 19The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.
Author: Alexander Hamilton and James Madison
To the People of the State of New York:
THE examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental instruction on this subject. There are existing institutions, founded on a similar principle, which merit particular consideration. The first which presents itself is the Germanic body.
In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence. The force of imperial sovereignty was insufficient to restrain such powerful dependants; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty: In the fifteenth they had little more than the symbols and decorations of power.
Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and the aulic council, two judiciary tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members.
The diet possesses the general power of legislating for the empire; of 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 which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber.
The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe.
From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that 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 between the emperor and the princes and states; of 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, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general inbecility, confusion, and misery.
In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late 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 have been 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.
If the nation happens, on any emergency, to be more united by the necessity of self-defense, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters.
The small body of national troops, which has been judged necessary in time of peace, is defectively 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, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members. This experiment has only served 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.
We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abb 300 de St. Croix 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, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory, [1] he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains.
It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and heriditary 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; –these causes support a feeble and precarious Union; whilst the repellant quality, incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness.
If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories.
The connection among the Swiss cantons scarcely amounts to a confederacy; though it is sometimes cited as an instance of the stability of such institutions.
They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty.
They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded; and by the necessity of some regular and permanent provision for accomodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party.
So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages.
That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France.
PUBLIUS.
Federalist No. 20
Federalist Paper 20, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 20The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
From the New York Packet.
Tuesday, December 11, 1787.
Author: Alexander Hamilton and James Madison
To the People of the State of New York:
THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed.
The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous.
The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure.
The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration.
The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon.
As stadtholder of the union, he has, however, considerable prerogatives.
In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts.
In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns.
In his marine capacity he is admiral-general, and superintends and directs every thing 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 till he approves them.
His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men.
Such is the nature of the celebrated Belgic confederacy, as delineated 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.
It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.
The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.
The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota.
In matters of contribution, it is the practice to waive the articles of the constitution. 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 enable her to effect both these purposes.
It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which 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 taken ad referendum, 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.
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 constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.
Notwithstanding the calamities produced by the stadtholdership, it has been supposed that 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 Abbe 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.” It is remarked by Sir William Temple, “that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place.”
These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy.
The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.
A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed.
This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.
I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY.
PUBLIUS.
Federalist No. 21
Federalist Paper 21, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 21Other Defects of the Present Confederation
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
HAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease.
The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, “that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled.” There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.
The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations.
The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.
Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national 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 Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?
The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community.
The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of 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. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that 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 may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King’s County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people 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 consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.
This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions.
There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, 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. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised.
It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four
.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.
Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large.
PUBLIUS.
Federalist No. 22
Federalist Paper 22, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 22The Same Subject Continued: Other Defects of the Present Confederation
From the New York Packet.
Friday, December 14, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
IN ADDITION to the defects already enumerated in the existing federal system, there are others of not less importance, which concur in rendering it altogether unfit for the administration of the affairs of the Union.
The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.[1]
Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist.
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. “The commerce of the German empire [2] is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure.
This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to reget the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members.
The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America [3]; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people [4]; and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.
It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.
Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.
In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, 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 prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major’s commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.
A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result 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 where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?
In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters.
The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a 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. The possibility of a question of this nature 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.
PUBLIUS.
Federalist No. 23
Federalist Paper 23, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 23The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union
From the New York Packet.
Tuesday, December 18, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.
This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.
The principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.
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; 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 that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.
This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained.
Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is 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.
Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the “common defense and general welfare.” It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head.
The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning, that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must 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 result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.
If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success.
Who is likely to make suitable provisions for the public defense, as that body to which the guardianship of the public safety is confided; which, as the centre of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense, and leaving in the State governments the EFFECTIVE powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished?
Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensible to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.
I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy.
PUBLIUS.
Federalist No. 24
Federalist Paper 24, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 24The Powers Necessary to the Common Defense Further Considered
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
To THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.
It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest.
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that TWO ONLY of them[1] contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence.
Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.
If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.
But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed.
Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us 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 legislature.
In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.
If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself.
PUBLIUS.
Federalist No. 25
Federalist Paper 25, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 25The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered
From the New York Packet.
Friday, December 21, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
IT MAY perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of our political association, as it would in practice transfer the care of the common defense from the federal head to the individual members: a project oppressive to some States, dangerous to all, and baneful to the Confederacy.
The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions, New York would have to sustain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it respected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a considerable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and extensive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counterpoise, and pretenses could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authcrity.
Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that 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 the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions.
There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend; whether to raising armies as well as to KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated “keeping them up,” contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up IN TIME OF PEACE, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision.
The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretenses of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project.
If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation.
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, 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, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.
All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, 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. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has 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 affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) 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 particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct 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.
It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral. This instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.
PUBLIUS.
Federalist No. 26
Federalist Paper 26, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 26The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.
The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. The opponents of the proposed Constitution combat, in this respect, the general decision of America; and instead of being taught by experience the propriety of correcting any extremes into which we may have heretofore run, they appear disposed to conduct us into others still more dangerous, and more extravagant. As if the tone of government had been found too high, or too rigid, the doctrines they teach are calculated to induce us to depress or to relax it, by expedients which, upon other occasions, have been condemned or forborne. It may be affirmed without the imputation of invective, that if the principles they inculcate, on various points, could so far obtain as to become the popular creed, they would utterly unfit the people of this country for any species of government whatever. But a danger of this kind is not to be apprehended. The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not 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.
It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung.
In England, 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, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that “the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.”
In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raise the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments, are of the number of these instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of these constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject.
It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said, that 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 have been the result of 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.
Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure from it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State? Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it?
Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation.
The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.
Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, 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.
If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable. It would be announced, by the very circumstance of augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery.
It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense.
But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can 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. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable.
PUBLIUS.
Federalist No. 27
Federalist Paper 27, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 27The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
From the New York Packet.
Tuesday, December 25, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
IT HAS been urged, in different shapes, that a Constitution of the kind proposed by the convention cannot operate without the aid of a military force to execute its laws. This, however, like most other things that have been alleged on that side, rests on mere general assertion, unsupported by any precise or intelligible designation of the reasons upon which it is founded. As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature. Waiving any exception that might be taken to the inaccuracy or inexplicitness of the distinction between internal and external, let us inquire what ground there is to presuppose that disinclination in the people. Unless we presume at the same time that the powers of the general government will be worse administered than those of the State government, there seems to be no room for the presumption of ill-will, disaffection, or opposition in the people. I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration. It must be admitted that there are exceptions to this rule; but these exceptions depend so entirely on accidental causes, that they cannot be considered as having any relation to the intrinsic merits or demerits of a constitution. These can only be judged of by general principles and maxims.
Various reasons have been suggested, in the course of these papers, to induce a probability that the general government will be better administered than the particular governments; the principal of which reasons are that the extension of the spheres of election will present a greater option, or latitude of choice, to the people; that through the medium of the State legislatures which are select bodies of men, and which are to appoint the members of the national Senate there is reason to expect that this branch will generally be composed with peculiar care and judgment; that these circumstances promise greater knowledge and more extensive information in the national councils, and that they will be less apt to be tainted by the spirit of faction, and 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. Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.
The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the FORMER sentiment and to inspire the LATTER, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member.
I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channls and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.
One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force, than that species of league contend for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence.
The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [1] Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct?
PUBLIUS.
Federalist No. 28
Federalist Paper 28, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 28The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.
Should such emergencies at any time happen under the national government, there could be no remedy but force. The means to be employed must be proportioned to the extent of the mischief. If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression; and the national presumption is that they would be ready to do their duty. An insurrection, whatever may be its immediate cause, eventually endangers all government. Regard to the public peace, if not to the rights of the Union, would engage the citizens to whom the contagion had not communicated itself to oppose the insurgents; and if the general government should be found in practice conducive to the prosperity and felicity of the people, it were irrational to believe that they would be disinclined to its support.
If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract, should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?
Let us pursue this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States? Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether we have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.
Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society.[1]
If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and 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 increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve 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 public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and 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 national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.
We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that 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, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
PUBLIUS.
Federalist No. 29
Federalist Paper 29, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 29Concerning the Militia
From the Daily Advertiser.
Thursday, January 10, 1788
Author: Alexander Hamilton
To the People of the State of New York:
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “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.”
Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.
In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment?
By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:
“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee.
There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.
In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes “Gorgons, hydras, and chimeras dire”; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.
A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That 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. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d’ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?
If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.
In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy.
PUBLIUS.
Federalist No. 30
Federalist Paper 30, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 30Concerning the General Power of Taxation
From the New York Packet.
Friday, December 28, 1787.
Author: Alexander Hamilton
To the People of the State of New York:
IT HAS been already observed that the federal government ought to possess the power of providing for the support of the national forces; in which proposition was intended to be included the expense of raising troops, of building and equipping fleets, and all other expenses in any wise connected with military arrangements and operations. But these are not the only objects to which the jurisdiction of the Union, in respect to revenue, must necessarily be empowered to extend. It must embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury. The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation, in one shape or another.
Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish.
In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt, that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require?
The present Confederation, feeble as it is intended to repose in the United States, an unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which compose that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case; though the assumption of such a right would be an infringement of the articles of Union; though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been, is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts of these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies.
What remedy can there be for this situation, but in a change of the system which has produced it in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury.
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. The former they would reserve to the State governments; the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities. Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. I believe it may be regarded as a position warranted by the history of mankind, that, IN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.
To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited by experience or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode? It ought to be recollected that if less will be required from the States, they will have proportionably less means to answer the demand. If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?
Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The 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 and at enormous premiums.
It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is, that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is, that whatever deficiences there may be, can without difficulty be supplied by loans.
The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice.
Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the 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, they must appear entitled to serious attention. Such men 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.
PUBLIUS.
Federalist No. 31
Federalist Paper 31, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 31The Same Subject Continued: Concerning the General Power of Taxation
From the New York Packet.
Tuesday, January 1, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry, that “the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other.” Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common-sense, that they challenge the assent of a sound and unbiased mind, with a degree of force and conviction almost equally irresistible.
The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously leveled.
But in the sciences of morals and politics, men are found far less tractable. 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 this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties.
How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows:
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 but a regard to the public good and to the sense of the people.
As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.
As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.
As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.
Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it.
Those of them which have been most labored with that view, seem in substance to amount to this: “It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is as requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the LATTER might, and probably would in time, deprive the FORMER of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments.”
This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter? Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded.
It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to 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; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States.
PUBLIUS.
Federalist No. 32
Federalist Paper 32, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 32The Same Subject Continued: Concerning the General Power of Taxation
From the Daily Advertiser.
Thursday, January 3, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the POLICY of any branch of administration, but would not imply 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: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise “EXCLUSIVE LEGISLATION” over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress “TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES”; and the second clause of the tenth section of the same article declares that, “NO STATE SHALL, without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, except for the purpose of executing its inspection laws.” Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the DUTIES ON IMPORTS. This answers to the second case. The third will be found in that clause which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind.
As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.
PUBLIUS.
Federalist No. 33
Federalist Paper 33, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 33The Same Subject Continued: Concerning the General Power of Taxation
From the Daily Advertiser.
Thursday, January 3, 1788
Author: Alexander Hamilton
To the People of the State of New York:
THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national 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”; and the second clause of the sixth article 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.”
These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of 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. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.
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 a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the propermeans of executing such a power, but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimatb authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and 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. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident 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 which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine 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. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon 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 taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising 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. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, 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. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.
PUBLIUS.
Federalist No. 34
Federalist Paper 34, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 34The Same Subject Continued: Concerning the General Power of Taxation
From the New York Packet.
Friday, January 4, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to ANNUL or REPEAL the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.
In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.
To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed 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. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic.
Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character.
What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.
In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good.
But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil list; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in PROPORTION to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little too little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the MEANS and the END; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose.
The preceding train of observation will justify the position which has been elsewhere laid down, that “A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.” Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling 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. There remain a few other lights, in which this important subject of taxation will claim a further consideration.
PUBLIUS.
Federalist No. 35
Federalist Paper 35, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 35The Same Subject Continued: Concerning the General Power of Taxation
For the Independent Journal.
Author: Alexander Hamilton
To the People of the State of New York:
BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.
Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.
The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.
One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.
The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to 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.
With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.
Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.
It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?
If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.
There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.
PUBLIUS.
Federalist No. 36
Federalist Paper 36, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 36The Same Subject Continued: Concerning the General Power of Taxation
From the New York Packet.
Tuesday, January 8, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive.
The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency.
There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry?
Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.
Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation.
The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the DIRECT and those of the INDIRECT kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States.
The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land taxes are co monly laid in one of two modes, either by ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet 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 must be 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. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature? The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan.
But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government.
Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that “all duties, imposts, and excises shall be UNIFORM throughout the United States.”
It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part.
As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually, to abstain from those objects which either side may have first had recourse to. 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 done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.
Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain.
As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In 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 the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted to not necessarily result from the plan.
As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to 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 which 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!
As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States [1] which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. 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. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.
I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter.
PUBLIUS.
Federalist No. 37
Federalist Paper 37, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 37Concerning the Difficulties of the Convention in Devising a Proper Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.
Author: James Madison
To the People of the State of New York:
IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects.
That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests.
It is a misfortune, inseparable from human affairs, 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; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.
With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention.
The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, 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 may unfold them.
Among the difficulties encountered by the convention, a very important one must have lain in 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, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his 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 enter into 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. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.
How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part.
Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never 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, 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 ermination of the former 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 man, in which the obscurity arises as well 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 judiciary; 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 in political science.
The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the 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 several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting 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 be liquidated and ascertained by a series of particular discussions and adjudications. Besides 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, therefore, requires not only that the ideas should be distinctly formed, but that they should 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 equivocally 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 must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.
To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.
Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. 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, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it.
Would it be wonderful if, under the pressure of all these difficulties, the convention should have 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 should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history 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 a history of factions, contentions, and disappointments, and 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 lustre 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, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the 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.
PUBLIUS.
Federalist No. 38
Federalist Paper 38, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 38The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed
From the New York Packet.
Tuesday, January 15, 1788.
Author: James Madison
To the People of the State of New York:
IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of 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. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, 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 counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have 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, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If 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, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, 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 selfpreservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts.
A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. “We concur fully,” reply others, “in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department.” Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself.
As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late 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 that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.
It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the 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 places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an 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? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.
I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.
PUBLIUS.
Federalist No. 39
Federalist Paper 39, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 39The Conformity of the Plan to Republican Principles
For the Independent Journal.
Author: James Madison
To the People of the State of New York:
THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking.
The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.
What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.
If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.
On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.
Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.
“But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision.
Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority.
First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.
The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.
The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.
But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.
If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
PUBLIUS.
Federalist No. 40
Federalist Paper 40, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 40The Powers of the Convention to Form a Mixed Government Examined and Sustained
From the New York Packet.
Friday, January 18, 1788.
Author: James Madison
To the People of the State of New York:
THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends 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 legislature of every State, will effectually provide for the same. “The recommendatory act of Congress is in the words following:”WHEREAS, There is provision in the articles of Confederation and 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 States, 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. “From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND 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; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were 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.
There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that 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 the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. 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? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States [1] are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; 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 may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes 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 also. But pretermitting these instances, was it not an acknowledged object of the convention and the 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? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, 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 latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by 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 an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of 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 for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, 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,” [2] since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, 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? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be 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? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be 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.
PUBLIUS.
Federalist No. 41
Federalist Paper 41, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 41General View of the Powers Conferred by the Constitution
For the Independent Journal.
Author: James Madison
To the People of the State of New York:
THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches. Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States? Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question. It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following 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. The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; 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 American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.
How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly 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 fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. 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. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had 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, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, 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 which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter 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 a part only 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. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it.
Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. 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 nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this 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 by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union 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, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to accommodate itself to them. Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been 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,” amounts 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 could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare. “But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and 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 be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.
But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
PUBLIUS.
Federalist No. 42
Federalist Paper 42, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 42The Powers Conferred by the Constitution Further Considered
From the New York Packet.
Tuesday, January 22, 1788.
Author: James Madison
To the People of the State of New York:
THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this difference only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States; and that a power of appointing and receiving “other public ministers and consuls,” is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may PERHAPS be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles 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 might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes.
A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!
Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, 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 to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin STRUCK by their own authority, or that of the respective States. It must be seen at once that the proposed 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 punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. 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 dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is 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,” etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to “all privileges and immunities of free citizens,” “all the privileges of trade and commerce,” cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term “inhabitants” to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. 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 the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency.
Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.
PUBLIUS.
Federalist No. 43
Federalist Paper 43, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 43The Same Subject Continued: The Powers Conferred by the Constitution Further Considered
For the Independent Journal.
Author: James Madison
To the People of the State of New York:
THE FOURTH class comprises the following miscellaneous powers:1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.
The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. “To 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 legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. “The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc. , established by the general government, 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. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree 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. 3. “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 attained. “As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed 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, even in punishing it, from extending the consequences of guilt beyond the person of its author. 4. “To admit new States into the 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. “In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at 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 Congress have been 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 the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. “To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. “This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. “To guarantee to every State in the Union a republican form of government; to 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. “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 monarchial innovations. The more intimate the nature of such a union 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. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than 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 latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.
A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other.
Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election!
May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal 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. “7. “To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation. “This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. “To provide for amendments to be ratified by three fourths of the States under two exceptions only. “That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. 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. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. “This article speaks for itself.
The express authority of the people alone 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 a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to 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. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on 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 conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.
PUBLIUS.
Federalist No. 44
Federalist Paper 44, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 44Restrictions on the Authority of the Several States
From the New York Packet.
Friday, January 25, 1788.
Author: James Madison
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:1. “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 a legal 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. “The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority.
The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. 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. 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 two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment. 2. “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, 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 on 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. “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. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion.
The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. 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 have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “EXPRESSLY” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.
It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted 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; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. “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. “The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members. 3. “The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution. “It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The 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 the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved.
PUBLIUS.
Federalist No. 45
Federalist Paper 45, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 45The Alleged Danger From the Powers of the Union to the State Governments Considered
For the Independent Journal.
Author: James Madison
To the People of the State of New York:
HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be,
Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. 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 the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments.
Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons. The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of 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 men, 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, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. 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.
There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side.
It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union.
Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale.
Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several 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 the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union.
PUBLIUS.
Federalist No. 46
Federalist Paper 46, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 46The Influence of the State and Federal Governments Compared
From the New York Packet.
Tuesday, January 29, 1788.
Author: James Madison
To the People of the State of New York:
RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States.
I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States.
Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever.
It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage.
But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the preorgatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.
On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other.
The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.
PUBLIUS.
Federalist No. 47
Federalist Paper 47, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 47The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
From the New York Packet.
Friday, February 1, 1788.
Author: James Madison
To the People of the State of New York:
HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. ” Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. ” Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. 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 “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, which is 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, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective 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 state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. 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, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. 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 and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches.
Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary 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 officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. 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; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting 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 judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. 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, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. 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, to be referred to the same department. The members of the executive counoil are made EX-OFFICIO justices of peace throughout the State. 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 executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter 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. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, “that 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. ” Yet we find not only this express exception, with respect to the members of the irferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.
It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State.
In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, 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 the ensuing paper.
PUBLIUS.
Federalist No. 48
Federalist Paper 48, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 48These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other
From the New York Packet.
Friday, February 1, 1788.
Author: James Madison
To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.
After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.
What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting “Notes on the State of Virginia,” p. 195. “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.
For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. “The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was “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. ” In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.
Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And 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 would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
PUBLIUS.
Federalist No. 49
Federalist Paper 49, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 49Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
From the New York Packet.
Tuesday, February 5, 1788.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
THE author of the “Notes on the State of Virginia,” quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded.
One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, “that 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. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how 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, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges.
The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing 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 men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.
We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.
PUBLIUS.
Federalist No. 50
Federalist Paper 50, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 50Periodic Appeals to the People Considered
From the New York Packet.
Tuesday, February 5, 1788.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge.
If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty 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, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, 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, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State.
Secondly. It appears that 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 even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.
Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men 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 are so to be called, will be the same.
Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.
Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.
PUBLIUS.
Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments (Madison) From The New York Packet
Federalist Paper 51, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 51To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the 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. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. 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, neither external nor internal controls on government would be necessary. 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. 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 that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. 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 under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS.
The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
From the New York Packet.
Friday, February 8, 1788.
Author: Alexander Hamilton or James Madison
Federalist No. 52
Federalist Paper 52, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 52The House of Representatives
From the New York Packet.
Friday, February 8, 1788.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures.
The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option.
It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, 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. 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, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. 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 term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what 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 with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question 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, under various pretexts, 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. , that the intermissions should not be protracted beyond a period of three years. On the accession of William III. , when a revolution took place 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, which passed a few years later in the same reign, the term “frequently,” which had alluded to the triennial period settled in the time of Charles II. , is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under on alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that 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 biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, 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. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter 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 ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any 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 holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence.
In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only 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 received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several 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 the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.
PUBLIUS.
Federalist No. 53
Federalist Paper 53, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 53The Same Subject Continued: The House of Representatives
From the New York Packet.
Tuesday, February 12, 1788.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
I SHALL here, perhaps, be reminded of a current observation, “that where annual elections end, tyranny begins. ” If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man 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 he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men 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. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and 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 people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by t e local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulatious of the different States? How can the trade between the different States 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? How 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 federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of 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 with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government.
And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man’s closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature.
There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.
PUBLIUS.
Federalist No. 54
Federalist Paper 54, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 54The 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.
Federalist No. 55
Federalist Paper 55, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 55The Total Number of the House of Representatives
From the New York Packet.
Friday, February 15, 1788.
Source: Consource. Click Here To View Original Document.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they 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; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives.
In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. 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 the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States.
Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men 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 be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.
It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, 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 our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power.
The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed.
The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the 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 repeat the choice of, sixty-five or a hundred men 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 latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men 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 change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which 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 that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution.
From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellow citizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term.
They held their consultations always under the veil of secrecy; they 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; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means 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.
Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can 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, the fidelity of the other House 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 as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, 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. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which 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 which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.
PUBLIUS.
Federalist No. 56
Federalist Paper 56, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 56The Same Subject Continued: The Total Number of the House of Representatives
From the New York Packet.
Tuesday, February 19, 1788.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
THE SECOND charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the 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, which do not lie 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 then 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 which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much information, as has been elsewhere remarked; 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 will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, 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 in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and 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. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that 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 general legislature, and render a much smaller number of members sufficient for it? The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be 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. The observations made on the subject of taxation apply with greater force to the case of the militia. For 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 here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion 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 men, 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 involve 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. On a comparison of the different States 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. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States.
The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population, and will require, on the part of each State, a fuller representation. The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight.
Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. [1] It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and 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. With all these concessions, two hundred and seventy-nine persons only will be the depository of the safety, interest, and happiness of eight millions that is to say, there will be one representative only to maintain the rights and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constituents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained it seems to give the fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it.
PUBLIUS.
Federalist No. 57
Federalist Paper 57, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 57The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation
From the New York Packet.
Tuesday, February 19, 1788.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
THE THIRD charge against the House of Representatives is, that it will be taken from 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 which have been framed against the federal Constitution, this is perhaps the most extraordinary.
Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. 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 such a limitation of the term of appointments as will maintain a proper responsibility to the people. Let me now ask what circumstance there is in the constitution of the House of Representatives that 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. 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 men 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. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements. In the second place, they 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.
In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men 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, however, would be found very insufficient without the restraint of frequent elections. 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; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can 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. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I 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 legislature, as well as on the people, the people will be prepared to tolerate any thing 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.
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 in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. 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?
This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich. Is the CONSEQUENCE from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens? Is the doctrine warranted by FACTS? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very 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. But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so.
In the last State the members of Assembly 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, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes 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 for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? 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 Assembly in the two last States, 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? But there are cases of a stronger complexion than any which I have yet quoted.
One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man 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.
PUBLIUS.
Federalist No. 58
Federalist Paper 58, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 58Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered
Author: James Madison
To the People of the State of New York:
THE remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. 1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision. 2. 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 that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses. This advantage must be increased by the consciousness, felt by the same side of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations. It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence 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. It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former. These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, 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. But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. 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 those causes we are to 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 on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, 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 economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which 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 omit also 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. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, 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. Now, it is precisely on characters of this description that the eloquence and address of the few are 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 sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, 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 strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may 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. As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been 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. That some advantages might have resulted from such a precaution, cannot be denied. 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. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.
PUBLIUS.
Federalist No. 59
Federalist Paper 59, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 59Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Friday, February 22, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature 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 choosing senators.”[1] This provision has not only been declaimed against by those who condemn the Constitution in the gross, but it has been censured by those who have objected with less latitude and greater moderation; and, in one instance it has been thought exceptionable by a gentleman who has declared himself the advocate of every other part of the system. I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, 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 would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. 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 general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed. Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation. As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of Senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow that, because they have a power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system. So far as that construction may expose the Union 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 national government. If this had been done, 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. But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites. It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness in which event no good citizen could desire its continuance. But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election. I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. 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 as are 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 national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation, therefore ought in no case that can be avoided, 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.
PUBLIUS.
1. 1st clause, 4th section, of the List article.
Federalist No. 60
Federalist Paper 60, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 60The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Tuesday, February 26, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
WE HAVE seen, that an uncontrollable power over the elections to the federal government could not, without hazard, be committed to the State legislatures. Let us now see, what would be the danger on the other side; that is, from confiding the ultimate right of regulating its own elections to the Union itself. It is not pretended, that this right would ever be used for the exclusion of any State from its share in the representation. The interest of all would, in this respect at least, be the security of all. But it is alleged, that it might be employed in such a manner as to promote the election of some favorite class of men in 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 seems to be the most chimerical. On the one hand, no rational calculation of probabilities would lead us to imagine that the disposition which a conduct so violent and extraordinary would imply, could ever find its way into the national councils; and on the other, it may be concluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive.
The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible.
In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and in still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections. There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.
As to the Senate, it is impossible that any regulation of “time and manner,” which is all that is proposed to be submitted to the national government in respect to that body, 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 that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other? The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary co-operation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed whether in their hands or in those of the Union.
But what is to be the object of this 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 moneyed 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 this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property, I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them 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 inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter.
The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State.
In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this 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 cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primitive composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other.
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 national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well 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 importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity.
I the rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of 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 pre-eminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are “the wealthy and the well-born,” as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, 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 the latter is the case, (as every intelligent man knows it to be, [1] ) is it not evident that the 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 to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.
Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that 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, still I imagine 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. The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather 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 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?
PUBLIUS.
1. Particularly in the Southern States and in this State.
Federalist No. 61
Federalist Paper 61, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 61The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Tuesday, February 26, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE more candid opposers of the provision respecting elections, contained in the plan of the convention, when pressed in argument, will sometimes concede the propriety of that provision; with this qualification, however, 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, was 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 it would, in fact, have afforded little or no additional security against the danger apprehended; and the want of it will never be considered, by an impartial and judicious examiner, as a serious, still less as an insuperable, objection to the plan. The different views taken of the subject in the two preceding papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination, at least, will be guiltless of the sacrifice.
If those who are inclined to consult their jealousy only, would exercise it in a careful inspection of the several State constitutions, they would find little less room for disquietude and alarm, from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A review of their situation, in this particular, would tend greatly to remove any ill impressions which may remain in regard to this matter. But as that view would lead into long and tedious details, I shall content myself with the single example of the State in which I write. The constitution of New York makes no other provision for LOCALITY of elections, than that the members of the Assembly shall be elected in the COUNTIES; those of the Senate, in the great districts into which the State is or may be divided: these at present are four in number, and comprehend each from two to six counties. It may readily be perceived that it would not be more difficult to the legislature of New York to defeat the suffrages of the citizens of New York, by confining elections to particular places, than for the legislature of the United States to defeat the suffrages of the citizens of the Union, by the like expedient. Suppose, for instance, the city of Albany was to be 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, etc., or in any part of the county of Montgomery, would take the trouble to come to the city of Albany, to give their votes for members of the Assembly or Senate, sooner than they would repair to the city of New York, to participate in the choice of the members of the federal House of Representatives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the existing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine, that when the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles. Hence it must appear, that objections to the particular modification of the federal power of regulating elections will, in substance, apply with equal force to the modification of the like power in the constitution of this State; and for this reason it will be impossible to acquit the one, and to 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 defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests.
Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are 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 this diversity would be that 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. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations.
Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year.
It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been 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 for the national government at the same epochs.
PUBLIUS.
Federalist No. 62
Federalist Paper 62, Federalist Papers, The Original Documents Federalist No. 62The Senate
For the Independent Journal.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate.
The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate.
I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.
II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.
III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that 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, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not 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. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
In this spirit it may be remarked, that 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. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of 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, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making 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.
IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and 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.
First. 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. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, 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 is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be 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.
Secondly. The necessity of a senate is not less 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. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.
Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?
A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, 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 the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.
Fourthly. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.
To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.
In the first place, it 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 the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed 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, reared not 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.
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.
PUBLIUS.
Federalist No. 63
Federalist Paper 63, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 63The Senate Continued
For the Independent Journal.
Author: Alexander Hamilton or James Madison
To the People of the State of New York:
A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.
An attention to the judgment of other nations is important to every government for two reasons: the one is, that, 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 is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?
Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found 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 half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst 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 people is now laboring.
I add, as a SIXTH defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.
Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.
The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.
Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain 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 escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.
It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.
It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last 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; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from the one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act.
The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, 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, in support of what I advance.
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, and afterwards of six hundred members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them in their LEGISLATIVE capacity, since they 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, also, whatever might be its power, or the duration of its appointment, 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.
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 to a part only 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 true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave 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 the other advantage, of an extensive territory. For it cannot be believed, 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 content himself with repeating, that a senate appointed not 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.
To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently 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, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. 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 any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?
If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, 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 men 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; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union.
But if any thing could silence the jealousies on this subject, it ought to be the British example. The Senate there instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; 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 on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as 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, at the commencement of the second Punic War, lost almost the whole of its original portion.
Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, 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 even the constitutional authority of the Senate, but such 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.
PUBLIUS.
Federalist No. 64
Federalist Paper 64, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 64The Powers of the Senate
From the New York Packet.
Friday, March 7, 1788.
Author: John Jay
To the People of the State of New York:
IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it.
The second section 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.”
The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.
As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged.
Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved.
There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws.
It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.
They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other.
But to this plan, as to most others that have ever appeared, objections are contrived and urged.
Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected.
Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.
However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?
As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter.
As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.
With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.
PUBLIUS.
Federalist No. 65
Federalist Paper 65, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 65The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, 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 an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. 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 seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That 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 not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?
Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, 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 that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.
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? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: 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. It must either consist of permanent officers, stationary 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 depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men 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 this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.
But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. 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. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.
PUBLIUS.
Federalist No. 66
Federalist Paper 66, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 66Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter.
The FIRST of these objections is, that the provision in question confounds legislative and judiciary 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 has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.
It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York? [1]
A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy 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? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience?
If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government.
But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? 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; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must 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 Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate.
A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon 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. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, 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.
If any further arguments were necessary to evince the improbability of such a bias, it might 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, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They 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 him; 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 any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their 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 has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.
The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body 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. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they 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 they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it 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.
So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, 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 thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.
PUBLIUS.
1. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments.
Federalist No. 67
Federalist Paper 67, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 67The Executive Department
From the New York Packet
Tuesday, March 11, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE constitution of the executive department of the proposed government, claims next our attention.
There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this; and there is, perhaps, none which has been inveighed against with less candor or criticised with less judgment.
Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.
Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated.
In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject. They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition.
In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate.
This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party [1] ; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing.
The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW.” Immediately after this clause follows another in these words: “The President shall have power to fill up ?? VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION.” It is from this last provision 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 to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable.
The first of these two clauses, it is clear, only provides a mode for appointing such officers, “whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW”; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution [2] , and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested.
The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, 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 during the session of the Senate; but as 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, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Secondly. If this clause is to be considered as supplementary to the one which precedes, the VACANCIES of which it speaks must be construed to relate to the “officers” described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Thirdly. 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, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and 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 would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that “the Senate of the United States shall be composed of two Senators from each State, chosen BY THE LEGISLATURE THEREOF for six years”; and the latter directs, that, “if vacancies in that body should 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.” Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered 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, too palpable to be obscured by sophistry, too atrocious to be palliated by 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 submitted to the consideration of the people. 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 proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America.
PUBLIUS.
1. See CATO, No. V.
2. Article I, section 3, clause I.
Federalist No. 68
Federalist Paper 68, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 68The Mode of Electing the President
From the New York Packet
Friday, March 14, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. [1] I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.
It was desirable that 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 will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it 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. And they have excluded from eligibility to this trust, 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. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, 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 men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.
Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.
All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, 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 man who in their opinion may be best qualified for the office.
The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: “For forms of government let fools contest That which is best administered is best,” yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.
The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter.
The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, 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.
PUBLIUS.
1. Vide FEDERAL FARMER.
Federalist No. 69
Federalist Paper 69, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 69The Real Character of the Executive
From the New York Packet
Friday, March 14, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it.
The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.
That magistrate is to be elected for FOUR years; and is to be re-eligible 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 HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of FOUR years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of THREE years for a corresponding office in a single State.
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. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, 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; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a 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 sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied.
The President is to be 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. He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States.” In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. 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 Union. The king 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. Secondly. 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 king 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 Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. [1] The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, 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 the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not 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, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited “to levying war upon the United States, and adhering to their enemies, giving them aid and comfort”; and that by the laws of New York it is confined within similar bounds. Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes.
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 king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist [2] of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other 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 may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in 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. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative.
The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening 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 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 king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national 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, and confirm his own nomination. [3] If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by 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 the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group.
The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The 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 own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The 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. The 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, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The 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.
PUBLIUS.
1. A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, “contrary to all reason and precedent,” as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty’s realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same.
2. Vide Blackstone’s “Commentaries,” vol i., p. 257.
3. Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conclusion.
Federalist No. 70
Federalist Paper 70, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 70The Executive Department Further Considered
From the New York Packet
Tuesday, March 18, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It 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; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the 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, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.
There can be no need, however, 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; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute 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 plan which has been reported by the convention?
The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.
The ingredients which constitute safety in the republican sense are, first, a due dependence on the people, secondly, a due responsibility.
Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand, while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.
That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man 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.
This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men. [1] Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.
The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, 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 out of the former body, were commonly united by the personal interest they had in the defense of the privileges of their order. In addition to this motive of union, 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 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 must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic.
But quitting the dim light of historical research, 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.
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. From either, and especially from all these causes, the most bitter dissensions are apt to spring. 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.
Men 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. But if they have been consulted, and have happened to disapprove, 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. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, vigor and expedition, and this without any counterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality.
It must be confessed that these observations apply with principal weight to the first case supposed that is, to a plurality of magistrates of equal dignity and authority a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet 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.
But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is 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 have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.
“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.” These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties?
In the single instance in which the governor of this State is coupled with a council that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people 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 forbear to descend to particulars.
It is evident from these considerations, that the 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, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.
In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king 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 an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally responsible for his behavior in office the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself.
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 men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be “deep, solid, and ingenious,” that “the executive power is more easily confined when it is ONE” [2]; that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty.
A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is attainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, 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 man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number [3], were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults.
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 man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution.
PUBLIUS.
1. New York has no council except for the single purpose of appointing to offices; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him.
2. De Lolme.
3. Ten.
Federalist No. 71
Federalist Paper 71, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 71The Duration in Office of the Executive
From the New York Packet
Tuesday, March 18, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
DURATION in office has been mentioned as the second requisite to the energy of the Executive authority. This has relation to two objects: to the personal firmness of the executive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be 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; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man 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 any material censure or perplexity, from the independent exertion of his powers, or from 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 legislative body. If the case should only be, that he MIGHT lay it down, unless continued by a new choice, and if he 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 would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not 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. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to 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 them 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 very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.
But however inclined we 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 the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.
The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, 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. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that 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 its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They 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.
It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked that is, from 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, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment.
It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would 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 any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, 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, of establishing himself in the esteem and good-will of his constituents. 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. As, on the one hand, 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; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a coequal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation [1] attempted by them, what would be 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 he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.
PUBLIUS.
1. This was the case with respect to Mr. Fox’s India bill, which was carried in the House of Commons, and rejected in the House of Lords, to the entire satisfaction, as it is said, of the people.
Federalist No. 72
Federalist Paper 72, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 72The Same Subject Continued, and Re-Eligibility of the Executive Considered
From the New York Packet
Friday, March 21, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but 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. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his 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 men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government.
With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself 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 last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.
Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary.
One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interests coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, 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, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good.
Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, 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. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition.
An ambitious man, too, when he found himself seated on the summit of his country’s honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, 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 men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?
A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare 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, nevertheless, is the precise import of all those regulations which exclude men 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.
A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men 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 as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration.
A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By NECESSITATING a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need 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.
These are some of the disadvantages which would flow from the principle of exclusion. They 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.
What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretense to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an 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 second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of 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 suffrages of the community, exercising a constitutional privilege.
There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.
PUBLIUS.
Federalist No. 73
Federalist Paper 73, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 73The Provision For The Support of the Executive, and the Veto Power
From the New York Packet
Friday, March 21, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its support. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and 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.
It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that “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.” It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his 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, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act. He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.
The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States.
The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body.
The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self defense.
But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.
The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.
But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it 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, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage 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 in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, 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. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised.
If a magistrate so powerful and so 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 government wholly and purely republican?
It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against its expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in 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 former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circumstances, will have the courage to do their duty at every hazard.
But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.
This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers. [1]
I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced 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 judiciary departments. It is impossible to keep the 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.
PUBLIUS.
1. Mr. Abraham Yates, a warm opponent of the plan of the convention is of this number.
Federalist No. 74
Federalist Paper 74, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 74The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
From the New York Packet
Tuesday, March 25, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE President of the United States is to 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.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. 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 implies the direction of the common strength; and 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 the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers.” This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.
He is also to be authorized to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.
PUBLIUS.
Federalist No. 75
Federalist Paper 75, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 75The Treaty Making Power of the Executive
For the Independent Journal
Author: Alexander Hamilton
To the People of the State of New York:
THE President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.”
Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of ALL the members of the Senate, to two thirds of the members PRESENT. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.
With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it 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 in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.
However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.
To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.
The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members MAY, and usually DO, represent a State; whence it happens that Congress, who now are solely invested with ALL THE POWERS of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.
PUBLIUS.
Federalist No. 76
Federalist Paper 76, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 76The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
THE President is “to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up ALL VACANCIES which may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE at the end of their next session.”
It has been observed in a former paper, 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 contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration.
It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.
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, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and 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 men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and 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 chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He 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 coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venality in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and 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, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man 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 that magistrate. 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: it declares that “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.”
PUBLIUS.
Federalist No. 77
Federalist Paper 77, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 77The Appointing Power Continued and Other Powers of the Executive Considered
From the New York Packet.
Friday, April 4, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.
To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true.
To state the first 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 him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: “the Senate would influence the Executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection 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 in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; 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; aggravated by the consideration of their having 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, though in different degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment in this State. The 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. It is known that 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 he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that TWO out of the inconsiderable number of FOUR men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture.
Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of 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 Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution.
I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea.
The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. AS 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. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.
We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?
PUBLIUS.
Federalist No. 78
Federalist Paper 78, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 78The Judiciary Department
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of the proposed government.
In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.
First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; 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; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. 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 are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [1] ; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no 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 perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. 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; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. 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 the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people 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; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, [3] in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, 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 which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man 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.
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, can certainly not be expected from judges who hold their offices by a temporary commission. 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 them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if 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.
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 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 point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men 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 character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, 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; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.
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, in point of duration; and that 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. The experience of Great Britain affords an illustrious comment on the excellence of the institution.
PUBLIUS.
1. The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” “Spirit of Laws.” vol. i., page 186.
2. Idem, page 181.
3. Vide “Protest of the Minority of the Convention of Pennsylvania,” Martin’s Speech, etc.
Federalist No. 79
Federalist Paper 79, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 79The Judiciary Department Continued
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN’s SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that PERMANENT [1] salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has 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.”
This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature 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 man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. 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, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.
This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, 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.
The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men 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 is to be found in the imaginary danger of a superannuated bench.
PUBLIUS.
1. Vide “Constitution of Massachusetts,” chapter 2, section I, article 13.
Federalist No. 80
Federalist Paper 80, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 80The Powers of the Judiciary
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
To JUDGE with accuracy of the proper extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects.
It seems scarcely to admit of controversy, that the judiciary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.
The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.
The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.
A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.
It may be esteemed the basis of the Union, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.
The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend “all cases in law and equity arising under the 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 and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.” This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend:
First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by “cases arising under the Constitution,” in contradiction from those “arising under the laws of the United States”? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emited, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole.
It has also been asked, what need of the word “equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been 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, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day’s practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State, CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE SAME STATE.
Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.
From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.
PUBLIUS.
Federalist No. 81
Federalist Paper 81, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 81The Judiciary Continued, and the Distribution of the Judicial Authority
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, “The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.” [1]
That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not 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, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.
These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.
It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.
Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts, [2] and the relations which will subsist between these and the former.
The power of constituting inferior courts is evidently calculated 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.
But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much “to constitute tribunals,” as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. 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. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as a source of public and private inconvenience.
I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution.
These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.
Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.”
The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term “appellate,” which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word “appellate,” therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, 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 or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.
But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it. [3] This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.
The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States ALL CAUSES are tried in this mode [4] ; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt that the supposed ABOLITION of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial.
The amount of the observations hitherto made on the authority of the judicial department is this: that it 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, both 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 proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
PUBLIUS.
1. Article 3, sec. I.
2. This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute “tribunals INFERIOR TO THE SUPREME COURT”; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation.
3. This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.
4. I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper.
Federalist No. 82
Federalist Paper 82, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 82The Judiciary Continued
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. ‘T is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.
Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention.
The principles established in a former paper [1] teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.
The only thing in the proposed Constitution, which wears the appearance of confining 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.” This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Court, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction.
But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be PECULIAR to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.
But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.” [2] 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”; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that 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. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union.
PUBLIUS.
1. No. 31.
2. Sec. 8th art. 1st.
Federalist No. 83
Federalist Paper 83, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 83The Judiciary Continued in Relation to Trial by Jury
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
THE objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to CRIMINAL CAUSES. To argue with respect to the latter would, however, 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 conviction, when expressed in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man 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.
The maxims on which they rely are of this nature: “A specification of particulars is an exclusion of generals”; or, “The expression of one thing is the exclusion of another.” Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of COMMONSENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and 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.
A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation.
From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures 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, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehensions upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature.
From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and 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 an 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 the 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 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, in the most ample manner, in the plan of the convention.
It has been 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 it can have no influence upon the legislature, in regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be imposed, or to the RULE by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, 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 provision in favor of trial by jury in criminal cases, will afford the security aimed at. 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.
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 former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, 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 those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men 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. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that 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 the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.
Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that 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, however, in all cases, great difficulty in this; and men 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. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty and a court of chancery. In the courts of common law only, the trial by jury prevails, and this 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. [1] In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. 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; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course 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. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. 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. Rhode Island is, I believe, in this particular, pretty 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 the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal OF COURSE from one jury to another, till there have been two verdicts out of three on one side.
From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation.
The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose “Trial by jury shall be as heretofore” and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, AS SUCH, it is at this time altogether unknown, because the present federal government 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.
As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should 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 cause 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.
But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly 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, among others, 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 be always 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 be to determine matters of fact, yet in most cases 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 fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable.
My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS [2] to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a SPECIAL determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.
It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what may be conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.
It is 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.”
This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, 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 of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize THAT species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind is a task arduous in itself, and which it 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 the States in the Union, or that would perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.
To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must 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 cannot but persuade myself, on the other hand, 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. They 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 plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished [3] by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States.
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 this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as 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 to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our 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 men who endeavor 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 men 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 also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either.
PUBLIUS.
1. It has been erroneously insinuated. with regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that references to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question.
2. It is true that the principles by which that relief is governed are now reduced to a regular system; but it is not the less true that they are in the main applicable to SPECIAL circumstances, which form exceptions to general rules.
3. Vide No. 81, in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted.
Federalist No. 84
Federalist Paper 84, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 84Certain General and Miscellaneous Objections to the Constitution Considered and Answered
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.
The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.
Independent of those which relate to the structure of the government, we find the following: Article 1, 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.” Section 9, of the same article, clause 2 “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 “No bill of attainder or ex-post-facto law shall be passed.” Clause 7 “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 3, section 2, clause 3 “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.” Section 3, of the same article “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.” And clause 3, of the same section “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.” It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, [1] in reference to the latter, are well worthy of recital: “To bereave a man of life, Usays he,e 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.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the BULWARK of the British Constitution.”[2]
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.
To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning 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. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “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.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. [3] And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it 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 plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.
Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper Usay the objectorse to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body.” This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with theirrepresentatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.
It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and 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 will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, 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. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.
It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.
Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due TO the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an 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 last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.
The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.
Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.
It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now 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, etc. 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 proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.
Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.
But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.
The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.
PUBLIUS.
1. Vide Blackstone’s “Commentaries,” vol. 1., p. 136.
2. Vide Blackstone’s “Commentaries,” vol. iv., p. 438.
3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.
Federalist No. 85
Federalist Paper 85, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 85Concluding Remarks
From McLEAN’S Edition, New York.
Author: Alexander Hamilton
To the People of the State of New York:
ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: “the analogy of the proposed government to your own State constitution,” and “the additional security which its adoption will afford to republican government, to liberty, and to property.” But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid.
It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable.
The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and 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; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals.
Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which 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, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much.
Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. ‘This is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject.
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.
Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. “Why,” say they, “should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?” This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of security which a reasonable people can desire.
I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?
The reasons assigned in an excellent little pamphlet lately published in this city, [1] are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect.
It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine [2] States. Here, then, the chances are as thirteen to nine in favor of subsequent amendment, rather than of the original adoption of an entire system.
This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties.
But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.
In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged “on the application of the legislatures of two thirds of the States (which at present amount to nine), 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 of three fourths of the States, or by conventions in three fourths thereof.” 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. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to 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 the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object.
The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: “To balance a large state or society Usays hee, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.” [3] These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their 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. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation, without a national government, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that powerful individuals, in this and in other States, are enemies to a general national government in every possible shape.
PUBLIUS.
1. Entitled “An Address to the People of the State of New York.”
2. It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify.
3. Hume’s “Essays,” vol. i., page 128: “The Rise of Arts and Sciences.”
Federalist No. 1 – Cathy Gillespie
Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 01, Federalist No. 01Thursday, April 29th, 2010
We made it to the Federalist Papers! I hope you are as excited as I am to dive into these fascinating op-eds – the media and PR campaign for the Constitution! I am travelling today – (Howdy from Texas!) And typing in the dark, in a hotel room in Austin, trying not to wake my daughter. So, please forgive the brevity of tonight’s post.
Federalist 1 is striking to me in that Alexander Hamilton’s view of the gravity of the crossroads America was at, is clear to him in a way that is rare for someone in the midst of current events of their time. Looking back, with a 222 year perspective on the situation, it is easy to agree that had the States failed to ratify the new Constitution, it would most certainly have been a loss for mankind. But for Hamilton to have the vision to see that, at the starting gate of the United States’ journey into the world, reveals him to be a visionary of the highest magnitude.
This quote near the beginning of Federalist #1 sums up the precipice the United States was teetering on:
“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.”
Hamilton’s support of civil political discourse also resonated with me:
“Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”
This is the nature of man, and we can see that not much has changed in 222 years! But Hamilton is right about the ineffectiveness of angry discourse. Both ends of the politcal spectrum were guilty of this in Hamilton’s era, just as some on both sides still utilize these tactics today. It is so refreshing and much more educational when political discussions can be had without anger and personal attacks.
I look forward to the coming 84 days. I am embarking upon this journey with fresh eyes, having never read the Federalist from cover to cover, despite having a degree in Political Science! To think back to the days before the internet, Twitter, or Facebook, before 24 hour cable news, before radio, when communication by the spoken and written word (on real paper) was the only means of spreading a message, it is enthralling to read these papers and witness an 18th Century PR campaign, and to be able to look deeper into some of the founding fathers’ thoughts, values, principles and world views, as they set about to shape our Nation.
Good night!
Cathy Gillespie
7 Responses to “April 28, 2010 – Federalist No. 1 – Cathy Gillespie”
Not much has changed in 222 years? I’d say not much has changed in 50,000 years. One of my favorite movies is ‘Quest for Fire’, set back then. They’re just like us, with slightly less technology. And if you watch it, you will see the world’s first joke! (It involves a coconut.)
I am playing catch up as I have missed some reading “making a living” like each of us must do. To reflect back, these writers and framers of the US Constitution and the Federalist papers too, were people of business and commerce first. They were not career politicians with a guaranteed pay check from government/ you and I. What a unique perspective they brought to their thinking and actions compared to our present, so called leaders. They were scholars and statesmen with an outstanding view of the past, able to reflect their understanding into the present. Now, in our humble study of their great acts, may we spread the knowledge and fever of faith through out this great land.
Just bought my paperback copy of The Federalist Papers, and started underlining and taking notes. Hamilton, as Cathy noted, knew human nature, our passions, for good or ill, and acknowledges them. I like that…honesty about human nature.
I have tried to read the Federalist Papers before, and had a hard time, mostly due to the language, it can be hard to follow. I am so thankful that Ms Turner and others have taken on this assignment for America, it is so vital that we understand the thoughts and theories that our founding fathers took into account while building our great nation. These blogs will help me better understand these theories and thoughts, and I think I will enjoy reading these papers much more than before. I agree with Kay’s post, in that is it fascinating how Hamilton began his papers with his emphasis on human nature and our passions as a people. I hope someday we can find leaders in this country who know and understand that and will be willing to fix what has broken.
I think the entire first paragraph could be applied to the American people today, with minor modifications, in an appeal to once again consider the importance of our Constitution:
AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on [the] Constitution [of] the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of [a country] in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of [maintaining a] good government from reflection and choice, or whether they are forever destined to [watch a good government system be undone by political contrivance] and force [by men of ill will towards freedom]. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.
Hamilton sure nailed this one: “that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.”
How many times has the left abused the word “rights” to find what does not exist in the Constitution? From the right to privacy to justify abortions to the right to other peoples money (redistribution), health care, housing, etc.
I too find myself late at the starting line, but I am committed now to catching up.
I as well have to confess to owning a well “dog eared”, annotated, and coffee stained copy of the “Federalist Papers”, that I also have made previous forays into with the intended goal of a complete reading of these editorial pieces, editorial pieces that in fact are the detailed instructions that supplement the “Quick Start Guide” that is our Constitution.
Many people express a level of frustration with understanding the writing style of the authors of these pieces. Despite being a prolific reader, I admit to having to stop and reread passages and dwell on them to gain a thorough understanding of their intent.
Bearing in mind that these founding documents, The Declaration of independence, these Federalist Papers, and most especially The Constitution itself, were written not for any specific, highly educated body of people, but for the whole body of the people, to read, understand, and live by. It is a shocking display of the level of degradation of our usage and understanding of our own language, and the causes of this degradation being at least as vital, albeit separate, a topic for discussion as the documents themselves.
Specifically addressing Federalist #1, I find myself struck with the sense that our Constitutional Republic has been under assault from within by Madison’s dreaded factions, from the beginning.
From The “Alien and Sedition Acts” of John Adams, to the crippling of States Rights of Lincoln, on to the socialist policies of FDR, and now mandated health care.
The current struggle to “restore” our constitutional republic is one the founders would little doubt readily recognize, but would certainly be flabbergasted by the extent to which civil discourse, and honorable intent has deteriorated.
Back in 1994 I read the first 200 pages of “The Federalist Papers”.
I “discovered” this website this past week–Jim Best sent me an email telling me about Constituting America. This looks like an excellent website. I am looking forward to reading more of it.
I believe the U.S. Constitution was inspired by the Holy Ghost. It seems like the great leaders of the Constitutional Convention in 1787 were George Washington and Benjamin Franklin and the great intellectuals were Madison, Hamilton and Jefferson.
Federalist No. 1 – Janine Turner
Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 01, Federalist No. 01Wednesday, April 28th, 2010
Howdy from Texas. Speaking of Texas, be sure to watch tonight’s behind the scene Video Podcast! I filmed it at my ranch with Juliette. It’s fun.
So today is our first day of the Federalist! Federalist Paper #1 by the brilliant Alexander Hamilton! I wrote about his mother, Rachel Lavien Fawcett in my book, “Holding Her Head High.” Historians have not been very kind to her, but read my version. It is from a woman’s point of view. There is no doubt that she planted the seeds of greatness, determination and an entrepreneurial spirit in Alexander’s character.
I want to thank Horace Cooper for writing our wonderful essay today! Thanks, Horace. I love the quote from Benjamin Franklin when asked by a woman, “What have you given us?” and Benjamin replied, “A Republic, if you can keep it.”
This is our challenge today. We must step forward and stand up for our founding principles and demand that our Republic be vital and strong and that our Constitution be protected preserved and defended. The best way for us to do this is with a basis of knowledge about our country’s thesis. How lucky we are that it is so well documented in copious documents and books – the Declaration of Independence, the United States Constitution and The Federalist being the foundation. (We will have to continue our scholastic adventure – the same forum with different documents and books!)
I hope you read today’s reading of the Federalist with your children and/or loved one and don’t forget to sign your children up for our contests! The high school students get a trip to Philadelphia, an appearance on Governor Huckabee’s show and $2000.00 scholarships – and we have cool categories such as: best short film, best hip song, best PSA and best essay about how the Constitution is relevant today! Spread the word. Entries due July 4th!
Speaking of relevant today, we are going to be amazed at the relevancy of the Federalist papers. For those who think the Constitution is antiquated and obsolete, I dare them to read the Federalist papers with us!!
The first thing that I love is that Alexander Hamilton, James Madison and John Jay came together for the good of the country. They did not agree on many things, and later became quite divided, but they united to accomplish the magnificent miracle of the Constitution and “The Federalist.” They saw the bigger picture and were able to forfeit their egos to better their country – and they had vision! They had vision and wisdom and determination and a sense of service. Great qualities that I dare say all of you have who are participating in our National Conversational/Blog Reading!
Another thing that I love is that they wrote it under the name of Publius after Publius Valerius, a founder of the Roman Republic. A Republic. They knew that they all had reputations that proceeded them for better or worse and they did not want the objectivity of their thesis to be tainted by preconceived notions. Smart. These men were very smart and they truly loved the United States of America.
This is what it’s going to take to awaken, educate and propel Americans to undertake the journey of Constituting America – a love for the United States of America and all she embodies – nobility, greatness of character, philanthropic communities with a genius for creativity and a gut for survival. We have a Republic and God save the ones who try to strip American’s of our inherent rights, rights that exist in the Declaration of Independence and the United States Constitution and embody Americans today. God bless America.
And God bless our forefathers who sacrificed so much for their posterity – all of the great men and women who have fought throughout our history to maintain our dignity, freedom and inalienable rights.
Blessings and goodnight!
Tomorrow it’s Federalist Paper #2!
Janine Turner
6 Responses to “April 28, 2010 – Federalist No. 1 – Janine Turner”
I agree that once we are done with the Federalist Papers we should keep on going with other documents. Maybe the Anti-Federalist papers would be a good choice. I can’t say for sure, not having read them myself yet.
But the Federalist Papers argued for a central government strong enough to be able to protect our country and be effective. That was in a time when the opposition wanted a more limited government, which might not have been much better than the government provided in the Articles of Confederation.
Now our situation is different. Our government is much too large and has power over far too many aspects of our lives. It ignores our will, violates many principles that we and the founding fathers hold dear, and takes actions which weaken and endanger us.
Maybe the arguments presented in the Anti-Federalist Papers would apply today.
I will second Harry’s motion to do an reading of the con side to this argument!
Federalist #1 Excellent!!!!!!!!
Federalist #2 Excellent!!!!!
I would sincerely doubt that the authors of the Federalist papers envisioned the type of big, bloated Federal Government that we have today. I have difficulty believing that they would have been in favor of that.
The founders would not be in favor the bloated government we have today. They were definitely against any form of government that tread on the inherent rights of its people. And they would definitely be aghast at the blatant disregard that our current representatives show for our Constitution and Bill of Rights today.
As Janine quoted Ben Franklin, and I will repeat here. ” A republic if you can keep it.”
Can we keep it America?
“Anyone who trades liberty for security deserves neither liberty nor security” – Ben Franklin
Federalist No. 1, General Introduction, For the Independent Journal (Hamilton)
Federalist Paper 01, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 01, Horace Cooper, The Articles of ConfederationThe Federalist Papers were written from 1787 to 1788 by Alexander Hamilton, James Madison and John Jay. They were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787. Numbering 85, the essays outlined the ways the new federal government would operate and why this type of government was the best choice for the United States of America. Each of the essays were signed “PUBLIUS” and they remain today as an excellent reference for anyone who wants to understand the United States Constitution.
Hamilton opens Federalist #1 with an introduction of the present state of affairs in the then existing United States of America and his plan to explain over a series of Papers why the new federal government created by the U.S. Constitution was necessary. Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.
At the time of the writing of Federalist #1 the United States of America is governed by the Articles of Confederation. Drafted by the Second Continental Congress in 1776, the Articles of Confederation had been submitted to the states for ratification in November of 1777.
As outlined by the Continental Congress, the federal government by 1787 had the authority to make war, negotiate diplomatic agreements and treaties, and acquire and oversee new territories that had not yet become full-fledged states.
However, by the time of the Philadelphia Convention that year many of the inadequacies of the Articles of Confederation were obvious. The government created by the Articles was incapable of providing the authority and power needed to be a fully functioning authority. Instead of a division of authority among three separate branches, the federal government exercised all of its authority through a unicameral legislature called the Congress of Confederation. Ironically, such a concentration of power masked the overall weakness of the federal government.
In order to change or amend the Articles, it required unanimous approval of the states. This standard made making any changes or reforms nearly impossible. The federal government had no power to tax and as such could not meet even its most basic financial responsibilities. A threshold requirement that nine of 13 states approve major laws passed by the Congress limited the ability of Congress to act on any but the most uncontroversial matters. In addition, it is significant that the Articles provided no authority for Congress to resolve conflicts between the states or to set up countrywide rules to encourage merchants and commerce.
Hamilton along with many other of our Founders recognized that if the United States was ever to become an economic powerhouse capable of defending itself from enemies without and within it was essential that the changes proposed in the Constitution were adopted. You see it was not simply dumb luck that we have this national charter. Now more than 200 years later we Americans share in the legacy created by these men and women who had such foresight and wisdom.
The Philadelphia Convention convened in May of 1787 and did not finish until September. When the convention finished Delegate Benjamin Franklin was approached by a woman. She asked Mr. Franklin, “What have you given us? A monarchy or a republic?” He famously replied, “A republic…if you can keep it.” Therein lies our task as citizens today.
Wednesday, April 28th, 2010
Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation
47 Responses to “April 28, 2010 – Federalist No. 1, General Introduction, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation”
It is particularly interesting to me that Hamilton and Madison, who worked so well together to produce the Constitution and see it through to ratification, later became the driving force behind the first two political parties (The Federalists & The Jeffersonian-Republicans, which today are known as the Democrats). United in the cause of bringing the nation into being, they later split over the direction it should take.
It would be interesting to see how–and if–the differences that later developed between are foreshawdowed in The Federalist Papers. Perhaps some of the experts could build that analysis into their commentaries as the series moves forward.
“…it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”
I wonder how Mr. Hamilton would feel about the “power grab” enacted on the backs of the American people in the form of “Healthcare *access through mandated insurance purchase*” as an Individual Right? He certainly didn’t think much of the “rights” of people over the “firmness and efficiency” of government.
It is clear that the anti-Federalists had a reason to be nervous for the future of our country and establishing a federal system without a clear delineation between the rights of individuals and the powers granted to government by those individuals. Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew? To even think that modern day Progressivism is in anyway aligned with the thinking of either of these schools of thought is absurd, imho. How far away they are from what the Founders were talking about and doing.
Do our selected leaders of today really understand how far this process has strayed? I feel there are tricks and tyrants afoot.
Are you all as blown away by what you are reading as I am? I studied these documents in school, of course. But I feel like I am finally understanding them because there are such contrasting ideas being practiced in our government today. Process is everything. I understand why these 1st Principles were adopted and why they fought so hard to enact them. Time to restore the Republic to 1st principles. No pain, no gain.
@Lillian Harvey
Yes, I’m pretty much blown away by understanding the deeper meanings in these documents. Until this project I never really understood how things like Social Security, Medicare and parts of the health reform bill really *are* unconstitutional, and should be abolished.
@Will
Finding the reset button is one thing, but pushing it is another. Each day, I’m finding more courage to accept the consequences of doing just that. There are more of us to convince that we are on the wrong track and there will be sacrifices to get us straight. Projects like this one are our best hope to help us make the necessary case through educated and considered argument against the legislative waste passed for the “good of the people”.
Donna had a great description of how the study of case law and rulings on precedents rather than original intent has assisted in getting us off track. Being able to see legislative proposals through the principles laid out in the Constitution demonstrates that most have no place being enacted at the Federal level. There is so much bloat in the Executive as a result. Of course “Washington is broken”. This structure was not designed to carry that extraordinary and unnecessary weight.
From Ecclesiastes “There is nothing new under the sun”. It continues to amaze me at the well rounded understanding of the human condition that our Founding Fathers had. How our ‘education’ has failed us.
I made the comment to my husband last night, that since I started reading the Constitution again through this series, watching the news took on a complete new dimension. Listening to Congressmen discuss the Immigration Laws and the Goldman Sachs debacle, I am realizing that many have no idea what they are talking about. Congressman and newscasters alike are saying things like ‘This Law Makes it a Crime to be an Illegal Immigrant’. I had to clean out my ears when I heard that one. Surely I was mistaken. Sadly, I wasn’t.
And I could have cried when I heard the congressmen grilling Goldman Sachs CEO’s. They had no idea what they were asking, and could not understand the answers. Don’t get me wrong. I do not believe Goldman Sachs is an innocent victim in this mess, but the dog and pony shows our Congress puts on is embarrassing. And it’s all for political gain. I find it hard to believe they will prosecute Goldman Sachs; just like passing an immigration law, it is to dangle the carrot in front of unsuspecting voters for the November election.
Our country burns, while our Congress fiddles. I wonder if Benjamin Franklin knew how prophectic his words would be.
On another note, I find it interesting that all the letters are signed PUBLIUS. Publius was the “Chief man of the Island of Malta” mentioned in Acts 28:7 (Another proof that our founders read the Bible). How appropriate that they used the name of the man who entertained Paul and his companions while they were shipwrecked on Malta, and were seeking a permenant place of residence. Paul and his companions stayed on the island until the stormy season had passed. Could our founders have felt that same way in trying to ratify the proposed Constitution? I find this very interesting and it sheds a new light on this process for me.
I forgot to add on my previous post, that I believe with Knowledge comes Responsibility. As we read and discuss the Constitution and Federalist Papers, we are being charged with passing what we learn to others. No more couch activists! If we are to help restore our country, we must step into it. Finding the perfect balance between teaching and not preaching, will be a challenge for me, I know. But I heard a great piece of advice that other day on the radio. The talk show host was talking to a priest who works out west. The priest said the difference between liberals and conservatives, is that liberals use their emotions for their arguments, while conservatives use facts. When dealing with feelings, one must tread carefully.
Carolyn, right on. agree with you that Goldman Sach’s is not a Saint. However, if my Economics degree taught me anything, it is this: They have the right to short an invenstment just as we have the right to wait for that new pair of jeans to go on sale. (That is basically ‘shorting’ the position.)
If people are wise stewards of their money, and diversify their investments like the BIBLE commands, they really wouldn’t be hurt by one bad apple.
My ‘couch’ efforts have included posting the days revelation on my local news station’s blog site and calling the HS principle and ensuring that the HS was aware of the educational tools and contest available for his students.
I, too, am embarrassed at the debacle going on with the grilling of Goldman Sachs…especially since the one doing most of the grilling (and using profanity) is from my district. I agree that those doing the grilling have no idea what they are talking about. Yes, something needs to be done about reigning in Wallstreet but how and at what cost? The government itself is up to its eyeballs in the cause of the financial mess we are in. Our founders KNEW that humans crave and seek power and that power corrupts (“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”….John Emerich Edward Dalberg Acton). That is exactly why they were so careful in their drafting of our Constitution and the follow up Federalist papers. The government was not MEANT to be Big Brother. Their “powers” were meant to be very limited. Government is neccessary to prevent anarchy, but “we the people” are the ones in power (alteast we are supposed to be).
What a curious commentary on Federalist #1! Mr. Cooper, could you have written less about the actual content of Hamilton’s essay?
The bulk of the essay is not about government at all. It opens and closes with a bit about the importance of the decision. But in the middle five paragraphs, Hamilton gets to his main purpose, which is to “poison the well” – to try to bias the reader against the other side, which Hamilton expects to rise in opposition to the new Consititution, before he has a chance to speak. Look at the litany of characteristics that the opponents will have: “ambition, avarice, personal animosity…” They will have some personal interest in the preservation of more powerful state governments (“…power, emoluments, and consequences of the offices…”). Essentially, it’s an exercise in mudslinging – but it’s the most elegant and dignified mudslinging since Marc Antony’s eulogy in Julius Caesar.
Federalist #1 doesn’t shed much light on the Constitution at all, except to the extent that it sheds light on the way politics worked in the Eighteenth Century. And when I read the following, in which Hamilton predicts how his adversaries will behave, I can’t help but think, this could have been written yesterday:
“A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”
Lillian, you do realize, do you not, that when Hamilton wrote that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people”, he was referring to people whom he expected would oppose the Constitution by arguing that it would give the government too much power to infringe on people’s rights? You realize, don’t you, that those people – the ones who argue that they’re interested in “the rights of the people” – those are the bad guys in Hamilton’s narrative?
The good guys here, according to Hamilton, are the ones who promote the virtues of a government having “firmness and efficiency”.
I ask because in your comment immediately following the citation, it sure looks like you could be positioning yourself as one of Hamilton’s bad guys when you argue that the government’s actions are a “power grab enacted on the backs of the American people.” That sounds to me like it could be characterized as a “zeal for the rights of the people.” Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.
You might want to read a little more about Hamilton. He’s something of a problem for those who are seeking support in the Constitution for de minimis government. In the Philadelphia Convention, for example, he proposed a centralized government in which the former states were stripped of their sovereignty altogether. (Importantly, to give you comfort, he did not prevail, obviously).
Elsewhere in these blogs, Hamilton was referred to as “evil” because he favored centralized, powerful government (which he did indeed, to a greater degree than any modern progressive of whom I’m aware). But whether you like his politics or not, he was in fact one of the framers of the Constitution, and he apparently saw sufficient comportment (dare I say, “potential comportment”) between it and his politics to allow him to go to the trouble of working for its ratification by writing these articles.
To answer your question about how Mr. Hamilton would feel about your alleged “power grab”, I’d say, he would be perfectly alright with it.
On that same topic, it may interest you to know that in 1798, the fifth Congress created the Marine Hospital Fund, which established a network of federally-run hospitals along the eastern seaboard to care for sailors and seamen, financed by a federal tax on their wages of twenty cents per month. That system persisted into the 1980’s. I think that in addition to what the Founders and Framers wrote, it’s instructive to look at what they did.
My interest in the Federalist Papers was begun when I read the recent biography of Alexander Hamilton, written by Ron Chernow. It was an interesting read, especially since Hamilton went on to found and The First Bank of The United States, the first Fed. I highly recommend this book.
I’m sorry that I have delayed reading the Federalist Papers for so long. Thanks for the guided opportunity to make up for lost time.
I LOVE this opportunity to really refresh my understanding of the roots of our wonderful country by reading and blogging with all of you about the Constitution and the Federalist Papers! I’ve never blogged before so I was excited to finally find a topic I could respond to that offers something new and, perhaps, worthwhile. @ Carolyn Attaway: you provide so much food for thought, and maybe Madison did name Publius from the Publius of the Acts of the Apostles as the author of the Federalist Papers but the edition I am using had an insightful introduction by a man named Charles A. Kessler. He wrote that Publius Valerius Publicola was instrumental in establishing the republic of Rome. He called Publius the founder and savior of Rome and that Plutarch compares and contrasts this man with Solon the democratic lawgiver of Athens in “Parallel Lives”. Kessler wrote that Hamilton named the author of the papers “Publius” to trump the anti-federalists who were using “Cato” and Brutus” (also heroes of the Roman republic) as pseudonyms for their anti-federalist papers.
Also @Carolyn: I hope to end my career as a “couch activist” as I become more able to defend my political belief with facts. And I also heard that interview on talk radio about the difference between liberals and conservatives and I find that really true.
@Susan – Great “couch” activities! I didn’t even think about the local news station blog. Good idea.
@Shannon and Maggie – I for one am glad that the GOP has stopped the Financial Reform from getting to the floor for debate. I do not trust this Congress with Financial Reform, especially since they will not even address Fannie and Freddie, or want to put more bailouts for Big Banks in this bill. That just scratches the surface. I would love for this Senate to stop anything from going through until after the election AND they address spending!
And the Founders had it right about Congress should not be a full time job. I cannot even begin to describe my emotions when I heard Tim Geithner comment “I never had a real job”. Doesn’t that spike confidence in his abilities to help the ‘real’ world?
@Karen – Awesome piece about Publius Valerius Publicola. I find it intriguing that the name Publius is close to the word Public, which can be defined as people constituting a community, state, or nation, or a particular group of people with a common interest, aim. I am really enjoying learning so much from everyone’s input about our founding documents.
The hardest thing I have found about getting off the couch so far is pulling my friends with me.
While true when written this part may be even more true today:
“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.”
At my church, we are having a sermon series titled “Get off your donkey.” It is based on the story of the Good Samaritan, Luke 10:34, who got off his donkey to serve his fellow man, even though the injured man was one others, including priests, avoided and refused to help. In like manner, by following this program, we should have the courage to get off our donkeys, armed with the knowledge of what our founders wanted this great country to be, and be ready to “fight the good fight, keep the faith, and finish the race,” 2 Timothy 4:7. We have a lot of work to do, and it’s time to get off our own donkeys and force our leaders to get back on the track our founders placed us on more than 200 years ago. The tea parties are a good start, but only a start. Remember what Edmund Burke said, “All that is necessary for the triumph of evil is for good men (and women) to do nothing.”
And, thanks to Janine and Cathy for getting this going! Two women who listened to Burke and got off their donkeys.
Interesting comment when Hamilton says: “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.” It’s interesting to me that much of the rhetoric in DC today is supposedly based on making everything better for everyone other than the wealthy; it seems that this is a ruse to convince the people that having more government will make this happen, when the ultimate end game is to maximize control over the majority of the people. 50% don’t pay income taxes now; if the Administration and Congress can move that up to 70% or so, then they’ll have the people right where they want them.
As I finished Federalist 1, I concluded that it set out the plan for the series of essays, what was to be discussed, and tried to debunk one of the first objections – that the individual states are better off without being under the umbrella of a nation.
My personal belief is in line with Federalist 1 – America is a great country because of its ability to bring the talents, resources, opinions and people of the individual states together while allowing the states to experiment and maintain their individuality.
Carolyn,
The Publius pseudonym used by Hamilton, Madison, and Jay was named for the Roman Consul Publius Valerius Publicola who supposedly helped form the Roman Republic. He lived around 500BC, well before the birth of Christ.
How impressive you all are in your commentaries! I suspect the only thing our Founding Fathers would be proud of and respect today (were they to awaken to our current state) would be the new rebirth of patriotic activism, the passionate rediscovering of our heritage, and the determination of Americans to restore our great republic to it’s true form of constitutionally limited government of, by, and for The People.
Lillian rightly appreciates how wise our Founders were in their understanding of human nature, and how delicate and difficult to maintain a limited government would be. I can never get over the profound wisdom of our Founders in that they not only understood the nature of their righteous endeavor, but they understood how unique in the annals of all human history their undertaking was! They were IN the moment, and they KNEW they were in the moment. How grand! Lillian, it does just blow one away.
Carolyn here is a question, if to become a naturalized citizen you must be able “to speak, write and read words in the English Language in their common usage” and it is violation of the law to vote if you are not a citizen, why do we need to print voting ballots in any language but English and provide interperters at voting places as is required by the Voting Rights Act of 1964? Is it because we knowing allow People who are not Citizens to vote?? I have ask this question of Congressmen in the past and have never received an answer.
Chuck, great point. As a matter of fact, that is the main reason Obama and his ilk are against the AZ law-because many of their voting base will leave. The Democrats have to rely on illegal votes/ACORN tactics/the Black Panthers with their bats at a voting place in Philly, etc. to win an election.
They cannot win on the merits of the debate.
@Chuck – That is a good question. I do believe all official tests, such as citizenship, driver’s licenses, voting, etc, all should be in English. But keep in mind, there are many in Congress who do not want to make English the official language of the United States. As a matter of fact, do we even have an offical language yet?
According to Congress.Org – ’2/26/2009–Introduced.National Language Act of 2009 – Makes English the official language of the U.S. government. Requires the government to: (1) conduct its official business in English, including publications, income tax forms, and informational materials; and (2) preserve and enhance the role of English as the official language of the United States of America. Provides that no person has a right, entitlement, or claim to have the government act, communicate, perform, or provide services or’
Bill # H.R.1229
Original Sponsor:
Peter King (R-NY 3rd)
Cosponsor Total: 31
(last sponsor added 04/21/2010)
1 Democrats
30 Republicans
Only 31 sponsors, pretty amazing huh?
Several commenters have mentioned that Hamilton’s repeated preference for an efficient central government meant that he would embrace the sizeable federal government that exists today. However no fair reading of Hamilton and his writings would yield this assessment. Hamilton’s arguments about a strong central government should be juxtaposed against the organizational handicaps of the government that existed under the Articles of Confederation. His view was that the government needed to more capable and agile in order to accomplish the limited set of objectives outlined in the Constitution — not the all encompassing objectives presently undertaken by the modern Federal Government. Additionally as a member of the burgeoning merchant class Hamilton believed that there was a fundamental responsibility of the federal government to encourage commerce. For him the lionshare of the regulatory state would be anathema.
H Cooper
@Robert S:
Liberty basically means limiting other people’s power, and to do this effectively, you support a lesser power against a greater: the pope against the emperor, the king against the pope, the parliament against the king, and so forth.
When the States dominated, it makes sense to strengthen the central government. Now the balance is tipped the other way, so we oppose Washington’s excesses.
“Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have he same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” —Hamilton, Federalist #28
Also, please let’s appreciate our guest commentators. If there’s more to add, then you can happily add it.
Robert,
You are right on. The Federalist essays are propoganda! They were written specifically to convince New Yorkers to ratify the constitution because many parts of that state had anti-federalist sentiments. It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government. Both had witnessed first hand the anemic government under the AOC as representatives from their respective states. They were not proponents of limited government (Madison would become so, but not at this time). In fact, Madison had proposed that the Constitution allow the federal government to negative any state law and was deeply concerned when it was not adopted. Hamilton all but proposed the government be an electable monarchy with the executive and Senate being elected for life. Hamilton, of all the founders, would probably be the most proud of how the USA became a world superpower.
The signing of the the name Publius interested me enough that I looked up the definition in Wikpedia. The name Publius is a Roman masculine given name meaning “public” in Latin, one of the small group of common forenames found in the culture of ancient Rome.
There are also references to other Publius names, such as: Publius Valerius Publicola (Roman Consul), Publius Clodius Pulcher (Republican politician), Publius Cornelius Scipio (Roman Consul), Publius Quinctilius, (Roman General and Politician), Publius Clodius Thrasea Paetus (Senator during Nero’s Reign), and Publius Aelius Fortunatus (Roman Painter).
In actual fact we may never really know who was the real Publius, or was the name used because it meant public.
I so love this, hello everyone. There is so much going on these days that you could almost lose your place if you didn’t press to maintain your focus . I am not complaining but I find the rapid fire of the political scene makes me ponder some of the tactics outlined in the book- Rules for Radicals -. This site is so helpfull,giving an intellectual boost via articulating my own as well as marinating my thoughts in all that is offered on this site.I watch and listen to cable news and radio programing to gather opinions,and while I value the points of view,this site has helped.
Someone said that we should get rid of Social Security, Medicare and some of the Health care bill,I have to respecfully say if that were to happen, I would be mad as a hatter…. I have been paying into these (not health care )for well over 40 years, holy mackeral that would probably cause many of us older folks to get out our pitch forks.As I would be in the front line. I understand (I think) the point that was trying to be made but fair is fair.
AZ,I am following this situation very closely and have heard things that range from the sublime to the ridiculous.Bottom line the Goverment has failed and in their failure have denied the citizens in boarder states and all states actually their Constitutional Rights. This group of people are not fullly included in the discussion of civil rights and I don’t think for one minute that it is a mistake.To stand the two groups side by side might provide too much lite on the subject for any real question to even be proposd.The Feds need to get off thier butts and do their jobs,.
Debate debate debate is the name of the game ,what I find distressing is the demonizing of opposing opinions, . This keeps us honest, or should ,using tricks or slight of speech is a shame.
Enough from me I guess I should get down off my soapbox. Good Night all.
Andy, good comments. However, I take a different approach than you based on your comment: “It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government.”
It is my belief the reason they wanted a more energetic Federal Government is because under th AOC, the feds couldn’t even raise taxes in order to fund what the constitution stipulated.
I would rather ask a different question: Pick the most ‘big government’ “Founding Father”, bring him bck to life, bring him to America in the year 2010, and ask him his thoughts.
Tell that Founding Father that the feds and state governments want to tell me how much salt to eat, want to tell McDonald’s they can’t serve toys with Happy Meal, want to tell cops in AZ they can’t research someone’s citizenship who has been pulled over for a DUI, want to tell me I have to purchase health care insurance, and then record their thoughts.
I don’t believe the quotes would be printable:)
@Peter, I too find that interesting that Hamilton and Madison went on to be so influential. It’s odd that their beliefs, or at least one of them, changed. But wasn’t Andrew Jackson behind the creation of the democratic party?
I think that by signing the papers by the name PUBLIUS, the actual writers separated themselves (all of them being significant political figures of the time) from the Federalist Papers, and made the connection back to the people. I think that, despite the elevated language, it would make the public feel more closely related to the topics addressed in the papers. It would make them feel like the concerns expressed here should be theirs as well.
“From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.”
What confuses me about this is that the creators of the Constitution decided that the Constitution was effective immediately and that the Articles of Confederation were debunk. They didn’t wait for all the states to ratify that the AOC was now null and void. They hoped that most of the states would ratify it and all the others would fall in behind them. Only after stubborn little Rhode Island ratified it, did it really become a true document formally accepted by the people. Until that point, the Constitution was in all respects, self-enacting.
The US Constitution that Hamilton, Madison & Jay defended has become one of the most copied and admired documents in the history of mankind. The Federalist itself was published in Spanish in 1811 by the Venezualan Manuel Garcia de Sana, along with copies of the Declaration of Independence and the Constitution. The Federalist influenced movements in Argentina, Mexico, Brazil and in Europe.
Hamilton believed in the future greatness of America and believed that our nation could and would be one of power and strength. He somehow knew the United States would be a world power. (And wouldn’t apologize for it either).
the articles of confederation was an absolute disaster. The states didnt wait to ratify it and because of this many problems arose. Even after the constitution was formed these states were fihting over many other issues than the ge=reat compromise resolved. ONly after rhode island ratifed the constitution did the people of the new wnited states accept the constitution. Be fore this document was ratified howver, the articles did a bad job at holding the counrty together, and only after the constitution was formed did the US truely become a self sustaining nation.
In response to the two posts by Robert Shanbaum, in no particular order:
Of course “Federalist #1 doesn’t shed much light on the Constitution at all.” It is, after all, titled “General Introduction.” As Mr. Cooper points out, The Federalist Papers “were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787.” It seems to me that to argue means to point out the superiority of your argument and the flaws in opposing ones, as well as any ulterior motives that may exist in those making those opposing arguments. I’m perplexed as to why you would find Mr. Cooper’s blog to be “curious.” He is after all, commenting on a general introduction to an 85-article two-volume set. It did not surprise me that: “The bulk of the essay is not about government at all.” It was billed as an essay on Federalist I, which got the process of persuasion under way. As Mr. Cooper put it: “Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.” Messers Hamilton and Cooper were both setting the stage for what was/is to follow.
The sense I got from this rereading of Article I was that Hamilton was attempting to introduce the Publius articles by remarking on the “mud-slinging” as you put it, that had marked debate to that point in order to keep that most-important public dialog (as Jay puts it in today’s reading – Federalist II) more substantive, and with candor, even good will. The history of politics is replete with evidence of Hamilton’s warning that those who would stand to lose power (the states’ legislators) under the new Constitution would oppose its ratification, regardless of the strength of the arguments for it. We see that same dynamic in play today: Congress will never vote for a flat tax or term limits: too much restriction on their power. (The closest to the exact opposite I can recall in my lifetime was the new Republican-led congress voting on the first day in session to limit the terms of its committee chairmen.) Hamilton goes on to admit that “Candor will oblige us to admit that even such men may be actuated by upright intentions…blameless at least if not respectable.”
As you point out, of course Hamilton was on the side of a more-powerful centralize government. That was the point of the Constitutional Convention: to fix the weaknesses in the governing Articles of Confederation and the resulting weak federal government. I do not believe that Hamilton was (or does in subsequent articles) see ‘good guys’ or ‘bad guys.’ It is true though that, as you put it: “Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.” After all during the previous administration dissent was characterized as patriotic. Today the Tea Partiers are accused (by a former president no less) of fomenting violence.
I believe that a main genesis of our current exercise of rereading the Constitution and the Federalist Papers is rooted in how far the federal government has strayed from the Constitution, especially from the Tenth Amendment. In that regard, the Anti-Federalists and other skeptics were correct to insist on the Bill of Rights. Although the fact of the Tenth Amendment’s inclusion seems to have had no obvious effect on limiting the federal government’s powers to those enumerated in the Constitution.
Upon rereading Lillian’s blog, I have no doubt that she understands where Hamilton’s views lie. After she lauds the Anti-Federalists, she makes the basic point of Article I (and our current civic exercise) quite nicely: “Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew?” You do realize, do you not, that it takes arguments from both sides of an issue to have a rich debate? Is not the point of any debate or series of articles on an important public issue to “to bias the reader against the other side”?
As to the question of how Mr. Hamilton would feel about the healthcare “power grab” Lillian mentioned, I disagree in your conclusion. First, we don’t know how Hamilton felt about the issue of establishing hospitals for soldiers and sailors. (Since he served General Washington admirably and loyally, I can hazard a guess.) Secondly, the only thing that the concept of caring for those who flight our wars and/or defend our liberties has in common with the current government’s takeover of the entire nation’s healthcare system is that both are/were federally run. Enlisting in the armed forces requires one to give up significant personal rights and freedoms. In turn, the country, with the government as our agent, provides for those individuals. Not many of us who will see our healthcare choices inevitably restricted under the new law ‘enlisted’ in anything, but we will see our freedoms and liberties limited nonetheless. I believe that Hamilton would be perplexed, if not appalled. In fact, Shannon may be right: his reaction may not be printable.
OBTW, very nice post, Melanie.
Given the history of large governments in the past why do you think Hamilton had such faith in this new county?
@Shannon – Undoubtedly, you are right. But then again, Madison and Hamilton probably could not conceive that women and blacks would ever be elected as representatives of our government, or be able to even vote for that matter…
Janine, the new series, “America, The Story of Us” is wonderful. The focus of the narration seems to be the deep faith, the independent spirit, and the determination of the Americans to live unfettered lives of limitless possibilities! I was thrilled to hear the commercial announcement that every school in America will receive the DVD series. Let’s hope it is put to good use. (And let’s hope its message remains unchanged.)
The First Amendment “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” when clearly understood, is so powerful! It makes me want to come to the defense of people of all faiths. If we don’t reclaim and assert our religious heritage, and stand up against the progressive secularization of our country, we will be lost as a nation, and the world will be lost. A little good news today… the Supreme Court upheld the right of the Mojave Desert WWI War Memorial to display the Cross.
The more we study these writings, the more profound the gems we find.
Greg, thank you for responding to my comments.
I did not write that I thought my observations were surprising, and I apologize for being critical of Mr. Cooper. However, I thought that remarks on Federalist #1 should probably include some comments on the content of Federalist #1, and not just reflections on its title, and that’s what I was trying to (happily) supply.
I didn’t realize that the object here was to learn about “how far the federal government has strayed from the Constitution”, but to learn about the Constitution. An intellectual inquiry that begins with the former purpose may well find its object, but it will fail to understand its subject well, as only that which was sought will be revealed.
I am not convinced that the oft-cited fourth paragraph has been well understood here. My use of the term “good guys” and “bad guys” was an attempt to use modern vernacular to describe that which is couched in the unfamiliar prose of another era. If you think that Hamilton was not trying to set up the debate as between what we would call “good guys” (his side) and “bad guys” (the other side) in that paragraph, what do you think he was saying?
I do indeed realize that a debate requires two positions. A debate does not, however, require what Hamilton has done here; that is, attempting to demonize his opponents before the actual debate begins. I am not passing judgment on the use of this technique – I’m simply observing that that appears to be his main purpose here.
By the way, the Marine Hospital Fund (and its related income tax) covered not just naval personnel, but merchant seamen as well. Also, I am curious about your comment that the healthcare plan will restrict your healthcare choices, and thereby limit your freedoms and liberties: if this or some other healthcare plan implemented by the government were to increase the number of choices available to you, would that expand your freedoms and liberties? Would that make it OK?
I do agree that Hamilton’s reaction, and for that matter, the reactions of all of the founders and framers, to the modern federal government, and for that matter, the modern world in general, might well be perplexity and dismay (though I think sheer shock would be the most likely reaction); after all, those are reactions of many who have grown up in it.
With regard to Mr. Cooper’s comment, wherein he disagreed with my conclusion as to what Hamilton’s possible reaction to healthcare reform might be, saying that Hamilton would have been attached to the enumerated powers in the Constitution, I refer both of you to Hamilton’s actual proposal for the new general government, which you can read here:
http://avalon.law.yale.edu/18th_century/debates_618.asp
Also, you may find his side of a debate with Jefferson regarding the chartering of a national bank informative:
http://avalon.law.yale.edu/18th_century/bank-ah.asp
Wonderful article! I think I understand a lot more about what the founders were trying to say and why. Thanks so much.
To me the most important lesson from Federalist #1 is the importance of hearing again that even the greatest idea — for example the Constitution — isn’t valid unless the people consent. Our founding fathers were marvelous people — they had such foresight. And people like George Washington who were popular enough that he could have become king of our country but would not. They are truly marvelous people.
Arizona lawmakers have approved changes to the state’s controversial law cracking down on illegal immigrants. The changes were designed to answer charges made by protesters that it will lead to racial profiling by police. The original law stated police can conduct an immigration status check during any quote “lawful contact,” if they have reasonable suspicion a person is an illegal immigrant. It replaces “lawful contact” with “lawful stop, detention or arrest,” clarifying police may not stop people without cause. The revised law also removes the word “solely” from the phrase “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.” Read the new Arizona Immigration Law
Please note, there is a great article enitled “Could the Constitution stop the new health-care law?” by Nathan W. Tucker in the Christian Science Montior Volume 102, Issue 23 (current issue..weekly publication.) In it he mentions that the enumerated powers of Article I, Section 8 do not mention the power to “legislate our health.” He goes on to discuss why the common claim by Congress that the Commerce Clause, and Tax and Spend Clause, and references to general welfare do not support the power grab of mandating the purchase of healthcare. He also mentions the “FEDERALIST PAPERS.”
That is some inspirational stuff. Never knew that opinions could be this varied. Will all of the Federalist Papers be brought down to earth in such a compelling way? Thanks for all the enthusiasm to offer such helpful information here.
I don’t know about the suffrage of other races but I see no reason that they couldn’t imagine the suffrage of women because women had suffrage in the late 1700 in the state of my birth New Jersey.
April 29, 2010 – Federalist No. 2 – Cathy Gillespie
Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 02, Federalist No. 02Friday, April 30th, 2010
Some great discussion going on! Love the give and take. I am learning so much from everyone’s analysis and comments, so I thought tonight I would highlight some of the quotes from Federalist No. 2, and from the posts and blog comments which especially resonate with me.
My good friend, Marc Lampkin, did an excellent job as Guest Blogger today. We especially appreciate Marc coming back on in the afternoon to further expound on John Jay – he provided some enlightening background information.
Have you all been watching Janine’s Daily Podcasts on the website? I highly recommend you check them out each day for the lighter side of Constituting America. Yesterday she gave us a tour of her ranch and longhorns (don’t you love their names?), and today we got to see where she does her best work – her car! Janine and I have an ongoing battle of who has the most miles on their car. Mine is currently at 130,405 and I believe Janine may be beating me by about 10,000 miles. As moms, it seems we spend the majority of our day driving or sitting in parking lots waiting. Amazing how much you can get done in a parking lot!
As for Federalist No. 2, I had several favorite passages:
“Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.”
As Shannon pointed out, the people cede power to the government. And similar to the point Janine made in her post, when we are not educated and informed, when we are lax, or not paying attention, we are making the decision to cede even more of our individual rights and liberties.
The other quote that caught my eye, and was highlighted earlier today by Susan, was:
“Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet let it be remembered that it is neither recommended to BLIND approbation, nor to BLIND reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive.”
Again, the theme is an educated, engaged and thoughtful electorate. Issues of great magnitude deserve thorough consideration. When we ground ourselves in the U.S. Constitution and the principles upon which this country was founded, we have a road map to guide us through the maze of public policy proposals that can easily lead down roads that will ultimately take our country in the wrong direction.
A big thank you to all of you who are blogging! We invite our silent partners to find your voice and let us hear from you!
And a final big thank you to our founder and co-chair, Janine Turner! Janine had the idea for Constituting America over a year ago, promptly registered the domain name, and got to work organizing! It is her vision that has brought us the 90 in 90 = 180: History Holds the Key to the Future program. Janine is an inspiration to me, as she continually puts God, her daughter, and her country first in her life. It is an honor to serve with her in this effort.
Good night!
Cathy Gillespie
5 Responses to “April 29, 2010 – Federalist No. 2 – Cathy Gillespie”
I am so grateful for this Website and have been telling my friends, e-mailing them, and telling others I work with. I have never read the Federalist Papers and have found so much foundational truth and we are only on #4. What a gold mine! Anecdote: re: being informed and educated. I was at the public library the other day waiting for my grandson and thought I would read my daily Federalist reading so asked the librarian if they had a copy of theFederalist Papers. She did not know what they were and someone overhearing my said, ” I think I have heart that name before. What are they?” So I was able to inform them and the librarian took down the Web site information. We have to keep spreading the word. This is great!
How sad that librarians need to be informed as to the debates about our founding documents!
This is a great website and Miss Turner certainly has an incredible grasp of the constitution…..read: The divider in chief….at…..
http://cooperscopy.blogspot.com/
I just happened upon this website tonight and have not fully digested all that’s available here. I am impressed with what I see. We are in danger as a nation and one of the biggest challenges I see us facing is our lack of understanding and appreciation of what we have been blessed with. As a people, I’m afraid we have over time grown quite ignorant, but the American People are not generally stupid and ignorance can be overcome by learning and developing the ability to discern truth. To all who have played a roll in building this website I say thank you and may God bless you.
Jay’s opening statement, “WHEN the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it, will be evident.” Is relevant today, Americans will have to reflect that they now must decide a question; will we return to the Constitution or abandon it for Obama’s transformation into a lesser America under the ruling thumb of a gigantic government.
Some people suggest we need a Constitutional Convention today but do we today have people of the caliber of out Founders? Whom Jay describes as, “This convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom” who “without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.”
Do we have such people who would be in that convention today?! No! We do not need a convention. We need a return to the original Constitution.
Contrast the difference between the patriots founding our country and the leaders betraying America today. Our Founders “only RECOMMENDED, not imposed” this plan and explained the 7 page Constitution in detail with 33federalist papers. Today Obama/Dems rammed through an over 1000 page health care plan against public will, unseen and unexplained, in fact lied about. Pelosi said it needed to be passed so we would know what’s in it. How have we sunk so far?
If the progressive left is not stopped and their damage undone, we shall surely be saying of our beloved America, “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.”
April 29, 2010 – Federalist No. 2 – Janine Turner
Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 02, Federalist No. 02, Federalist No. 68Thursday, April 29th, 2010
Howdy from Texas! I thank you for joining us today! I am thoroughly enjoying this process and I am learning so much from the readings, our exceptional scholar’s essays and from all of you who are blogging. I want to say how appreciative I am that Marc S. Lampkin joined us today as our “guest scholar” and I thank him for his wonderful interpretation and explanation of Federalist Paper #2 by John Jay. Thanks Marc!
There are many aspects in our readings of the United States Constitution and “The Federalist” that are relevant today. However, as I was juggling many pertinent points from Federalist Paper #2, suddenly a more general observation manifested.
Our forefathers were intent on explaining the Constitution to the people of the United States. They wanted the Republic to understand what was in the “bill,” and they undertook great pains and efforts to make sure that happened – 85 different Opinion Editorials published in newspapers and spearheaded by Alexander Hamilton.
Not only did they go to great pains to explain the contents of the Constitution, which was only seven pages, they knew that the American public would demand to know what was in it before they ratified it. This brings about two conclusions:
1. The American people of the 18th century wanted to know what their government was doing, felt very much involved in the process, and were passionate about the direction of their country
2. Publius and the signatories of the United States Constitution felt obligated to explain it to them, and did so in great detail and they could – as they had written it and they understood it.
A very different atmosphere exists today. Both the American people and the United States government are to blame for the obscurity in which we wander. The bloated bills and ignorance of their intentions are the fault of both the governor and the governed. We, as collective countrymen and women, grew discordant and lax in the affairs of the state, and like a child pushing the boundaries with their parents, the United States government got away with what they could. It’s human nature. Men are not angels – hence, the Constitution.
But times have changed. Our country’s woes are like trying times for the soul. Difficult times are God’s way of shaping our character – making us into the people He wants us to be – a light, a leader. Now Americans are waking up and realizing that we must once again demand to understand. What is really in the bill and what is really the direction of our country? We are realizing that we must vet, vote and find our voice. In our blood is the ancestry of righteousness.
We must stress to our elective officials that we will accept nothing less than clarity. In Federalist Paper #62 James Madison zeros in on this point:
It will be of little avail to the people, that
the laws are made by men of their own choice,
if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before
they are promulgated, or undergo such incessant changes, that no man who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known or less fixed.
The title of John Jay’s Federalist Paper No. 2, “Concerning Dangers from Foreign Force and Influence,” is applicable today as well. If we do not gain control of the economy we are going to be like Greece and times of economic stress are ripe for tyranny.
If we do not gain control of our spending and deficit then we are a sitting duck for the hunters who wait in the night – “Dangers From Foreign Force and Influence.” As Benjamin Franklin said, “Think, when you run into debt, you give to another power over your Liberty.”
John Jay’s ends this paper, from over two hundred years ago, with a Shakespearean quote, it echoes eerily across our current environment. It is a battle cry and ominous warning of something we do not want to ever shout, “FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS”
As the present necessity of unity prevails, we the people will gather with the mission of preserving our great country and we will be spurred by our patriotism and launched by our learning.
God Bless,
Janine Turner
6 Responses to “April 29, 2010 – Federalist No. 2 – Janine Turner”
Janine, Those are great thoughts on our current state of government. When the press and the governed decided that character no longer mattered but only progressive press aligned political ideology and many of the governed became incessantly dependent on government handouts and fixated on class envy promoted by progressives and the media we lost our way. The Bible says don’t covet thy neighbor’s property, wife, goods…etc. but preogressive envy everything of those who work hard and want it all taken and redistributed to the envyors. It will take dedication, courage and a divine hand once again to re-establish our nation to its’ founders principals. It starts a the ballot box and voting for elected officials who put the constitution and the people above themselves. I hope we can be sucessful as the alternative is not very good for our future generations.
I find it very interesting how when the country was being constructed, the people were so ready and willing to learn about the constitution. Nowadays I think this overall involvement in the direction of the country has definitely weaned, which is understandable as they are not dealing with the insecurity and troubles of forming a new system of government after the relatively ineffective and weak Articles of Confederation. If more people were to take an active role in examining politicians and seeing what they put first, instead of trusting the news media, then the nation could start to head in a better direction, like how Gruver says, it starts at the ballot box.
Given this new passion sweeping the country, which our current leadership has so graciously created, I am anxious and excited to see what happens in November. I am hoping and praying that it will be the catalyst for the people of this country to continue to pay attention, spread the word and make their voices heard. We may be on the eve of a scary, yet possibly exciting, new revolution…
Janine; you and Cathy have provided a wonderful service by making this educational tool available.
How, and why has the practice of writing such confusing and lengthy bills evolved? Was it just to confuse the electorate so that we would have less control over our legislators?
How we go about demanding clarity in the way legislation is written will be another story, but with the armor of knowledge and the weapon of truth, we will prevail.
Just wanted to say I really liked the post. You have really put a lot of energy into your posts and it is just awesome!
Charles & All,
Legislation has become more lengthly because we expect it to be specific. The Constitution, on the other hand, is simply the framework for our government. If we wanted to fairly compare the two, we should include with the Constitution Congress’ rules of order, the Uniform Code of Military Justice and all military regulations, rules of decorum for the Supreme Court, and Executive procedures. This compendium would outline exactly how the government should be run, as the healthcare bill outlines for its role. Then we may complain about our 2000+ page Constitution.
Jim
Federalist No. 2 – Concerning Dangers from Foreign Force and Influence, for the Independent Journal (Jay)
Federalist Paper 02, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 02, Marc S. Lampkin, The Articles of ConfederationThursday, April 29th, 2010
Federalist Paper #2 was written by future Federalist party chieftain John Jay to address what many founders felt was a critical deficiency regarding the then existing government authorized by the Articles of Confederation. The deficiency was the major vulnerability the young nation faced because it lacked sufficient national authority to defend itself or to enforce its laws.
Reflecting his view that the public “choose” the new central government contemplated in the Constitution rather than simply acquiesce in it, Jay presents his arguments in terms of the “self interest” of the readers. “It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.”
John Jay was the oldest contributor to the Federalist Papers at age 41. Jay, a staunch abolitionist who would go on to become governor of New York and successfully ban slavery statewide, also had served as President of the Continental Congress and was a principal negotiator of the Treaty of Paris. After the U.S. Constitution was ratified, he would become the first Chief Justice of the United States Supreme Court.
At the time of the writing of Federalist #2, it had only been a few years since the Revolutionary War had ended. Although the Americans had just successfully defeated one of the most powerful military forces on the planet when it successfully won its independence against England, barely five years later the capacity to carry off a similar feat was dramatically undermined by the operation of the Articles of Confederation. In addition, compounding matters there was increasing sentiment among the political class that instead of presenting a “united” front as part of a United States of America, the states should actively consider whether even the loose association authorized by the Articles was either useful or worthwhile.
John Jay vigorously argues that not only should the states remain united; they should adopt the proposed Constitution’s federal style of government. It was Jay’s view that the crisis of the Revolutionary War had led to the hasty creation of the Articles of Confederation and even as its defects became apparent, those deficiencies were not great enough to prevent America from prevailing in the war.
Now that the war was over, the problems of the Articles had been so severe that the Philadelphia Convention had been convened to attempt to ameliorate its difficulties. Of course the result of the convention was an entirely new compact being drafted. The central theme of this compact is that it contains a Federal Government with specific authority and power to carry out its limited but important duties in a way that the Federal Government authorized under the Articles of Confederation could not.
John Jay presents two basic premises that are basis for his argument: it is a fundamental responsibility of government that it has the necessary power to regulate conflict and administer the laws it has lawfully enacted. Secondly, in order for any grant of authority to be legitimate it must be consensual — that is the people must grant the government the powers.
While Jay recognized that any of the government powers exercised ultimately came from the people, the issue was which of these powers should be reserved for citizens and which were usefully granted to the government. The test for Jay was whether a particular grant of authority best protected the safety and interests of the American populace. However, this problem was made more difficult when the question of whether the Americans should unite under one national government or instead become separate states.
To Jay the answer was a strong union. He believed that for all intents and purposes, the confederation of states were already a union. He argued that the geographical make up of the nation including its topography and “navigable waters” created natural boundaries that encouraged commonality. Additionally the faith, language, principles and customs of the people who dwelled in this land which were overwhelmingly similar also argued for a strong union.
“This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.”
Since the land, people and language made it naturally more efficient to remain together then Jay believed that it was essential that the government they were subject to had the authority and power to carry out its duties in a way that the Articles of Confederation had never allowed. “It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object.” It was John Jay’s considered view that the adoption of the Constitution in the long term would prove beneficial to all Americans both in a time of military conflict and in times of peace.
Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School
April 30, 2010 – Federalist No. 3 – Cathy Gillespie
Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 03, Federalist No. 03Saturday, May 1st, 2010
Howdy from Texas! I am still here in the Lone Star State for a few more days. Tonight Janine and I were honored to be invited to a wonderful gathering hosted by our friends Don Hodges and David Thompson and many new and old friends in Dallas to fill them in on Constituting America and how they can be involved. We are gratified by the enthusiasm those in attendance have for learning and spreading the word about the U.S. Constitution, and hope to see our Dallas friends joining us on the 90 in 90 = 180: History Holds the Key to the Future Blog!
Today’s reading, Federalist 3, begins to address the benefits of the new government proposed by the U.S. Constitution, vs. a government of independent, sovereign states, as some at the time advocated. It is interesting that one of the first justifications for the Constitution expounded upon by John Jay was the safety and security of the homeland, still a primary concern today.
Jay’s statement that “one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter,” is certainly true. A government that is perceived as strong will be less vulnerable to attack than one that is divided and weak.
Chuck invoked Ronald Reagan today, and President Reagan was on my mind as I read Federalist No. 3 as well. In a compelling National Security speech on March 23, 1983, Reagan said:
The defense policy of the United States is based on a simple premise: The United States does not start fights. We will never be an aggressor. We maintain our strength in order to deter and defend against aggression – to preserve freedom and peace.
Just as a body’s strength is dependent on its skeletal system, our country’s strength is dependent on its Constitutional backbone.
Our founding fathers knew they lived in a world that posed threats, and they knew the best way to keep the peace was a strong, unified country. Two hundred twenty-two years later, our world still poses threats, and the stronger and more unified the United States is perceived, the safer we will be.
Have a great weekend everyone!
See you Monday for Federalist No. 4
Cathy Gillespie
9 Responses to “April 30, 2010 – Federalist No. 3 – Cathy Gillespie”
That is one thing I can never figure out. How when we have never been the initiator of aggression and very infrequently have we retained, annexed and or occupied for our profit can we be called imperialist? What dictionary definition of that word do people who think that hold to?
Wow, the more I read, the more I am grateful for the founding fathers and their consideration and determination to bring about a united government that was motivated towards the shared rewards of a participating society. They looked to bring forth the best in we humans, considered all the pitfalls we manipulate, over stepped their own, and reached for the honesty of common decency. It was so down to earth and selfless, and good. Can we still live up to it, as Franklin implied? O gosh, we need a really big big wake up for a lot of people, politicians and voters. They gave us the tools, the framework, it’s not dissolved yet. How do we get this education out? It is so amazing that all this even came about. Thanks again for having this symposium!
“our country’s strength is dependent on its Constitutional backbone”. It seems to me that in the plethora of labels tossed out these days–liberal, conservative, democrat, republican, independent, etc — the Constitution itself has been completely forgotten. I identify myself as a Constitutionalist and people actually ask me “What’s that?” How sad that they do not even ASSUME a meaning for that label…
I applaud and appreciate what you’re doing here, it is more crucial now than at any time in our history–will spread the link!
You wrote:
“Today’s reading, Federalist 3, begins to address the benefits of the new government proposed by the U.S. Constitution, vs. a government of independent, sovereign states, as some at the time advocated.”
It appears you are asserting that the Constitution consolidated the States into one nation and they are no longer sovereign entities because they surrendered their sovereignty to the federal government.
Please explain your comment. Thanks.
Hi Bob – Thank you for your question! Ours is a federal system. Often people are confused about it, and this is one of the reasons we initiated this project – to try to address concerns just as you mentioned. If you look at the preamble, our Constitution makes clear that the beginning and the end of the government’s authority comes from the consent of the people. We the people desire to form “a more perfect Union; establish Justice, insure domestic tranquility and provide for the common defense…. ordain and establish this Constitution.”
By ratifying the U.S. Constitution the people caused the State to cede certain powers to the federal government. Both the Constitution itself and the founders who drafted and confirmed it imply only that states ceded the powers enumerated and listed in the U.S. Constitution as powers belonging to a federal government. All other authority continues to rest with the people and the states respectively. When the Bill of Rights was added to the Constitution, both the 9th and 10 amendments reaffirmed this principle.
Excellent comments by Cathy and all ! I would like to add a quote attributed to James Madison that for me is pertinent to the discussion as it pertains to the sovereignty issue.
” We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind for self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God.”
Roger Jett regarding your post: WOW. Intuitively, we know this, and it is what our parents taught us; but here it is in black and white from the Father of the Constitution. Very powerful and worth remembering. This incident in NYC is a good example of one man using his intellegence and God-given sense to prevent a terrorist attack. What if he decided not to get involved and let someone else take care of the problem. Boom.
Thanks for the quote.
Unfortunately, it can not be proved that James Madison said that. Especially with the proliferation of the internet, bogus quotes are flying around everywhere that can not be appropriately attributed to the authors. Below is a reference asking the question of the validity of this very quote:
http://candst.tripod.com/misq1.htm
I agree with Andy Sparks that we can all too easily latch on to a bogus quote off of internet sources. I apologize for not citing the source for my earlier post concerning a quote that has been “attributed” to James Madison. My source for ascribing this quote to Madison is Frederick Nymeyer, Progressive Calvinism, (January, 1958), Vol. 4, p. 31.
April 30, 2010 – Federalist No. 3 – Janine Turner
Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 03, Federalist No. 03Friday, April 30th, 2010
Howdy from Texas. I thank you for joining us today and I thank today’s guest scholar, William B. Allen, for his words of wisdom about Federalist Paper #3. Thanks William!
What I continue to find fascinating is how the Federalist Papers are consistently relevant today. John Jay’s Federalist Paper #3 is one that really motivates contemplation. Publius speaks about how the unity of the country, the states, is the best way to combat an enemy or foreign intrigues. Unity, a house united, is definitely more advantageous than a house divided. Objectivity trumps subjectivity.
Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children. The Federal government needs to pay heed.
John Jay provides examples of how domestic disputes amongst small countries in Europe often lead to major battles – battles that then enveloped several nations for many years. We have certainly seen this repeat itself subsequently and most recently in the 20th century yielding morbid and tragic devastation.
During our country’s infancy, unity amongst the states was paramount for a strong and unilateral defense.
However, ironically, the same principle applies today. With the current situation in Arizona, we should remain first and foremost unified in dealing with the crisis at hand. Brother against brother, state against state, breeds contempt and failure.
It is prophetically proposed by our founding fathers that a unified action yields the best result for the nation.
Let us remember that unity will reign victorious and gather wisdom to deal with all obstacles.
We are the United States of America.
God Bless,
Janine Turner
April 30, 2010
P.S. Don’t forget to check out our “We the People 9.17 Contest” for kids, my daily Video Podcasts and the archive of the daily essays written by Cathy and me and our daily guest scholar!
Responses to “April 30, 2010 – Federalist Paper No. 3 – Janine Turner”
I have found it fascinating that the reading of Federalist #3 is so timely with what is happening in AZ today. This reading has, thus far for me, presented the greatest corellation to current events. What was true to life when the constitution and Federalist papers were written is true today and will continue to be so. That is why we must continue to learn and protect the great gifts that were given to us with the writing of these documents.
.
The wisdom of this Founding Father continually astounds me. His comments are as relevant today as when he first put pen to his thoughts. The old adage of; “a house united stands strong, but a house divided falls”, rings true in Jay’s dissertation of the need for unity. I must admit that it makes me nervous to hear states give thought to succession as this tears at the fabric of our unity. We need to continually use the strong material of historical knowledge to weave the cloth of unity, repair its holes of strife, and keep it fresh and new!
I am enjoying this project and want to thank you all. I especially enjoyed your comments today about how the Arizona law and things that divide us make us more vulnerable to outside forces just as was written in this FederalistPaper. I think relating these to present day events make them mean more to the reader. Thanks!
You wrote:
“Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children.”
Are you asserting that the States surrendered their “rights” to the federal government?
“The father must protect his children.” Are you asserting that the States spring from the federal government?
Thanks.
Hi Bob – Thank you for your question! Ours is a federal system. Often people are confused about it, and this is one of the reasons we initiated this project – to try to address concerns just as you mentioned. If you look at the preamble, our Constitution makes clear that the beginning and the end of the government’s authority comes from the consent of the people. We the people desire to form “a more perfect Union; establish Justice, insure domestic tranquility and provide for the common defense…. ordain and establish this Constitution.”
By ratifying the U.S. Constitution the people caused the State to cede certain powers to the federal government. Both the Constitution itself and the founders who drafted and confirmed it imply only that states ceded the powers enumerated and listed in the U.S. Constitution as powers belonging to a federal government. All other authority continues to rest with the people and the states respectively. When the Bill of Rights was added to the Constitution, both the 9th and 10 amendments reaffirmed this principle.
April 30, 2010 – Federalist No. 3 – The Same Subject Continued: Concerning Dangers From Foreign Force and Influence (Jay) – Guest Blogger: W. B. Allen, Professor of Political Philosophy at Michigan State University
Federalist Paper 03, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 03, Federalist No. 04, W. B. Allen PhDFriday, April 30th, 2010
Essay # 3 investigates the causes of war. Publius seems to raise the question, not merely from curiosity but rather because it’s important to be prepared to prevail in war and also to place one’s state in the position to avoid war. The Federalist Papers seem to adopt this perspective in its approach to foreign policy inquiring not how to adopt an active posture for engaging in war but rather how to make war as little likely as possible. The argument is laid out by the end of the third essay, and then stated outright in the fourth essay, where he says of the American people, “Wisely therefore do they consider Union and a good national Government as necessary to put and keep them in such a situation as instead of inviting war will tend to repress and discourage it.” This deterrence theory is based on a number of factors deriving from human nature, and it therefore forces us to ask whether Publius generally understands the causes of war. Again, in the third essay we see a claim that the pace of America highly depends upon observance of the laws of nature towards all foreign powers, a thing more perfectly accomplished in proportion as we have one national government rather than thirteen or some other number of states. We expect, therefore, to close with an argument from efficiency, less chance, greater consistency, and greater stability in foreign relations.
Surprisingly, Publius does not do that in the third essay. He instead states the following: “When once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed.” He argues not from efficiency but from the character and talents of the officeholders. The first reason for increased national security is clearly that one obtain the best statesmen. The question of safety calls for intelligence and consistency.
It is wise to avoid war, and Publius illustrates this by arguing that “Hence, it will result that the administration, the political councils and the judicial decisions of the national Government will be more wise, systematical, and judicious, than those of the individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.” The chief means to avoid war is good order at home, and it includes satisfying other nations.
A third reason for a foreign policy of justice and consistency is that the national government will avoid tempting other nations to offend the United States because a United States that is well organized will be successful and prosperous, and that is what will bring peace. It will dispose other nations to cultivate our friendship as well as yielding strength. This will attract other nations into peaceful association, and this is what makes it possible to avoid war.
W. B. Allen
Michigan State University
Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.
39 Responses to “April 30, 2010 – Federalist No. 3 – The Same Subject Continued: Concerning Dangers From ForeignForce and Influence (Jay) – Guest Blogger: William B. Allen, Professor of Political Philosophy at Michigan StateUniversity”
So far the argument for union, is the implied understanding that in strength there is peace.
There was so much in Paper #3 that lends itself to a good discussion. However; the 3rd and 4th paragraphs sum up the whole paper for me when John Jay talks of Foreign Arms and Influence; and Like Kind arising from domestic causes. And whether the wars happen or will happen because of REAL or PRETEND causes that will PROVOKE or INVITE them.
I am constantly amazed at the insight our Founders had regarding the present State of the Union during their time, as well as future conditions that could, and most likely will, occur. Without the strength of a Union, the individual states existence were in danger because of their lack of reinforcements from the other states; that combined with their statenot only ensured safety of external forces, but internal conflicts as well.
Think of all the small countries in Europe that have been abolished and/or reformed into other countries because of internal or external conflicts. The country of Yugoslavia, for example; until 1941 was the First State of Yugoslavia with a monarchy rule. The Second of Yugoslavia was from November 29, 1943 until June 25, 1991, and it was a socialist successor state to the Kingdom of Yugoslavia and existed under various names.
The Federal Republic of Yugoslavia was from April 27, 1992 until February 4, 2003 and it was a federation on the territory of the two remaining republics of Serbia and Montenegro.
The Union of Serbia and Montenegro was formed on February 4, 2003, and officially abolished the name “Yugoslavia.” On June 3 and June 5, 2006, Montenegro and Serbia respectively declared their independence, thereby ending the last remnants of the former Yugoslav federation.
This present day example could have very easily happened to any individual state during the Founders time if they allowed themselves to believe they were stronger as an individual entity as opposed to an entity within a greater union. As John Jay explains, there were threatening forces for the Border States, as well as internal conflicts with native Indians within other states. With a Union, individual states were protected from aggressors, as well as being prevented from becoming a rogue state that would threaten the security of the Union.
Today, many of our states are experiencing turmoil from neighboring countries, other states, and citizens. The Founders had put in place measures on the Federal level to keep the Union secure. However; I find it ironic, that today it is the Federal government that is threatening the security of the Individual States.
The very argument that is made in Federalist #3 for Peace through Strength was the very essence of the Ronald Regan Administration. Remember when he refused to give up SDI and the media belittled him and yet what do we see today, missile defense. When Regan let the summit in Iceland go with out an agreement with the USSR on arms control every one said we were doomed and yet who fell from the world stage, the USSR and not the United States. The most important question is where are we headed today and how will we mantain our strength when those who are supposed to be our leaders and willing to give up our strenth by crippling our economy after all it is economic strength that produces the real stength in any nation.
In “strength bringing peace” the opportunity then will present itself to aid our fellow man rather than war with our fellow ma.
Chuck, insightful. I fear where we are headed today is disater on a global scale. I think Jay ande others of the time would tell us today, “Let’s be as strong militarily as e can, so that others will not cause us harm. In return, let’s not have troops in fifty nations, (lik we do today), so that other nations will not feel the need to wage war against us.”
What better use of our resources if we took 80% of the troops we have spread around the world and secured our borders, south and north. I care not what the North Koreans do (our troops there); I care intensely what the Mexicans do.
Hi All,
I’m catching up on my reading today. Thank you everyone for your great comments.
I was struck today by the passage “Because when once an efficient national government is established, the best men in the country will not only consent to serve, but will also generally be appointed to manage it…..” I feel like maybe at this point in time we don’t have the best men or women in the country serving. Of course this behooves the population to place better people in office.
I also wanted to say that I agreed with the comment from a few days ago regarding how the founding fathers WANTED the people to know what the government was doing. It really does feel to me like the present government is being sneaky.
I took from Federalist #3 the need for a centralized govt to protect the whole of the States and wage war if necessary… Federalist #3 ties in to the border question we have today in my opinion… if we have between 12 and 25 million illegals crossing the border and Art IV section 4 of the Constitution has the Federal Govt responsible for protecting the borders from an invasion, then if the numbers I stated are correct, what, pray tell, would constitute an invading force than up to 25 million non-citizens?
Just saying…
Shannon it is very frightful as we see what is going on, on our southern border. In the late 1980′s after Casper Winberger was Secetary of Defense he wrote a novel outlining 5 senerios where the USA could fing itself in war. One of those was Mexico, as that country would become so corrupt and violent due to it’s drug problem that the US would have to send troops to stabilize it in “our” national security interest. It appears we have reached that point but our Federal Government has niether the plan or the will to do so much less secure our own borders.
Morning. It’s Janine. I think it is very interesting and quite relevant how John Jay talks about the states dealing with their neighboring countries in a passionate manner as opposed to the Federal government who would deal with the state’s neighboring countries in a cool, objective manner.
This begs the question: If the Federal government is to protect the states re her foreign borders then should they not neglect the states needs and causes? What happens if the states are left in middle of desperate situations with no aid from the Federal government. Is this where the Tenth Amendment comes into play?
I think that in their worldview the order of responsibility went person, family, local, state and last and only as a final resort federal.
Professor Allen points out something that I’d never thought about before — the question of what should nations do to avoid invasion. It appears that the founders didn’t think that merely being friendly was a sufficient basis for ensuring that one would be free from an attack. President Reagan comes to mind, but I’d be curious what Presidents over the 20th and the 19th Century before thought about this principle?
Janine. I think your scenario is a prime example of when the 10th Amendment would be very operative. After all, the central government cannot state that an obligation is Constitutionally reserved to it, then refuse to exercise that obligation. I beleive Congress has defacto abrogated the right to “control naturalization” and the sovereign states must do it themselves.
@Constituting America and Gary: James Madison wrote in the Federalist No. 45 that “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the StateGovernments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce;…The powers reserved to the several 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 the state.”
In my humble opinion, I believe Arizona is correctly operating under the States’ Rights set forth in the 10th Amendment because the Congress is not doing its duty to protect Arizona from its loss of life, liberty, property and prosperity.
What say someone else?
Federalist #3 is the first of 3 of Jay’s arguments that the Articles of Confederation are inadequate for our defense. In this third paper, Jay puts great emphasis on the reasoning for a national united Government as opposed to the 13 states each governing their own way.
He states that we Americans long hold the belief that in order to continue with peace and prosperity; we do so under a single governing body, the federal government. The first provision by the governing body is the safety of our Country and We the people. Though the Founders were more concerned about our being protected against foreigninvasions and influence, they were also concerned even then about the dangers of domestic insecurity. Jay goes on to state that through a friendly and efficient national government can we best be protected from foreign hostilities. Our Nation would not be the provocateur because we would be an America that is united. “The Union tends most to preserve the people in a state of peace with other nations.”
Jay goes on to state that it is extremely important that in order to maintain the peace of America we respect and observe the laws of nations in which we have signed treaties and this can be done only by and through one united Government, not by the several states or sovereignties.
He gives the sound reasoning as to why we needed a national government run by men of intellect appointed to serve wisely, systematically, and judicially. Jay felt that left to their own governing, separate states would selfishly guard their own peoples and borders.
Federalist #3, for me, drew the strongest parallel thus far to what we are experiencing today. Jay states that “Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first.” Has our government lost sight of this? “We the people” have stated time and time again that our biggest concern is safety. Jay also states that “The neighborhood of Spanish and British territories, bordering on some States and not non others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations”. Doesn’t the Federal government have a duty and an obligation to HELP AZ? Is this not one reason WHY a centralized government was established rather than having several smaller governments?
@ Carolyn….I too was struck by the fact that our founding fathers had the foresight to understand that dangers can come not only from “Foreign Arms”, but can also arise “from domestic causes”. These wonderful men seemed to have thought of everything that could possibly go wrong. God Bless them.
To Carolyn M.
I wholeheartedly agree that AZ is doing the correct thing considering that the Federal government can’s seem to find the will to protect that border. Here we are reading the writing of our founding fathers arguing that the federal government is needed for just this sort of thing and yet currently the federal government is failing. It will be interesting to see if any other states follow suit in this issue.
Howdy from Texas. I thank you for joining us today and I thank today’s guest scholar, William B. Allen, for his words of wisdom about Federalist Paper #3. Thanks William!
What I continue to find fascinating is how the Federalist Papers are consistently relevant today. John Jay’sFederalist Paper #3 is one that really motivates contemplation. Publius speaks about how the unity of the country, the states, is the best way to combat an enemy or foreign intrigues. Unity, a house united, is definitely more advantageous than a house divided. Objectivity trumps subjectivity.
Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children. The Federal government needs to pay heed.
John Jay provides examples of how domestic disputes amongst small countries in Europe often lead to major battles – battles that then enveloped several nations for many years. We have certainly seen this repeat itself subsequently and most recently in the 20th century yielding morbid and tragic devastation.
During our country’s infancy, unity amongst the states was paramount for a strong and unilateral defense.
However, ironically, the same principle applies today. With the current situation in Arizona, we should remain first and foremost unified in dealing with the crisis at hand. Brother against brother, state against state, breeds contempt and failure.
It is prophetically proposed by our founding fathers that a unified action yields the best result for the nation.
Let us remember that unity will reign victorious and gather wisdom to deal with all obstacles.
We are the United States of America.
God Bless,
Janine Turner
April 30, 2010
P.S. Don’t forget to check out our “We the People 9.17 Contest” for kids, my daily Video Podcasts and the archive of the daily essays written by Cathy and me and our daily guest scholar!
I am struck by the amount of thought put into these papers to explain the authors’ reasoning for the adoption of the Constitution to the people. It is a stark contrast to today’s bills which are so long and convoluted that I don’t think anyone can read them let alone explain them and probably few even try.
I believe some of the founding fathers had an idealistic view of it’s new country and republic. Most specifically, Monroe believed that the brotherhood of republics transcended national boarders and expansion of induvidual liberties was central to the policies of modern governments born of revolution and the revolution would tear down national bounaries and unite mankind. Once the revolution was over he/they realized real quick that self interest was a greater force than any republic. England, France and others coveted the riches of the new world. The founding fathers found themselves having to preserve the united colonies (thank you Federalist Papers), protect them from invasion and promote trade abroad. And the best way at the time was through diplomacy and not war.
Translating to our present situation we find ourselves relying on others for natural resources, trade abroad has resulted in a large deficit, and our boarders have been invaded. It is vital that every citizen in America today understand our Constitution and how it was formed. If we dismiss the wisdom of our forefathers we are doomed to tyranny.
You all have said things that struck me when reading Federalist 3. But what really stood out, as others have suggested, was that the best men will fill the roles of “administration, the political counsels, and the judicial decisions” of the national government because there is a large population in the Union from which to draw these men.
Would Jay roll over in his grave given the quality and honor of those serving today? It is our responsibility as citizens to ensure that the “best men” are filling those important roles!
PS: realized I didn’t put my last name on previous comments; not intentional!
There would seem to be many ways that a country could fall apart — does an invasion have to be formally waged by a nation as such or can it come from an unorganized group?
“The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them.”
It seems to me that our national representative government has turned this around. They are the ones who justify their actions, and oppose their acknowledging, correcting, or repairing their errors and offenses.
If we cannot believe in our national government to protect us from harm and ensure our safety then don’t the states have the right to protect themselves?
I don’t think our founders intended for our representatives to be career politicians. This state has led to our elected officials being more protective of their own self interests and their voting blocks than protecting the citizens of the states. Today, the interests of our elected officials is all about power and control. To them our founding documents are living documents meant to change with the times. I am learning that it is just the opposite. Our founding documents are just as relevent today as they were at the time of their writing.
It is staggering to me from our vantage point now looking back through time that that we in this present generation have so much greater abilities than our forefathers to both study historical documents and communicate to our fellow citizens, yet do not. It was beyond comprehension that a day would come where information regarding all past and present civilizations, their failures and successes, their forms of governments would be or could be juxtaposed and weighed against each other. The vast superiority of Our Constitution is not even debatable in world history and is in fact I would suggest self-evident to all that apply their reason, but therein lies the rub. It was a given during the time of our forefathers that applied reason would win the argument and that the citizenry out of self-interest would deem it necessary to educate themselves in a form of government that was to be run by themselves. Out of all the considerations, safeguards, checks and balances, they sought to circumvent or eliminate in the wording of the Constitution the one blind spot now a glaring omission was not to mandate it’s reading by the citizenry. The implied self-interest of a government by the people for the people for our forefathers it went without saying that all citizens would know and read the Constitution and thus understand our foundation and liberty. Again beyond their comprehension would be a day that “self interest” for a majority of citizens regarding their government could be assessed as what they can “Get from” it not “Vest To” it, yet here we are. While “Foreign Force and influence” were on Jays mind clearly foreseen as a great potential threat not so was the idea of threat of domestic ignorance… that specter that topples all freedom and liberty, let us pray for the defeat of ignorance in our this Constitution Revolution:-) .
I to am amazed at the foresight of the Founding Fathers. I’m as amazed at the ignorance or disregard from our current leaders to bring history forward as guidance on what NOT to do to overcome troubles today.
Fed Paper #3 – As I read it, I couldn’t focus on the paper itself…all I could focus on is the relevance to Arizona vs. the Federal Government. Jay states that a national government is more likely derterrent for warding off war than astate…and I agree. But since the Federal Government has been unable the state has to step in.
@ Janine, the Arizona situation seems to bring rebirth to the Confederation instead of the Union. Only 4 states share the Mexico border and our Representatives and Senators spend their days about 2,000 miles away in Washinton, DC, far from the points of conflict. Because they are so far away, and the 46 states they represent don’t have the samedirect problems with illegal immigration, they seem to be acting as if they lived in a Confederation, where they don’t care enough to act on the problem because the problem is not in their own districts.
In many instances such as this, our elected representatives are acting more like delegates than representatives of a Republic. As delegates of a state, they vote only for those things that are problems for their own states; as representatives, they should be voting for those things that are in the national best interest, even if not in the best interest of their home state.
@John Harris… I agree in your entire post, but would amplify your statement: “And the best way at the time was through diplomacy and not war.” It was probably true that in 1787 the new country was weak enough to the point that diplomacy was the only option in most cases of foreign provocation or dispute (therefore, the recurring argument for adoption of the proposed Constitution to replace the AOC in order to give the country a stronger national government). Several times in our history when we were not strong enough militarily, our diplomatic efforts proved to be impotent. The best explanation of national power or effectiveness in foreign affairs I have heard was presented at the Naval War College by a visiting lecturer from the government in the late 80’s: any nation’s power is like a stool with four legs. The legs are military power, economic power, national resolve or character, and the last one that depends the most on the other three – diplomatic skill. However, if the stool’s legs are not in relative balance, national effectiveness in foreign affairs (the most critical being the avoidance of war without resorting to the ‘tribute’ that led Jefferson to take on the Barbary pirates) is diminished. I believe that Chief Justice Jay was make this same point in argument for adoption in Federalist 3.
If our country became unified would it mean that we would have more people to select from in terms of making up the military force? And I guess I haven’t read the Articles of Confederation, but I noted that the Constitution allows the federal government of the U.S. to have a draft. Would unity mean that the founders wanted to be able to draft people from every single colony?
Our country has truly been blessed to have men such as John Jay to take such an interest in the nation and to accept the risks that they did. It is really too bad that historians have tried to rewrite their profiles to turn them into lesser men. I am honored to read their essays and thankful for the Constitution we have. I’ll do my part to spread the word about it.
It is amazing how persuasive the 3rd Federalist Paper is. I like how Publius used moderate language throughout the essay in order to gradually convince the reader of his cause. By the end, I found myself agreeing with him in the idea that “strength is peace.” I envy the eloquence of this essay!
The Federalist Papers no. 3 makes a point to explain how things will go well, concerning the people running the country. It states that the best men will serve the country, and to defend that explains that “for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,–especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States.” Like what Jesse Stewart was saying, this is nowadays an overall hollow statement, and I’m sure that John Jay could not of envisioned how things really work today. Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.
It interests me that three men could agree so strongly on the benefits of the new constitution that they could all use the same pen name Publius. I’m curious about what this means in terms of the trust they had for one another?
Nancy, thoughtful question. These men trusted each other because they were Statesmen, not “politicians”. They loved their new country more than they loved to disagree with one another.
They don’t make people like that anymore, at least not many. Could you imagine Pelosi, Paul Ryan, Harry Reid, and a Libertarian doing this together?
I can’t.
Dumas captured the spirit of Federalist #3 when he wrote “All for one – and one for all.”
What has become inverted is the foundation of peace. What the founders here argued is that diplomacy functions best when supported by three legs. These legs are; one a strong defensive capability (making it hazardous to attack), two a strong economy (ability to sustain) and three a collective understanding of principle and the will to back them up. Currently termites are attacking all three legs and still insisting that diplomacy unsupported will work.
Hello all. Peace through strength,,I think the founders knew this and up until these past few years that axiom has held us in a secure grip in a very dangerous world.Reality exists and to pretend that we can behave out side it because it suits our wishes is a dangerous and irresponsible failure of understanding.I expect our Government to be adults,people who will hold themselves errect and bear the burdens of truth, and this does not mean we are imperialist ,Facist,etc.These over the top charges make me wonder about the depth of understanding of those using these distructive words.It stikes me as as very young and immature teen who has heard a few new words and can’t wait to use them,and have no idea how foolish they appear .I am imbarrased for them most of the time.
Strong mature silence is quiet and deliberate in its action and words. Unity is in our best interest and I pray for a leap of comprehension on the part of America.
Shannon, you may find it interesting to know that two of the people who wrote the Federalist Papers (Alexander Hamilton and James Madison) went on to become bitter enemies. Madison switched sides so to speak, and joined Jefferson’s Republicans and denounced and worked against Hamilton’s Federalists, and vice versa. Once the Constitution was ratified, they did not work together as statesmen, but became politicians.
RE the statement by Seij De Leon: “Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.”
It is true that people can, have done, and will make mistakes in selecting their leaders via their voters’ voice; however, I fear how much WORSE it would be if the PEOPLE did NOT have the power to make these monumental choices…
Would anyone want the current leaders (or any leaders, for that matter) making these important choices of leadership for us? How much worse would that be? We, as a people, have the CHOICE to oust, what we perceive to be as, any bad lot of leaders at the voter’s box. This is what gives US the power. We must jealously guard it through our own education regarding our national history and our current events. This is what Benjamin Franklin meant when asked by a woman what kind of government the Founding Fathers had given the Country. He responded, “A Republic- if you can keep it.” His answer implies that we bear an ACTIVE responsibility toward maintaining our power as a people. Not only must we educate ourselves, but we must also actively exercise our freedoms through voting. We have been given a rich wealth of freedom and power through our national inheritance, but we cannot become passive because our inheritance will not maintain itself. We, as the ones who have inherited this great gift, have an ETERNAL RESPONSIBILITY toward ACTIVELY preserving it by being knowledgeable, diligent, and vigilant regarding its upkeep, or else it will be stolen from us while we slumber. We the People must insist upon learning about our inheritance of power and freedom, and preserving it through proper tending, or else it will surely wilt and die, yielding us nothing but disappointment and grief, making us very poor inheritors, indeed.
So, the truth of the matter is that if the PEOPLE did not make the choices of leadership, the outcomes would be far worse. I believe that is why the Founding Fathers put the “US” in the USA.
Amazing how forthright the Founders were and how devastated they’d be today.
There are certainly a lot of words and as my High School teacher said of my essays….”flowery pansies”….The speaking back then certainly were colorful.
In my mind I summed it up to: Together we are strong, separate open to prey..
In this section of Federalist 2 it seems to be their lack of foresight and elitism that America would be a people of thesame kind and equal in religion manners and customs…CJ
Federalist 2……
..”With equal pleasure I have as often taken notice that Providence
has been pleased to give this one connected country to one united
people–a people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same
principles of government, very similar in their manners and customs,
and…”
These paragraphs in 4 struck out at me: CJ
Federalist 4
…”But 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; for it need not be observed that there are PRETENDED as
well as just causes of war.
>>>>>>>>>>>>.
hostility and insult have been invited. CJ
>>>>>>>>>>>>
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; nay, absolute monarchs will often make
war when their nations are to get nothing by it, but for the
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, which affect only the mind of
the sovereign, often lead him to engage in wars not sanctified by
justice or the voice and interests of his people. But, independent
of these inducements to war, which are more prevalent in absolute
monarchies, but which well deserve our attention, there are others
which affect nations as often as kings; and some of them will on
examination be found to grow out of our relative situation and
circumstances….”
>>>>>>>>
…. “Have our wars been sanctified by justice……”CJ
…………
This is sad for our government has put us in this position…I fear today with this administration even more so.
America was so very young…… CJ
May 3, 2010 – Federalist No. 4 – Cathy Gillespie
Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 04, Federalist No. 04May 3, 2010 – Federalist No. 4 – Cathy Gillespie
Tuesday, May 4th, 2010
Hello from Virginia! I made it back from Texas in the wee hours of the morning, thanks to some thunderstorms and unexpected equipment on the runway at Reagan National Airport!
To all who have been posting – Thank you!! We invite all our visitors to add their comments! We love the sense of community, and are learning so much from each of you. If you have a question, please ask it, and if we can’t answer it, hopefully some of our blog participants can!
Federalist #4 elaborates upon a phrase stated in the preamble to the Constitution: ”We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
I’m reminded of a quote of a famous Texan from the 1970′s and 1980″s, Eddie Chiles, who said all he wanted the federal government to do was defend the shores, deliver the mail, and leave him alone! It is no accident that Eddie Chiles started his quote with “defend the shores,” and that so many of the first Federalist Papers touch on this theme of defending our country. It is one of the powers enumerated in the Constitution that the federal government is best equipped to perform.
The other quote that caught my eye was the last phrase: “……how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.” As citizens of the United States, the more common ground we can find with each other, the better. And the more educated our citizens are about the founding principles of our country, the easier it will be for us to find common ground.
Good night!
Cathy Gillespie
7 Responses to “May 3, 2010 – Federalist No. 4 – Cathy Gillespie”
Note in the preable it says, “promote the general welfare.” Not to provide for the general welfare.
A quote from Benjamin Franklin…” The Constitution only gives people the right to pursue happiness. You have to catch it yourself.” His saying reflects the ideology of the preamble “to promote the general welfare.”
Good Morning Cathy Gillespie and All !
In penning what was to become our national anthem, Francis Scott Key in 1814 at Fort McHenry, in his second verse and fourth verse, continued on the theme, “defend our shores” :
On the shore, dimly seen through the mist of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses ?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
‘Tis the star-spangled banner ! Oh long may it wave
O’er the land of the free and the home of the brave
Oh! thus be it ever, when free men shall stand
Between their loved home and the war’s desolation!
Blest with victory and peace, may the heav’n rescued land
Praise the Power that hath made and preserved us a nation,
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust.”
And the star-spangled banner in triumph shall wave
O’er the land of the free and the home of the brave!
May God bless us, preserve us and keep us brave and free!
The equality of all people stand on the OPPORTUNITY that our freedom provides. We all have the same OPPORTUNITY to “pursue happiness” without the overreach of government taking from one and giving to another. Everyone has the same opportunity to work hard and succeed, what one chooses to do with that opportunity is up to them. And if you think someone needs help use your money to help them don’t take mine(not that I have any) But I believe that we “reap what we sow” so I’m still sowing baby………
@Bill Kenagy—well said. There is a big difference between “promote” and “provide”. The next queston becomes–what did they mean when they wrote “general welfare”? As we know this also has been twisted and misconstrued throughout time to move towards “social justice” policies. I take it to mean “to promote the general welfare of the UNION”–again to protect and defend the Union from external and internal sources so it remains intact for all people within the Union to live peacefully and pursue their dreams without fear of disharmony, chaos, and war.
The conflict of promote and provide occurs within the constitution itself. The Preamble says promote while article 1 says provide.
@Julie Bedard: Well said on the issue of interpreting the “general welfare” of the Union. I have found that those truly well-versed on the Constitution know and understand that meaning to be for the protection of the Union from external and internal sources, NOT that we provide welfare to those in need within the Union, as is currently interpreted. My fear is that it’s proper meaning is not being taught in the schools…
May 3, 2010 – Federalist No. 4 – Janine Turner
Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 04, Federalist No. 04Tuesday, May 4th, 2010
Howdy from Texas! Welcome to our third week of “90 in 90 – History Holds the Key to the Future.” I can’t believe it is the third week. I thank you for joining us and for all of your thought provoking blogs!! I thank William B. Allen for his wonderful, insightful essays. How lucky we are to have his participation. Thanks William!
This is such an important collaboration! Spread the word about our national conversation and don’t forget to do the readings of the day with your children and/or loved ones! Also, don’t forget to encourage your children to join our We the People 9.17 Contest. Scholarships, Travel, Public Appearances!!
My interpretation of John Jay’s Federalist Paper No. 4 is unity provides strength and strength provides a strategic defense. A strong defense promotes peace, respect and profitable commerce. If a foreign country senses weakness or internal strife then it will be more likely to strike.
The wolf waits for a sheep to separates from the herd before it attacks, attacking only when the sheep is defenseless and without aid.
Relevant today? I say yes. Are we, as patriots, adequately united for the common good? Are we strong economically? Are we strong militarily? Are our representatives ready to face our adversaries with competence and preparedness? Are we truly united as brothers and sister, counties, regions, states? Are we so myopic in our domestic mire that we have lost sight of the wolf? On the wave of the wind wails the wolf. Do we hear it? Are we listening?
God Bless,
Janine Turner
2 Responses to “May 3, 2010 – Federalist No. 4 – Janine Turner”
The news coming out of New York at this very moment about the arrest of a suspect in the attempt to detonate a car bomb in Times Square indicates just how relevant John Jay’s Federalist Paper No. 4 is today. We must never let our guard down.
That our enemies all over the world are willing to and want to wage war as soon as we show weakness was demonstrated this weekend.
As the famous flag says so succinctly, ‘Unite or Die’.
Well said Janine Turner!!! and thanks for this opportunity.
Federalist No. 4 – The Same Subject Continued: Concerning Dangers from Foreign Force and Influence, for the Independent Journal (Jay)
Federalist Paper 04, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 04, W. B. Allen PhDSaturday, May 1st, 2010
Having established the “utility” of the Union for avoiding foreign wars, Publius proceeds to reinforce the argument in essay number four. In the second paragraph he acknowledged the claim that the United States should avoid inviting hostilities, insults, from other nations. But the third paragraph shows how difficult that might be. 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, nay that absolute monarchs will often make war when their nations are to get nothing by it but for purposes and objects merely personal… These and a variety of motives, which affect only the mind of the Sovereign often lead him to engage in wars not sanctified by justice, or the voice and interests of his people. What this suggests is that many of the wars that arise will do so because people having the power to make war or to a void war yield to temptations that we find perfectly ordinary in human nature. People see opportunities and try to take advantage of them.
We should question the causes of war and the premise that if we knew the causes it would be easier to avoid war. In this point, though, it seems that the very resource we relied upon in the beginning == namely, the people with the power to decide — is also one of the chief causes of war. People in office who yield to temptation happen to be one of the chief causes of war, and Publius reminds us of this.
This is not an aberration. All we need do is to expect leaders to be human to expect these causes to operate. That is not the exclusive cause of war. Publius is clear about this, but it is the most difficult to deal with. And in that respect we ask once again is the Union better at dealing with the causes of war? will the Union make it less likely that notional office holders yield to personal illusions that carry their nation into war? The significance of this is that with the national union our personal illusions come packed wait a far greater punch In spite of that, Publius argues that, yes, in spite of greater fire power, the greater temptations, the greater illusions, the answer is yes. How?
Publius does not claim to alter human nature one bit. He suggests, though, that we need to pay as close attention to the effect of the new government upon the governed as upon those who govern. There is a deterrence theory in essay four that suggests the response: “Wisely, therefore, do they consider union and a good national government as necessary to put and them in in such a situation as, instead of inviting war, will tend to repress and discourage it.” Then he repeats the argument from essay three, namely, that a Union will foster the involvement of the “experience of the ablest men” in the entire nation in guiding the nation. But he adds a caveat that was not in essay number three, namely, that “it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each.” That is a new argument, an argument that a government for the union can in fact create homogeneity where diversity existed previously: e pluribus unum.
Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.
28 Responses to “May 3, 2010 – Federalist No. 4 – The Same Subject Continued: Concerning Dangers from Foreign Forceand Influence, for the Independent Journal (Jay) – Guest Blogger: William B. Allen, emeritus dean and professor ofPolitical Philosophy at Michigan State University”
Those bumper stickers “War is Never the Answer,” and similar slogans always bother me because they assume that there are no humans who would ever choose war over peace. History proves that this simply is not true. I don’t know where I read it, but I remember reading sometime in the past several years that there have been at least two wars going on somewhere in the world every year of recorded history.
The idealistic left assumes that peace is normal and conflict is abnormal; in my analysis of history, conflict is normal and peace is an anomaly. We don’t even have to look at the history of nations; we can look at families, homeowners associations, clubs, and the like, and what we find is that conflict is normal and peace is not. When good nations have unilaterally disarmed in the name of peace, we normally find that war comes shortly thereafter. Therefore, we should always be prepared with a strong defense.
My question to you all: After reading #2-#4, Do you believe our Founders-if the came here in a time machine-would support or not support our being in the Middle East right now?
Most of me says no, but a small part of me says maybe. Any thoughts??
I find it very telling that the first four papers in defense of the new Constitution dealt solely with mutual defense and security! It is almost as if they wished the primary and dare I say almost the only purpose of the Federal government was dealing with external influences leaving the internal to the individuals and their respective States?
Isn’t it interesting that one of the main points in Federalist #4 is the balance of trade and the U.S. ability to supply ourselves with commodities once supplied by India and China. Times sure hve changed!
In answer to Shannon, who posed the question ….” would our founders support or not support our being in the Middle East right now? I think that at least some insight can be obtained by studying our involvement in the “First Barbary War 1801-1805″ and the “Second Barbary War 1815″. Based upon the bold actions taken by the young United States with it’s fledgling military at that time, I believe it is probable that the Founders would be in support of any action that has taken place in recent decades to protect American Citizens and American commercial interest. However, I suspect they would not have engaged in the level of police action and nation building that our modern time leaders have burdened us with.
I am going to miss John Jay’s writings in these Papers. I find his Papers very easy to read and very thought provoking.
Shannon, in paragraph 3, our conflicts with Iran and Iraq immediately jumped into my mind. Many speculate why we entered this war; national security, oil, democracy, many more views, and a combination of many. But with both Iraq and Iran, their leaders have expressed an ambition for themselves and their country that has enveloped the rest of the world. Unfortunately, a down side of the founder’s logic of being a strong union is that we have became too strong and we are depended upon by the rest of the world to intervene in global crisis. I do not believe our founders would have wanted this for their beloved Union, but could they themselves have prevented it given the cost of noinvolvement. As Edmund Burke, a supporter of the American Revolution said “All that is necessary for the triumph of evil is that good men do nothing”. If the Middle East conflicts happened during our founder’s time, we probably would not have become involved, at least not to the degree we are now. But given the domino effect of global fallouts today, I believe they would feel they had no choice but to intervene.
Why? In paragraphs 7 through 10, John Jay writes of America’s involvement with China and India, and how that trade involves other countries. He explains how this trade can irritate other countries with our success in commerce and in our navigation of the oceans that give America a greater share in the territories that they at one time monopolized. So even at this time, America was heavily involved in foreign affairs and commerce; the founder’s wanted to protect the Union’s stakes of interest in other countries and this was one of their reasons for the States to be unified.
The last paragraph could be taken from any Tea Party and Patriot Activist Guide Book today. Of the many Rallies, Town Halls, and Prosperity meetings I have attended, this is the rallying call: “If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.”
The Conservative Movement feels it is way past time to return America to her previous Glory. Was she perfect? No. And a lot of things changed to make her better and her people freer. But the change we did not need is our overbearing and non-transparent government, an overregulated and crippling trade policy, liberal agendas to dictate our military, our resources and finances in ruins, our credit in the toilet, our citizens losing freedoms to the NannyState and becoming quickly discontented and divided.
Was America perfect? No. But; she was the closest thing to liberty and freedom the civilized world had ever known.
I believe most of us on this site probably believe this, otherwise why bother being here.
@Bob Greenslade-before I get immersed in the next Federalist paper, I wanted to take a moment to thank you sincerely for your reply to my question about the Bill of Rights. It was an excellent read – one of the main reasons I’m on this site because of bloggers like you!
Shannon asks the question whether our Founders were to visit us would they or would they not support our being in the Middle East now? It is a good question and one we all should examine. I think the answer to this question depends on the faith we have in who our elected officials are and whether we are convinced of their resolve and purpose. Most of us do not have the time to research and totally understand such matters.
Unfortunately, at present it is doubtful that our leadership are capable of steering our country in the right direction. I guess in the end we will have to depend on God having control and guiding our leaders to make the correct decisions.
Remember the school yard bully? How that bully singled out and picked on the weak? There are always going to be the “school yard bullies” out there in the big bad world. Remember what happened when “the picked upon” banded together? You found out that the “school yard bully” wasn’t so big and bad after all and they turned to easier prey.
I think Publius makes an excellent point with his fleets of Britain and trade market competition. The corner on the trade market was held by Britain and the inference that human nature would not stand idly by and allow that hold to simply be taken from them by a small, relatively defenseless state or confederation merits a good understanding. When you are banded together with a common cause strength is realized and with that strength comes deterrence…something every “school yard bully” thinks twice about.
In the First Barbary Wars,family letters written by Daniel T. Patterson from the Tripoli Prison, Nov. 23, 1803 are fascinating. He was a midshipman, from the shipwrecked frigate Philadelphia and now a prisoner at the age of 17. The prisoners were kept in “a stone bulding, the walls very thick, it is about 20 ft. wide, 25 ft. high, and about 80 ft long, with arches overhead, the walls could scarely be distinquished from cob-webs, and dirt, it had formerly been used to dry hides in, and had never been cleaned out, the strings by which they suspended them are still hanging there. The light and air is admitted through a space in the top, about 4 ft.square, grated over with Iron Bars, by 2 small holes in the side wall near the top, which are almost choked up with dirt and a small grated window near the door, there was the ground for seats and an old sail spread for beds, this place was to contain three hundred persons, the doors shut every evening at sunset and opened at daylight when they want any fot the men to work, they arrange them all in a line and take those they like…but when they misbehaved they are bastionandoed, two small loaves of bread made of barley bran and as much water they can drink is all they live upon.” He latter writes that the Turks had 50-60 million dollars in their treasury, in unchained captivity 1,500 Christians…a demand of $3,000 per sailor for ransom is made to President Thomas Jefferson.
I find these letters from a young man held in captivity along with Captain Bainbridge and fellow officers enlightening. His words paint a picture of the demands of the First War of Terror on our newly founded republic and navy.
After reading the fourth paper, the last paragraph jumped out at me. It seemed as though it was written for today and how the world views us. Are we sure it was written in 1787? Talking about how foreign nations, “if they see that our national government is efficient and well administered…they will be more disopsed to cultivate our friendship than provoke our resentment…How much more true does that ring today?
I think this is a function of our founding fathers knowledge and understanding of human nature and realistic approaches to dealing with it. Whereas today’s ‘leaders’ wish try and impose their picture of an ideal. They ignore at their peril the human nature that resents and resists imposition of someone else’s picture of how we should be vice how we truly are; flawed and sinful.
I too, was taken with the past paragraph of #4 and how it rings true today. We must continue to show our strength and unity, if we do not and we continue on the path our current government is trying to take our Nation, we are going to keep losing the respect we once had from other Nations.
The last sentence of John Jay’s argument was echoed almost 100 years later by Abraham Lincoln: “A house divided against itself cannot stand.” (1858) This holds true today as well.
Three short points:
– first: We subsidize consumption and tax investment, which is “eating the seed corn.” It leads to poverty. Thus, a wholehearted second to Carolyn Attaway’s point above, in part quoting “our resources and finances discreetly managed, our credit re-established.” We must do this, and quickly.
– second: re Iraq and Afghanistan: both lacked a “strategy”; both were a full level below that, at “operations.” To distinguish strategy from operations, ask . . . “and then what?” as in, We capture Baghdad . . . and then what? We flatten the Taliban (temporarily) . . . and then what? Both operations implied nation-building, which was scarcely anyone was thinking about; and I believe it impossible by outsiders.
– third: In Washington, a “strategic plan” is neither; Washington abounds in incoherent scraps of strategy. A coherent strategy has 7 elements: context, assumptions, ends/objectives, ways/concepts, means/resources, The Plan, review-adapt loop. If we’d applied that template to Iraq & Afgh before moving in, likely we wouldn’t have done so. The best monograph I know of on this is at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=641 by a Dr. Harry Yarger.
I strongly suspect that the standing and respect we once had in the world has been declining for some time, at least since the close of the Marshall Plan (itself a big social spending program). It’s being going on long before the current administration.
Ron your second point is a function tieing our hands via the UN and limiting conflicts to police actions. War is not a sporting event in which ties are a good resolution to the game. War is a Darwinian evolution of the survival of the fittest.
Your third point is one of the things the world holds against us – a lack of continuity/consistency between administrations. Case in point the missile shield promised to eastern Europe in the Bush administration and reneged upon by the Obama.
Susan, you have apoint about the lack of continuity between administrations, but I do not believe our past presidents strayed so far from each other as our current President has. Whether Reagan, either Bush, or Clinton; I do not believe our Allies ever considered that the USA would sever ties with them, or desert them. Now, I believe they are unsure of their relationship with us. You mention the world holds this inconsistency against us, but the sad part is many of our own citizens hate America as much as our enemies do. I came across a liberal the other day that hated America so much she said it was time we became a 3rd World country and suffer the abuses we inflicted on other countries. Her history was so skewed, I could not make any headway with her.
So picking up Ron’s point of a strategic plan, I agree that we shouldn’t enter a war with just the first line of attack planned out, and then when that is over, you say “Now what?” I also realize that the world in constantly changing, and priorities are constantly changing, so National Security, our first and foremost proirity, needs to be constantly one step ahead of the world, and sometimes that is very hard to do. Ron, I look forward to checking out the link you provided. I joined Liz Cheney’s group “Keep America Safe”, and she and her contributors have indepth information on our current State of National Security. I haven’t been able to get to the site lately, but I recommend it.
Hello all…….There are so many problems these days it is hard to keep up.The question was asked about our waring in the Middle East… great question and a very tall one.I suppose to bring the war to them could be argued for,WE were attacked by an idology not a country,this is very unconventional and a bit elusive by our past experiences.Our tactics need to be contemporary ….(going back, when the English attacked us during the revolution they followed strict and cumbersome methods of war,marching in bright red coats, and were quiet horrified that the militias did not line up and march in neat lines as they attacked, they instead used slight of view, snipers, etc.War had evolved and the Brits fought (may I dare say ,in a bit of an old fashon way) .Are we in a similiar delema ,fighting terrorist who fade from full annoument of their presence sneaking up using our very freedoms against us.Perhaps we need to reconsider some of our tactics.One way I think this is being done are the drone attacks.I know there are those who have objection to their use , but I like using stealt as often as possible .
The mention of BIG government was also brought up. The thought that comes to mind over and over again when I see an attempt to control salt use,sweets , meat. fats and the such is the Temperence movement, and Prohibition. It was so against the Nature of humans and merely a product of the imaginations of the movers of Prohibition that we went right on doing what we knew was our own business.Crime rose and the repeal followed 13 years later. Of course this is a problems for sure but the most important problems we are facing is the Admin, taking control of Health Care, Banks, Financial markets, Car industry,errosion of Property ownership,wiping out contracts and so on and so on.We have much to right and thank God for our Constitution and the will of the people coming to life. This effort that has been offered to us by the contributers of the Constituting America site is a thrill.
I really like the attitude this takes toward war: that it’s not something we ever want to invite upon ourselves. Its nice to know that the creators and supporters of our constitution strongly believed that peaceful solutions could be reached. It’s obvious that the constitution did need to give consideration to our national defense, but still. Now, if only our government had this same attitude today…
This has been a wonderful opportunity to better understand what my ancestors faced, when they took their “Oath of Allegiance to North Carolina” at a Safety Committee meeting in Bute County (later to become Warren and Franklin Counties) in 1775.
My question is; Where have all the Statesmen gone?
They seem to have been replaced by patisan political thugs (result of career politicans?) that have usurped authority never granted them in the Constitution and have intentionally allowed our Nation to be invaded by a foreign forcewhich they hope will allow them to rip away the very last vestiges of freedom our Founding Fathers had intrusted to us.
When America wakes up and realises what her apathy has brought us, I pray it is not too late for the People to regain control.
Your posts give me hope that the United States can regain her way.
Having spent sometime overseas (government sponsored tours and college) and listening to my hosts, it was a generic theme even back in the 1970′s. At that time it was Viet Nam Kennedy had committed to them and Nixon backed out under domestic political pressure.
After reading the fourth Federalist Paper, I’m confused. John Jay sought to show how having a large, unified government would help protect the different states. He uses examples of how monarchies have started wars over personal matters and how three or four little governments aren’t as strong as one big one.
But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check? I don’t know if I missed that point or if it’s going to be further developed later…
wow the founding fathers were right in so many aspects about war, trade, and just life in general. This country now feeks that we need to be in everyones affairs where as many of the founding fathers felt we needed to stay out of europes affairs. I wish the government was like this today, and that we needed to stay united unlike the polotics of today
To understand fully Jay’s essays regarding foreign relations, it is important to look to the near future of his time. The new republic’s life blood was trade with Europe. While America was rich in staples such as tobacco, timber, indigo, and rice; our manufacturing was relatively non-existant. Basically, we traded our raw materials for manufactured goods. The Quasi-War with France and the War of 1812 with Britain grew out of the disruption of trade with those respective countries. When both countries began boarding, impounding, and confiscating our merchant ships, it became a potential cause for war. Adams was able to avoid a conflict in the late 1790′s through shrewd diplomacy; Jefferson also avoided conflict by implementing a disasterous embargo policy that plunged the new nation into an economic crisis; Madison was not able to avoid war as the war hawks like Henry Clay and John Calhoun demanded the U.S. go to war with Britain in 1812. And although the U.S. claimed impressment and trade violations as the ultimate reason for war; imperial designs on Canada were as much a factor as those sited. So, despite (or because of) Jay’s warnings in Federalist #4, the nation not only could not avoid war, but in the case of 1812, actively sought it out.
There are some great comments being made tonight. It is interesting, but in a way obvious (at least to me) that the first few Federalist papers dealt with national security. Not only is the primary purpose of the state to organize for war – something the indiviudal is least prepared to do of all government functions – it is in my judgment the best argument for why the various colonies/states needed to come together into a centralized arrangement – or as one of the founders put it, for their mutual protection and, and this is important, defense.
In the last section of the article, Publius makes a remark saying that basically, if we as a nation are strong and powerful, other nations will want to befriend us and not provoke us. At the time, this may have been a more beneficial concept. But now as we are a large world power it has not only earned better feelings from other countries, but their dependency on dealing with larger affairs that our founding fathers may not of foreseen, and in turn made things what some might consider worse for us. I think it is interesting how goals were met, but even with the very thorough analysis that is offered by the federalist papers not everything can be predicted such as foreign dependency.
I am very much enjoying this reading project and the blog. I read every comment each day. I have been meaning to read The Federalist Papers from “cover to cover” for some time now, and it is nice to have someone inspire me to get busy and do it. It is especially nice to get so many insights from others as I read. Thank you Cathy and Janine for sponsoring this.
In #4 the comment, “when a people or family so divide, it never fails to be against themselves,” keeps coming back to my mind.
There have always been different opinions and different sides of issues — some of them very nation-changing and serious — but I feel a lack of unity in our country at this time that alarms me. It somehow feels different and more hostile.
We are dividing against ourselves. We need to realize that we can disagree without the hostility. The “shape” of our nation will be irregular and asymmetrical as we all push and pull in the different directions that our hard-won freedoms allow. That is OK—it is even good. The harmony improves the melody. However, we need to remember that our center should be one.
re Tricia and her question: “But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check?” Only the congress candeclare war. it was true with FDR in 1941 and with W in 2002. Yjey both had to make their points with the people and their representatives in congress.
May 4, 2010 – Federalist No. 5 – Janine Turner
Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 14. Essays by Janine Turner, Article I, Federalist No. 05, Federalist No. 05Tuesday, May 4th, 2010
Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.
I thank Horace Cooper for his wonderful essay today. Thanks Horace!
I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.
In relation to the founding era and Federalist No. 5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.
As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.
So what is the relevancy of Federalist No. 5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again. Has the federal government planted its boots upon our thresholds too boldly?
I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people? Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16? I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.
It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.
The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.
God bless,
Oh, we have fixed it so all of the comments will be in the same place.. so please comment in the main essay’s comment box (the guest scholar of the day’s essay) from now on.. )
Janine Turner
May 4, 2010 – Federalist No. 5 – Cathy Gillespie
Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 05, Federalist No. 05Tuesday, May 4th, 2010
A big thank you to Horace Cooper for serving as our Guest Blogger for Federalist No. 5. Excellent analysis from Horace, and great discussion! Thank you to everyone for participating! I would like to share a few of the lines and thoughts from today’s post and blog comments that particulary resonated with me.
As many pointed out today, the Founding Fathers were visionary in their ability to look down the road and see what the future had in store for the United States. They had this ability because they were keen students of history, political philosophy, and human nature. David said it well, “Clearly, our Founders were men of letters who understood the precedents of their age.”
As Susan H. pointed out, history does repeat itself. Our founders understood that fact much better than we do today. These days we tend to believe we are immune to the cycles that every civilization has experienced throughout the ages. If our forefathers were with us today, they would certainly be able to predict our future better than we can ourselves!
Carolyn pointed out Horace’s last line, which I loved: ”The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.” I felt that summed up Federalist #5 perfectly!
I am continuing to learn much from you all! Thank you for taking the time to share your thoughts. Please invite others to join us!
Looking forward to Federalist No. 6!
Cathy Gillespie
PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
May 4, 2010 – Federalist No. 5 Concerning Dangers From Foreign Force and Influence (continued) Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation
Federalist Paper 05, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 05, Horace CooperTuesday, May 4th, 2010
John Jay continues explaining the need for a United States of America as opposed to either an association of 13 separate and individual states or a collection of three or four nation states. Jay explains his view that there were significant arguments in favor of a union, specifically by arguing that the recent experience with England and Scotland offer good examples of the benefits.
“QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the Union then forming between England and Scotland, which merit our attention.”
Taking up an example that may have been familiar in the eyes of his readers was a useful means for Jay to use to help voters understand the issues that were at stake. The situation facing Scotland and England provided an excellent rationale for the states to reconsider the developing position among some that a confederation or a breakup into separate states would be useful in the long term.
Jay concludes: “We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other.”
Moreover, the problem was not simply that 13 separate nations were never going to cooperate. Jay argued that even if the States were to divide themselves into as many as three separate nations, they would still face problems that would ultimately jeopardize the well-being of the entire people. ”Should 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, and the partial interests of each confederacy, instead of the general interests of all America, 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 live in the constant apprehension of them.”
In fact, it was Jay’s considered view that by their very nature there would be differences between the various nations now comprising the original 13 states; and that this would lead to disputes. Perhaps you could imagine one nation having more commerce, another more population, still yet another possessing larger navy. Whatever the differences might be – they could not be avoided because the nature of things would be that different influences would occur in each of the separate states — they ultimately would lead to conflicts or fear of conflict. If you increased the number of nation states from three to 10, you likely would only increase the risks of conflict threefold or more because success or failure by one nation would cause her sister nation to take notice and feel some obligation to adjust in response.
“Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them.”
Jay recognizes that having one nation would eliminate all of those peculiar instances at least in terms of their perception to other countries and greatly attenuate the potential for envy or fear to develop internally. Because as Jay recognized, nation states naturally are attentive to the concerns and changes that occur in other countries and tend to evaluate them in terms of whether these changes either advance or retard their own perceived interests it is useful to minimize them wherever possible.
“Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.” Jay concludes by pointing out that the very distance between the states and Western Europe made it more likely that any conflicts that would cause government leaders to take sides would occur here in the Americas and not with “distant nations.”
The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.
Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation
23 Responses to “May 4, 2010 – Federalist No. 5 Concerning Dangers From Foreign Force and Influence (continued) GuestBlogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation”
This experience has been fantastic! Thank you Janine and Cathy.
Now I am stumped. In 1786 John Jay argues for and attempts to secure specific and limited commerce for the Northeastern states with Spain. This was not his assignment either. I believe he was to negotiate rights for the entire confederation of 13 states with Spain. His actions, the Jay-Gardoqui Treaty, thankfully was never ratified.
One year later, he authors Federalist #5. He then argues AGAINST such a negotiation and specific treaty for a factional section of the states.
Can someone explain how this 180 seemed to occur? Who/What were the influences?
Good morning everyone,
I had a few thoughts as I read #5. Jay writes “The history of Great Britain is the one which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them.” I guess this just drove home the point that history does indeed repeat itself. It behooves us all to be students of history. I recently read a historical novel, The Constant Princess, by Philipia Gregoria. In that novel one of the constant worries of the King was invasion from the Scots in the north.
The other thought I had was in regards to the AZ contoversy. It feels like that state is being forced into a us vs. them position. Instead of the federal government looking out for the Union, they are forcing states to protect their own interests. Now you have other states looking to boycott and withdraw invetments, etc. Sounds to me just like what John Jay was warning against.
I continue to be impressed by the founding fathers.
Susan you are exaactly right the Federal Government has failed in it’s first responsibility and that is to protect our borders. This situation has existed for years it is not new. The border states have had to contend with the failure of the Federal Government and the other states have sat by and said it is not my problem. If we are to mantain this union we had better start thinking about what is best for all the states and not just our own. Texas has been at the for front of the EPA because of some of our emmisions but it is because we refine the majority of the oil and gas in this country if we did not the Northeast and Midwest would freeze in the winter and not have transportation. Remember the righters of the Federalist Papers were arguing for this Union with the Enumerated Powers in mind not this Government we see today.
Horace Cooper’s last line in his entry summed up Paper #5 for me; “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.”
I find it curious that I read this article on the day after I watched the 2nd part of the series “America – The Story of Us”. In the Series, the narrator explained how pioneers continued to expand the States through events such as the Lewis and Clark expedition, the Alamo, the Gold Rush and the Westward Movement in order to create a better life for themselves. The point that was constantly stressed that what made America so different from all other countries was the ability for their people to be free and that they could carve any life they wanted for themselves.
The Series went on to explain how Americans in the West wanted to be connected with the East, so with the existance of steamboats and the building of the Erie Canal, the expansion of commerce crossed the continent and had a major impact of the American way of life.
The great need for commerce and the economic differences between the Northern and Southern States led to a great discord within the Union. This difference eventually led to the Civil War.
I think of the Civil War in this Paper, because I wonder if the Founders had not pushed so hard to create a Union, if the Civil War would have ended differently. Would the Southern States have remained intact, or consumed into the Northern States after their defeat? Would the Northern States have had the right to demand the abolishment and expansion of slavery?
I find that the Founders relentless drive to form a Union may not have prevented disunity between the States, but the formation of the Union gave us an ending which could have otherwise been disastrous to America as a whole.
Like Great Britain, the individual States could have spent years upon years of internal fighting; disrupting any chance of expanding their trade and increasing their strength to be a profitable nation. Instead the Civil War could have turned into multiple civil wars, weakening the states resources to the point of becoming a target for foreign countries to attack. Would we even be a Superpower today?
Even today with the problems we are facing, there are faint whispers of state secession in the wind. I believe the Union should always remain intact. However; the powers the federal government currentlly holds should be scaled back and limited, and the state’s powers should be restored to their full capacity. Also, if the federal government fails to do its job in protecting the states from invasion (i.e. Arizona), then the states should have the right to protect themselves without federal naysaying.
Excellent comments by all on Federalist No 5. I cannot help but think that we are today experiencing a continuation of the argument that prompted Jay to write this piece. It seems to me that there is an effort to divide our country. It is amazing the number of so called pundits have written articles criticizing Arizona for the realistic passage of legislation suggesting that they wished to see the law upheld in their state. None of those who are protesting had any suggesting how to deal with the very real problems of murder, drugs, destroying of personal and public property to say nothing of the heavy burden of economic support demanded by the Illegal Immigrants.
If this attitude continues we will see division of our great country in different groups just as Jay is warning us about – and for many of the same reasons he mentioned. Why do we, the citizens, allow this to happen. The vast majority of us are in agreement with Arizona and believe the rest of the Union should support similar action. We are headed for a very bad ending if something is not done to change this attitude and direction that America is now following.
The whole problem we have today is the Federal Government with the aid of the Courts exceding the Enumerated Power it was granted under the constitution. If the government operated today as was intended under the original intent of the Constitution the Federal Government would not be involved in 90% of the issues they are involved in today. Just look @ the move today to revise the Clean Water Act to read “all” water instead of just the navigatable waters. With this change the Federal Government will have control of any water in the United States including Playa Lakes. Is this what the Founders intended.
No Chuck, I don’t believe this is what the Founders intended. We the People have the power to make a change at the ballot box. The critical question is will the “vast silent majority” get of “our collective duffs” and do something about it. I think websites such as this one and other venues promoting basic civics education may be the key.
Today’s Federalist Paper references the earlier letter from Queen Anne. An editorial I read today referenced even earlier the Magna Carta. Clearly, our Founders were men of letters who understood the precedents of their age. I surely wish our leaders today were as well versed. I would be pleasurably shocked to learn that any of our Congress were reading along with us.
I live in Texas. We are proud of our state, and our superior policy and good management. We are fiercely jealous of our state’s power and push back on the Federal Government’s imposition of policies and costs. In the context of today’s reading, if we were still a Confederacy, it is not hard to imagine that the current AZ brouhaha would lead us to side with her, against the neglectful central government. Heck, we do already!
Likewise, can’t you imagine Michigan or other economically challenged states looking enviously at Texas? It would be a war waiting to happen.
I found it interesting that Jay touted the strength of the Northern Hive against that of the southern states. Remember, he was writing to encourage New Yorkers to ratify the Constitution. Isn’t saying “we are more powerful than those lazy southerners” more of an argument against the Constitution? If this were today, and the writer was a Texan, I bet there would be many voices that said, “what do we need New York for?”
Excellent comments and observations, especially Brad and Carolyn. I sometimes hear people say the nation would be better under the Articles of Confederation because the states were independently sovereign. However, they don’t seem to realize the internecine conflicts between borders and commerce that would arise if this were the case. Jay and the other Federalists saw first hand what path a loose confederation of nation states were headed. Eventually, even the United States under the Constitution could not hold the union together without a bloody war.
Brad, I believe Jay thought that a 25 year moratorium on use of the Mississippi was reasonable at the time. The territories to the west of the Appalachians were still fairly sparse and perhaps he felt getting Spanish agreement in writing that the river would eventually revert to the U.S. was more important than instant gratification. Also, I don’t think he realized the deep resentment the southern states and western territories had for his negotitations until after the treaty was vilified and eventually not ratified. I think it speaks well to him that he realized the mistake that was almost made and changed his line of thinking regarding it.
To Brad Tepper, I am equally confused about John Jay’s apparent 180 on the virtue of states’ sovereignty verses a strong federal government. I look forward to others’ comments on this.
@ Carolyn. Re the Civil War. Would there even have been a Civil War if a Confederation had continued, with the slave states being soverign? Possibly not, but there might have been other wars between the various Confederacies. We just don’t know, because that’s not the path we chose.
We can look at current day Europe for an example of what might have been. Effectively, the EU is a confederation. Look at the problems that are occuring right now with the Greece situation. We can see the very things the writers of the Federalist were warning us against coming to pass in the EU. The other members of the EU confederation are becoming self centered now that they may have to rescue member Greece. They are asking why should they have to pony up money to rescue their member which has not been fiscally responsible. It will be instructive to see how that one plays out over the next months and years.
Today in The American Thinker is an article entitled “Declaration of Independence As Law”,
written by Ronald R. Cherry. It begins “Our American Declaration of Independence is the supreme, unamendable lawof the United States. Declarational law preceded and trumps our supreme, amendable secular law, the Constitution. As stated in our Declaration, the purpose of secular law (Constitution) is to secure our sacred, unalienable, equal, individual rights to life, liberty, and the pursuit of happiness–i.e., private property honestly earned through creative labor : ‘That to secure these rights, Governments [constitutions] are instituted among Men…’ While our Constitution and Bill or Rights are the greatest secular laws ever written, it must be acknowledged that our secular Constitution has a sacred mandate–the Declaration of Independence.
It’s well worth reading the entire article, the premise is sound.
@Ron, I think a civil war would have ensued eventually; just like today we do not like to see other people in other countries being mistreated or enslaved, the people of the North would have began to challenge the morality of slavery. It would still have been an issue.
Greece is a scary situation because the unions in that country have cuddled the Greek citizens for so long. The citizens are rioting in the streets for cut backs such as getting paid for 12 months out of the year instead of 14. Can you imagine?
john jay was a brilliant man who along with the other authors of the federalist papers helped to address issues that the american people felt needed to be addressed. the federalist papers however seem to address issues that hadnt even happened yet. . some of the federalist paers seem to forshadow the civil war that devistated this country. at this time the federal government was trying to force the country to become a union, and this along with issues such as slaverymay have caused the civil war in 1862
To Ron – that is an excellent point you bring up about the EU!
In my opinion Jay was prescient in using the example of the north being generally “the region of strength” and at some time in the future exert the power over the southern portions of the confederacies. They would not act as neighbors but as borderers, would be prey to discords, jealousies, etc. In short, we would be in exactly the situations which some nations want to see us – formidable only to each other. Was Jay talking about the future civil war?
@Ron, not only are we seeing what Jay wrote about happening in Europe, we are seeing it happening here on our own shores today. As he states in Federalist 4 . Now we were a nation that could defend ourselves, and provide ourselves with goods and not only that could now export these same goods to other countries cheaper than they could produce them. What has happened to our commerce? It has gone overseas. We no longer manufacture and export goods that are cheaper than other countries can produce. We no longer provide ourself with goods that we produce.
@ David. I agree. States wax and wane in power and if they were all independent of each other as under the Articles of Confederation, every state would have some resentment against the others for some past fight or jealousy.
Under the Constitution, the states can get along (to an extent). By being united as one entity, the separate states can still have their differences, but also work together during times of hardship, such as the Great Depression.
One of the extracts from the union in England states that a strong union will be able to resist any enemy. It also suggests that our union would be divided by the North and South from the very start. Hmm, it seems that the founding fathers hint about a civil war a lot…So, for the civil war, since part of the union became it’s own enemy, does that detract from our strength as a whole? I know it did at the time, but overall, was it for the best?
This paper seems to focus on the fact that it would be a burden NOT to separate ourselves from Britain. Wonder how parliment reacted to these papers.
What is important to conisder is the context – remember the Federalist Papers were printed/published in New York and were, largely, about persuading New Yorkers to accept the idea of a new nation with a new system of government. Virginia was the largest colony while Pennsylvania was probably the strongest in economic terms. Without New York the country could of – and probably would have – split into a northern country and a southern country. What Jay is doing here in one of the last papers he wrote is to build the case for unity from Massachusetts to Georgia. And he does a brilliant job, in my opinion.
A big thank you to Horace Cooper for serving as our Guest Blogger for Federalist No. 5. Excellent analysis fromHorace, and great discussion! Thank you to everyone for participating! I would like to share a few of the lines and thoughts from today’s post and blog comments that particulary resonated with me.
As many pointed out today, the Founding Fathers were visionary in their ability to look down the road and see what the future had in store for the United States. They had this ability because they were keen students of history, political philosophy, and human nature. David said it well, “Clearly, our Founders were men of letters who understood the precedents of their age.”
As Susan H. pointed out, history does repeat itself. Our founders understood that fact much better than we do today. These days we tend to believe we are immune to the cycles that every civilization has experienced throughout the ages. If our forefathers were with us today, they would certainly be able to predict our future better than we can ourselves!
Carolyn pointed out Horace’s last line, which I loved: “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.” I felt that summed up Federalist #5 perfectly!
I am continuing to learn much from you all! Thank you for taking the time to share your thoughts. Please invite others to join us!
Looking forward to Federalist No. 6!
Cathy Gillespie
PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
The reasoning in Jay’s writing is solid, there wouldn’t of been any other way to make this nation powerful without unity. But it wasn’t a problem free solution, even as the states came together there was still constant internal bickering mainly between the North and South concerning slavery. Had the United States not been formed, their would have been no single power to regulate decisions concerning slavery in newly formed states and separated states could have made chaos in fighting for what they want, earlier in time than just the civil war.
Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.
I thank Horace Cooper for his wonderful essay today. Thanks Horace!
I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.
In relation to the founding era and Federalist No. 5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.
As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.
So what is the relevancy of Federalist No. 5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again. Has the federal government planted its boots upon our thresholds too boldly?
I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people? Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16? I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.
It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.
The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.
God bless,
Janine Turner
5.4.10
The conflict in AZ today really brings home this issue of unity and states’ rights which is so important to understand if we are to protect our country. The federal government needs to get back to playing the role of protecting the states by enforcing the federal laws already put in place. By turning their back on AZ, they are essentially advocating the disunity. I never really understood how important it was to give the states rights to govern their citizens, yet have the federal government to protect and govern the states. I think the only hope is that people of America and especially AZ understand these concepts and educate each other on the consequences of disunity, and they not let our federal government forget the original principles as discussed in these papers.
May 5, 2010 – Federalist No. 6 – Cathy Gillespie
Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 06, Federalist No. 06Wednesday, May 5th, 2010
Hi everyone – thank you to Professor Allen for your enlightening essay! And thank you to everyone for your comments today.
I love the realism of Alexander Hamilton: “men are ambitious, vindictive, and rapacious. To look for a continuation of 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 ages.”
We are fortunate our founding fathers were well read students of history, philosophy and political systems. They understood that we, as humans, are imperfect, and that civilizations through the ages have fallen victim to the character flaws of their leaders and citizens, time and time again. The Constitution they proposed, with its delicate checks and balances, was designed to take man’s nature into account.
My favorite line from this essay was “Is it not time to awake from the deceitful dream of a golden age, and to 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?”
Over 200 years later, we, and the rest of the world, are still “remote from the happy empire of perfect wisdom and perfect virtue”-a state humans will most likely never attain. As we consider how we deal with Iran and other terrorist nations, we should remember Alexander Hamilton’s words, and not assume we can simply talk things out. These nations have not had the benefit of freedom. Oppression breads violence, and reinforces man’s darker side.
The United States of America, though, is one of the greatest humanitarian and charitable nations on the planet. How is that possible, given the nature of man as described by Hamilton? Our founders – we the people – designed a government based on Godly principles, ceding only enough power to the government to keep man’s darker side in check, but allowing the freedom necessary for our better qualities to flourish, and be brought to bear upon the problems facing our Nation and the world.
Cathy Gillespie
PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
May 5, 2010 – Federalist No. 6 – Janine Turner
Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 06, Federalist No. 06Wednesday, May 5th, 2010
Howdy from Texas! I thank y’all for joining us! Federalist No. 6 is yet another fascinating reading. Yes? I want to thank our Constitutional scholar, W.B. Allen, for breaking down Federalist Paper No. 6 with such superb detail.
Thanks Mr. Allen!
The complexity of this particular paper is mesmerizing.
I am enthralled by the examples of former empires, the rise and fall of these republics, and the reasons why. The relevancies in today’s reading are many but the warnings are simple and the question singular. How to we keep the United States of America from failing? The warnings from history provide wisdom. The republics of Sparta, Athens, Rome and Carthage were ruined by wars and greed, Holland was overwhelmed in debt and taxes and England and France were beleaguered by antipathy toward one another.
It is interesting to reflect upon the fact that one of the reasons Alexander Hamilton, John Jay and James Madison could make such brilliant observations is because of their superb education. Alexander Hamilton should be an inspiration to many who believe that one has to be born into wealth to receive such an education. I wrote about Alexander Hamilton’s mother in my book, “Holding Her Head High.” Alexander was raised by his single mother, who by example, taught him at an early age the art of business and the spirit of tenacity. Yet, he was very poor. When his mother died he was in desperate need of a new pair of shoes. He may have had no shoes but he had spirit, determination and true grit.
Are these not qualities that Americans hold “Near and Dear” – spirit, determination and true grit. These American characteristics were why we won the Revolutionary war and these are the qualities that keep America great today. We are a country, a republic, where one may dare to dream. We are a country where, according to our Constitution, no one may receive titles of Nobility. We are a country where a boy born in a single room log cabin becomes President, where men raised by single mother’s become President, to name a few examples. We are a country where vision, perseverance and willingness to work hard can nurture the seeds of talent, in any man or woman, to fruition. In this respect we are all equal. In this respect we must hold “Near and Dear” our free enterprise, which yields the vast fruits of commerce, industry and personal ingenuity keeping America vibrant, solvent and safe.
God Bless,
Janine Turner
5.5.10
P.S. If you want to blog about this piece please do so on the main blog on our guest scholar of today’s essay. We want to keep all comments there to promote a better flow of conversation. ☺
May 5, 2010 – Federalist No. 6 – Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University
Federalist Paper 06, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 05, Federalist No. 06, W. B. Allen PhDWednesday, May 5th, 2010
Federalist #6
Essay number five closed with recognition that what is decisive in human communities is the political distinction, the political identity. That settles the question of what is “near and dear.” That distinction lies at the root of warfare. It follows accordingly that one lessens the chance of war by setting thins up so that people will call the same things “near and dear.” This means, at a minimum of course, that when people seek to resolve their most important questions they will all expect the authoritative answer to come from the same source. They will all appeal to the same Solomon.
None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans. This is made clear in essay number six, in which Publius speaks explicitly against utopian speculation.
Men, he argues, are ambitious, vindictive, and rapacious. They are so because they differ regarding the things that are near and dear to them. One reacts to those things which are not one’s own more under the influence of those passions of ambition, vindictiveness, or rapaciousness than with in respect to what is one’s own. The founding seeks to insulate this characteristic in human beings by teaching some set of human beings to hold the same things “near and dear.”
Note, too, that the statement about human character does not add the familiar phrase, “by nature.” It is not necessary to conclude that human nature is evil in order to see that certain evil (fallenness) is attached to human nature. There is another view that human nature itself is evil, that is sometimes falsely attributed to Publius. This very negative portrait of constitutionalism makes it appear that the whole purpose of the constitution is to prevent Americans from doing all the evil they can to one another.
The first essays in The Federalist Papers convey exactly the opposite picture: it is admitted that evil is possible; it is admitted that government is necessary; it is admitted that people do violence; it is admitted that there are causes of war rooted in human nature; but there is still the positive endeavor, which is the real driving force of this founding, and that is the endeavor to build a nation of one people who call the same things near and dear.
This emerges clearly in the third paragraph of essay number six:
The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society: Of this description are the love of power or the desire of pre-eminence and dominion – the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed, though an equally operative influence, within their spheres: Such are the rivalships and competitions of commerce between commercial nations. And there are others not less numerous than either of the former, which take their origin intirely [sic] in private passions: in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members.
These separate categories that Publius has listed all relate to one another, but the most important thing about them is that they are distinct, separate. The love of power, to take an example, is different from the private passions. The rivalries and competitions of commerce also differ from private passions. In a manner of speaking, these factors may not be passions at all, they may be perfectly rational. If by passions, we mean what is not rational, then we cannot call all these things “passions.” That means that the causes of war are not necessarily irrational.
To imagine that wars come about only because of failures of reason is probably one of the greatest mistakes. Some wars are thoroughly rational. Above all, ina case wehre people palce themselves ina situation to invite war. Let’s remember essays three and four: “the nation must place itself in such a situation that it will not invite war.” It will invite friendly intercourse, not war; which is why prosperity is a precondition for peace rather than a consequence of peace.
Having made that distinction, and having distinguished the private passions from other conceivable causes of war, we now note that the private passions are not less interesting because they are arational. For they bear upon the question of public opinion, and the preceding discussion turns almost entirely upon the question of public opinion.
In paragraph seven of essay six Publius again discussed the general clauses and examples of wars, now focused on the United States. He remarked that great national events sometimes are produced by petty personal matters, and he described Daniel Shays of Massachusetts as a desperate debtor. Then he added that it is much to be doubted whether there had bee a rebellion had Shays not been a desperate debtor. Thus, Publius wonders out loud whether the brief civil war was caused because a desperate person was carried away or because a person of enormous capacity for leadership was desperate. Accordingly, private passion must be taken into account no less than rational opportunities. If Shays with his talent had not been made desperate, he had not organized thousands of debtors and farmers.
In the next two paragraph Publius set up a measure of the distance what he called visionary or designing men, on the hand, and the hardheaded realists of political life on the other hand:
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 humours which have so often kindled into wars. Commercial republics, like ours, will never e 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.
What a lovely, visionary portrait of the modern dispensation! But Publius rejects it, no matter how close it comes to the view that prosperity is a precondition for peace. Publius says that it is not enough to form a republic and to practice commerce. In fact, he responds to both issues, when he wonders whether “it is not the true interest of all nations, whether republics or not, to cultivate the same benevolent and philosophic spirit.” Commerce may well soften manners, but it equally well provides new occasions for jealousies, new occasions for conflict. In short, Publius rejects the new and modern principles of the enlightenment, that greater human understanding will eliminate causes for war.
Publius’s argument is particular to the political organization of the untied States. Our discussion emerged from considering domestic violence. Publius examined commerce among the states, but noted that the commerce would not disappear because of Union. The only difference is a difference in practice or habitude. The various states (New York, New Jersey, Connecticut, say) would experience the same necessities. But under the Union they would all turn to the same source for help when problems arise. They would call the same thing near and dear by turning to a single Solomon. IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.
W. B. Allen
Dean and Professor of Emeritus
Michigan State University
27 Responses to “May 5, 2010 – Federalist No. 6 – Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”
I found it very striking that he brought up the jealousies that can and will occur between states due to successes. Is this not what is happening today with our jealousy of corporate America? We want the fruit of other’s successes.
I was also moved by this paper because, to me, it seems to reflect upon the current unrest and calls for dissension by a few states. We look to each other (as states) and want what others have or don’t worry about other’s problems because we don’t see them as our own. Hamilton knew so many years ago that this could be an issue.
The first five papers argue for the primary reason for government defense of the people. Now in six it is posited that the next reason for a national government arbitration between the sovereign states to peaceably resolve differences. They do not start from the belief that man is inherently good, argue from the knowledge that man is inherently flawed and sinful and will often act from any of the seven deadly sins (greed, lust, etc.)
B. Franklin once said, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” I believe the life of every American citizen and or state was and is impacted by the whole, ie. one nation. Relinquishing a liberty for the short term forsakes longterm security. “We must indeed all hang together or most assuredly, we shall hang separately.” This famous quotation by Benjamin Franklin is a principle our Founding Fathers agreed to not only as a nation but personally by pledging their fortunes, families, and honor. Who today would be willing to take such an oath as this?
Susan I really like how you brought a central theme for the first 5 papers. Good thought!
Hamilton’s sentences are long and more involved than John Jay’s, and take more concentration on my part. The essays and commentaries on each Paper condenses the information, bringing out the highlights. I am so enjoying this series.
None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans.
— So he is saying that America is not prefect that we are always going to have wars. But we need to control the war in a political way?
After reading Alexander Hamilton on #6, I realize how much I miss John Jay’s writings. John Jay was very concise, whereas I find Hamilton’s words very flowery. It reminds me of when Abigail Adams told her husband “John, people know you are highly educated, you don’t have to remind them in your speeches.” I guess I am going to be an unhappy camper for awhile
That being said, there were 2 phrases that jumped out at me: “A man must be far gone in Utopian speculations who can seriously doubt that,” and “There have been, if I may so express it, almost as many popular as royal wars”.
One definition of Utopian is an ardent but impractical political or social reformer; visionary; idealist. I believe we are experiencing this mindset today regarding our national security. Many believe we only need to discuss our differences with those that oppose us and we can solve all our problems. This is unrealistic for many reasons, and as Hamilton explains, this logic forgets that some men are ambitious, vindictive and rapacious for no other reason than human nature. Hamilton realizes that most people strive for a Utopia, but he writes that because of the many causes of hostility between nations, this place is seldom, if ever found.
The second phrase regarding popular versus royal wars, reminded me of when the majority of Americans supported the IRAQ war, when their passions ran high and demanded action for the horrendous crime committed on our soil. The outcome of this war has split our Nation after several years because of many reasons, and now many question why we entered the war in the first place.
@Bache Today, only about 50% of the American population if you take in consideration that about 47% now receive some form of government entitlement.
@Carolyn, I so totally agree with you on the styles of the two writers. Hamilton requires my complete attention. That being said, I am so impressed with how the Founding Fathers have anticipated all these problems in the future.
The Federalist Papers , as other commenters have pointed out, were directed toward a New York readership in hopes of bringing them into the camp that was arguing for a strong national government. Hamilton in particular wrote from a point of view that didn’t play as well in other parts of the country. This I think was particularly true of Paper #6 as some perception has been (both past and present) that he trivalized and mocked the plight of a very large portion of the citizenry when he labeled their protests as disturbances, revolts and rebellions. These people who had been made destitute by the war and by subsequent economic depressions, felt severely oppressed by their government. Those in position of power demanded payment of obligations in gold or silver. Many soldiers, farmers and other contributors to the war effort found themselves after the war undercompensated or even unpaid entirely for their sacrifices. The continental notes at that point in time were devalued to the point that they were widely considered of little or no value. The courts confiscated property to settle debts and many found themselves in debtor’s prison. A few protestors found themselves hung for treason! In this paper Hamilton mentions situations in three of the states ….North Carolina, Pennsylvania and Massachuetts. In his commentary Professor Allen identifies for us Shay’s Rebellion as the Masssachuetts’ incidence. I believe the disturbance in Pennsylvania that Hamilton alludes to would be the “Fries Rebellion” which is were the people were being assessed taxes for the number of windows they had in their homes (this was way before they had tanning beds). I presume, but may be doing so wrongly that the reference to North Carolina was referring to the establishment of the temporary and unrecognized State of Franklin which was located at what is today eastern Tennessee, but which was at that time considered a part of western North Carolina. The Federalist Party took political hits from their opponents due to the perception they were often against the common people in these various events and others. In saying all of this, I have no intentions of taking away or minimizing the enormous contribution that Hamilton made in leading our country to a magnificient republic with a constitution that is enequaled and has long endured the test of time. Hamilton is certainly deserving of the great honor bestowed upon him as a ” Founding Father.”
Hamilton speaks directly to the weakness of the federal government under the Articles of Confederation in this essay: “Let the point of extreme depression to which our national dignity and credit have sunk,…from a lax and ill administration of government.” The loose confederation under the AOC is causing the new found freedom established by the Declaration of Independence to be threatened both without and within. Only under a new government such as proposed by the as yet ratified Constitution can prevent the discord among the states (such as Shay’s Rebellion) from ruination.
I too need assistance with Hamilton’s writings, so I want to thank professor Allen for his helpful comments. I was struck by his use of what is “near and dear” to us as a nation, our political identity, what truly holds us together as Americans. That identity has been under such terrible attack by so many for so long, that it has undermined our unity as a people. Now we are being pushed into groups, not so much warring states, except for Arizona, but isn’t that really a group identity issue, too. It is not the states at war so much as the political groups we are being made to identify with and to feel are more important than anything else. Aren’t people thinking of their political identity with their group, rather than with America as a whole? Aren’t we being set up here with the shift to think of what is “near and dear” to our group, rather than to our country?
Howdy from Texas! I thank y’all for joining us! Federalist No. 6 is yet another fascinating reading. Yes? I want to thank our Constitutional scholar, W.B. Allen, for breaking down Federalist Paper No. 6 with such superb detail.
Thanks Mr. Allen!
The complexity of this particular paper is mesmerizing.
I am enthralled by the examples of former empires, the rise and fall of these republics, and the reasons why. The relevancies in today’s reading are many but the warnings are simple and the question singular. How to we keep the United States of America from failing? The warnings from history provide wisdom. The republics of Sparta, Athens, Rome and Carthage were ruined by wars and greed, Holland was overwhelmed in debt and taxes and England and France were beleaguered by antipathy toward one another.
It is interesting to reflect upon the fact that one of the reasons Alexander Hamilton, John Jay and James Madison could make such brilliant observations is because of their superb education. Alexander Hamilton should be an inspiration to many who believe that one has to be born into wealth to receive such an education. I wrote about Alexander Hamilton’s mother in my book, “Holding Her Head High.” Alexander was raised by his single mother, who by example, taught him at an early age the art of business and the spirit of tenacity. Yet, he was very poor. When his mother died he was in desperate need of a new pair of shoes. He may have had no shoes but he had spirit, determination and true grit.
Are these not qualities that Americans hold “Near and Dear” – spirit, determination and true grit. These American characteristics were why we won the Revolutionary war and these are the qualities that keep America great today. We are a country, a republic, where one may dare to dream. We are a country where, according to our Constitution, no one may receive titles of Nobility. We are a country where a boy born in a single room log cabin becomes President, where men raised by single mother’s become President, to name a few examples. We are a country where vision, perseverance and willingness to work hard can nurture the seeds of talent, in any man or woman, to fruition. In this respect we are all equal. In this respect we must hold “Near and Dear” our free enterprise, which yields the vast fruits of commerce, industry and personal ingenuity keeping America vibrant, solvent and safe.
God Bless,
Janine Turner
5.5.10
@ Carolyn…….You have a way of putting into words exactly what I am thinking after reading these papers. I can’t thank you enough for your contributions here.
Laurie stated “Aren’t people thinking of their political identity with their group, rather than with America as a whole?”……and I couldn’t agree more. We need to stop thinking about issues on a “Right” or “Left” (or Republican vs Democrat) basis and get back to doing what is right for America.
I personally enjoy Hamilton’s writing style. He uses difficult but valuable words that an earlier reader would have understood quicker than us. I am reminded of the difference between Spanish and English. Spanish tends to use more, easier, words while English uses longer, meatier words. The net result is that Romance language writings take more space. Just imagine how long this Paper would have been if Jay had written it!
I find it interesting that Hamilton invokes Shay’s Rebellion. Again, I find it timely. DESPERATE DEBTOR Daniel Shay was largely desperate and in debt because his government had levied such high taxes. Massachusetts levied high taxes to pay off their war debt. So crushing was the tax burden that citizens insurrected against their own government!
The experience was fresh in Hamilton’s mind as he became the first Secretary of the Treasury. It spurred him to address the National debt (not independent State debts), ultimately forming the First Bank of the United States.
I think the rebellion is timely, because our present government is likewise saddling us with debt. How long will it be before we are inflicted with crushing tax rates? How long will it be before Tea Parties become Shay’s Rebellions? Well, at least to the mainstream media!
I mentioned before the biography of Alexander Hamilton by Andrew Chernow. It’s very readable, as you’d want while straining the Federalist Paper soup. If you read the few chapters on Hamilton circa the post-Revolution and pre-Constitution, you might have even more insights.
@ Maggie . . . Thank you so much for your kind words. I, too, enjoy everyone’s contributions to this site. I have learned so much already!
I totally agree with getting back to doing what is right for America but remember we must think in terms of the Enumerated Powers of the Federal Government and not what has become today a total Federal System that has usurped the power of the States and the People.
After completion of the Federalist (and possibly Joseph Story’s Commentaries on the Constitution), I would recommend reading a biography of Alexander Hamilton. He had one of the most fascinating careers in American Politics. Unfortunately, he has been cast as the “villian” of the Founding Fathers, but our political, economic, and governmental system is more in line with his vision than that of Thomas Jefferson and James Madison.
Hamilton wrote the Federalist Papers with little editing, making the finished product all the more impressive. (When he grew tired of writing, his wife recorded his dictation). He was also instrumental in creating the initial cabinet departments (he was the first Secretary of the Treasury), and in establishing the Presidency as a powerful policy-making branch of government, rather than simply an adminsitrator for Congress. Evidently, Jefferson and Madison envisioned a British-style Parliamentary system, where the leader of Congress would also be the leader (i.e., Prime Minster) of the US Government.
Alexander Hamilton is probably the most misunderstood of our Founding Fathers.
Two phrases struck me in Prof. Allen’s post. First, “prosperity is a precondition for peace rather than a consequence of peace.” Second, “IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.”
As I mentioned a couple days ago, with respect to the first phrase, conflict is normal & peace is abnormal. Where properity doesn’t exist in the world, nations are run by dictators and seem to be in a state of constant civil war. Increasing prosperity does seem to have helped us avoid civil war for the past 150 years. Now, though, it seems that some of our countrymen are setting up prosperity as a straw man to be attacked and vilified and drawn and quartered in the name of peace through equal outcomes. Instead we should praise God for the prosperity that has enabled us to be the most generous nation on the face of the earth and the nation that other nations call upon to bring them peace.
As to the second phrase, I wonder, what is the SINGLE SOLOMON upon which we might all, left and right, agree upon today that might nullify the internal conflict that is beginning to tear us apart? Troops in combat have that single Solomon, which is that they shed their blood and endure personal hardships for their comrades; that makes them a Band of Brothers. We don’t seem to have that single thing that makes all Americans feel like a Band of Brothers; we don’t endure much hardship together and we certainly don’t have each other’s backs to watch out for. Remember Curly from City Slickers who said the secret to life is ONE THING; Mitch asked what the one thing was and Curly’s response was “that’s what you’ve got to figure out.” We’ve got to figure out what our one thing is. While we might all agree on the qualities that Janine mentioned as those American hold near and dear, they appear important, but not sufficient, today to be our single Solomon. It seems that we, collectively, need to agree upon that before we can overcome our current internal conflicts. Anyone have any ideas on that Single Solomon? Or, as Curly might say, that one thing?
David, Hamilton addressd both the national AND the state debt. His assumption plan incorporated all the individual state debts with the national debt. The federal government would assume all the debt and pay off the interest only at a guaranteed rate. This would establish good credit with the rest of the world and insure that the wealthiest classes of America would be heavily vested in the success of the United States federal government: a very shrewd plan that worked wonders at putting the new nation on solid financial ground.
But you are right about early hints at his eventual policy in Federalist #6. I think he was saying that if the debt crises created by individual states financially at odds with one another were replaced by a government that did something like assume all of their debt, perhaps Shays would not have had a reason to rebel.
Would like to make a correction to a tidbit in my earlier post this afternoon. I had speculated that Hamilton was referring to the “Fries Rebellion” when he alluded to a late menacing disburbance in Pennsylvania. Well that was wrong since this rebellion took place about twelve years after the ” Federalist Papers” were written. It’s a small matter, but does anyone know what event Hamilton was referring to ? My initial thought had been the “Whiskey Rebellion” of western Pennsylvania, but that took place later also.
Roger, Hamilton was referring to an incident in the Wyoming region of Pennsylvania where a group of people were trying to separate with other local regions to form their own state. It was serious enough that the Pennsylvania legislature resolved to call out the militia if things had gotten worse. See the minutes of the the legislature below:
http://www.archive.org/stream/minutesofgeneral178790penn#page/n11/mode/2up
Bringing up previous regions and unions that have experienced internal conflict… What is it with the federalist papers authors and the idea of an imminent civil war? This subject was touched upon in all of the federalist papers so far, and it was mentioned in the Constitution. It’s like they are psychic or something… just kidding, but I do find it strange.
Roger Jett, if your previous assumptions about the rebellion were wrong, which one is it referring to? Any further insights?
In response to Ron Meier. There is no “one thing” for all individuals and that is what I believe Curly was trying to tell Mitch. The reference to Solomon to me refers to the Solomon of the Bible. To answer Ron’s question about “my one thing” is my belief in God and His power to heal our nation if we will simply pray for Him to do so. I ask each person who reads this to do exactly that tomorrow at your local meeting to observe our National Day of Prayer. A special thank you to Janine and Cathy and may God bless you all for participating here and for trying to return our great nation to it’s rightful place as our Creator intended.
That may be the “one thing” we’re lacking as a nation, Jim. “One nation, Under God.” It is being undermined every day.
Hi everyone – thank you to Professor Allen for your enlightening essay! And thank you to everyone for your comments today.
I love the realism of Alexander Hamilton: “men are ambitious, vindictive, and rapacious. To look for a continuation of 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 ages.”
We are fortunate our founding fathers were well read students of history, philosophy and political systems. They understood that we, as humans, are imperfect, and that civilizations through the ages have fallen victim to the character flaws of their leaders and citizens, time and time again. The Constitution they proposed, with its delicate checks and balances, was designed to take man’s nature into account.
My favorite line from this essay was “Is it not time to awake from the deceitful dream of a golden age, and to 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?”
Over 200 years later, we, and the rest of the world, are still “remote from the happy empire of perfect wisdom and perfect virtue”-a state humans will most likely never attain. As we consider how we deal with Iran and other terrorist nations, we should remember Alexander Hamilton’s words, and not assume we can simply talk things out. These nations have not had the benefit of freedom. Oppression breads violence, and reinforces man’s darker side.
The United States of America, though, is one of the greatest humanitarian and charitable nations on the planet. How is that possible, given the nature of man as described by Hamilton? Our founders – we the people – designed a government based on Godly principles, ceding only enough power to the government to keep man’s darker side in check, but allowing the freedom necessary for our better qualities to flourish, and be brought to bear upon the problems facing our Nation and the world.
Cathy Gillespie
PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
Many of you have commented in a similar way to mine today. My initial reaction to this paper was that Hamilton’s argument made sense, but upon reflection realized that even the holding the same “near and dear” can’t always keep the states together – we had a Civil War after all! From disagreements over land in the early days of our nation to today when states and other governmental entities are fighting Arizona over its own state law and states taking sides on the constitutionality of health care reform, we will never get rid of the personal and “momentary passions” that afflict man.
We’ve come through disagreements before and united in times of crisis – I hope we will do so this time!
The nature of life is antagonism. Life is war; war is life. Why? Because of our fallen nature. As long as there is Christ and Satan at work in human endeavor, there will always be conflict. Alexander Hamilton knew this. We need limited government to protect the innocent and powerless from those that would abuse their power.
As a Christian, my life is governed by the Lord. If I abide in Christ (or if I am strong in Christ), then it is very hard for Satan to tempt me or influence me. If I am an unbeliever or weak in Christ, it is much easier for Satan to disrupt my life.
If a nation is morally weak, this invites attack from other nations. The Marxist remedy is to concentrate on education (liberal propaganda) and redistribution of wealth and a mega government that solves all of our problems and everything will be fine and dandy because there is no such thing as Original Sin. The Christian remedy is to repent of our sin, seek God and the Lord will heal our land–and then the Lord will raise up righteous men to govern the nation.
When the Israelites were in sin, they wanted a king to govern them just like the nations around them. But this is being conformed to the world. Mosaic Law and to be ruled by the judges were what the Lord wanted for the Israelites. But sin breeds more selfishness and more blindness, and so they wanted a worldly king (King Saul). The Lord told Samuel that Israel did not reject Samuel, but they had rejected the Lord and the Lord’s plan for their lives. King Saul ended up being one of the worst kings in the history of Israel.
This Obama Administration is another King Saul. If the United States turns back to God, the Lord will raise up another King David, so that we can get rid of demonic strongholds in high places.
Obeying the Lord is internal government; the U.S. Constitution is external government. The internal must come first before the external can be effective.
May 6, 2010 – Federalist No. 7 – Janine Turner
Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 07, Federalist No. 07Thursday, May 6th, 2010
Howdy from Texas. I thank you for joining us today! I, also thank Professor W.B. Allen for his essay. As I was reading his essay today I realized how grateful I am that he has graced us with his wisdom and that he, and our other guest scholars, have so deftly interpreted the meaning of the Federalist Papers. Isn’t it wonderful?
I hope you are checking out the Daily Behind the Scenes Videos that I am filming, editing and uploading every night! They are on the website – it’s the box on top of the “90 in 90 = 180” box – the top, center of the home page. I am wearing a red dress. I am really enjoying filming this every night and writing the daily essays, but I am getting no sleep!!!
Cathy, my co-chair, has written such inspirational essays. Thanks Cathy. You are a true American Patriot – as are all of you who are joining us! Please spread the word about our “90 in 90” and our “We the People 9.17 Contest” for kids!!
Today’s reading continues to focus on union and the danger we would face from Europe if we did not unite.
Strength in numbers and unity through diversity is a true American-ism.
One of the greatest miracles is that America won the Revolutionary War, but also, and no less importantly, that America survived her infancy and was directed by brilliant forefathers who were touched by Divine Providence. The United States Constitution was a miracle as well.
There are a couple of Alexander Hamilton’s phrases that caught my attention today:
The spirit of enterprise which characterizes the commercial part of America, has left no occasion of displaying itself unimproved.
“The spirit of enterprise..” this is the heart and soul of Americans. We were hard working survivors with an independent streak that gave us the courage to cross the oceans to live in an inconceivable wildernesses and the adventurousness to cross the plains in covered wagons to endure an untamed land. Americans were of a fearless stock driven by an unbridled spirit.
And we still are.
This is why Samuel Adam’s words still ring true to the American soul – a soul that was built upon generations of mavericks:
The redistributing of wealth and pooling of property are despotic and unconstitutional.
Americans thrive on the spirit of free enterprise and the freedom to pursue it.
The government must not cripple America’s genius.
God Bless,
Janine Turner
5.6.10
P.S. If you would like to respond to this essay please go back to the guest scholar of the day’s blog. We may converse together as one there…
May 6, 2010 – Federalist No. 7 – Cathy Gillespie
Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 07, Federalist No. 07Thursday, May 6th, 2010
Welcome to Federalist No. 7 – 90 in 90 = 180: History Holds the Key to the Future!!!!
Are you all watching Janine’s Behind the Scenes Videos? http://gallery.me.com/janineturner62#gallery Tonight she gives a shout out to the Constitutional Scholar Guest Bloggers!
Please check these videos out for the lighter side of Constituting America! You will be glad you did!
In Federalist Paper No. 7 Alexander Hamilton explores possible causes of tension, disagreement and outright warfare between states if joined as a loose confederation instead of through the proposed U.S. Constitution.
Territorial disputes, trade disagreements, apportionment of the public debt of the
United States, “laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them,” and differing alliances between various states and foreign nations, are all listed as divisive factors which could prove destructive without a central arbitrating force.
The fact that even with the ratification of the United States Constitution our country could not avoid civil war, validates Hamilton’s concerns that without the Constitution, the natural tensions between states would eventually erupt. Thanks to the founders’ wisdom and vision, even with civil war, the United States Constitution lit the path for the healing and reconstruction of our Nation.
It is hard to imagine what the United States might have looked like if the Constitution were not adopted, but the founding fathers envisioned a future similar to Europe, and they knew they did not want to emulate the European countries. “From the view they have exhibited of this part of the subject, this conclusion is to be drawn that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all.”
Our current leaders would be wise to assess if it is any more attractive today to emulate Europe than it was over 200 years ago. As we chart the course for the next two hundred years, we must choose if we embrace the U.S. Constitution and the founding principles of our country, including “The spirit of enterprise, which characterizes the commercial part of America.” This “unbridled spirit” as Alexander Hamilton referred to it, is part of what has made the United States a great nation. Will we bridle our spirit of enterprise and drift from the Constitution and our founding principles? And what will our Nation look like in 200 years if we do? Our founding fathers could most certainly predict the outcome, and if we read these papers carefully, we can too.
Cathy Gillespie
PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University
Federalist Paper 07, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 07, W. B. Allen PhDThursday, May 6th, 2010
Federalist # 7
Publius in the seventh essay of The Federalist Papers focuses entirely on examples of the kinds of disputes that could, in the event of disunion, reduce the United States into a replica of the European wars that had long colored that continent.
The examples cover territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers. In each of these examples Publius adopts the probable reasoning of prudent statesmen, not predicating intrinsic hostilities among the states but rather arguing from the operations of interest and the resentments of injuries real or perceived.
His point is simple and clear: without a trusted judge either to settle such disputes or to obviate them altogether through uniform rules where appropriate, there would be no ready instrumentality of resolution. Sometimes the disputes would be regulated through negotiation. But at other times, as occurs elsewhere, they would eventuate in conflicts that remain unresolved save through war. Publius’s point is not that war among the states is a likely prospect, but rather that the habits of independence and self-reliance would eventuality develop into hardened positions that would not admit of easy resolution.
The arguments developed especially in essays two through six, therefore, receive their concrete political application in a consideration of the actual circumstances of the states and the effects of their contiguity. What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force. He concluded:
The probability of incompatible alliances between the different states, or confederacies, and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of the all. Divide et impera must be the motto of every nation that either hates or fears us.
The force of the argument is immediately discernible in the eventualities o the War for the Union of the 1860s, in which not only the differences among the states produced eventual warfare, but the prospective intervention of foreign powers was seriously bruited and nearly obtained. Stated plainly, the Union was created for the sake of the rights of self-government described in Federalist one but also to grant Americans space to grow in peace.
W. B. Allen
Dean and Professor Emeritus
Michigan State University
21 Responses to “May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”
I am still thinking about Shays “rebellion”. Quite frankly, I feel that Shays got a really bad deal. From my reading, he was a Revolutionary War veteran of much decoration having served in several theaters with distinction. He seemed to desire to return home and live out his life in peace UNTIL such time that the state of Massachusetts had other ideas. Did the elite “intellectuals” in Boston really believe they could tax and tax to death the common man to ruin? Shays pleaded for reconsideration and relief from this new oppression. What he must have been thinking to face a new taxing tyrant.
Hamilton and Jay are correct to point out the dangers leading man to revolt. In this case, though, the state of Massachusetts was able to take care of this problem on its own. Albeit in a way that I feel was disgraceful. Gov. Boudin’s actions were tyrannical. Thank goodness Hancock replaced him soon enough to restore calmer heads and unified the state. It is a fallacy to think that a greater Federal Government was needed at that time. What was needed was a smarter and more humane state government. I feel that Publius falls short in argument here. I feel that this is not a good example where a unified central government would be more productive in local affairs.
Note our current state of affairs. We the people do not need more oversight on a local level pushing its weight around.
This part of Hamilton’s essay jumped out at me as I read…”There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.” Truer words were never written. We battle over money and who pays more tax and who gets more benefits from those taxes EVERY DAY.
So far in the past two Federalist Papers (6 and 7) I’ve seen nothing to suggest that the National Government was to regulate and control commerce between states. What I see is a proposed arbitration and adjudication of differences between the sovereign states.
Maggie, I would have to agree with you on the accurateness of the quote by Hamilton. Not only is it distasteful to have to pay taxes to a government that carelessly uses the money it receives from it’s hardworking citizens; but to have to pay mandatory taxes for causes that many believe are unconstitutional or wasteful, is adding even more salt to the wound. Case in point, the current HC Reform bill, and sending taxpayer money to the World Bank to bailout countries like Greece.
Which brings me to the statement that was written with a highlighter on it: “The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity.”
All I could think of when I read this statement was CALIFORNIA. Today, through the policies and laws the state of California has adopted, this state has crippled their economy to the point of backruptcy and now cries “FOUL!” California demands that her sister states bail her out and pay for her bad decisions. The other states, especially those who have watched their budgets and acted prudently in good times to help themselves through the bad, bristle at the charge that they must pay for California.
Without the Union, I believe the majority of Americans would allow California to fail. Hopefully, because of the Union, California can be assisted but with very strict conditions. California needs to take the New Jersey route.
The stated mission of “Constituting America” is to educate America about the validity, necessity and Providential Divinity of the Constitution. On this National Day of Prayer let us pray for the success of this mission. As Janine Turner says “we must not let those who devalue freedom to dominate the debate.” Before we debate though …. let us be sure to pray for wisdom…. learn all we can and can all we learn …. discern truth and preserve it …. be absolutely sure we are right …. and then …. by all means …. go ahead !
@Maggie – leapt out of the page at me, too!
@Susan Craig – I believe these were written to show the merit of the proposed Constitution. Yesterday’s Federalist No 6 began,
“THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind–those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions.”
So rather than proposing a system of arbitration and adjudication, or regulation and control of commerce, these last two papers describe the sorts of conflicts that The Constitution could prevent. Or perhaps mitigate. “Adopt The Constitution and these sorts of problems between States won’t occur [as much]“.
I hope I didn’t misread the intent of your comment. I’m sorry if I did.
I also like how Dr. Allen summarizes this:
“What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force.”
Nicely stated.
@Carolyn…….I immediately thought of California as well. We’re in a rather sad state of existance here in Michigan as well due to the auto industry. I agree that we need to help each other out, but we also need to make sure that bad policy NEVER allows this to happen again.
Yes what I was driving at is the current iteration of our government is seemingly intent on control of the national commerce not arbitrating differences between states. As I’ve read these papers the regulation and control of what business can and cannot be was States purview and any disagreements between States were to be adjudicated or arbitrated at the Federal level. I do not see Department of Labor and I certainly do not see a Department of Commerce that can and did tell a man who wanted to grow wheat for his own families consumption that he was in violation of interstate commerce laws.
Carolyn, While I am not going to argue with you about California’s budget issues, I am going to take exception to saying we want the other States to bail us out. Yes California is a mess right now partly due to the uncontrollable spending habits in Sacramento and the stranglehold the environmentalists and unions have on us. Another very large part of our problem are illegal immigrants and the fact that the Federal government is not doing their job in securing the borders and dealing with the fact that border states pay dearly for having illegal immigrants. Our Governor has asked the Federal government to pay for incarcerating the illegal immigrants that commit crimes and are sent to jail. This amounts to billions of dollars annually.
As in Arizona, we have a huge problem with illegal immigration in California and the Federal government is choosing to do nothing. It is time for the Feds to step up.
@Debbie – I was referring to back in January of this year when Gov. Schwarzenegger asked for a federal bailout up to $8 billion. According to the Hill, “the California gov’t. knows they can’t raise taxes significantly without further destroying the state’s economy to generate jobs. With that option virtually eliminated, the governor is looking for help from outside the state; from the rest of us. Bail us out, he says, or we will end our welfare-to-work program and eliminate services for the elderly and the disabled.” The reports I read did stress that the majority of the voters didn’t favor a bailout, but approx. 33% did.
I agree that the Federal Government needs to step up on illegal immigration. It is creating a huge problem in all states, but mostly in the southern border states. With those borders open, anyone from anywhere can enter the USA.
Carolyn i agree with you on the problem of illegal immigration but part of the problem in California is that eventhough your Governor has ask the Federal Government to pay for the cost of the incaration of the criminal element involved in illegal immigration it has done very little to confront the problem itself such as Arizona has done. As long as the legislature in Sacramento continues to tax and spend and to encourage illegal immigration as it has done the problem will continue. Each state has it’s responsibility to uphold the Union as well as it’s own soverinty.
Chuck, I was replying to Debbie. I am not from California. I agree with you about the taxing and spending in California, and I realize that illegal immigration is a problem.
The original point I was trying to make is that California has the 8th largest economy in the world, so even though it is a state, it’s economy is larger than most countries. Saying that, some legislators feel California is too large to fail, and if we do let it fail, the effects will be felt globally. Look at the impact Greece is making. Many say California is Greece three years from now, if things do not drastically change.
From everything I read, California is also one of the highest in taxes, so they cannot tax their citizens anymore. Therefore, the Gov. requested a Federal Bailout. If California is awarded a Federal Bailout, it will be paid from the taxpayers of the other non-crisis states. Also, from what I read the states are reluctant to bailout California for many reasons, but 2 of them are 1) States are trying to save what money they have for their own needs, and 2) California refuses to change it’s liberal programs if awarded a bailout.
i agree with what carolyn and chuck said. immmigration is not the federal governments responsibility. In my opoinion it shpuld be on the state, its their responsibility to keep the country in working order. The uniuon itself keeps the states in check, and without the union, states would turn on eachother.
@ Joshua……I don’t think that Carolyn and Chuch and saying that immigration is not the Federal Government’s responsibility…..on the contrary, it is very much their responsibility. They, however, are not living up to their responsibility. The problems already exist with too many illegals and incarceratiion issues. Since the Feds refuse to due their job, AZ HAD to take matters into their own hands. California wants to boycott AZ….forget trying to get them to help themselves and deal with the illegals on a state level. The point I believe that others were trying to make is that 1) California needs to deal with the illegals to try to better their own situation and 2) California needs to change it’s incredibly liberal entitlement programs…..these two things need to happen before a national bailout will do anything other than throw money down the toilet.
Sorry….I meant to say “Chuck”. I’m typing too fast.
@Joshua. Unfortunately or fortunately, however you want to look at it, immigration is the federal government’s responsibility. However, the federal government is not doing its job, therefore, the states are left to take care of it. Because the government is turning a blind eye to its duties to the states, the states are turning on each other. I find it reprehensible that this president is misstating AZ’s law since it follows the federal law and by misstating the facts, he has helped incur the anger on both sides of the illegal immigration issue.
Please correct me if I am wrong.
Howdy from Texas. I thank you for joining us today! I, also thank Professor W.B. Allen for his essay. As I was reading his essay today I realized how grateful I am that he has graced us with his wisdom and that he, and our other guest scholars, have so deftly interpreted the meaning of the Federalist Papers. Isn’t it wonderful?
I hope you are checking out the Daily Behind the Scenes Videos that I am filming, editing and uploading every night! They are on the website – it’s the box on top of the “90 in 90 = 180” box – the top, center of the home page. I am wearing a red dress. I am really enjoying filming this every night and writing the daily essays, but I am getting no sleep!!!
Cathy, my co-chair, has written such inspirational essays. Thanks Cathy. You are a true American Patriot – as are all of you who are joining us! Please spread the word about our “90 in 90” and our “We the People 9.17 Contest” for kids!!
Today’s reading continues to focus on union and the danger we would face from Europe if we did not unite.
Strength in numbers and unity through diversity is a true American-ism.
One of the greatest miracles is that America won the Revolutionary War, but also, and no less importantly, that America survived her infancy and was directed by brilliant forefathers who were touched by Divine Providence. The United States Constitution was a miracle as well.
There are a couple of Alexander Hamilton’s phrases that caught my attention today:
The spirit of enterprise which characterizes the commercial part of America,
has left no occasion of displaying itself unimproved.
“The spirit of enterprise..” this is the heart and soul of Americans. We were hard working survivors with an independent streak that gave us the courage to cross the oceans to live in an inconceivable wildernesses and the adventurousness to cross the plains in covered wagons to endure an untamed land. Americans were of a fearless stock driven by an unbridled spirit.
And we still are.
This is why Samuel Adam’s words still ring true to the American soul – a soul that was built upon generations of mavericks:
The redistributing of wealth and pooling of property are despotic
and unconstitutional.
American’s thrive on the spirit of free enterprise and the freedom to pursue it.
The government must not cripple America’s genius.
God Bless,
Janine Turner
5.6.10
Welcome to Federalist No. 7 – 90 in 90 = 180: History Holds the Key to the Future!!!!
Are you all watching Janine’s Behind the Scenes Videos? http://gallery.me.com/janineturner62#gallery Tonight she gives a shout out to the Constitutional Scholar Guest Bloggers!
Please check these videos out for the lighter side of Constituting America! You will be glad you did!
In Federalist Paper No. 7 Alexander Hamilton explores possible causes of tension, disagreement and outright warfare between states if joined as a loose confederation instead of through the proposed U.S. Constitution.
Territorial disputes, trade disagreements, apportionment of the public debt of the
United States, “laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them,” and differing alliances between various states and foreign nations, are all listed as divisive factors which could prove destructive without a central arbitrating force.
The fact that even with the ratification of the United States Constitution our country could not avoid civil war, validates Hamilton’s concerns that without the Constitution, the natural tensions between states would eventually erupt. Thanks to the founders’ wisdom and vision, even with civil war, the United States Constitution lit the path for the healing and reconstruction of our Nation.
It is hard to imagine what the United States might have looked like if the Constitution were not adopted, but the founding fathers envisioned a future similar to Europe, and they knew they did not want to emulate the European countries. “From the view they have exhibited of this part of the subject, this conclusion is to be drawn that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all.”
Our current leaders would be wise to assess if it is any more attractive today to emulate Europe than it was over 200 years ago. As we chart the course for the next two hundred years, we must choose if we embrace the U.S. Constitution and the founding principles of our country, including “The spirit of enterprise, which characterizes the commercial part of America.” This “unbridled spirit” as Alexander Hamilton referred to it, is part of what has made the United States a great nation. Will we bridle our spirit of enterprise and drift from the Constitution and our founding principles? And what will our Nation look like in 200 years if we do? Our founding fathers could most certainly predict the outcome, and if we read these papers carefully, we can too.
Cathy Gillespie
PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!
So, does this mean that any future “territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers” will fall to the hands of the Supreme Court? It said that there should be a judge, so I assumed Supreme Court or the judicial review.
In response to @Joshua’s comment, if the federal government IS failing to do that job, wouldn’t the next logic step be that the immigration power goes to the states?
From our initial founding document!
We hold truths these to be obvious and beyond reproof. First God created all men equal, granted them rights; some of them being life, liberty and the freedom to strive for happiness. Second, our Government is instituted to protect and secure these rights; retaining power only with the consent of the governed. Third, When the government disregards its purpose and becomes destructive of these undeniable rights, it is the Right of the People to alter it or institute a new Government.
I like what Janine Turner wrote:
“Americans thrive on the spirit of free enterprise and the freedom to pursue it.
The government must not cripple America’s genius.”
Faith in God is freedom. Non-faith is sin–which is slavery. The opposite of faith in God is faith in human convention that rejects God (Marxism, big government). Slaves (Marxists) want to make slaves of other people because this is what their fallen natures dictate (“dictate” is an appropriate word, don’t you think? Somehow it reminds me of the word “dictator”).
Free enterprise comes ultimately from some faith in God. I believe the Hand of God works much more smoothly and effectively in a free-market economy than in a slave (Marxist) economy.
May 7, 2010 – Federalist No. 8 – Cathy Gillespie
Federalist Paper 08, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 08, Federalist No. 08Friday, May 7th, 2010
Thank you all for another week of wonderful insights!
Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at www.constitutingamerica.org
A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.
Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?
What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.
Have a great weekend, and wishing you all a wonderful Mother’s Day!
Cathy Gillespie
May 7, 2010 – Federalist No. 8 – Janine Turner
Federalist Paper 08, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 08, Federalist No. 08Friday, May 7th, 2010
Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.B. Allen for his astute interpretation. After reading both Federalist Paper No. 8 and Professor Allen’s essay here is what I have gleaned:
With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our new republic would be monitored and governed by the people instead of military figures.
This was truly an enlightened and inspired experiment.
Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.
To quote Alexander Hamilton:
“Even the ardent love of liberty will, after a time, give way to its dictates..”
“To be more safe, they, at length, become willing to run the risk of being less free…”
If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.
“They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”
War was thus incompatible with the new industriousness of the American people:
“The industrious habits of the people of the present day, 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, which was the true condition of the people of those republics.”
Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.
Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.
In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in a state of awe. The experiment of liberty and union, though bruised along the way, has remained vital.
Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.
Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.
If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.
Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.
God Bless!!
Janine Turner
May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New York Packet (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University
Federalist Paper 08, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 08, Federalist No. 09, Federalist No. 10, W. B. Allen PhDFriday, May 7th, 2010
Federalist #8
The eighth essay presents a hypothetical case of a dis-United States. But it is the general argument that has been built that is germane to understanding the argument. Publius is aware of a “new politics” that has come to be, but Publius is no less aware that it will not produce perfect wisdom and virtue. That creates the moral and practical dilemma of defending the creation of a powerful government, one capable of “harmonizing and assimilating” diverse peoples and interests, while recognizing simultaneously that the government will not make people virtuous and wise. We wonder how to justify doing so, because we wonder whether there is any guarantee of a government’s goodness apart from the virtue and wisdom of its people.
The answers to all these questions, it seems to me, are conditioned on a single premise, namely that one refer to the consequences of the government and not its operations. Now, the chief consequence is peace where war would otherwise prevail. It is true that governments that are energetic – powerful governments – affect the characters of the people they govern. That is a necessary condition of energetic government, a fact that Publius makes clear. We may admit two facts, then – namely, that people will not be made virtuous and wise and, further, that government will nonetheless be driven by public opinion.
Publius calls it an idle theory or “utopian speculation” to imagine removing human weaknesses, but we still question, not whether theories of humans transformed into angels are correct but, rather, the reason for confiding all authority in society into the hands of imperfect human beings and ignoring all the other claims to rule that have existed in human history. There have been claims based on age; claims based on strength; claims based on reason, on wisdom, on piety. Why must we reject all those to place the entire society into the hands of what may be the foolish and the vicious, as Publius has done?
From this perspective even the principle of descent in a monarchy may seem intelligent. For, though from time to time an occasional stupid bastard will be born king, most of the time men get fairly decent, well-bred people (which in the absence of better guarantees is at least something to rely upon) and thus may hope for stability if not good government. The alternative seems to be to submit to rule by people that are not going to be improved by government and that might not govern well. Publius reserves the response to this dilemma to later essays discussing the operations of government. Still, he has raised the stakes very high in this argument, showing that, while the government will not itself make people virtuous and wise, it is nevertheless wise and virtuous to construct such a government.
The eighth essay allows Publius to demonstrate the propriety of such an undertaking in the hypothetical context of an America disunited. For, though no one knows how the experiment will work in the end, it is still possibly to speak at length about the opportunities afforded by modern principles (as he anticipates the elegant ninth essay!). He draws a firm distinction, noting that “the industrious habits of the people of the present day, 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…” Thus, the Americans will not have the old fashioned virtues, based on the martial spirit in small republics of ancient times.
But that observation serves only to augment the question, how does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue? That such reflections introduce the eventual and ultimate response to the question of domestic violence is of great significance. Essays nine and ten deliver the conclusion. But the end of the introduction in the eighth essay firmly establishes that what we desire to now is precisely how turning power over to the people (defending popular government, self-government) produces the promised prosperity and peace without changing human nature. One might almost think it to mean that human nature is no mean thing to begin with!
W. B. Allen
Dean and Professor Emeritus
Michigan State University
27 Responses to “May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New YorkPacket (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”
The worldview that Hamilton argues from is the fallen condition of man, this worldview has been warped into today where the self-esteem worldview insists that man is inherently good. This is sharply in contrast to all men have value in an inherently fallen condition.
In reading Paper #8, I could not help but notice that a lot of the arguments Hamilton made to convince his readers of the need for the states to have a Federal Government, can be used today as a defense against our war against terrorism.
The following statement brought to mind the Patriot Act that was written into law on Oct. 26, 2001, shortly after the attack on New York. “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”
Many Americans did not oppose this legislation at the time of its creation because the attack on American soil created a great fear of possible repeat attacks and Americans were greatly concerned for their safety. Nine years later, more Americans find the Patriot Act outdated and an intrusion into their private lives.
Today, I believe many are in the ‘Utopian speculations’ that we discussed in Paper #6.
@Susan – I agree with you that today the overplayed importance of self-esteem has warped our society and has taken us from the mindset of “The needs of many outweigh the needs of one” to “The needs of one outweigh the needs of many”. The majority in this country are quickly being stripped of their rights to meet the rights of a few. Whoever thought the toy in a happy meal would put extra burdens on a parent and keep them from giving their children healthy food?
“The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”……ok…I find this just too eerily close to what we have been doing here in the U.S. Under the guise of “keeping us safe” the government has convinced us for far too long to keep handing them more and more of our liberties.
Sorry for the partial repeat of Carolyn’s quote reference. My computer is running very slowly today and her blog post had not yet come through at the time I wrote mine. It just causes me to reiterate that she has a knack for writing exactly what I am thinking.
This is Cathy Gillespie – that quote leapt off the page to me as well!
@Maggie – great minds think alike
The part that really makes me sit up and take notice are the liberties that are being stripped domestically in the guise of “We know what is best for you”. And all these concerns come in the form of regulations and taxes. Is our government today going the way of the Stamp Act of 1765? And; will the American people follow Patrick Henry’s stance against it?
Professor Allen poses an excellent question: “How does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue?” This, it seems to me, is one of the most important and ongoing issues in the life of the nation. Can we, in fact, force people to be wise and virtuous in the name of preserving the construct of the nation? There are those who believe we must – and on both sides of the ideological divide. There are others who believe that people have the right to be wrong, to be stupid, to be unviruous. This is one of those places where, it seems to me, it is often hard to thread the needle of liberty.
Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry is own weight, this is a frightening prospect.
Eleanor Roosevelt
Freedom is the sure possession of those alone who have the courage to defend it.
Pericles
Just a few thoughts on the value and price of freedom.
Howdy, it’s Janine. I want to say to Carolyn, Maggie, Susan and Peter.. it’s great to have you guys blogging on our site everyday. Great comments! Thank you! I am learning so much.
Thank you Janine for putting this site together for all to learn and study our founding documents. I saw your interview on FOX and started with the site on Day 1. I cannot tell you how much I enjoy reading my assignment every night and then getting the opportunity to talk to everyone the next day about what we read. Your guestbloggers have been so informative, and very helpful in understanding what was written. I have learned so much already, and what amazes me most is how timeless our documents are; they could have been very easily written for today!
This is a Wonderful Website..I just read about it last night in Human Events, Conservative Spotlight, and checked it out. This is JUST what I have been looking for, as I have recently decided to study the REAL constitution. I’ve been reading, of all things, the Politically INcorrect guide to the Constitution and have been reading those parts of the Constitution as I’ve progressed. Your 90/90 project is GREAT!! I know I’m jumping in a little late, but intend to pick up at this point, May 7, and move forward. In order for us to return our Country to the Principles of the Founding Fathers, we have to know what those principles are, and the reasoning behind these principles. The Founders had differing points of view about what direction to take this country, Federalist v Nationalist, and many of the arguements made back then are being repeated now. I agree it is vitally important for our children to be taught the REAL history of the United States, not the Liberal, America is bad history that is being taught now. Thank you, Thank you!! for this wonderful site.
Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.B. Allen for his astute interpretation. After reading both Federalist PaperNo. 8 and Professor Allen’s essay here is what I have gleaned:
With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our newrepublic would be monitored and governed by the people instead of military figures.
This was truly an enlightened and inspired experiment.
Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.
To quote Alexander Hamilton:
“Even the ardent love of liberty will, after a time, give way to its dictates..”
“To be more safe, they, at length, become willing to run the risk of being less free…”
If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.
“They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”
War was thus incompatible with the new industriousness of the American people:
“The industrious habits of the people of the present day, 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, which was the true condition of the people of those republics.”
Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.
Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.
In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in astate of awe. The experiment of liberty and union, though bruised along the way, has remained vital.
Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.
Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.
If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.
Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.
God Bless!!
Janine Turner
5.7.10
Barb, It’s Janine. We are happy that you have joined us!
It seems that this one quote has impacted more than one of us today: “To be more safe, they at length become willing to run the risk of being less free.” Obviously, what is happening in our country today makes us more sensitive to this quote than we might be if we were not living in the age of the progression of entitlements to the levels we see in the EU, with Greece being an example of what can happen if we allow what is happening in our country to progress to that extreme.
A second quote that got my attention was this: “The desire to shed the characteristics of the “old world” was very strong in our founders, who were not far removed from living under those types of governments.” Today, we are far removed from those types of governments and many of our brothers and sisters seem to be wanting us to move in the direction that our founders wanted us to move away from. If more of us had a better knowledge of history, or a knowledge at all, and if more of us knew what we few who are going through this exercise are learning, perhaps we would see through the eyes of our founding fathers. Let us pray that, at the conclusion of this 90/90 exercise, we can see through those wise eyes as clearly as they did.
Well said Ron! Thanks for joining our 90 in 90!
Carolyn, I need to address your application of the Patriot act to the quote “To be more safe, they at length become willing to run the risk of being less free.” That is why every time a limiter is needed for safety we have put ‘sunsets’ into them when enacted. Habeus Corpus was suspended for a while during the Civil War. One of the things that brought down Woodrow Wilson was his abuse of free speech during WW I. FDR is still reviled for the restrictions placed on people of Japanese descent even though it is provable that some were active for the Japanese Empire. He decided that in order to continue to dedicate the needed resources to prosecute WW II he did not have the need resources to investigate individually all those of Japanese descent so he decided to quarantine the probable source of espionage and sabotage. The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.
I did not post this yesterday as I did not wish to hunt on that rabbit trail while discussing Federalist 8.
Thank you all for another week of wonderful insights!
Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at http://www.constitutingamerica.org
A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.
Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?
What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.
Have a great weekend, and wishing you all a very Happy Mother’s Day!
Cathy Gillespie
Susan, I appreciate your feedback on the Patriot Act. The point I was trying to make was when the Patriot Act was signed into law, most Americans felt that the safety of their country was more important than the need to restrict our government from possible communications information. I wasn’t trying to define the Patriot Act in everything that it did, just that most people supported it at the time even though some claimed it gave the Federal Government to much freedom into communications and records. Today, there are some who claim that parts of the Act give the government to much authority.
I believe 16 sections of the Patriot act were set to expire unless Congress decided to extend them. After much debate, Congress passed a bill in March 2006 which renewed the Patriot Act but implemented additional safeguards for civil liberties. 14 of the 16 measures were permanent, but the roving wiretap provision and the FBI access to business records were extended only until 2009. Then in February 2010, Congress passed a one-year extension on three expiring Patriot Act provisions which were:
–Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
–Allow court-approved seizure of records and property in anti-terrorism operations.
–Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
I don’t know how much more civil they were; there are stories of Senators or Representatives going after each other with their walking sticks.
True, but don’t politicians always balk. I always find it interesting how a politician finds a law or rule wrong when he is in the minority, but a similiar rule when he is in the majority is the right thing to do. (Not all politicians, but quite a lot) I would find it interesting to see which Congressmen voted against the Patriot Act, but are for Net Neutrality.
I agree Carolyn that that would be a fascinating statistic! General observation would suggest that the number would be high.
Item three was (I think) not necessarily to go for the lone nutcase but to cover instances of a singular person sent out like a sniper. Snipers function on their own but are part of an overall strategy. All of the others I believe were caveated with a predicating contact with known terrorist or sympathizing entities.
Like Barb Zakszewaki, I read about this site in Human Events. I just completed reading all the blogs made to date. Now I am going to Barnes & Noble in Chattanooga, Tn with a list of books that will help me keep up with this program. Thanks for making this site available and best of luck.
I have been following this course of study since the very first day. It is so moving that the Founders were so insightful for the future of this great country. I have also been uplifted by the fact that so many other bloggers have had the same thoughts as I have had . And , of course, the guest bloggers ‘ interpretations have been most helpful to me.
As I read the Federalists Papers, I am amazed at how pertinent they are to this day and age.
I thank you all for sharing your thoughts .
@ Carolyn. You are right on the money with this: “The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.” In fact, most of the rights its critics are complaining about are ones that do not exist – i.e. for non-citizens. Carolyn’s later summary was a very good one. The final point about enabling surveillance against a non-U.S. citizen engaged in terrorism is true about the latest legislation, but it should not be a requirement for non-citizens. However, given the courts’ unprecedented intrusion into this war’s prosecution it is probably necessary.
Yesterday my fifth-grader grandson noticed this web site up on my laptop and asked me if I was reading the Constitution. He eagerly explained to me that they were studying about the Constitutional Convention. So, he and I got out his Social Studies book and went through it. To my surprise, the book got most of it right, especially the statement that the most important principle underlying the Constitution is individually liberty. My joy was dashed when I came across the following explanation of the First Amendment: “It also says that the government cannot promote or financially support any religion.” And this is at a Catholic academy. However, the textbook is a CA standard one. In my opinion, it would have been better had they just used the simple wording of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Found another surprise in his textbook – the last three lines of the second stanza of “America The Beautiful”: “God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!”
Self-control and liberty in law. How pertinent.
@Carolyn: Our ‘wonderful’ Congress has just removed the “sunset” from the Patriot Act!!! Them’s fighting words.
May 10, 2010 – Federalist No. 9 – Cathy Gillespie
Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 01, Federalist No. 09, Federalist No. 09Monday, May 10th, 2010
Thank you Professor Knipprath for yet another enlightening essay!
In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”
Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.
This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:
“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; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”
I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”
Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.
Looking forward to Federalist 10!
Cathy Gillespie
May 10, 2010 – Federalist No. 9 – Janine Turner
Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 09, Federalist No. 09Monday, May 10th, 2010
Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.
I am in the middle of tornados whirling through
our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.
History truly is the key to our future.
My favorite passage of Federalist No. 9 is:
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 behaviour;
the representation of the people in the legislature, by
deputies of their own election; these are either
wholly new discoveries, or have made their principle
progress towards perfection in modern times
“..or have made their principle progress towards perfection in modern times.”
This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”
Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.
How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.
It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.
Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”
And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”
God Bless,
Janine Turner
10 Responses to “May 10, 2010 – Federalist No. 9 – Janine Turner”
Bless you for this remarkable site and your commitment to First Principles! I had NO IDEA that this is what you’ve been up to~way to go!
Blessings,
Janet
I heard you on Mark Levin today, and, I can’t tell you how much I appreciate finding out about another conservative from the entertainment industry. I just saw a bumper sticker that read “God Bless John Wayne”, and I think “God Bless Janine Turner” would be as appropriate. Best wishes and God’s speed in your incredibly prescient endeavour. There is very little in our country of as pressing importance as properly educating our future leaders.
Just heard about this remarkable project on the Mark Levin show today. Keep up the good work! Davis Northnagel
HI, I AGREE WITH JANET, WAY TO GO, LADIES!! I HEARD YOUR INTERVIEW WITH MARK TONIGHT AND I JUST FELT SO PROUD OF YOU!! I WRECKED MY CAREER, AS WELL, WITH MY INABILITY TO SIT STILL WHILE PEOPLE TRASH EVERYTHING WE STAND FOR!! DEPOSITING SO MUCH JUNK, THAT I JUST CAN NOT BELIEVE WHAT PEOPLE ARE THINKING! THE FIRST THING I DID WAS LOG ON TO YOUR SITE, SIGN UP AND STAND UP TO BE COUNTED! PLEASE CONTACT ME AND LET ME KNOW WHAT I CAN DO TO HELP THE CAUSE!!!! I KNOW A FEW PEOPLE!! YOURS, D.B.
WAY TO GO! HEARD THE INTERVIEW WITH MARK TONIGHT, SO PROUD OF YOU! CONTACT ME, I CAN HELP. YOU HAVE MY INFO. UNABLE TO STAND ALL THE JUNK AND TRASHING OF WHAT WE STAND FOR! TEACHING IS THE KEY! I CAN’T SAY ENOUGH! GOD BLESS YOU, LADIES! D.B.
Way to go; heard the interview with Mark tonight. so proud of you! Contact me, I can help. Unable to take all the junk and trashing of what we stand for! Education is the KEY to stopping the destruction!! GOD BLESS YOU, LADIES. D.B.
I found this website by listening to Mark Levin’s radio show. I really like the educational content. There is another website http://www.TheseSelfEvidentTruths.com that also has good history on the Constitution, plus some occassional commentary on current events. It is heartening to see a renewed interest in our founding documents. It is truly sad that the principles of freedom are not taught in our public schools, but instead, students are sent home because they wore a t-shirt with an American flag. Let’s hope it is not too late to save our republic. Keep up the good work, Janine and Cathy.
I had no clue, I heard you on Mark Levin show, was so thrilled to find this site and what you and Cathy have been upto. God bless and keep you. I’ve asked my 11 year old granddaughter to start following you. Thank you for what you do. Pray for Mark, I worry about his health, we need his voice and his love for the constitution.
I have really enjoyed reading the Constitution and Federalist Papers. It is too bad the rest of the country won’t take the time. This may be a little off topic, but it is related, I was shocked yesterday when I heard Obama’s nominee for Supreme Court say we are a Democracy. How can we expect the Court to uphold the Constitution when they don’t even know it? She should know we are a Republic and not a Democracy. Time to pull her nomination and put someone in place that has actually read the document.
Well that would basically leave anyone reading this website as possible nominees to the Supreme Court. I don’t have a law degree so that leaves me out…Anyone else? Seriously though, Debbie you are absolutely right…How can people swear to uphold and defend a document that they have never read, or see as antiquated or worse, irrelevant? I’m reading the Politically Incorrect Guide to the Constitution and find it amazing and appalling how the Supreme Court went so quickly from interpreting the Constitution to ignoring it, or recreating it to suit their own personal agendas and belief systems. Barack Obama is the Woodrow Wilson of our times..This country has strayed so far from the founding principles as to be almost unrecognizable…We have to get back to where we started!!
May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School
Federalist Paper 09, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Joerg W. KnipprathSunday, May 9th, 2010
Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.
First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.
Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).
Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.
Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.
More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.
The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?
That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.
But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.
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. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/ .
29 Responses to “May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”
Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
The following argument in support of the Constitution leapt out at me. “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.
Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.
@ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.
This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.
Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.
Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.
As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.
For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.
Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.’
I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.
One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.
I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.
Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .
I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.
I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.
Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.
I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.
I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .
Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.
I am in the middle of tornados whirling through
our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.
History truly is the key to our future.
My favorite passage of Federalist No. 9 is:
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 behaviour;
the representation of the people in the legislature, by
deputies of their own election; these are either
wholly new discoveries, or have made their principle
progress towards perfection in modern times
“..or have made their principle progress towards perfection in modern times.”
This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”
Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.
How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.
It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.
Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”
And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”
God Bless,
Janine Turner
May 10, 2010
Thank you Professor Knipprath for yet another enlightening essay!
I would like to take a moment to recommend a book that I have found useful, and that you all may too:
How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: http://astore.amazon.com/heritagefoundationbookstore-20/detail/0891951350 It is only about 100 pages, and full of great information!
In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”
Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.
This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:
“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; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”
I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”
Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.
Looking forward to Federalist 10!
Cathy Gillespie
Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”
Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.
As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.
The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.
I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?
@Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.
In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.
Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.
Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.
Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.
The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.
This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).
I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…
I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.
Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.
@Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.
Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).
Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.
Federalist No. 10 – Janine Turner
Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 10, Federalist No. 10Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”
Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.
I thank all of you who have blogged with us today and for your stimulating dialogue.
There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.
What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.
To quote James Madison:
“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”
I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.
Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.
God Bless,
Janine Turner
Tuesday, May 11th, 2010
May 11, 2010 – Federalist No. 10 – Cathy Gillespie
Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 10, Federalist No. 10, Federalist No. 51Tuesday, May 11th, 2010
It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!
I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.
Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.
I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”
Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.
Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!
Thank you again to everyone for your insights today!!
Cathy Gillespie
3 Responses to “May 11, 2010 – Federalist No. 10 – Cathy Gillespie”
Cathy, you commented on Madison’s acknowledgment that men by nature possess a diversity of faculties. But, what almost jumped off the page for me was the next sentence–”The protection of these faculties is the first object of government.” This idea is similar to what Jefferson wrote in the second paragraph of the Declaration of Independence telling us that governments are instituted among men to secure our unalienable rights. Our diverse faculties are such an integral part of who we are that they are probably as unalienable as life, liberty and the pursuit of happiness. One can come to a paradoxical conclusion that when individuals with diverse faculties, situated differently in time and space, are truly free, the result is a whole lot of inequality–that’s material inequality not political inequality. So a necessary corollary of liberty is inequality and it then follows that a prime function of government is actually to protect inequality. Of course in the long run, society is better off if individuals are allowed to flourish using the unique faculties with which they have been endowed. This is a problem today in an era of identity politics, the politics of envy and class warfare–individuals can’t be allowed to flourish.
It is clear to me that the Founders conceived of government, properly structured, as a means of protecting us from one another. The modern conception of government for most Americans is diametrically opposed to the Founders’ conception. Today, we have some Americans using government to invade the property rights and impair the faculties of other Americans. Government today is seen as a provider government; a government that will provide not only the bare necessities, but also a house, a job with a certain pay level, medical care, a car, internet, a cell phone and, most recently, appliances. And what most people fail to realize, or they do realize and just don’t care, is that before the government can provide anything to anyone it must first take resources or labor from some other citizens. So now we have an ever-growing segment of our population who wish to obtain for themselves through the force of government that which they refuse to provide for themselves by tapping into that quintessential American trait of an “unequaled spirit of enterprise.” The Founders no doubt were familiar with the fundamental law of economics that says, “Man tends always to satisfy his needs and desires through the least possible effort.” If it’s easier to get something through political means using coercion than through economic means using voluntary contracts and transactions, then men lacking virtue won’t waste any time to start organizing to gain control the political process with the singular aim of redistribution.
Ah yes another prime example of the hubris of man. Man thinks that he can equalize and homogenize what GOD has created as diverse and interesting. This ranks right up there with the belief that puny man could possibly destroy anything as complex and wonderful as the climate of the earth. Yes we can soil to uninhabitability our own particular corner but on a global scale not so much.
Madison also saw large corporations as an evil. so the “moral case to be made for allowing the spirit of free enterprise to reign in our society” was not as cut and dry as Libertarians make it seem. Madison wrote that “there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect” – – James Madison, Detached Memoranda, circa 1817
This pretty much contradicts the “moral case to be made” in favor of a progressive case for trust busting and legislating against “too big to fail.”
Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison)
Federalist Paper 10, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 51, Joerg W. KnipprathFederalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.
Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.
The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.
Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?
He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”
The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.
Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”
Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?
Monday, May 10th, 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/ .
20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”
Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:”
AND
“The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”
Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.
I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.
For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”
Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.
For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.
The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’
I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.
Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.
My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!
In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.
Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.
“The diversity in the faculties of men, from which the rights of property originate, is…an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”
The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.
Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.
As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?
What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.
In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.
This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
“Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!
@ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.
This struck me most: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. We well know that neither moral nor religious motives can be relied on as an adequate control.”
This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.
Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.
From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.
They also were the lone State to initially not send delegates to the Constitutional Convention.
Is the recent and current path of our federal government proving the Anti-Federalists correct?
As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
I was intrigued by s.th. Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties (s.th. that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”
Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.
Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.
It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!
I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.
Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.
I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”
Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.
Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!
Thank you again to everyone for your insights today!!
Cathy Gillespie
Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”
Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.
I thank all of you who have blogged with us today and for your stimulating dialogue.
There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.
What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.
To quote James Madison:
“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”
I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.
Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.
God Bless,
Janine Turner
May 11, 2010
I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.
Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?
May 12, 2010 – Federalist No. 11 – Cathy Gillespie
Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I, Federalist No. 11, Federalist No. 11Thursday, May 13th, 2010
You all are kicking up some dust in the comments today! I love the back and forth.
And thank you to Dr. Postell for your essay! We appreciate your participation and guidance.
Thank you also to Constituting America’s founder and co-chair Janine Turner for her brilliant essay, published early today! I am burning the midnight oil.
I begin tonight with these sentences, the first sentences of Federalist No. 11:
“THE importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other.”
The above quote reflects another area in which the founding fathers showed great insight, wisdom and vision. Today, African countries are suffering economically from the tariffs and entry fees they impose on each other. European countries suffered as well. Only recently have they unified economically, learning from our example. And some see a political unification of Europe as a likely next step. The founders saw the necessity of economic unity, and acted on it, over 200 years before Europe came to the same conclusion.
It is fascinating to me that in the early stages of our country, the founders could so clearly discern “the adventurous spirit, which distinguishes the commercial character of America,” and recognize that “the unequaled spirit of enterprise…..is itself an inexhaustible mine of national wealth.”
The power of Congress “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes,” found in Article 1, Section 8 of the Constitution, certainly propelled our country to its preeminent world economic leadership position. The Commerce Clause allows the United States to present a unified economic front to the world, and for individual states to not penalize each other. But the Commerce Clause has been a double edged sword. When utilized to keep markets free and unfettered, it allows our Nation to soar, tapping into that uniquely American “unequaled spirit of enterprise.” But when the Commerce Clause is utilized to regulate and stifle the spirit of enterprise, it can “clip the wings by which we might soar.”
The current health care reform legislation stretches the Commerce Clause further than it has ever been stretched before. Instead of regulating economic activity between the states, Congress is using its power to mandate that people pro-actively make purchases from private sector companies. I wonder what Mr. Hamilton would think of the federal government’s intervention into that type of “commercial relations.”
Tim W. said it especially well in his post today, “It was refreshing to see Hamilton cast commerce as a virtue, rather than the vice portrayed by some in power and in the larger information media.” The founders recognized that the most valuable natural resource of the United States is its people ,their “adventurous spirt,” and “unequaled spirit of enterprise.”
Thank you to all of you who are joining us in shining a light on the founding principles of our country, so that they may once again be our guide. Please continue to spread the word, and invite your friends to read and blog with us.
On to Federalist No. 12!
Good night and God Bless,
Cathy Gillespie
May 12, 2010 – Federalist No. 11 – Janine Turner
Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 11, Federalist No. 11Wednesday, May 12th, 2010
Well, I had great fun reading Alexander Hamilton’s Federalist Paper No. 11, especially toward the end of the paper, where he makes a statement regarding Europe:
“The superiority she has long maintained, has tempted her to plume herself as the mistress of the world, and to consider the rest of mankind as created for her benefit. Men, admired as profound philosophers, have, in direct terms, attributed to her inhabitants a physical superiority; and have gravely asserted, that all animals, and with them the human species, degenerate in America; that even dogs cease to bark, after having breathed a while in our atmosphere…. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother moderation. Union will enable us to do it. Disunion will add another victim to his triumphs.”
This statement, once again, exhibits the vision of our Constitutional founding fathers and Publius; strength in numbers, success with unity. They envisioned a United States that could, with her richness, vastness, intellect, unsurpassed spirit of enterprise, and republican virtue compete with Europe and do so with dignity and in a way that would, “vindicate the honor of the human race.”
Other points that I found to be of interest were regarding a strong and unified navy. “The rights of neutrality will only be respected, when they are defended by adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral.”
This statement is relevant today and is applicable to our current situation regarding 9/11 and terrorism. It is, also, represented by human nature. Bullies only attack the weak. Other nations watch our administration and our country’s stance on defense. If they sense any leniency, or lack of response to attacks on American soil, which is “despicable by its weakness,” then we, as Americans forfeit our privilege of being neutral. Peace is no longer an option for us if we do not exhibit and execute strength – strength politically (a congress that thinks in terms of what is best for America and not factiously), militarily, (readiness and response), and financially (solvency). Strength, also, lay in our resources – our own oil and advances in new fuels.
It is best illustrated by Alexander Hamilton’s own words regarding unity and strength:
“The unequalled spirit of enterprise, which signalizes the
genius of the American merchants and navigators, and which is in itself an inexhaustible mine of national wealth, 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.”
As a final note of relevancy – the many mentions of the phrase, “spirit of enterprise” in the Federalist Papers, in this case, “unequalled spirit of enterprise.” America was built on this spirit – a can do, true grit American determination. The greatness of America will cease with the continuance of a “nanny state.” America was not built with her hand out. America was built with her hands at work.
God Bless,
Janine Turner
5 Responses to “May 12, 2010 – Federalist No. 11 – Janine Turner”
Janine i think this is a great thing you are doing with this Blog on the Constitution.
I loved your character on Northern Exposure and any one who has ever watched the show would realize that with hard work , determination and will. You can accomplish great things in the harshest of conditions.
I dont know what has happened to America over the last 25 years or so but it has to change quick. We as a nation cannot go on in the direction that we are headed. This nanny state and its ideologues behind it will forever injure this once great Nation.
As someone in his mid forties , i remember on Flag day in 1976 at my grade school ” South School” in Stoughton, Massachusetts. I read the entire Gettysburgh address to a packed lawn of k-6 graders and all of the parents that could attend , including my mother Mary. She and i were never so proud as to what i accomplished that day, with such a beautiful Speech written by a great american and Former President. Abraham Lincoln.
As much as i like President Obama , i dont agree with a large , MANY of his Policies to date, and i also dont believe someone like himself who has read and studied this great man as i have ,Obama doesnt have Lincolns spirit at heart in his policies. I Think Abe would be quite upset with him if he was alive today. I believe he would even go back to the Cooper Union to give another speech against many of Obamas policies.
Giving Speeches at the places of your idols , does not make you a great President .Obama should consider forging his own History with reasonable policy , that the majority of Americans are behind.
This is a troubling time we live in , and i hope it changes soon. I have met President Clinton and spoken to him. I live my life on the road less traveled and have experienced meeting many great people. I do this because i believe in my country and the path that Great Americans have forged for us in this Nation .
We can only continue when our leaders have a genuine true interest in their hearts and intellect for this Great Nation .
With the help from you and others i have faith that our path will be Righted soon enough.
Janine Keep up the great work and i hope everybody loves to read the History that you have set for us. As much as i have.
Remembering back on Flag Day in 1976 , i cant believe students were suspended for wearing a tee shirt displaying our Precious Flag. The one where brave young men and woman for hundreds of years have shed their precious blood and given up their lives for the country they were taught to believe in and the country i am sure they believed in.
God Bless you and this great nation
William Statkiewicz
Stoughton, Massachusetts.
Truely ….. I am past being concerned about the current direction of my beloved country.I am overwhelmed and actually fearfull that it is moving so fast that we may not be able to reverse the damage of this Administration coupled with the inertia of these past 20 or 30 years has done. These words of our founding fathers are so inspiring. I am thrilled to read them.
You said: “America was not built with her hand out. America was built with her hands at work.”
To that I say: AMEN!
Your fifth paragraph states our situation accurately and concisely.
Janine, I really enjoyed your essay on Hamilton’s paper. The line that grabbed me by the throat? Bullies pick on the weak. I am not by any means a “Hawk” but I do believe our country’s strong Defense is our best Offense. And I think it is shocking the way we don’t support our military monetarily, spiritually, emotionally and physically. It was also interesting to note in today’s news that former astronauts and moonwalkers Neal Armstrong and Gene Cernin are wholeheartedly AGAINST the Obama adminstration’s proposals for our space program. They warn that if that program proceeds, we will lose our place in the space race. And this is about much more than further moon landings and Mars expeditions. Think of satellites, space stations, etc. Were our Founding Fathers seers? Did they have crystal balls much more clear than ours? Sometimes, reading these papers, it would seem so.
Federalist No. 11 – The Utility of the Union in Respect to Commercial Relations and a Navy, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Joe Postell, Assistant Director of the Center for American Studies, the Heritage Foundation
Federalist Paper 11, Federalist Paper Forum 2010 Essay Project, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 11, Joseph Postell PhDWednesday, May 12th, 2010
Federalist #11
Over the past century, as America has become more involved in world affairs, many are wondering what the Founders would have said about such a trend. Federalist #11 gives us a glimpse of how the Founders approached questions of international politics. What we see is that the Founders were neither isolationists nor internationalists. Their approach was to put America’s security and interests first, and to preserve American sovereignty and self-determination, but to adopt an active role in the world in order to achieve that end.
The 11th essay is part of a series (running from Federalist 2 through 14) on preserving the Union. The 11th essay argues that preserving the Union will make the country stronger in its commerce with foreign nations. Alexander Hamilton, writing as Publius, explains that European nations are jealous of America, because America will eventually be strong enough to prevent Europe from colonizing the Western Hemisphere. (We see the roots of the Monroe Doctrine already in this essay.) The nations of Europe “look forward, to what this country is capable of becoming, with painful solicitude.” Publius predicts that the European countries will try to weaken and undermine the fledgling country. If the country is not unified, these attempts will be more effective.
But by remaining unified, Publius argues, America can gain the upper hand over Europe. By gaining strength, America can make its own policy as a fully independent nation rather than follow the dictates of Europe. With its combined strength, America could enact regulations preventing countries from trading in its markets, thus leading them to adopt a friendlier stance towards American merchants.
Furthermore, a unified America could build a dominant navy. This navy would protect America from attack, but more importantly, it would also allow America to receive equal and fair terms of trade, throwing its naval support “into the scale of either of two contending parties” in Europe. America could use its navy to ensure independence, demanding equal treatment as a nation equal in standing to those of Europe. Hamilton writes that “The rights of neutrality will only be respected, when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral.”
A weak nation becomes the servant of stronger countries, and unity is the key to building American strength. Hamilton goes so far as to say that America “might make herself the admiration and envy of the world” by adopting the right policies. Alternatively, if union is abandoned, other countries would be able “to prescribe the conditions of our political existence.”
Hamilton looks to the future, envisioning the eventual position of America as a strong country which serves as an example of liberty to the world. He goes so far as to write that we should “aim at an ascendant in the system of American affairs.” Through Union America will “be able to dictate the terms of the connection between the old and the new world.”
But in contrast to nations which use their strength for self-aggrandizement, America can use its standing in the world to protect the sovereignty and independence of nations from European interference. The Founders were not isolationists, yet they did believe that their principles put strong limits on what they could do in international affairs. Their principles required that military power be used to defend American sovereignty, but defending sovereignty requires respecting the sovereignty of other countries.
In this essay, we see that Hamilton and his readers were not opposed to American involvement in world affairs. But they did not think that the purpose of foreign policy was not to go on a crusade for liberty around the world. Rather, they sought to be involved in world affairs in order to secure their independence.
Counter intuitively, the Founders believed that the only way to be independent of the entangling affairs of other nations was to be active in the world. Only by asserting itself on the world stage could America become strong enough to dictate its own affairs in the pursuit of its interests. If America isolated itself, the Founders believed, it would be placing itself in a position of weakness and disadvantage.
The wisdom of the Framers is especially relevant today, when Americans are concerned about becoming the “world policeman” yet wish to avoid isolating themselves from the rest of the world. The Founders’ principles of security and respect for the sovereignty of other nations provide a middle ground between isolationism and internationalism.
Dr. Joe Postell is Assistant Director of the Center for American Studies at the Heritage Foundation heritage.org
Federalist No. 12 – Cathy Gillespie
Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article I, Constitutional Amendment XVI, Federalist No. 12, Federalist No. 12Friday, May 14th, 2010
Federalist Number 12
Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through the Federalist Papers! And thank you to everyone who continues to comment, and share your thoughts! I am learning so much from each of you.
“The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.”
Taxes. No one like them. Since biblical times the tax collector has been seen as one of the most despised members of society.
Taxes sparked the American Revolution. It is in our heritage to resent taxes, especially when we feel we have little or no say in how the money is being spent!
Yet, Alexander Hamilton, in Federalist No. 12 makes an argument we may not like to hear – taxes are necessary. We must find ways to fund the government :
“A nation cannot long exist without revenues. 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.”
The question is how.
It is fascinating to observe the progression of taxation in our country. From the Article I, Section 8 of the United States Constitution:
The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)
What happened?
In federalist No. 12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect. There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”
In three years we will “celebrate” the 100th anniversary of the income tax, the ratification of the 16th Amendment to the United States Constitution. It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years. The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.
It was eye opening to read Federalist No. 12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds. These were men of great vision, and this is one more area where their foresight shines.
If only we had listened to them more closely!
Good night and God Bless!
Cathy Gillespie
Federalist No. 12 – Janine Turner
Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 12, Federalist No. 12Friday, May 14th, 2010
As I read each day one of the Federalist Papers, my goal is to see the true intention of our Constitutional forefathers and also to see how it is relevant today.
Their wisdom and foresight continue to astound me.
“A prosperous commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful, as well as, the most productive, source of national wealth and has accordingly become a primary object of their political cares.”
A prosperous commerce is the most productive source of national wealth. How is this relevant today? Is America’s prosperous commerce being compromised? When the Federal government becomes a source of income, care and resources, when they seize control of her commerce, American enterprise and inspiration are stigmatized. This stigmatization stifles the prosperity of commerce because citizens lose their motivation and one of their most precious American traits – ingenuity.
“The genius of the people will illy brook the inquisitive and peremptory spirit of excise laws.”
This is very relevant today in regard to businesses being heavily taxed.
And lastly, “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.”
Our debt is surpassing our ability to recover. How long will we be able to survive economically, politically? How will we be able to protect ourselves? When destitute of support will we then resign our independence and sink into the degraded position of, yet again, a province?
These are serious times. Our forefather’s words serve as warnings. They documented it for us in our United States Constitution and the Federalist Papers. They provided the answers. Will we heed their wisdom? To do so we must know about it. We must understand it. Knowledge is power. Spread the word.
God Bless,
Janine Turner
P.S. I thank our fantastic scholar today, Paul S. Teller, and yesterday’s scholar Dr. Joe Postell. How lucky we are to have their insights and educated opinions!
Federalist No. 12 – The Utility of the Union In Respect to Revenue, from the New York Packet (Hamilton) – Guest Blogger: Paul S. Teller, Ph.D., Executive Director of the RSC
Federalist Paper 12, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Paul S. Teller, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 12, Paul S. Teller PhDThursday, May 13th, 2010
In Federalist 12, Hamilton seeks to convince skeptical states that forming a union will increase and regularize a revenue stream. His main argument centers on the assumption that the best source of revenue is the taxation of consumption, particularly consumption from abroad. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Any sort of direct (i.e. income) tax would also be “impracticable” because collection is difficult, hard currency is scarce, and such tax has never generated enough revenue in other places they had already been tried.
So duties was the way to go—and especially “duties on imported articles.” But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. After all, he reasoned, the states were all adjacent to several others, shared a language, enjoyed a long history of interaction already, and were connected by myriad modes of transportation, including rivers and bays. Therefore, “all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other.”
But a unified system of duties across all states, collected and enforced by the federal government via “a few armed vessels,” would not create such incentives to cheat and would greatly improve the efficient collection of revenue.
But why do we even need revenues? Well, as Hamilton asserts in Federalist 12, “a nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.” That is, to Hamilton, an independent and consistent revenue stream is necessary for political independence.
To increase the universe of revenue, Hamilton saw only one acceptable path: increase commerce. After all, he argued, “the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth.” It also increases the quantity of currency in circulation and thus makes the payment of taxes much easier (thereby increasing the “supplies” to the treasury). Plus, and not insignificantly, a growing and varied commerce contributes to the individual—and thus the national—happiness.
So let’s follow the Hamiltonian logic here. To maintain political independence, a nation must have a consistent and increasing revenue stream. A consistent revenue stream best comes from a federal government levying duties on commerce—particularly commerce with foreign nations. An increasing revenue stream comes from expanding commerce. And expanding commerce “multipl[ies] the means of gratification”—or happiness.
Hamilton might find it fascinating that, 223 years after he wrote Federalist 12, some of the themes he addressed in it form the basis of some of today’s most furious debates. For example:
Regardless of how you feel about these three questions and other issues addressed in Federalist 12, we all can likely agree that Hamilton could never have conceived of the levels of revenues that pour into the federal government today. Over the last forty years, tax revenue has averaged 18% of the Gross Domestic Product, and is projected to increase significantly under a variety of scenarios.
Paul S. Teller, Ph.D. is the Executive Director of the RSC the caucus of House Conservatives
17 Responses to “May 13, 2010 – Federalist No. 12 – The Utility of the Union In Respect to Revenue, from the New YorkPacket (Hamilton) – Guest Blogger: Paul S. Teller, Ph.D., Executive Director of the RSC”
It seems that Hamilton would be a Fair Taqx supporter today, and here is where I base my hypothesis:
1. He writes, “the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth.” . The Fair Tax would increase commerce and one reason would be that large corporations would move to our shores as they would pay 0% corporate taxes.
2. He mentions the best form of taxing is that which taxes consumptions, not income. He notes that wherever a tax on income had been tried, it had failed. He also points out that efficient collection is difficult, which we all know to be true.
3. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Part of the system we have today is the death tax. This keeps beneficiaries from growing their family wealth.
4. But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. Do we not see this today with all the loopholes in the tax code? People try to wiggle in a “dubious” tax deduction to get a little more back. A one time sales tax paid at the cash register will knock out the fraud 90%.
If the counter intuitive circumstance could be understood by the general populace that the less you tax and activity there is opportunity for more of that activity to occur yielding more tax revenue. Hamilton seems to have grasped this very well.
Federalist 12 can take us down many rabbit trails. Obviously, the transition from an agraian society to a commercial and industrial society, overlayed with the increased velocity and quantity of information delivery, has made some assumptions about taxation extinct. Direct taxation is pretty efficient in our country and tariffs are frequently roadblocks to efficient and productive international trade. Commercial regulation was yet to begin, as the Congress was not yet formed.
In 2010, most of us might observe that complex and repressive personal and corporate taxation as well as strangling regulation is making commerce difficult to expand as anticipated by our founders and as necessary today to provide sufficient revenue for all the government redistribution programs. If anything, the Congress seems to be more focused on limiting the ability of commerce to expand as rapidly as required today because they want to shield and protect the public, not from the government, but from risk and uncertainty. Our founders were very willing to accept both risk and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty. “Security FROM government,” not “security OF government,” was the objective in the late 18th century America.
The argument of inefficient collection of direct taxes is as valid today as in the late 18th century. While a very large percentage of American citizens voluntarily submit to paying their direct taxes in a lawful manner, a not insignificant number of people skirt or avoid these taxes altogether. This places a burden on the law abiding citizen as he must not only pay his share, but necessarily shoulder the shortfall of the uncollected taxes of those that enjoy the benefits of our free society but do not contribute to its expense. I think this is a very real cause of discontent and resentment among tax payers.
The “Fair Tax”, much discussed today, would have many advantages over the present system. Primarily it is infinitely fair to all and would bring millions of people into the tax system who pay no taxes today. On the Federal side the cost of tax collection would be significantly reduced and the efficiency of tax collection would improve dramatically. On the commerce side there would be a resulting drop in the cost of goods and services, artificially high because of the added expense companies incur in order to comply with Federal tax law. The chief danger to this system is the temptation to congress to grant exceptions to interest groups in order to “promote the general welfare”.
Would Hamilton agree?
Ron Meier, I very much liked a lot of what you said in your post concerning “Federal Paper #12″. I especially appreciated your closing remarks, “Our Founders were very willing to accept both risks and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty”. However, I do have to disagree with one statement which was, “Direct taxation is pretty efficient in our country”. Coming from an accounting background and having had extensive exposure to it, I have to contend that taxation in this country is anything but efficient. I’m retired now and my perspective comes from having worked in the private sector. Nothing is simple about our federal tax code and the system is inefficient beyond all comprehension. Blame the Congress for this. By their smoke and mirror tactics, they have constructed a tax system that is a complete monstrosity. I have nogreat love for the IRS, but I recognize that there are many good people working there under extreme conditions . They are left with the difficult job of carrying out the unseemly tax laws enacted by Congress …. they’re left holding that bag. We the people are encumbered not only by the direct tax burden, but also the substantial cost for compliance.
@ Roger….I couldn’t agree more with our tax code being anything but simple. Even those in charge of overseeing tax law can’t seem to figure it out and pay their taxes. A consumption tax ensures that EVERYONE pays based upon what they use or consume. What does it matter how much money you make if you are not spending it? It is ultimately when you spend it that you impact the economy. It is at this end that it should be taxed….not before. Consume more…pay more. Consume less…pay less. It leaves the end results for each individual in their own hands.
Roger, just think of what we’d do to the unemployment numbers if we put all the tax lawyer out of business by virtue of a consumption tax? ooo I shudder to think. No longer wending my way through that impenetrable maze in order to see if I can find another way to lessen the burden just a wee bit.
I think the Fair Tax would be closest taxation method to what our founders would agree with; or mayb a few large excise taxes on certain items.
1. It would increase the tax base -illegals, toursists, underground income, etc. An increased tax base would mean the economy would be less jolted by a small segment of the population going through economic harship. Today, if there are 100 million income earners, one person out of work is 1/100 millionth of the tax based lost; if 300 million people are paying a sales tax, then one person out of work is only 1/300 millionth of the tax base lost.
2. Definitely fair. We all pay the same % at the register.
3. Harder for the government to pay off their cronies. Today, a tax give away is sent in the form of a line you check off in your 1040 form. That is how segments of society get a tax break. When I get a $10,000 mortgage interest deduction, and I am in the 25% tx bracket, tat is the same thing as the government mailing me a welfare check for $2,500. If it is in the form of a check, I am looked down upon as a leech. If it done through my 1040, I am called a productive member of society. Under the Fair Tax, in order for a politician to decide to raise the sales tax to spend more money on his cronies, we ALL would have our taxes raised at the cash register. This way, the people would be better educated and more informed on the true cost of government.
“Revenue . . . must be had at all events.” “[T]he necessities of the State . . . must be satisfied[.]” So the question remains who will bear the public burdens of our constitutional federal republic. As previous generations of children at play knew instinctively, everyone could not ride in the wagon at the same time–everyone, with few exceptions, had to pull their fair share. Again, kids knew what was fair–”you pull for five minutes then I’ll pull for five minutes.” Recently, The Tax Policy Center estimated that 47% of households pay no federal income tax. How come they get to ride in the wagon all the time and never get out and pull?
In No. 12, Hamilton makes a good case for ratification based on the States’ and individuals’ economic self-interest. With a federal tax system, much less revenue would “escape the eye and the hand of the tax-gatherer.” And there would be no need to bear the costs of administering 13 redundant state tax systems.
Okay, so I’m sold on the idea that the new federal government will have a sufficient source of revenue to accomplish its constitutional objects. But I have other concerns: How fairly, equally, or justly does any source of revenue spread the burden over all Americans who benefit from the federal system being advocated? And, what restraints will be in place to keep the general government from spending any and all money it collects, instead of collecting only that amount it needs to accomplish its constitutional responsibilities?
I think the founders and their successors were wrong to concentrate on tariffs. Indirect taxes are stealth taxes and you never really know who’s paying them. “In the 1850′s, the federal government obtained 92% of its revenues from customs duties imposed on goods imported from abroad.” (Weisman, The Great Tax Wars) And the reliance on tariffs led to, in my mind, at least questionable results–a farmer enjoying sugar-sweetened coffee at his local early-american Starbucks would pay more in taxes than someone buying $1,000,000 in bonds. The regressivity or progressivity of any proposed tax system should be transparent and is of course debatable. The amount and sources ofrevenue coming into the federal government has changed dramatically over the last hundred years or so–I just want to know why and has it been to our benefit. “In 1913, nearly half of federal revenues came from customs duties, and almost all the rest came from tobacco and liquor taxes.” (Weisman) Hamilton was way ahead of his time advocating “sin” taxes and luxury (“extravagance”) taxes on “ardent spirits.”
Thank you to everyone at Constituting America for creating this wonderful project. How impressive and awe-inspiring!–To encourage ordinary Americans to study our founding documents. Thanks also to all the contributors. I enjoy reading what you think is important about our great country and where you think we’ve gone wrong and what we can do to get us back on the right track.
Although all rational human beings would prefer a “fair tax” or “flat tax,” the probability of getting one is zero. The tax laws long ago ceased being a method for generating the revenue required to run the affairs of the federal government. Instead, the tax law has been the means for Congress to raise revenue to achieve the social and economic outcomes it desires at a particular point of time. It has also been used by the Congress to modify behavior of its citizens and corporations.
There are two types of economic triggers available to the federal government, monetary policy and fiscal policy. Monetary policy is solely under the control of the Federal Reserve; fiscal policy is under the control of the legislative and the executive branches. The legislative branch initiates and passes fiscal policy laws and the President approves or disapproves. Fiscal policy has three elements: (1) government spending management, (2) federal debt management, and (3) taxation. We know that the Congress will not really control government spending; therefore, it needs to have a means by which it can adjust the cash flow required to fund the programs it wants to fund. There are two primary ways it can fund the programs. It can borrow money, thereby increasing the federal debt; there are limits to how much additional federal debt can be sold to investors. This leaves only one remaining way to raise the necessary funds – TAXATION.
If a flat tax or fair tax were to be inititated, Congress would have it’s only real method of modifying behavior and raising money for social engineering taken away from it. Although you and I would love to see this happen, it won’t happen because Congress critters know that the game is over if their only toy is taken away.
By the way, if you’ve been paying attention, Congress knows that it may be reaching the end of its rope with respectto its ability to keep increasing taxes, so it has used the current economic crisis to attempt to extend the reach of its powers to control monetary policy by making the Federal Reserve subject to its review. That sounds pretty benign, and like a good idea on the surface, but it is nothing but a first baby step to get its fingers in the monetary policy pie; once it gets a pinky in, the hand will follow. It’s important that we don’t let them get any control over the Federal Reserve’s Monetary Policy toolbox. Most people don’t understand any of this, so they ignore it. Keep your eyes and ears open for more in this arena.
Great stuff…. The fair tax seems the way to go,here are two reservations /unexpected consequences (not without solution) 1) Would this create a black market? 2) would this hit the very poor right between the eyes,.If the margin they live on is close and they are not paying taxes would that throw them under the bus? Oh yeah… what about Social Security tax how would that be managed,,how would we assertain if someone has woked their required number of quaters to be elegible…. I don’t like the monsterous tax code we have today,but beleieve we could do this taking many cautous steps.
Good points nDave. That is why nI like the Fair Tax. Every taxpayer pays 23% sales tax on the purchase of final goods. Every tax payer gets a monthly prebate deposit into their checking account to cover spending to the poverty level-a one time tax deduction. This ensures the poorest of the poor will not pay sales tax.
If it were up to me, government would be cut 66%, and we would have a sales tax of 10% or so, with no prebate checks.
We are running under the assumption that if the powers that be decided to go with the fair tax system, they would do away with the federal income tax. There are states that have a sales tax and also collect a state income tax and all collect real property taxes. Therefore, depending on what state a person lived in, with the fair tax and the state taxes, some would still be paying more than others. True, the underprivileged would pay their fair share.
The next question would be: What would be taxed and what would not be taxed? Food? Medicine?
I didn’t get to participate in the discussion today, but I enjoyed reading everyones comments, especially on a day when our Governor just eliminated 2 of our state taxes: the Senior Citizens Retirement Income Tax and the States portion of the homeowners property tax!
As I read each day one of the Federalist Papers, my goal is to see the true intention of our Constitutional forefathers and also to see how it is relevant today.
Their wisdom and foresight continue to astound me.
“A prosperous commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful, as well as, the most productive, source of national wealth and has accordingly become a primary object of their political cares.”
A prosperous commerce is the most productive source of national wealth. How is this relevant today? Is America’s prosperous commerce being compromised? When the Federal government becomes a source of income, care and resources, when they seize control of her commerce, American enterprise and inspiration are stigmatized. This stigmatization stifles the prosperity of commerce because citizens lose their motivation and one of their most precious American traits – ingenuity.
“The genius of the people will illy brook the inquisitive and peremptory spirit of excise laws.”
This is very relevant today in regard to businesses being heavily taxed.
And lastly, “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.”
Our debt is surpassing our ability to recover. How long will we be able to survive economically, politically? How will we be able to protect ourselves? When destitute of support will we then resign our independence and sink into the degraded position of, yet again, a province?
These are serious times. Our forefather’s words serve as warnings. They documented it for us in our United States Constitution and the Federalist Papers. They provided the answers. Will we heed their wisdom? To do so we must know about it. We must understand it. Knowledge is power. Spread the word.
God Bless,
Janine Turner
P.S. I thank our fantastic scholar today, Paul S. Teller, and yesterday’s scholar Dr. Joe Postell. How lucky we are to have their insights and educated opinions! I also thank each and every one of you who have blogged! Fantastic.
I found Ron Meier’s post today very helpful in getting a bigger picture of our nation’s current predicament. His depiction of the “fiscal policy” as it should be compared and contrasted to the “monetary policy” was insightful and he points out clearly the importance of both tools being used wisely and by the right people. I think the call for more accountability from the Federal Reserve with it’s management of monetary policy is prudent. I see great danger however in allowing those who through political motivation (Congress), have wrecked and misused the fiscal policy so badly, now gain undue influence over the management of monetary policy also. Thank you again Ron Meier in helping us get the bigger picture.
Federalist Number 12
Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through theFederalist Papers! And thank you to everyone who continues to comment, and share your thoughts! I am learning so much from each of you.
“The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.”
Taxes. No one like them. Since biblical times the tax collector has been seen as one of the most despised members of society.
Taxes sparked the American Revolution. It is in our heritage to resent taxes, especially when we feel we have little orno say in how the money is being spent!
Yet, Alexander Hamilton, in Federalist No. 12 makes an argument we may not like to hear – taxes are necessary. We must find ways to fund the government :
“A nation cannot long exist without revenues. 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.”
The question is how.
It is fascinating to observe the progression of taxation in our country. From Article I, Section 8 of the United States Constitution:
The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)
What happened?
In federalist No. 12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect. There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”
In three years we will “celebrate” the 100th anniversary of the income tax, the ratification of the 16th Amendment to the United States Constitution. It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years. The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.
It was eye opening to read Federalist No. 12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds. These were men of great vision, and this is one more area where their foresight shines.
If only we had listened to them more closely!
Good night and God Bless!
Cathy Gillespie
Federalist No. 13 – Cathy Gillespie
Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 13, Federalist No. 13Friday, May 14th, 2010
A big thank you to Dr. Morrisey for his insights today on Federalist 13, and his broader thoughts on the themes of Federalist 1–14.
We especially appreciate Dr. Morrisey coming back later in the day! The exchange between Dr. Morrisey and Marc Stauffer on the relationship between economics and morality hit on an important founding principle. Free enterprise is more than an economic issue or theory; it is a moral issue.
Mr. Stauffer brought up the fact that we “tend to look at our government in terms of economic remedies/gain and less at its moral implications.” Dr. Morrisey expounded on this by pointing out that “The Founders understood the relation between morality and economics in a much more careful way than we do.”
Indeed, there is a moral case to be made for free enterprise: People should have the freedom to pursue their entrepreneurial dreams; our children should not be held back by the debt of our generation; the tax burden of our country should not fall on a minority of our citizens, and at death parents should be able to pass on to their children the assets they worked hard for all their life, instead of turning a large portion over to the government in the form of a death tax. Our founders understood that economic freedom is a fundamental moral issue before it is anything else.
Arthur Brooks, President of the American Enterprise Institute, makes the moral argument for economic freedom better than anyone I have ever heard speak on the subject. For anyone who is interested in this view, I suggest his excellent Wall Street Journal article, “The Real Culture War is Over Capitalism,” from April 30, 2009: http://online.wsj.com/article/SB124104689179070747.html
When the moral argument for free enterprise is made, we begin the cultural shift that is so needed in our country.
Thank you again to Dr. Morrisey and Mr. Stauffer for bringing up this important topic.
Have a wonderful weekend everyone!
Good night and God Bless!
Cathy Gillespie
Federalist No. 13 – Janine Turner
Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 13, Federalist No. 13Friday, May 14th, 2010
What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!
I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.
There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.
Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.
Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.
Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.
The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?
Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pond together yet maintain our different stripes.
God Bless,
Janine Turner
Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton)
Federalist Paper 13, Federalist Paper Forum 2010 Essay Project, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 13, William Morrisey PhDFriday, May 14th, 2010
Federalist 13: Why Union?
Always, Americans face two questions: the question of regime; the question of the modern state.
By “regime” I mean three things: who rules; by what forms or institutions the rulers rule; and what way of life rulers and ruled will lead. These three dimensions of the regime intertwine. If, for example, a tyrant rules, he will require such institutions as a large standing army controlled exclusively by himself for internal policing as well as for conquest, a judiciary dependent on his will alone, and a legislature without independent powers. If a tyrant rules, the way of life will encourage a moral atmosphere of mutual distrust and self-protective secrecy among neighbors, habits of fear punctuated by moments of terror.
If the people rule, the same thing might happen. The popular majority might tyrannize as well as—maybe worse than—a `majority of one.’ Hence republicanism or representative government, a republic of extensive territory and population wherein no one faction may obtain a ruling majority.
The first fourteen numbers of The Federalist address the crucial question of regime—whether a people can truly govern themselves non-tyrannically, by reflection and choice, not accident and force. But they equally address the question of statism.
Modern political philosophers—in England, such men as Francis Bacon and Thomas Hobbes—sharply criticized feudalism. A feudal society structures itself politically rather like a cinnamon roll: ruling authority organizes itself into swirls and morsels—an aristocrat here, a city there, with a king mixed in and a network of churches and common law courts throughout, each with more or less independent sources of power, sometimes overlapping one another but none simply superior to the others.
The statists did away with this. Statesmen organize states along the lines of a wagon wheel, with a central hub of authority and spokes radiating out to the border. Along these institutional spokes reside administrators or bureaucrats, beholden to the center for their appointments and salaries, exerting control over the population, now reconceived as the nation organized into the nation-state. From the center of the state commands and force flow out; to the center, recruits and revenues flow in, far more efficiently than under the feudal order. Wherever a state appeared, neighboring political communities more or less needed to imitate it, lest the wheel roll over them.
For Bacon and Hobbes and their royal sponsors, the best regime for the modern state was monarchy, giving unity of command to the powerful state. Having felt the pincers of monarchic statism, the Founders disagreed, with muskets.
But the defense of the natural rights enunciated in the Declaration of Independence via institutions of political liberty required the strength and unity that only a modern state could provide. Only a state could muster the economic and military strength to defend itself against the surrounding European empires, with their contempt for republicanism.
Publius therefore puts the matter of federal union front and center in his introductory essays. The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—states equally represented in one house of the national legislature.
In the thirteenth Federalist, Publius warns against disunion by appealing to Americans’ sense of economy. Were we to divide into separate confederacies, the two or three new governments would nonetheless rule extensive territories, larger than those of the British Isles. Instead of one federal government we would have at least two, with unnecessary duplication of ruling institutions and commensurately heavier expenses per capita. If jealousies arose between these confederacies, commercial tariffs and larger militaries would further degrade prosperity. North America would look more and more like the Europe from which Americans had declared their independence. To those who look askance at a national government, Publius replies, one such thing is better than two or three. To undertake to found thirteen such sovereignties would involve Americans in “a project too extravagant and too replete with danger to have many advocates.”
But can one government—even a carefully limited government—truly govern one such large territory? Publius answers this question in his fourteenth essay, concluding his introduction to the new Constitution.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.
31 Responses to “May 14, 2010 – Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”
Thanks for such an interesting discussion of the underlying reasoning to what our founders were proposing, Dr. Morrisey. You’ve put it in a way that seems so simple, yet we and our representatives seem to prefer to make it complex. Who rules, by what form, and leading to what way of life; if only we could focus on that, instead of arguing about some of the minutia we hear every day in the media, perhaps our conclusions on the issues would become more clear, more quickly.
The more I read, the more I’m struck with the truism that “What goes around comes around”. We are again arguing the size and structure of the best form of governance. The irony of the situation is that ‘strict constructionists’ in the late 1700′s were called Anti-Federalists and now they’re called Constitutionalists.
Thank you, sir. I deserve no credit, really. I’m only repeating what I learned from Aristotle’s “Politics” about forty years ago in Harry Clor’s class at Kenyon College, supplemented by what the late Robert Horwitz taught in his class on Machiavelli, Hobbes, Locke, and Rousseau.
Dr. Morrisey, you said, “The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—..”
Thanks for writing it like that. It makes it clear in my mind how the Founders thought, as well as their intentions for the new government.
The notion that the federal government is basically responsible for protecxting the US while leaving the states to basically handle domestic idea—-I guess the 10th Amendment may apply here?
Thanks!! Good thought on your part.
Incredible explanation Doctor! Thank you for the insight. I think it was prudent of Publis to remind his fellow Americans what is was they were separated from as when a little time passes we tend to forget. The continued use of economic consequences to disunion is, as always the best “attention getter”. Economic, rather than moral consequences to actions, have, unfortunately, always received the quickest attentions and reactions from the populous. Explaining the economic disadvantages of disunion most likely stirred the senses of the people to see the folly of disunion…much like people today. We tend to look at our government in terms of economic remedies/gain and less at its moral implications. According to statistics we choose our elected officials most commonly by their economic views and less on their moral character/stances…something I believe that is causing a lot of the trouble we are experiencing today.
Now that we have learned through the first 14 Federalist Papers how our Founders envisioned the benefits of a Union of States formed into one national government with limited enumerated powers vested in the Federal Government and the powers not granted to the Federal System to remain with the People and the States. We now see how that system has been perverted and usurped by the Federal System in it’s grasp for uncontrolled power over the States and the People the question is how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government.
Mr. Stauffer, I think that you make a good point about the contemporary attempt to emphasize economics at the expense of moral character. The Founders understood the relation between morality and economics in a much more careful way than we do. Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest. The best example of this may be seen not in The Federalist but in George Washington’s Farewell Address, which is also a defense of federal union.
For example, here in #13 Publius defends union on economic grounds; however, as previous papers have already made clear, the purpose of union is American prosperity in the comprehensive sense–ultimately, the defense of activities that conduce to human flourishing in a regime that defends the natural rights of its citizens. The later habit of looking to our government for economic remedies, which you remark, tends toward passivity and attitudes of dependence, not self-government.
@ chuck…..You asked the question, “how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government?” I do believe there are ways….the question is will people be willing to make the sacrifices necessary to get us back to our Founders’ original intent? Many of us HERE are, I am quite certain…..but most of us have already made many sacrifices trying to survive the government largess. Those that still NEED to make the sacrifices are least likely to be willing to make ANY.
Thank you so much for your wonderful essay Dr. Morrisey and for your willingness to come back and give further insight throughout the day.
Maggie you have made my point, the fact that so many of our citizens today have “no” investment in our government today. What i mean by that is they pay nothing or very little for the cost of the government we have that they do not see any need to change it. Those who are willing will do those who are unwilling will not and i am afraid that we have way too many who are unwilling today.
Thank you Professor Morrisey for sharing your thoughts on Federalist No. 13 and jump-starting my brain this morning. Hamilton seemed to know which buttons to push to get the citizens of New York to go along with the plan of union–their security and their pocket-book. Could it be the case that Hamilton was right in November of 1787, but might be wrong in the long run? Or to put it another way, is there a limit to the size of a republic such as ours; and are their certain characteristics of the governed which will either foster or inhibit the expansion–did he really think that virtue would remain the defining characteristic of the populace as the “celebrated Montesquieu” said it must? I agree with the Federalists that the circumstances at the time pointed towards union as the only means of survival. The Articles of Confederation were deficient in a number of respects and enemies were ravaging America’s trade on the high seas.
Based on experience, which Hamilton will call “that best oracle of wisdom” (No. 15) and Madison will call “the oracle of truth” (No. 20), can we not infer that any particular structure made by man, according to any applicable natural laws, will have a necessary limit? Can the integrity and composition of the parts be maintained to continue to support the whole?–Will the wheel simply collapse at some point? Hamilton’s focus was mainly external; and rightly so. But even Madison (No. 10 & 51) didn’t foresee any problems (as long as virtue was predominant.) He thought that an extended republic, composed of many different interests and where the combining of interests was difficult, would be a sufficient guard of the people’s liberty.
As our attitude and outlook become more and more national as opposed to federal, and as more and more power, control, and money coalesce in Washington D. C., I see more and more waste, fraud, and oppression. We may not have a national plebiscite but through modern media a national consensus is “reached” to determine national policies on any number of topics–healthcare, immigration, energy use. Modern communication seems to vitiate Madison’s argument for extended republics. Today, small, vocal, well-placed factions can combine quite easily and gain power. There does seem to be a tendency for political power to follow some sort exponential growth curve (maybe it’s “Power tends to coalesce, and absolute power coalesces absolutely.) Is there a vicious cycle with the increasing public sector depending on a decreasing private sector?
For external concerns, a centralized government is probably the answer. But for local, private concerns, local government is best. The best government is that government which governs closest to the people. As John Adams wrote to Jefferson, “Human nature, know thyself.” A republic composed of citizens lacking virtue is not long for this world.
Mr. Morrisey;
I agree with your thought, “Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest.”
Exclusive self interest is the blinded path to a Unions destruction. Mutual interest must be taught in the formative years of life lest self interest take firm root.
Many generations have been taught economic based history rather than history with its eye on the motives and morality and as such we have lost touch with the original intents of our Founders or great leaders. President Woodrow Wilson said; “A Nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we don’t know where we have come from, or what we have been about”.
Many history books, my High School history text (1977) included, are going as far as to expunge any morality or mutual interest from their text. This, unfortunately, leads our youthful generations to the self-serve trough without care as to how personal success is accomplished, only looking at the economic gains/losses of a situation. It also leads to an unhealthy reliance on “nanny state” governance to control those economic factors. Things which we are now seeing blossom forth.
Chuck and Maggie, I do not know either. But I think the best vehicle for getting back to the intent of our Founders would be to have a few Governors (look at Chris Christie of NJ, maybe Rick Perry of TX, maybe Jan Brewer of AZ) stand together and say “NO MORE MANDATES.”
If we could find just 4-5 men and women Governors of integrity who will stand up to the federal government-even if that meant a stand off with federal police authorities- and proclaim the 10th Amendment alive again, then PUR movement will gain some traction. It will gain credibility.
Remember the movie “Braveheart” when William Wallace pursuaded Bruce the Earl to lead his people? I am paraphrasing but he says something like, “People don’t follow titles, they follow leadership. They will follow you if you will just lead them. I see it in you.”
That is what need today, because no one is going to take “normal” citizens like us seriously. We need people with some credibility in the government sector-Governors. 90% of Congress can’t provide that leadership, but I believe 4-5 Governors could start a snowball, mixed with the Tea Party movement.
Any thoughts?
It’s interesting to see how knowledgeable our founders are about the world around them. Although people like Newt Gingrich speak in ways that convince me that they have an informed historical perspective, it is hard to see that in a lot of our countries leaders.
Hamilton gives a very interesting insight into why the nations of Europe were constantly fighting one another and what we should do to avoid it. Without minimizing our nation’s civil war it is telling that the actual conflicts on our own nation’s soil have been limited over the year that our nation has been in existence and that proves that Hamilton really understood the importance of us having one nation here in America instead of 3 or 4.
Shannon you are right but we must motivate the people to stand with those Governors and let them know that we will be there to support their efforts. That is why it is so important to let Arizona know that we support their efforts in the immigration fight. It is not about profiling or any thing else but protecting the citizens where the Federal Government has refused to do so. If “We” The People let the Federal Government run over Arizona then what is left for the rest of us but the same.
Good point Shannon. It doesn’t take a majority of Governors to make something happen; it takes just a few strong willed Governors willing to stand up and say no. The Governors have failed, over many decades, to stand up to the Congress and say no to mandates that come with almost any money the feds distribute, for example, for highway construction, education, etc. As originally constructed, as I read these papers, the States made sure the Constitution protected their rights as States. Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights on the larger local issues, such as education. We’re fortunate to have some strong leaders at schools like Hillsdale College say no to federal money so they were not forced to do things they felt were contrary to their own values. If only we can get some of our Governors to do the same thing. The ones you’ve named are a great start; let’s hope more come along with them, especially after the November elections, when we are more likely to have change at the State houses.
Susan, you have made clear some feeling I have had while reading along, that the Anti-Federalists often had arguments equally as compelling as the Federalists. And issues that dominated the Constitutional Convention are still, or once again, being debated today.
Dave, thanks for that excellent post. My own view is that it’s impossible to posit a natural limit to a commercial republic, but in practical terms every such republic will find such a limit, depending upon its neighbors. The oceans pretty much set such a limit, east and west, with the eventual exception of Hawaii and other smaller holdings in the Pacific. No sensible person supposed that we would actually integrate the Philippines permanently into the United States, for example. British Canada set such a limit on the United States to the north. Mexico turned out to be the complicated case; we solved the problem for more than a century by seizing its underpopulated, northern sections and effecting a regime change in the capital.
Another way of putting it is to say that an extended, commercial republic must eventually find some limit; the question will then be whether it can secure its borders militarily but in the final analysis politically. It can do so politically if the neighboring regimes are also commercial republics. It helps if they are also weaker.
In my opinion, the statism that you and I worry about derives not from the size of the territory but from the change in the regime effected by the Progressives in the last century. The Progressives managed to legitimate a much more extensive, bureaucratic state than anything seen here before, taking their cues from German political thought and practice. Germany had unified the 37 or so German states under the Kaiser; Bismarck organized a substantial welfare state along with a formidable army. Many of the American intellectuals who founded `political science’ as an academic discipline in the 1880s (the young Woodrow Wilson among them) studied in Germany, so they picked these ideas up right at the source.
What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!
I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.
There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.
Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.
Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.
Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.
The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?
Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pong together yet maintain our different stripes.
God Bless,
Janine Turner
May 14, 2010
Im going to say something controversial in answer to the implied question of Ron’s statement “Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights”: The the issue is slavery. If slavery had not been defended to the point of secession by the Confederate states, I don’t believe we would now have as bloated and powerful a federal government as we have today.
While the Federalist papers do not touch on the subject of slavery, it is the proverbial elephant in the middle of the room throughout U.S. history up until 1861 when shots were fired and the union was torn asunder. Without that peculiar institution, it is my belief that we would have a more balanced power between the federal government and the state governments. Without the Civil War, there would be no 14th ammendment which once and for all declared the federal government as supreme.
A lot of Lost Causers will scream “Hallelujah”, but I approach the subject from a different viewpoint. Unlike their belief that Abe Lincoln was a tyrant; I say that the southern states that promoted and defended their institution to the tune of 600,000 dead were more to blame for the current situation of states playing second fiddle to the central government. How we can transfer back the power of the federal government back to the states, I don’t know; but I do know how we got here, and it started when the founding fathers refused to deal with the issue of slavery that quite possibly would have prevented the union from forming in the first place.
SUPER stuff !I think the first thing I want to say is about the “disunion” that pleges us today. We are divided and it seems that Obama is not given to putting things back together,but into factions serving what he believes will promote his idology. He is displaying an arrogance a times which concerns me a lot. I wonder if he realizes that a man is diminished to the degree that he indulges his arrogance?AZ is a perfect example of this, he makes a joke about the PEOPLE of that state while his failure to deal with immigration while a 900 lb gorillia standing at his shoulder as his jokes cleverly distort .His Attorney General threatens to sue AZ,but never read the bill he is objecting to. Obama addresses a graduation class and implies that too much tech, may be harmful??????What on earth????Is he afraid of too much information that may encourage deeper thought about matters facing us today????I think most people are feeling concerned about the deficite,and the spending at the hands this Administration ,and there seems to be no end to the billions and now trillions that are now weighing us down, and making us vunerable .
We have much to do and I suppose the first thing is to engage in places like this. Thank you so much for all your hard work and creating this site. November may serve as a bell weather and surly information will underpin our sucess.
I think our founders would be going cross eyed if they were to see things today.Their beautiful carfully constructed thoughts/principles were a gift to the ages and I do hope we can blow off the dust of the times,we allowed to settle in on them and revitalize them.
Shannon you are so right and I am glad to see that a few Governors are starting to take a stand. Even Arnold S. is talking about cutting entitlements in Calif. It remains to be seen if he is all talk and no action or if he’ll actually do what needs to be done. If he actually goes through with it, it will be interesting to see how many other states follow suit.
Shannon Castleman, I especially enjoyed your earlier comments on what it will take to get us turned back toward what the Founders intended. I’d like to point out though that before Robert the Bruce became “the lion in the north”, it was the acts, deeds and exploits of the “normal citizen” William Wallace that united the diverse clans and rallied them to resist tyranny. Before Stirling Bridge and Falkirk and long before Bannockburn there were the skirmishes and battles of Lanark ,Loudoun Hill, Ayr, Scone, Aberdeen and Perth. Before the nobles resolved that they would lead the fight, the common people determined and declared that they would be free and be independent. It was a long road, not a short one. I’m reminded of what Paul S. Gillespie said a few days ago, in reference to Federalist No. 11, “We are quickly loosing our ability to remain free and independent, because unlike Hamilton who obviously took the long view, we have concerned ourselves with the expediency of the moment and see only the quick fix from the short view”.
Andy, in the battle to return to the founding principles you are half way there. There is a principle that says in order to fix a problem one first has to correctly identify it and how it came to be. It is only then that effective strategies can be formulated.
We are all on this boat together and just maybe this study is the flick of the wrist that changes our direction. We are seeing signs that a new atmosphere of attitude is rising. The recent ousting of incumbents or life long politicians is a sign. I pray that our simple response to a long over ignored actions of our politicians is not too late.
The national debt, promises of future entitlements, and actions to devalue our currency to zero is bankrupting our nation and it’s citizens. Our position and strength to be a major world power has tanked significantly because over the last 100 years our selected leaders forgot to defend our constitution. Or……our citizens did not know enough to be more selective. They did not know what they had or did not know that we have to take an active part in our government actions.
Yes we have to have leadership because many will follow. Getting traction and attention for these ideas is a real challenge.
Thanks to all of you for this study.
Roger, I liked what you seemed to suggest about the common people, the individual, being a key to solving our current crisis of liberty. Many Americans (myself included) have not been paying attention as a century-long, ever-so-subtle incremental drift away from our founding principles has put our liberty in some jeopardy. Dr. Morrisey mentioned the Progressives and how they view the governing of our country. In my limited reading of the Progressives (mostly selections from American Progressivism by another Hillsdale educator, Ronald J. Pestritto), they seem to have a firm belief in the perfectibility of man brought about by just the right social and political control. And there are academic, legal, political, and artistic elites who have the “wisdom” and good intentions to “improve” upon our founding principles so that we can attain the perfection they so ardently desire for us.
I know the modern elites are really, really smart and everything, but I think I’ll stick with the Founders. Informed not only by their religious sentiments, but also by their study of human history and man’s various attempts to form civil societies; they accepted man as an imperfect being, and the structure of any suitable government would take into account man as he truly is not as he might be imagined in some utopian, fantasy world. How smart were the Founders? I recently heard a scholar say that President Kennedy’s quip about Jefferson dining alone was probably literally true–”I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” (Remarks at a dinner honoring Nobel Prize winners of the Western Hemisphere. 4/29/62)
The increasing centralization of power and tax dollars in Washington would horrify the Founders. They did not fight a revolution against the centralized power of the King and Parliament only to have it brought 4000 miles here to Washington to exercise tyrannical power over the individual American. Our founding document the Declaration of Independence tells us where the Founders put their political faith and trust, and it wasn’t in the State. It was in the certain unalienable rights of the individual. We possess those rights independent of any government. We establish government to secure our rights. Ours is a protector government not a provider government.
We have lost that necessary faith in the enlightened self-determination of the autonomous individual exerting his free will in a material world governed by natural laws. If Ludwig von Mises is right that “government is essentially the negation of liberty,” individuals who innately yearn to be free, will always come to be frustrated by looking to a bigger and bigger government to make their life choices for them. One of the greatest gifts God has given us is free will; without it life would cease to have any meaning.
Thanks for quoting me Roger. Its nice to be remembered. I was otherwise occupied yesterday, but am catching up this morning. Great comments by everyone following a thoughtful essay by Dr. Will Morrisey. I do however take great exception to Andy Spark’s idea that slavery was the chief cause of the War for Southern Independence. (Civil War is used incorrectly in this type of conflict)
States Rights, much a concern today, was the key issue to the South. On this subject, the South was entirely right as we see the present subjugation of the States to the actions of an all powerful federal government. The main issue to the North was not slavery but revenue. Over 60% of Federal income, distributed unevenly to Northern States came from Southern States. Most Northerners had no strong feelings about Southern succession until the Northern newspapers and banks started pointing out the need of the North for the continued wealth of the South. (Before the war, Mississippi was actually the richest State in the Union) When asked why he was against the South leaving the Union, Abe Lincoln replied: “Where would we get our income?”
It was only when the “greenbacks”,through rapid inflation from printed money had caused more financial problems than lost revenue did the North need another reason the shore up faltering support for conquering the South.
A quick look at the laws most of the Northern States restricting the rights, freedoms and movements of the non slave black population, makes it very evident that no Northern State was willing to start a war with the South to free a black person. But since the Union was already knee deep in blood and debt…why the hell not try to put a moral face on their actions.
I agree that the resulting 14th Amendment has its flaws and should be repealed, but lets not throw out the baby with the bathwater. It does restrict the States from passing laws that infringe on our Bill of Rights.
If you don’t think slavery was a chief cause of the Civil War, then you look at history with a jaundiced eye. True, economics was an underlying cause of conflict, but you have to look deeper than the surface; something lost causers and slave state sympathizers refuse to do.
I don’t disagree that the northern states are without culpability in the livelihood of the peculiar institution, but to point to the non-slave holding states as the ignoble precipitators of the war is disingenuous. If the cotton-growing states had been willing to confine their slave holding status to those within which they currently existed, there might not have been an issue. Likewise, and more to my point, if the institution had been irradicated at the outset of the Constitution, then the likelihood exists that a war would have been avoided entirely.
Unfortunately, with help from the 3/5′s clause, the Southern states dominated the presidency, Congress, and even the Judiciary (Andrew Jackson alone appointed 7 of 9 supreme court justices including Chief Justice Roger B. Taney). Only when immigration and westward expansion from 1815 onwards precipitated a transition of power from congress to the northern states did congressmen like Jefferson Davis worry that the government would shift power towards the rapidly industrializing north.
It wasn’t northern financial improprieties that led to a war; it was the south trying to hold on to its power based on an already antedated institution that led to war. Try as you might to blame something other than slavery on the war, if you know your history and the underlying causes to straw man excuses like the tariff and states’ right, then you know that slavery was the principal cause of the Civil War.
How fortunate you were to have Harry Clor for a teacher – would that all our kids in government schools could, too. That’s not possible, so, we all must become Harry Clors (read, read, read) and find opportunities to re-educate America’s children on the exceptionalism of America!
It is truly exciting to see how interested people like Hamilton were in promoting industry and business. When I look at essay #14 I see a much more robust concept — government should facilitate commerce not restrict it. The limited powers of the federal government look much more logical when I see that encouraging commerce through the post office, highways and interstate trade were explicit powers. I guess I’m now wondering what happened that caused us to get off track today? It often seems that rather than facilitating commerce, many in government see it as they job to try to stop business in its tracks.
This is an amazing site and Janine and Cathy have really made the essays relevant. The contributors you guys have found as guest bloggers are awesome. I want to say thank you so much for doing this!
“When asked why he was against the South leaving the Union, Abe Lincoln replied: ‘Where would we get our income?’ ”
Do you have a link for that or a text for attribution? I’m curious to see the remaining context of that Lincoln quote.
Federalist No. 14 – Janine Turner
Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 14, Federalist No. 14Tuesday, May 18th, 2010
Howdy from Texas. I hope you had a nice weekend. I started reading a wonderful book this weekend, which I have found to be a great companion piece to our “90 in 90 = 180.” It is entitled, “Miracle at Philadelphia,” by Catherine Drinker Bowen. Check it out!
I thank Professor W.B. Allen for his thought-provoking essay today. I really appreciate his time and talents. I thank you, Professor Allen. And I thank all of you who are joining us! Please spread the word about our important mission here and read it with you children and/or family members or friends. Please also spread the word about our contest for kids. The “We the People 9.17 Contest.” Our children are in desperate need to be educated about our founding principals. It is up to us to teach them. Check out tonight’s behind the scene video. It is my daughter informing other kids about the contest!
Tonight’s reading once again reveals our Constitutional founding fathers’ amazingly brilliant ingenuity. It is obvious from the Constitution that they did not want any resemblance of class warfare or “Nobility.” The art of a Republic was the perfect balance for a democratic state. James Madison makes a striking point regarding the complaints that there was no precedent for a Republic. Was there a precedent for the Declaration of Independence, that courageous and biting document that sparked and validated the Revolutionary War? Was there a precedent for the Revolutionary War?
Regarding relevancy today, how many modern day citizens really know that we are a Republic? Do our children know that we are a Republic? Do they understand and value our freedoms, rights and free enterprise? In one of Cathy’s recent essays, she included a link to a statistic that I found to be alarming. A Rasmussen poll in 2009 stated that 13% of people over 40 years of age believed that socialism was better than capitalism, yet in the group of people under the age of 40, 33% believed socialism was better than capitalism. I find this statistic to be very alarming! Imagine what the statistics would be today?
Thomas Jefferson words send us a timely warning, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”
James Madison states in Federalist No. 14, “The kindred blood that flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their union, and excite horror at the idea of their becoming aliens, rivals, enemies.”
May our kindred blood unite in preserving our truly magnificent country and may we focus on both the founding principles that shaped our country and the goodness of the people that made it be. May we set the precedent for rekindling the flame of awareness about the brilliant framework of our country and its relevancy today.
God Bless!
Janine Turner
Federalist No. 14 – Cathy Gillespie
Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 10, Federalist No. 14, Federalist No. 14, Federalist No. 71Tuesday, May 18th, 2010
Federalist #14
First, a big thank you to Dr. Allen for his insightful comments. As usual, Dr. Allen does much more than simply explain to us what is in the reading, he takes us several steps further.
And thank you to all of you who commented today. Especially to Kay for her heartfelt story about the airport encounter, and the glimpse into the soul of our Union.
Wow! I loved Federalist #14! There are so many beautiful passages about unity in our country – “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies.” While the American people “have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience…” But the item that most caught my attention was the discussion of the difference between a republic and a democracy. I was struck by the fact that many of the communication and travel constraints our founding fathers operated under have been removed in present day by technology, and by the fact that technology is facilitating our country’s move toward democracy, something our founding fathers would not see as an improvement.
The difference between a republic and a democracy is so important, and so little understood. In Federalist 14 and elsewhere, Publius devotes a good amount of time explaining the difference between these two forms of government, and detailing the weaknesses of a democracy as opposed to a republic. In our founding fathers’ time, a democracy within a large geographic area was impossible, limited by the “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.” In Federalist 14 Madison points out that the geographic size makes the United States much more suited to a republic than a democracy.
Today, technology has erased the constraint imposed by geographic size, and our culture is drawing us towards democracy. Television shows such as American Idol where millions of people cast ballots; online polls where instant readouts of the public’s tastes, preferences and opinions are measured; Twitter, Facebook: all put more power than ever in the collective public’s hands to instantly express opinions on any matter.
But the weakness of pure democracy is the same, whether it is a small geographic area where the people are physically coming together to vote on every issue affecting them, or whether it is millions sitting at computers, in front of their televisions, or texting on their cellphones “voting.” As Hamilton states in Federalist 71, “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not 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.”
In Federalist 10 the weakness of pure democracy was summed up this way: “From this view of the subject it may be concluded that a pure democracy, by which I mean 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. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
As the culture draws us toward democracy, and with the geographic constraints on democracy removed by technology, it is more important than ever that we understand the systemic flaws of this type of governance.
Our elected officials must be firmly grounded in the meaning of the republic, and their role in balancing competing interests and factions. We must understand the fundamental reasoning and principles that drew our founding fathers to govern through a republic, and the Federalist Papers are vital for that understanding.
I am so grateful for all who are adding to our knowledge base each day, and journeying with us through these readings. Thank you!!
Good night and God Bless!
Cathy Gillespie
Federalist No. 14 – Objections to the Proposed Constitution From Extent of Territory Answered, From the New York Packet (Madison)
Federalist Paper 14, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, W.B. Allen, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 14, W. B. Allen PhDSunday, May 16th, 2010
In the fourteenth essay Publius argues that America has discovered the merit of making the mechanical principle of representation the basis of unmixed and extensive republics. This is not only an extended republic, but it is a republic in which we do not have to make a special place for the rich and the poor. We will not reserve one legislative house for the rich, another house for the poor. We will not create formal classes in government, and the government will not depend on class distinctions.
It may not have been observed that the tenth essay’s principle of the extended sphere of the republic has a consequence in the operations of politics. There will be commerce, and single district representation also. There will be the “multiplicity of interests.” But we must not neglect that as interests multiply they must affect more people. The consequence of that fact for the ancient distinction between the rich and the poor is a significant diminution in the numbers of the poor. The logic and dynamic of the extended commercial republic is precisely to squeeze rich and poor towards the middle.
The real impact of this constitutional design is to get rid of the struggle between the rich and the poor. The great American middle class is an historical oddity that has come to characterize all the modern world impacted by the industrial revolution and the principles of modern republicanism. This growing middle class is the basis of the unmixed constitution, a constitution founded on the middle class that turned almost into the only “class.” One of the most extraordinary things about the argument in the tenth essay, which is reflected as well in the fourteenth essay, is that it anticipates the nineteenth century debate about class and political life. Publius responded in advance, in effect, to the arguments of Marx and others, insisting that the United States need not have the rich overcome the poor or the poor overcome the rich. It could rather offer a social, economic, and political dynamic through which in fact those distinctions disappear in terms of their political significance.
Grant we must that what are called the super-rich do exist, as do the tabloid sheets that celebrate. But we do not view the rich, or even the super-rich as a class. Which is the reason that they can be just about anyone, from extraordinarily gifted athletes to people of very old money and families. They are isolated; they are individuals. They are not a class. In fact the only thing that distinguishes them today is their money. Otherwise they seem much like everybody else, and sometimes less. What matters is that this happened not by accident; it happened by a constitutional design that aimed to base the Constitution’s support on the strength of a very large middle class.
The claim, therefore, in the fourth paragraph of the fourteenth essay, that we have an umixed and extensive republic, goes to the very heart of the Antifederalist challenges to the Constitution and leads Publius to inquire in the paragraphs following, what are the limits of a democracy? and how are we supposed to calculate this? The question must be asked because we know that general arguments must be tested by practical limits. We cannot assume that there are no limits to representation as an approach, especially if we take seriously the task of “harmonizing and assimilating” differences. Differences must at least be kept to such a level that they are subject to being thus harmonized.
Publius provides a calculation in the fifth paragraph and those following. It is interesting because of what it says about 1787 technology and what it implies about the future. First, he describes the limits of democracy as a dynamic function: “the natural limit of 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.”
The natural limit is the distance determined by public functions. The natural limit of a republic is that distance from the center, which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said the limits of the United States exceed this distance? “It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled.”
To say that members of the Confederation Congress were “continually assembled” is a bit disingenuous; for although the Congress was almost constantly in session, one of the chief complaints about it was the notoriously poor attendance of delegates.
Publius then conducts a lesson in public geography, leading him to conclude that the ability to travel from any point, within a certain period of time (two weeks in 1787), to reach capital and conduct business, sets the allowable size of the system. This is a fairly mechanical definition, and it can be misleading. Not only does it not respond to the matter of harmonizing and assimilating, but it deflects attention from the ultimate basis of Publius’s judgment. The twelfth paragraph makes this clear, when Publius appeals to ties of affection to sustain “one great respectable and flourishing empire.”
In other words, Publius reminds us that we started with a Union, not with a theory on the strength of which we generated a Union. A theory may tell us that the Union is not too big for its britches, but that does not imply its indefinite extension. The condition for extending the Union is the continual existence of the Union. But that, in turn, would depend upon people accepting its principles, and first and foremost those principles enunciated in the Declaration of Independence.
Thus, two things operate simultaneously: first, the notion of the mechanical theory, the distance limit and, second, the moral limits, the moral distance. To the extent that we accomplish Union on the scale of the moral distance, it becomes possible by the mechanical theory to justify extending the reach of the Union, and not one bit farther.
W. B. Allen is Dean and Professor Emeritus of Michigan State University
Federalist No. 15 – Cathy Gillespie
Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 14, Federalist No. 15, Federalist No. 15Wednesday, May 19th, 2010
Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!
Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!
I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.
But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780′s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.
That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.
Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.
Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.
I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!
Good night and God bless!
Cathy Gillespie
Federalist No. 15 – Janine Turner
Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 15, Federalist No. 15Wednesday, May 19th, 2010
Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.
Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”
The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.
Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.
Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.
Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:
“I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot, which binds the people of America together, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”
“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”
“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”
“Is public credit an indispensable resource in a time of public danger?”
“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
“The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption.”
Are we not experiencing all of the above today?
God Bless,
Janine Turner
One Response to “May 18, 2010 – Federalist No. 15 – Janine Turner”
William Statkiewicz says:
May 19, 2010 at 3:18 pm
I am so motivated every morning when I wake up. Looking ” Forward” to when I will log onto a computer and read todays Essays on the Constitution.
I Think I will be an expert by the time this is all over.
The Checks and Balances of the Constitution ensure us that we dont have chaos
” Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
Therefore , this is why we are a CIVILIZED society in the United States.
Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton)
Allison Hayward, Federalist Paper 15, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 14, Federalist No. 15Tuesday, May 18th, 2010
Federalist #15
Alexander Hamilton’s Federalist 15 is a gloomy counterweight to Madison’s optimistic Number 14. Madison ended No. 14 praising the noble course set by the founders of the new nation. Hamilton’s No. 15 is like a splash of cold water, reminding citizens of the moment’s terrible perils.
And the troubles are many. The nation’s present configuration is inadequate to the task. The central government cannot govern, and thus cannot honor its debts, defend its territory, engage in diplomacy, or unite its constituent state governments.
And therin lies the rub, not just for Hamilton and the founders, but for generations afterward. How should the central national government relate to the states? The states are the unit of government charged with the ratification of the constitution. But Hamilton knows that a “mere” confederation of states will not survive, not in the dangerous world of the late 18th century. The central government needs sufficient power to govern the nation as one unit, when solidarity is required. Recalcitrant states must be brought to heel to honor their obligations. That meant, in contrast to the Article of Confederation, extending the federal government’s power to impose obligations upon real citizens as individuals, not just intangible state governments.
This is a big step. Hamilton’s challenge is to appeal to his reader’s fear of irresponsible state governments. He can then position the national government as a solution to that problem, rather than as a tyrant to be feared itself. But among his readers are also the political leaders within New York, so he must argue carefully. He isn’t attempting to convince his New York readers they need to fear for irresponsibility in their own state government. He doesn’t need to accuse them of fecklessness. It is enough that other states will take advantage of a weak central government to pursue short term agendas to the ultimate detriment of all.
As we know, debate over the size and scope of the federal government persisted after the ratification, even to this day. From our vantage point, it may seem odd to entertain the notion that the central government could be too weak. Federal statutes and regulations reach deeply into American society, and into areas of governance traditionally left to state and local governments, such as criminal law, education and corporate governance. But in 1787, the prospect that the United States could become a “failed” state was real. However one feels about the size of government today, reading Hamilton should remind us that “ordered liberty” requires some authority to maintain the order.
Federalist 15 makes interesting reading in light of the financial crisis in Europe. Although the EU has an executive, the power of the central government is fragile and nothing like that established by the Constitution. Is the European Union sufficiently powerful to bring fiscal order to its constituent nations? Or will the lack of fiscal discipline in Greece, to name but one member, pull the EU down, destroy the Euro, and provoke domestic crisis throughout Europe? Can Europe impose a federal solution? I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.
Professor Allison Hayward teaches election law at George Mason School of Law and is also a fellow with the Center for Competitive Politics
16 Responses to “May 18 – Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics”
Susan Craig says:
May 18, 2010 at 10:01 am
Honor and restraint seem to be the necessary ingredient that both Madison and Hamilton imply. Especially in this quote from #15: “should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.” Unfortunately quite a few of the list seem to be rampant in today’s world. I think the most damaging is misrepresentation (aka lying). Presenting your self or your program in language that obfuscates the intent. Most recent example “Employee free choice Act”. How ironic the “Big Government” of 1787 is now looked on as the ideal of the “Small Government” people. As we traveled from 1787 to now it seems that we suffered from the belief that if this much is good maybe a little more will be better.
Susan Craig says:
May 18, 2010 at 10:37 am
Found an interesting chart defining the ‘factions’
The Parties as they were constituted at inception:
Republicans (aka Anti-Federalist)——————–Federalist
radical Whig—————————————-moderate Whig (can anyone define Whig belief)
localists——————————————–more centralist
agrarian——————————————–commercial
less taxation—————————————-taxation
balanced budget————————————deficit (as a tool for credit)
egalitarian—————————————— enlightened paternalist
strict construction———————————–broad interpretation
pro-French——————————————pro-British
expansionist—————————————–reluctant expansion
became modern Dems——————————–became the modern Reps
Does it strike you that there is coming another 180?
Charles Babb says:
May 18, 2010 at 11:21 am
Professor Hayward, your analysis of Federalist No. 15 is very enlightening.
However, Publius may have been short sighted in his view. The balance of power still seems to be a problem. In 1787, the States were “recalcitrant” of their fiduciary and other responsibilities to the Confederacy. The Constitution seems to have solved that problem, but will it solve today’s dilemma caused by a Federal governments bribing the States into prostituting away (using the citizens tax dollars) the liberties of their citizens, with it’s tentacles wrapped firmly around our throats in many areas. Especially in the area of education. They realize that a people made dumb as sheep, are easily led to slaughter.
Today we have a federal government that refuses to enforce the laws it has passed; but wants to bring legal action against a State which, in desperation for life, limb and property, tries to take upon itself that task of citizen security, for which the federal government is now recalcitrant. The federal legislature is so enthralled with a power grab that all they can talk about is creating “comprehensive legislation”, rather than insisting on the enforcement of the laws already on the books. K_I_S_S.
Friends, passion has caused me to exceed the bonds of strict adherence to the analysis of FEDERALIST No. 15, I beg your indulgence.
MAY GOD BLESS AMERICA
Ron Meier says:
May 18, 2010 at 12:24 pm
We are going through this exercise of reading the Federalist Papers @ a time in world history when we get see first hand what our founders were talking about in the first 20 or so papers. As Professor Hayward notes, we are watching a Confederation in Europe crumble before our very eyes, and we can refer back to the various FPs to understand why.
At the same time, we are seeing in our own country the very thing that the States and citizens were worried about with respect to our Federal government attempting to consolidate power by having complete control over two of the three branches of government and attempting to neutralize the ability of the states, particularly Arizona, from protecting their own interests.
It’s great that we are able to analyze what we see, hear, and read more rationally, rather than just passionately, as a consequence of reading the FP. The language of the authors of the FP makes reading and understanding somewhat arduous, but enlightening when the gist of each article comes through.
Carolyn Attaway says:
May 18, 2010 at 12:24 pm
I found Paper 15 to be very relevant to current events. I could not help but think of all the situations that are occurring in and around America today, as I read Hamilton’s debate for a Federal Government.
The third paragraph had excerpts that jumped from the page which served as reminders of why we need a sound and common sense Federal Government, and not one set on pushing its own agenda. Hamilton states “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience….Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?….We have neither troops, nor treasury, nor government….Is commerce of importance to national wealth?….Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us.”
These statements, though written at an earlier time to defend the need of a Federal Government, can be looked upon today as a defense to rid ourselves of the status quo in Congress. Hamilton tries to convince the people of New York of the need for a basic Federal Government whereas today it has become overbearing and oppressive. The Congress has allowed the United States to be humiliated, and has apologized for her standing as a Superpower to other countries. They have endangered our AAA rating in the financial markets by increasing our debt to foreign powers as well as to their own citizens.
We may have military power, but it is constantly being undermined by accusations and political correctness. We have no treasury, and our federal government is quickly becoming imbecilic. I believe Congress has forgotten the reason behind its creation.
Hamilton writes: “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I realize that this statement was intended for the States in trying to form a Union, but I cannot help but see the hypocrisy in this statement when in it is applied to the Federal Government in relation to the immigration laws and dealing with enemy combatants.
One of the main reasons for a Federal Government was, and is, National Security. Our Congress views the laws to these issues as recommendations, to be applied to their best advantage, when in fact, it should be their number priority.
I heard the following on the news yesterday, “Most of the illegals caught crossing are from Mexico or South America, but thousands are classified as OTMs, “other than Mexicans,” including hundreds from nations that sponsor terror. These are the records we obtained at this federal detention center near Phoenix, Arizona. We find illegals from Afghanistan, Egypt, Iran, Iraq, Pakistan, Sudan, and Yemen in custody. This congressional report on border threats confirms members of Hezbollah have crossed the southwest border. It also contains photos of military jackets found on the border. The Arab insignia reads: “Martyr: Way to eternal life.” The other depicts a plane crashing into the Twin Towers. The congressional report also reveals the route Middle Easterners take. They travel from Europe to South America to the tri border region where they learn to speak Spanish, then travel to Mexico and blend in with other illegals heading to this country. Former Arizona Governor Janet Napolitano is now secretary of Homeland Security. We wanted to ask her about the border threat, but our request for an interview was never answered.” (Link: http://www.wsbtv.com/news/23434381/detail.html)
Instead of securing our borders, Congress is inviting illegal immigrants to the bounty produced by hardworking citizens, and admonishes those who question their actions.
Dave says:
May 18, 2010 at 1:15 pm
Thank you, Professor Hayward for your thoughts on Hamilton’s No. 15. I was struck by the tone of the paper, and more specifically, the words and phrases Hamilton used to describe the situation back in the early winter of 1787. The “troubles are many.” They probably were, but I couldn’t help picture Hamilton as Professor Harold Hill in the Music Man singing “We Got Trouble.” In writing about the “material imperfections” and “those defects in the scheme of our federal government” under the Articles of Confederation, Hamilton does seem to be a tad hyperbolic: “impending anarchy,” “national humiliation,” “imbecility of our government,” “mimic sovereignty,” “melancholy situation,” “brink of a precipice,” “plunge us into the abyss,” “destitute of energy,” “political monster,” “desperate extremity,” and “the frail and tottering edifice.” He sums it all up by basically saying that anything that could have gone wrong has gone wrong. Here is a master salesman at work.
Hamilton knows the stakes and is not shy in making the hard sell. America is in dire straits and anyone who opposes the plan of union can be characterized “by ambition or by avarice, by jealousy or by misrepresentation.” The negative aspects of our human nature never seem to be present in the supporters of the plan. They all have the Wisdom of Solomon, the calm patience of Job, and the self-sacrifice of Jesus. Let’s be honest, Hamilton knew his duly revered General Washington would most likely be chosen as the first president and that he, Hamilton, would be in the first administration. It is to be remembered that it was Hamilton’s plan at the Constitutional Convention that had a president for life with supreme veto power over any and all laws.
So, even if his Bill of Particulars, “enumeration of particulars,” presents a convincing indictment against the existing Confederation, Publius should still be tasked to justify his solution to “this desperate extremity.” Publius has 70 more papers to make his case. Will the new plan of union truly protect the governed so they may enjoy the prime object of government, ordered liberty?
One is tempted to ask, “Who decides what, and how much, order?” In the end, force or the threat of force must become a real possibility. Washington said, “Government is not reason, it is not eloquence—it is force! Like fire, it is a dangerous servant and a fearful master.”
Thank you Professor Hayward for bringing in the current EU troubles. This seems to be analogous to what Hamilton said about the law must have sanctions. How is the EU to act against Greece but by force (“military execution”) or the threat of force, if Greece decides not to honor her agreements.
In No. 15 there exists a rallying cry for our times: “[L]et us make a firm stand for our safety, our tranquility, our dignity, our reputation. Let us at last break the fatal charm [of Statism of all kinds] which has too long seduced us from the paths of felicity and prosperity.”
Carolyn Attaway says:
May 18, 2010 at 1:44 pm
Thank you Dave for mentioning the statement in your last paragraph. I too feel this is a rallying cry for our times. I highlighted it in my reading of Paper 15 and drew an arrow to the last sentence six paragraphs down: “we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.” As citizens of the United States, I believe it is our task to keep our government in check, and be more active in our involvement than just voting.
Maggie says:
May 18, 2010 at 2:19 pm
Carolyn I couldn’t agree more. When I read “Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?”, I instantly thought of China and how much of our debt they hold. We are literally selling away our power. I was also struck by this statement: “We have neither troops, nor treasury, nor government”. Yes, we have a very strong military; but for how much longer when every democratic administration that comes into power further defunds the troops? I, too, immediately thought of the immigration issues with Hamilton’s writing “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I believe that this quote stands for many laws on our books that are simply NOT being enforced. Every time a politician brings up gun control and how “we need more laws” all I can do is think about the many laws we already have controlling the ownership of firearms….they just aren’t being enforced. Why is it that those in Washington just don’t seem to comprehend that criminals don’t care about laws? They have already broken laws…that is why they are CRIMINALS. Further revoking the rights of law abiding citizens will NEVER change that.
Lynne Newcomer says:
May 18, 2010 at 3:22 pm
Thank you Professor Hayward for your quidence on this paper.
I do so agree with so much that has been written by everyone that it would waste time to name everyone.
Simply… with regard to AZ, we are either a Nation of laws or we are not.The Gov of AZ.showed remarkable fortitude to stand up to Washington.She is no fool she knew she would meet with much hateful speech etc, but went on and is weathering the storm hip- hip- hurray.The fact that Washington is lowering the standards of civil, and acceptable dialogue is surely regretable but the sanctions are going to come their way,and they will come from the voting booth.We are a smart people and we know the Pres,and Congress ore failing to do their jobs.
I like the EU example, the officers of the EU,seem to be toothless and of a more ceremonial nature.I do hope that they find their way .
Dave says:
May 18, 2010 at 3:49 pm
Carolyn, what I think everyone can accept is that a sovereign implies some control over the individual. The sticking point for the Anti-federalists (and for me I’ve lately learned) seemed to be how justly and efficiently a distant, centralized power would govern. We’ve seen some elaboration and we’ll see a lot more of the compromise reached between the consolidators and confederals. The consolidators placed their trust in the State. Those advocating for more of a true federal system wanted a buffer between the national government and the individual. There would be two sovereigns over the individual, each with their own sphere of authority. General, national concerns would fall under the purview of the general government, and the local, private, every-day concerns would be handled by the state or local government. I think it’s quite workable in a republic of virtue, in spite of Hamilton’s slam of an imperium in imperio as a “political monster.”
The irony should not be lost on any of us reading No. 15–Hamilton was indicting the weak national system of the government under the Articles of Confederation and yet almost every malady he mentions could apply today in spite of a very strong leviathan, national government. Publius is constantly urging opponents of the plan to open their eyes to the light of reason and experience and see that an energetic, wide-ranging central power will cure all their ills. We’ve gone wrong somewhere. Would that there were a modern-day Publius to counsel us on how we’ve gotten off course and what we can do to get back on the right course.
I do know our state governments have let us down. Here’s a sampling of excerpts we will read in the next few weeks showing the buffer role of the states I mentioned:
We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. (No. 85)
The executive and legislative bodies of each State will be so many sentinels (No. 84)
But ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm (No. 46)
schemes of usurpation will be easily defeated by the State governments (No. 46)
I should not have rambled on so. All I wanted to say is that I agree with you in the role of the individual, but the states have a responsibility and they seem to be shirking it.
Jimmy Green says:
May 18, 2010 at 4:32 pm
The theme of the States surrendering some power to the Federal Government via the Constitution to strengthen their security and prosperity through a Union of these same states is a continual
theme in the federalist papers.
While I generally agree with the adage of “united we stand divided we fall”
I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.
What are the states rights if the federal government abrogates or is lacking or deficient in its constitutional powers.
I’ve seen mentions of the Arizona law in some people’s writings. What would Hamilton think the proper response of a state to the Federal Governments lack of securing the borders? There are many such examples but as the federalist papers are to explain why the states should unite one is left to wonder what Hamilton’s view are on states rights as a consequence of the failures of the Fed.
Shannon Castleman says:
May 18, 2010 at 4:38 pm
Dave, indulge away. Great points. Those who have brought up the EU are right on. True, we have a front row seat , as though we went back in a time mchine, to watch the disintegration the former empire across the pond.
But the Professor’s statement brought it to a new light for mr when she said that the EU actually needs to be stronger (like hamilton wanted for the US). It was hard for m to grasp as I always viewed individually the nations of Europe to be too much beholden to central government.
But now I see the reasoning behind that.
I am learning so much.
Carolyn Attaway says:
May 18, 2010 at 5:26 pm
Maggie, I agree with you about being over regulated by our government. If I hear of one more law that strips away our right to make choices, I think I will scream. Oops! Sorry! I have already done that. This latest push to take away McDonalds right to put a toy in their happy meal because parents shouldn’t be burdened with having to tell their children NO, I think takes the cake. If I wanted a nanny, I would have hired one.
I agree as well that our 1st and 2nd amendment rights are under major attack, but the people in Congress who are suppose to care, just roll over and admit defeat. I am soooo ready for November.
Dave, you have me in your corner in the belief that States have been giving away their rights piecemeal by piecemeal. Many are starting to wakeup in lieu of all the costs that they will be burdened with, I just hope it is not to late. Regarding your wish for a modern-day Publius, Gov. Chris Christie is on the right track, and if he succeeds in lifting up New Jersey, we may have someone other Governors may try to imitate.
Carolyn Merritt says:
May 18, 2010 at 7:51 pm
Thank you Professor Hayward for your enlightening analysis of Federalist 15. Hamilton could have written this paper for what is happening to our Country today. We are heaviily in debt, our military is being undermined by Congress and this President; toll roads, power companies, oil companies owned by foreign countries; we print money just as fast as this government can spend it and worse of all – our respect around the World is diminishing because of all the apologists in the current admininstration.
I liked Hamilton statement “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”
Amen Charles: “May God Bless America.”
Constituting America says:
May 19, 2010 at 12:23 am
Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.
Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”
The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.
Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.
Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.
Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:
“I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot, which binds the people of America together, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”
“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”
“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”
“Is public credit an indispensable resource in a time of public danger?”
“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
“The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption.”
Are we not experiencing all of the above today?
God Bless,
Janine Turner
May 18, 2010
Constituting America says:
May 19, 2010 at 12:55 am
Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!
Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!
I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.
But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780’s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.
That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.
Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.
Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.
I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!
Good night and God bless!
Cathy Gillespie
May 18, 2010
Federalist No. 16 – Cathy Gillespie
Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 16, Federalist No. 16Thursday, May 20th, 2010
A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!
I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.
Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:
An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and 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, unless in cases of a tyrannical exercise of the federal authority.
“A people enlightened,” ”natural guardians of the Constitution”
“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! Janine Turner Short Film Part 1 Constituting America
I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!
Good night and God Bless,
Your fellow guardian of the Constitution,
Cathy Gillespie
2 Responses to “May 19, 2010 – Federalist No. 16 – Cathy Gillespie”
Mark Hansbauer says:
May 20, 2010 at 3:30 am
The people must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. . . .”
The distinction between a “legal exercise” and an “illegal usurpation of authority” implies knowledge of the difference between “legal” and “illegal.” Is a governmental action “legal” simply because it follows precedent or is based on a plausible interpretation of the Constitution? Is such action “illegal” when it contravenes precedent or is based on a novel interpretation of the Constitution? These questions bring out the possibility that it is not sufficient for the people to understand the Constitution merely at the textual level. There has to be knowledge of standards that ‘stand above’ the Constitution, not to usurp it, but through which we arrive at the fullest and most just construction of the document.
Dave says:
May 20, 2010 at 11:30 am
Mark, good observation. The Constitution did not come complete with a rule book for construction or, as we would say, interpretation. Who is to decide what is constitutional? How are they to go about the process of deciding? And on what are they relying? It seems to me that the approach to the Constitution has become one of avoidance. Interested parties have an agenda or result in mind and then scour through the case law to find any little precedent they can hang their hat on to nudge the law incrementally toward their desired result.
Each incremental step away from the Constitution seems completely innocuous, plausible and reasonable. But after 230+ years, the “constitution” they are interpreting is strikingly different from the one the framers put their name on. Others have likened it to generations of judges and legal scholars attempting to improve an Old Master painting with a brush stroke here and a brush stroke there. Hubristic acts of defacement and vandalism are what I call those narrow-minded, agenda-driven improvements. Want a different constitution?–AMEND IT! There are, after all, amendment provisions.
Some legal minds get it. Justice Scalia and Justice Thomas come to mind. There are others:
“I claim the right to look at the Constitution itself, stripped of judicial encrustations, as the index of constitutional law.”–Justice Jackson
A judge “remembers above all that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.”–Justice Douglas
“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”–Justice Frankfurter
The Founders did not suffer from delusions of grandeur; Hamilton says it was never about “the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man.” (No. 85) They did give us constitutional means to make it “more perfect.” I wish we would use those means instead of unconstitutional ones which rely on the arbitrary policy preferences of unelected judges with lifetime tenure.
We have ended up with, as other Constituting America contributors have mentioned, the Orwellian doublespeak of engaging in commerce by not engaging in commerce. (see Wickard v. Filburn, 317 U. S. 11 (1942))
Mark, sometimes what I see is not a question of knowledge of what’s “legal” or “illegal.” They have the knowledge; they just want a different outcome. Thanks for getting me to think about these ideas.
Federalist No. 16 – Janine Turner
Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 16, Federalist No. 16Wednesday, May 19th, 2010
I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!
Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!
Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”
“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.
Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.
Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.
Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?
“When the sword is once drawn, the passions of men observe no bounds of moderation.”
Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?
God bless,
Janine Turner
Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton)
Federalist Paper 16, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 16, Marc S. Lampkin, The Articles of ConfederationWednesday, May 19th, 2010
Federalist #16
In Federalist #16, Alexander Hamilton continues to outline the deficiencies of the present system of government authorized under the Articles of Confederation. It is Hamilton’s view that the loose confederation will lead to lawlessness and ultimately anarchy once the inability to enforce its own laws becomes apparent.
This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.
The system that was in place had two important facets: it was a voluntary association of the states and secondly it was in most respects a government whose actions were non-binding. The fact that the Articles of Confederation were voluntary meant that the Congress ruled with the consent of the governed and therefore exercised their authority lawfully. However, the fact the government could not enforce its dictates meant that ultimately festering conflicts could result in armed conflict among the several states as the enforcement mechanism of last resort. Furthermore, due to the differences between the size and influence of some of the states, the confederation was particularly ill suited for America. With no enforcement power, the confederation created asymmetric power centers encouraging large and powerful states to see national policies for their benefit while disregarding the needs of the smaller and less powerful states. In the unlikely circumstance wherein the Congress adopted a policy that might benefit small states, larger states might ignore them with impunity. Such a circumstance potentially leads to civil war.
In fact, Hamilton observes that this asymmetric distribution of authority had other problems unrelated to the tendency towards internal armed conflict. Even when faced with exogenous threats, because the states view themselves as sovereigns — motivated primarily by their own self preservation — the national government would either not have access to the resources necessary to prevent an attack from a foreign enemy or perhaps simply not respond to an attack if the attack was perceived as being against one of the states rather than the nation as a whole.
If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense.
On the other hand, since the Articles of Confederation do not give Congress the power to lay and assess the taxes without consent or to compel the armies necessary to stave off attacks, the weakness that the American government presents to other nations would appear quite provocative. Hamilton complains that by their nature, the states as sovereigns are not transparent entities and therefore even assessing duties or raising armies is unduly difficult. Does a state refuse to pay up its share because of actual shortages it is experiencing or because its support for the cause identified is lackluster?
If there were a national government like the one described in the Constitution, it would already have the authority to defend itself — recognizing that an attack on one part was an attack on all.
Even if the conflict from foreigners is not the result of a coordinated assault i.e. a war, foreign governments would still be tempted to sow dissension among the states, Hamilton argues. As long as the states themselves are complete sovereigns, they have every incentive to evaluate foreign relations, trade, and even aid solely in terms of its impact on them as sovereigns and not on the nation as a whole. Hamilton calls this “Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form.”
Nevertheless, even if the states were to voluntarily provide the resources for an army, would the force be used to intimidate would be attackers or instead to enforce through intimidation its policies among the states themselves?
It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority.
Then this would present concerns that are even more troublesome. Wouldn’t it be the case that what Hamilton calls the “delinquency” (meaning the failure of compliance) would occur not just among one state but also likely among several? In addition, wouldn’t powerful states attempt to align themselves in ways to avoid suffering the consequences of their delinquencies? If so using the military to enforce compliance begins to look a lot like civil conflict or civil war now that the states joined together in alliances are using enforcement of national policies as a tool of enforcing their perceived advantages.
Hamilton writes, “It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause.”
A final critique that Hamilton makes of the Articles of Confederation stems from the notion that it would be beneficial that states would affirmatively approve most of the policies adopted by the national government. While on its face, it might appear that requiring a second step in order to assure that a given statute must go into effect would be good for liberty, Hamilton argues that it was more likely to lead to anarchy or civil conflict.
Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.
Hamilton asserts, If it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, 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. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.
Hamilton reveals himself to be quite alarmed by the potential threats posed by the Articles of Confederation. While he may not see the U.S. Constitution as a panacea to all problems that the young nation might face, he believes that by its design, it is far better able to prevent conflict, or in the event that conflict occurs, it would be able to see that the nation was ultimately able to survive it.
Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School
18 Responses to “May 19 – Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton) – Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School”
Susan Craig says:
May 19, 2010 at 9:03 am
The more I read and study what transpired between the Declaration of Independence and the end of George Washington’s second term the more I find myself squarely between the two factions. I see the deficiencies of the Articles of Confederation but seeing how some of the programs that were darlings of the Federalists have developed I think I would have fought to caveat the Federal Government a little more strictly and defined the relationship of State to Federal a little more clearly.
Charles Babb says:
May 19, 2010 at 11:55 am
How would we ever make any sense of these writings, were it not for the wise interpretation and guidance of our special guest bloggers? Thank you.
I would like to explore Mr. Lampkin’s thoughts in the following observation;
“Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.”
Do we not see a design fault here, resulting in excessive legislation, happening today? Is this one of the areas where you, Susan, would like to have seen greater clarification?
I shudder to think what the volume of legislation is that has been passed over the years. And yet in November we will elect, or re-elect, representatives who will go to Washington and pass more confusing and conflicting legislation, largely because (1) they try to hide the intent of their proposed legislation through volume and “legalize” and (2) our representatives are too lazy to read it.
How can you “deliberate” that which you do not comprehend?
And once it becomes the law of the land, if they do not enforce it, are they not in violation of their “Oaths of Office”?
What recourse then do “we the people” have?
We have November.
MAY GOD BLESS AMERICA
Nickie Summers says:
May 19, 2010 at 12:47 pm
Two thoughts come to mind reading the founding papers:
First, it is crystal clear to me how far our country has moved away from the Constitution (defining principles and the relationship between the federal government and the states/citizens.) The Federalist/founding papers are redundant making the case to caution people of an ‘over reaching’ government. Hamilton says in No.15, and I’m paraphrasing, the idea of the Constitution is incompatible with the idea of government and therefore a Republic is the only safeguard against an unruly government. No. 16 expands on that and much more. Federal government has to remain small and ‘in check’ to their boundaries/responsibilities….that brings me to my second thought…’The People’….
Second, the founding papers completely empower each citizen – they own the begining and the end of the political process. Our political leaders are turned around in that thinking today. Americans are engaged and ‘owning’ their role to govern…we can/will change the political mindset and landscape in DC and around this great country.
Go Team USA!!
Susan Craig says:
May 19, 2010 at 1:57 pm
That is a symptom, Charles. What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri. Before if you did not like the way Massachusetts regulated its business, you could choose from any of the established States or explore into the territories. Now its Massachusetts or Massachusetts lite.
I would have liked a more elaborated upon clause. My suggestion, States may order commerce within their borders as they see fit. Should disagreements arise between States in the conduct business the Federal will act as Good Faith arbiter to facilitate and promote the smooth conduct throughout the country. Not exactly a legal beagle but I think something like this would have kept the SCOTUS from declaring wheat grown on private property for private consumption under the jurisdiction of the Federal Government by virtue of the Commerce Clause in the Constitution.
Ron Meier says:
May 19, 2010 at 3:59 pm
Too bad the creators of the EU didn’t read the first 20 or so FP before creating the EU. Had they done so, they wouldn’t have let some members in and they would have instituted some kind of enforcement mechanism. More likely, the EU would not have been created, since the prospective initial members would not have approved the sanctions for misbehavior.
re Charles’ comment about the sheer volume of legislation, to say nothing of the thickness of each individual piece, when our legislators run for reelection, they have to demonstrate that they were in attendance for xx% of all votes, the higher the better. If someone has a lower than acceptable percentage, then the opponent runs negative campaign ads demonstrating that the legislator is not doing his or her job. I submit that it might be better if our legislators would spend more time deliberating on the really important legislation and skip showing up to vote for legislation that they know nothing about and that is not critical to survival of our nation. As our Attorney General and Director of Homeland Security have just demonstrated, they don’t even have time to read a simple 10 page piece of legislation (Arizona’s law), yet they feel qualified to speak authoratatively on the law they haven’t read. Our legislators are in similar constraints and likely have staff read certain portions and give them briefings; I doubt they even read legislation they propose.
Carolyn Attaway says:
May 19, 2010 at 4:04 pm
Nickie, I too picked up on the citizen empowerment theme toward the end of this paper. There were several parts that begged to be read out loud, but two statements caught my eye, and I had to read them several times to absorb the impact of their words: “An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority . . . . 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.”
The first statement contained the sentence a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. I find this choice of words interesting given that enlightened means to have intellectual or spiritual light; and usurpation of authority means illegal seizure and occupation of a throne. How true do these words ring today that the people must remain vigilant of their government and the laws that are passed unto the citizens themselves less they become subjects to the throne of government through unconstitutional laws and practices? Are we not experiencing a degree of this usurpation of authority today? Is one of the main reasons we gather daily on this web-site is to renew our vigilance and become enlightened with our founding documents?
The second statement reiterates this theme with the words as the natural guardians of the Constitution would throw their weight into the national scale and give it a decided preponderancy in the contest. In Paper 15 Hamilton tells us that the only proper objects of government are the persons of the citizens, so it stands to reason that they would be the natural guardians of the Constitution. And being guardians they would have the decided preponderancy; superiority in weight; power, to defend the Constitution against illegal practices on either State or Federal levels to ensure its authority. We, as citizens of the United States, are charged with this duty.
I find these words amazing.
yguy says:
May 19, 2010 at 4:55 pm
“What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri.”
However vague it may be, there is no way it can be reconciled with Wickard v. Filburn (1942), wherein SCOTUS held that a person not engaging in commerce could be penalized under color of the commerce clause.
Jimmy Green says:
May 19, 2010 at 5:34 pm
Interesting that Hamilton’s belief of state delinquencies in a confederacy would result in civil war.
Yet less than a century latter a civil war between the states would arise under a constitution that Hamilton felt would prevent it.
I believe Hamilton’s desire for a constitution that must be able to legislate over the state and citizens is an implicit understanding of the nature of any true Federal System. The problem is the balancing act between a sovereign state jealously protecting its states rights and an federal government with certain enumerated powers over the sovereign states. Hamilton’s view of the powers of the federal government often seem like a dark cloud on the horizon. Granted the federal government in order to maintain the union has to exercise a degree of control over the states and citizenry.
However this is done via our elected officials in the congress. The States and peoples views are expressed through them such that hopefully any federal legislation is not unseemly harsh on the state or citizens as if they were blindsided. Hamilton’s writings seem somewhat of a dark nature and come across to me as someone who places state sovereignty a distant second to federal prerogatives. However reading the founding documents will show that states vigorously enforcing state rights its necessary to prevent that which Hamilton believes will occur under a confederacy.
Its good that Hamilton recognizes that the states should definitely intervene if the feds legislation becomes a “tyrannical exercise of the federal authority”.
However that’s an extreme viewpoint with most government tyrannies today being a rather long affair that slowly change the country with most of the citizens unaware of the slo-mo tyrannical creep. Interesting read.
Andy Sparks says:
May 19, 2010 at 7:29 pm
Jimmy, I think you hit the nail on the head with Hamilton. Remember he was born and grew up in the British West Indies. He didn’t come to America until he was 17, so he had no loyalty to any particular state. While he was educated and settled in New York, he joined the Continental Army only a few years later. What better place to gain an interstate perspective than in the army. Under Washington’s tutelage, he quickly learned about the deficiencies of the Congress under the AOC during the war in regards to raising troops, supplies, and other necessaries to keep the army going. I think any reference he makes to state power is so to appear not too enthusiastic for a national government. After all, he is trying to convince those moderate anti-federalists to vote for ratification. If it were up to him, he would have preferred a British style government; in fact his detractors referred to him as a monarchist while he headed the Federalist party.
Barb Zakszewski says:
May 19, 2010 at 8:59 pm
Both Hamilton and Madison seemed to have crystal balls at times, with their keen ability to look 100-200 years into the future. Hamilton argued that the Articles of Confederation could eventually set of a “civil war”..Yet 75-80 years after Ratification of the Constitution, the United states was involved in a “Civil War”…the War for Southern Independence. Although this war was considered to be chiefly over slavery, it was a war also for States Rights, for the 10th Amendment..Many of the things Hamilton predicted in Federalist 16 actually came to pass, by then, and that is what got things started.
As for comments made towards the end of the paper, Hamilton is saying that citizens will tolerate a lot from their government, unless government evolves into a tyranny, similar to what is happening today with the Socialist President and Congress we seem to find ourselves with. I believe there is a tie in to what Hamilton says here and the part in the Declaration of Independence that warns when government sinks to absolute despotism, it is our right and duty to throw off such government and provide new guards for our future security.
The more involved I become in this project, the more I can see where the Nation is going now; we must educate ourselves our families and our friends so that we can fight this and reclaim our Great Country!! The Founding Fathers, rather than being irrelevant as many Liberals think, are becoming more relevant with each passing day. We MUST listen to what they have to say.
God Bless this Great Nation!!
William Matthews says:
May 19, 2010 at 8:59 pm
No one has mentioned this, but under the Constitution Senators were selected by their states not like they are elected today. Before a bill could become a law, each of the states two senators had a chance to weigh in on it. In essence the states had actual representatives in the national government and states could actually control much more how their Senators voted. So perhaps when Hamilton is referring to the Constitution being superior he’s also meaning that states get to exercise their influence without needing to individually approve each law?
Jimmy Green says:
May 19, 2010 at 9:00 pm
Thanks for the input Andy. I plan on reading Hamilton’s autobiography in the near future to gain a better insight on him. Sadly as I’m living in the peoples republic of California, the founding fathers and the founding documents are not rated very highly. But there is hope that one day it will.
Susan Craig says:
May 19, 2010 at 9:14 pm
I think we have a lot to thank or accuse Rhode Island for. If they had not refused to consider ratifying any and I do mean any amendment to the Articles of Confederation how different a picture this would be.
Constituting America says:
May 19, 2010 at 11:45 pm
I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!
Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!
Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –
their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”
“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.
Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.
Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.
Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?
“When the sword is once drawn, the passions of men observe no bounds of moderation.”
Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?
God bless,
Janine Turner
May 19, 2010
Roger Jett says:
May 19, 2010 at 11:45 pm
As I have been reading day-to-day the many comments posted to this wonderful forum, I’ve come to appreciate how well read many of you are. It challenges me to study, learn and evaluate how our nation’s Founders strove to provide us with the best government possible. It was not easy for them to establish it, nor will it be easy for us to do our part to restore what has been largely lost. I too find myself at that point that Susan Craig described earlier today, after having read a lot of the writings from the time of the “Declaration of Independence” through the second term of George Washington’s Presidency, she finds herself squarely between the two factions on the issues of the day. As I have read a number of the arguments presented by Jefferson, Mason and Henry, I find myself influenced by points that they made. I don’t find that troublesome …. I do find it most helpful in obtaining a more balanced understanding and more informed opinion. I don’t always find myself agreeing with all that gets said on this forum, but I believe that the process has challenged me to evaluate what I think is right, true and has caused me to grow a little more strong and firm. Thank you Janine, Cathy and all the rest of you who participate. May God bless you all !
Constituting America says:
May 20, 2010 at 1:35 am
May 19, 2010 – Federalist No. 16 – Cathy Gillespie
A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!
I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.
Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:
An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and 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, unless in cases of a tyrannical exercise of the federal authority.
“A people enlightened,” ”natural guardians of the Constitution”
“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! http://www.youtube.com/watch?v=XGpmqkx1_JQ
I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!
Good night and God Bless,
Your fellow guaridan of the Constitution,
Cathy Gillespie
Dave says:
May 20, 2010 at 1:41 am
Here’s how I see No. 15 and No. 16. Hamilton is laying the foundation of his argument for ratification and basing it on man’s actual experience through history of forming civil governments, human nature, and most importantly for his argument, the actual experience the Americans had with the government under the Articles of Confederation. I need not repeat his parade of horribles here. He had to convince the New Yorkers that the current system was making their lives miserable whether they knew it or not, and that a strong, energetic, centralized, national government was the answer to all their prayers. If they would just stop being so biased towards their narrow, local interests. He assures them that the states will retain their due sovereignty, but the national government will be the supreme sovereign concerning the national objects under its authority.
The new plan would be different in significant ways from the failed confederations of the past. Those alliances always broke down in predictable ways because they were not consonant with human nature. If I may jump ahead an essay, in No. 17 Hamilton tells us:
“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.”
We care more about that which is close to us, and we should. Hamilton wants us to give up some of that local care and concern and cede it to the national government in our own enlightened self-interest. And up to a point I think he’s right.
I would caution vigilance for the corrupting influence of power, for the tendency to be profligate with other people’s money, and mission creep. If the national government had stuck to the plan of being a limited government of enumerated powers, and if it had not spent decades and decades trying, and failing, to be all things to all people, we might not be in the sorry state we are in now.
The Founders saw the states within the new plan as laboratories of democracy. Some states’ experiments would be successful and emulated; other states’ experiments would be colossal failures and be rejected, or at least should be rejected (think CA, MI, and NJ.) In this way, mistakes would stay local and not doom the entire republic. The fiscal black hole some states, cities, and corporations are in has been caused almost exclusively by bad legislative, economic, and business decisions. Bailouts using taxpayer dollars to reward imprudent local decisions creates what economists call a moral hazard and offers exactly the wrong kind of incentives with other people’s money, our money.
Dave says:
May 20, 2010 at 3:15 am
Andy, good points about Hamilton the man. I tend to bask in the glow of his brilliance and genius (he was only 30 or so in the summer of 1787,) but then I force myself to consider what aspects of his psychology and life experiences could be influencing his thoughts on government. Madison’s notes of the Federal Convention have Hamilton laying out his plan on June 18. An executive elected for life with supreme veto power? How could he think that was a good idea?
Jimmy, you had written yesterday, “I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.” That’s exactly what I’ve been wondering. The three branches of our federal government seem to have come to the conclusion that it’s just too much trouble to get the people to act in their constituent role as the “natural guardians of the Constitution” and amend the Constitution; they, our “agents and trustees” (No. 46) just ignore the Constitution and work their way around it, but they do make sure to pay it lip service at the appropriate times.
With the benefit of hindsight, I am amazed at how often in the papers, Publius warns us of what, to him, was the major threat to liberty. He thought the abuse of power would come from the states. After all, the federal government is a creature of the states or a servant of the states. It could never be the case that the creature would supplant the creator or the master would become the servant. Oh really? And something else that still troubles me in the federal system that they were proposing, with its dual sovereignty in different spheres and even with its guarantee of republican government in the states—What is to be done when a state exhibits tyrannical tendencies and is technically not in violation of the Constitution, but is in violation of the founding principles located in the Declaration of Independence? How was the slavery issue to be resolved? Abortion?
Last thought: For the new federal plan to work, the Framers had to have some presuppositions in mind about man and about the world. Were any of the presuppositions necessary for the perpetual success of the union under the constitution to be ratified? And would it be the case that any state of affairs not including those requirements would spell doom for the union.
Federalist No. 17 – Cathy Gillespie
Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 17, Federalist No. 17Thursday, May 20th, 2010
What a great discussion we’ve had on Federalist No. 17! Thank you to William C. Duncan for his insightful comments! Dr. Morrisey, thank you for joining us today with your contributions as well!
In Federalist 17 Hamilton addresses the concerns of the anti-federalists by making the case that the national government will not try to encroach upon the states’ rights and powers:
“It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.”
For the sake of argument, Hamilton imagines a scenario where the national government might try to overstep its bounds, and explains that “the people of the several States would control the indulgence of so extravagant an appetite.”
The founders had set up the unique and artfully constructed set of checks and balances to keep the federal government from extending its reach past the powers it was specifically given. So, what happened? How could Hamilton have gotten it so wrong? I have been pondering this all day. The answer is that the system the founders so carefully constructed was tampered with. It is ironic that Federalist No. 17 was rendered inaccurate by the 17th Amendment! Like any piece of delicate machinery, once the balance is off, the results go awry.
Hamilton could also not fathom that the national government would desire to control the details of peoples’ lives. He thought it would be too tedious a task for a government more interested in the big picture of “commerce, finance, negotiation and war.” Our country had been founded on personal liberty and the “unequaled spirit of enterprise,” mentioned in Federalist No. 11. It would go against everything their countrymen had fought for, for the federal government to encroach into peoples’ lives and trample their rights, so it was truly hard for Hamilton to foresee.
It is so commonplace today for the federal government to involve itself in the minute details of daily living, that most people don’t realize the balance of government is far off what the founders had envisioned, and the Constitution dictates. It is eye-opening to see the world through Hamilton’s eyes, a time in history when people could not imagine or predict the scope of power the federal government has achieved.
Only by studying the founders’ intentions, and the structure specified in the Constitution, can people understand how far off the path of freedom our country has veered. The Constitution is our road map and our guide, and to head in the correct direction, we must consult the map.
I thank everyone for their continued participation!
Good night and God Bless!
Cathy Gillespie
Federalist No. 17 – Janine Turner
Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVI, Constitutional Amendment XVI, Federalist No. 15, Federalist No. 16, Federalist No. 17, Federalist No. 17Thursday, May 20th, 2010
Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.
Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.
He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.
But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.
The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”
Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.
To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of state governments, which alone suffices to place the matter in a clear and satisfactory light.. I mean the ordinary administration of criminal and civil justice.”
The criminal and civil justice belong to the states.. something to ponder.
God Bless,
Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!
2 Responses to “May 20, 2010 – Federalist No. 17 – Janine Turner”
Susan Craig says:
May 20, 2010 at 9:35 pm
While I don’t agree with the founding fathers, that only those who own property should have the vote, I see where it has led to some of today’s ills. I think it was Benjamin Franklin who said the republic would be in trouble once people discovered that they could vote themselves other peoples money.
Tim Shey says:
July 21, 2010 at 5:13 pm
If a man abuses his power, the people rise up and fight against that man. If the Federal Government is too powerful and abuses its power, then the people rise up and fight against it (e.g. King George III and Great Britain in 1776).
This Christian lady told me that there was a prophecy given a while back and the prophecy said that “the South shall rise again.” I am sure that it does not mean that the Confederacy will rise again, but that the issue of States’ Rights will rise again. This is happening right now with the Tea Party Movement and all the other people sick and tired of our over-reaching Federal Government.
When the Germans counter-attacked in the Ardennes Forest in December 1944, many people were alarmed and there was general panic. But General Eisenhower saw it as an opportunity for ultimate victory. If Jimmy Carter was a gift to Ronald Reagan, then Barack Obama will be a gift to the Republican who takes the White House in 2012.
Have faith in God and we will see victory.
Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton)
Federalist Paper 17, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William C. Duncan 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 17, William C. DuncanThursday, May 20th, 2010
One of the most significant criticisms of the proposed Constitution was that it would eviscerate the autonomy and authority of the individual States. As Alexander Hamilton described it, the argument was that the Constitution “would tend to render to government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes.” While some today would not think of that as a weakness, this criticism was important because both the Framers and many of their contemporaneous critics believed that functioning States were crucial to ordered liberty. Thus, the Constitution provided that of all the appropriate objects of government authority, only a small and specifically identified set would be delegated to the national government, by the States.
So, in Federalist 17, Alexander Hamilton could respond to the criticism by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.
In support of this last point, Hamilton notes that it accords with human nature: “It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.” Thus, “a man is more attached to his family than to his neighbourhood, to his neighbourhood than to the community at large” so “the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, unless the force of that principle should be destroyed by a much better administration of the latter.” The States also have the important advantage of being responsible for matters “of criminal and civil justice” which make them “the immediate and visible guardians of life and property.” The national government, dealing only with “more general interests” that are “less immediately under the observation of the mass of the citizens” is “less likely to inspire a habitual sense of obligation, and an active sentiment of attachment.” Since the States “will generally possess the confidence and good will of the people” they “will be able effectually to oppose all encroachments of the national government.”
Hamilton’s analysis is persuasive but might seem a little alien in a climate where the national government increasingly dominates not only the objects of proper governmental authority but areas of life the Framers would not have contemplated government would regulate. Nevertheless, Hamilton does hint at a motivation for this dramatic incursion of the national government. Thus he notes that hypothetically “mere wantonness, and lust for domination” could lead national leaders to desire to interfere in State prerogatives. He believed, however, that the political process would turn back any such incursions since the States, with the support of their citizens, would “control the indulgence of so extravagant an appetite.”
Why has this check not been more effective? Perhaps it would have been if the sole threat to the notion of a national government of limited powers was the personal ambition of national leaders and others who might have a financial stake in government functioning. A more menacing challenge, however, was developing in Europe at the time of the Framing but which had not taken root in the fledgling United States. This was the emergence of ideology and its attendant schemes for improving not only the administration of traditional government functions but rather human nature itself. The scope of such an ambition obviously would not be confined to interstate commerce and international relations but would also contemplate the objects of State governments like criminal and civil justice. In this project, the States have too often been complicit in order to secure largesse from the national government. Then, as the province of the power of the national government expanded, the subjects which might tempt ambitious individuals and financial speculators multiplied and created interest groups with a strong incentive to continue national involvement in traditional State concerns.
The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.
Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.
33 Responses to “May 20, 2010 – Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”
Carolyn Attaway says:
May 20, 2010 at 8:06 am
I appreciated Mr. Duncan’s insight into Paper 17, and realized as I read his analysis of Mr. Hamilton’s writing, that where the Paper was to warn of the dangers a very robust State may have on National authority; today we see the reverse to be true, where a robust National authority usurps the State’s power.
During Hamilton’s time, the men in Congress served part-time and worked a great deal in the private sector. So when Hamilton writes ‘relating 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’, I realize how far we have come from the framers original intent. Today our representatives in Congress are full-time delegates; many never having worked in the private sector, making laws over citizens with no sense of reality as to what it takes to survive in mainstream America.
This part of our framework I fear is broken. I believe our founders never intended Congress to be so removed from their citizens, taking on the role of knowing what is best for their constituents, and making laws without their consent. The Great Cement of society has cracked.
I enjoyed Hamilton’s reference to the feudal systems of Great Britain. Being an avid reader of that period of time, I could visualize the struggles between the feudal baronies and clans, not only against the crown, but with each other, and within each group of people. Hamilton writes ‘the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government.’
Again, during Hamilton’s time, I believe this statement had greater import, but today with the States giving the Federal Government so much of their power, they do not retain a great deal of the confidence and good-will of their citizens. Many of their citizens do not realize that a lot of the entitlements that they receive from the State are due to monies being received from the Federal Government in exchange for State authority. And if they do realize it, how many of them understand the consequence?
With the ratification of the 17th Amendment, I believe the power of the State diminished.
Charles Babb says:
May 20, 2010 at 9:00 am
Thank you Mr. Duncan, for that synopsis and for your analysis. Hamilton seemed to miss one “fact of human nature” regarding “its affections”; that is the one of individual and collective greed. “In this project, the States have too often been complicit in order to secure largesse from the national government.” We’ll give back some of your citizens’ tax dollars, for school construction as long as you agree to teach your children what we tell you to teach them.
And it could not be said better; that, “The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.”
What is needed now is a plan to accomplish that goal.
Susan Craig says:
May 20, 2010 at 10:52 am
While I grant that Hamilton’s point of view has merit from the divisiveness that comes from internal squabbling. But what happens to the country when the abuse comes from the other direction? What happens when the greed and power hunger abuses the intent of the enumerated powers? In Federalist 17, Alexander Hamilton responds to this by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.
Today I don’t see much of that but I do see a lot of usurpation of State, local and individual rights by the Federal Government, this I think is a result of ignorance and laziness on the part of the individuals.
Linus Behne says:
May 20, 2010 at 1:04 pm
Boy, I sure wish that Alexander Hamilton was correct about the national government staying out of the business of the states. Hamilton would be shocked if he came back to life today. The Federal government wants to stick its’ nose into everything.
One of my favorite lines from Fed 17: “It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government”.
William Duncan says:
May 20, 2010 at 1:54 pm
Thank you for these excellent comments. I am much from your responses and am glad the essay sparked these thoughts.
I agree that our situation now is pretty grim in terms of centralization of power in the national government. One thing that I believe would make a difference is for states and individuals to resist the temptation to accept federal funding in some instances.
William Duncan says:
May 20, 2010 at 1:56 pm
The first sentence in the second paragraph of my comment should have read “I am learning much.”
Susan Craig says:
May 20, 2010 at 2:08 pm
How I wish that today’s iteration of our ‘Constitutional’ government would think that the usurpations were “nugatory” (of little or no consequence: trifling, inconsequential: having no force: inoperative: synonym – vain)
Carolyn Attaway says:
May 20, 2010 at 2:09 pm
Susan, I agree with you to some degree on the ignorance of the individual due to the lack of correct US History being taught in the public school system, however; I do not concur with the word laziness. The majority of Americans today are very hardworking people, many taking several jobs to keep afloat, and I think that is the crux of the problem. So many people are on auto pilot in political matters of our country, and do not have the time nor energy to keep up with all that is happening today. Many people work long hours and only look for a small reprieve from their work by the end of the day/week. Others honestly thought that the problems we are experiencing today never could happen.
I heard a current poll today that asked if you were satisfied with the direction the country is going. Only 23% of the people polled agreed, the rest were deeply dissatisfied. I think we can safely assume that the 23% is from the left who have very liberal agendas.
I believe with every day that goes by, more and more people are finding the energy and the courage to take a stand. Now if we could get our representatives in Congress to do likewise.
Maggie says:
May 20, 2010 at 2:11 pm
I don’t think that Hamilton ever envisioned things going so far in the opposite direction because it has always been the American Spirit to work hard for what we have. We have become a nation full of people with our hands out. When you expect others to take care of your every need without working for it yourself, you give up many rights in return. We the People have handed our rights over, slowly but surely because we have become lazy and complacent.
Ron Meier says:
May 20, 2010 at 2:43 pm
As others have noted, the current situation is greatly different from what could have been anticipated 200 years ago. States have allowed themselves to have their authorities and powers over certain areas of responsibility be minimized by federal mandates on a whole host of areas. As a consequence, the states have allowed themselves to become dependents of the national governmennt. Today, we see that many of the most populous and powerful states are in a state of almost permanent weakness, due to their own fiscal mismanagement, and thus are not able to take back what the federal government has taken away; they are responsible for all that is wrong in their states, but the federal government holds the reins of authority, and the states have no power to correct anything. Effectively, the states have been neutered in small bites by the feds.
Therefore, it is now up to the people. It seems that many of us have intuitively realized that the states cannot and will not fight back, and that is the genesis of the tea party movement. This movement is unfolding and untested, and we won’t know if it can effectively take back what has been taken from us over a hundred years. I remember Warren Buffett saying recently that “we have been selling our country to foreigners a little bit at a time.” Indeed we have; we’ve also been selling our individual and states’ rights a little bit at a time. Each tiny step didn’t hurt at all, so we kept selling. Now, while the individual steps were no problem, the cummulative effect of those tiny steps is killing us. Kinda like smoking; pleasurable over many years, but fatal sooner than hoped.
Will Morrisey says:
May 20, 2010 at 3:06 pm
I think that Hamilton’s key point is that the original design or structure of the U. S. federal system gave the states the means of resisting federal-government encroachment. The centerpiece of this was the Senate. Recall that the senators under the original system were not elected directly; they were appointed by the state legislatures. Quite often, those legislatures would sent `their’ man to Washington with expressly-stated directives on how to vote. Contrast this with the system brought in by the Progressives, under the Seventeenth Amendment. From then on, a U. S. Senator simply did not need to worry much about any directions or resolutions from his/her state legislature. A Senator’s political `power base’ is quite independent of the legislature of his home state. This is one major reason why federalism doesn’t work as intended. It’s not Hamilton’s fault, or the fault of any of the founders. It’s a much later development.
Constituting America says:
May 20, 2010 at 3:50 pm
Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.
Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.
He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.
But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.
The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”
Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.
To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of state governments, which alone suffices to place the matter in a clear and satisfactory light.. I mean the ordinary administration of criminal and civil justice.”
The criminal and civil justice belong to the states.. something to ponder.
God Bless,
Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!
Susan Craig says:
May 20, 2010 at 4:09 pm
The ‘laziness’ I was alluding to was not that of hard labor but of intellect and inquiry. Our propensity to go along to get along. The laziness is in trusting what the ‘talking heads’ and politicians say not digging into the details of what is behind the pretty sounding titles and sound bites. My current example of this is the trust we had when the ‘talking heads’ and politicians said that the passed version of “Health Care” [prime example of a misleading title] did not contain a public option – THEY LIED! It is there just buried in the care of the Director of the Office of Personnel Management (Section 1334, pages 97-100).
Dave says:
May 20, 2010 at 4:24 pm
Carolyn, well said. You got me thinking about how different public officials and citizens were in Hamilton’s time compared to today. Citizens were probably not as mobile back then, so when they settled on a place, it was a place where they would invest considerable time and resources. Early Americans must have been very attached and loyal to their local communities and states. They knew that any public improvements would be improvements they would enjoy for many years, so public projects were heavily supported locally (no stimulus money needed back then.) How loyal to their local communities are today’s representatives of the people. They are in Washington more than their home states. They won’t even meet with constituents for town hall type meetings. They vote for social policies even when their constituents are against them 5 to 1 or even 10 to 1. How loyal were the Clintons to Arkansas? How many politicians sell out their states to obtain a federal post? From how many laws do the federal legislators exempt themselves? Arlen Specter wanted power so bad he switched parties and abandoned any principles he may have had.
As I read No. 17, I kept writing in the margin “wrong.” Hamilton had certain expectations of how things would play out. Evidently modern man has become much more imperfect and degraded than Hamilton could ever conceive. It’s obvious to me Hamilton has a blind side. He cannot envision the general government being the source of infringements on individual liberty. Granted the states at the time were not bastions justice and magnanimity, and something had to be done.
Hurray Charles. I’m sick and tired of what Ronald Reagan, many years ago, called the money merry-go-round—citizens compelled to send their hard-earned tax dollars to Washington, only to have it trickle back to their state at the whim and behest of federal bureaucrats. Federal money is for FEDERAL PROJECTS duly enacted that benefit the whole republic. Spending federal dollars on non-federal projects is unconstitutional.
Reps have a duty to protect their state’s enlightened self-interest and constitutional sphere of state authority on behalf of their constituents. This duty I’m suggesting is not to imply an abrogation of a state’s federal responsibilities, nor is there any implication to disparage or diminish the constitutional prerogatives of the federal government or those of the 49 other states. What cannot be allowed to continue is for the states, and the state actors, to continue to accept the role of mere agents for the federal government. Madison in Federalist No. 46 puts the agency relationship in the proper perspective: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.” In a nutshell, local money, to the greatest extent possible, should stay local for local purposes.
My thanks to Mr. Duncan.
Dave says:
May 20, 2010 at 4:44 pm
Thanks for bringing up the Seventeenth Amendment Professor Morrisey. What was it that sold the Amendment to the states? Why would they give up such a key component of federalism and a check on the passions of the people’s house with a different scheme of composition for the senate?
Carolyn Attaway says:
May 20, 2010 at 4:57 pm
I think it is more stupid arrogance of our elected officials. When in any other time of history would you have heard these responses:
“Many senators and congressmen have taken offense to the idea that they read these bills.
Representative John Conyers didn’t know what the point was in reading it because he wouldn’t understand it anyway.
House Majority Leader Steny Hoyer laughed at the idea of reading the health-care bill saying, “If every member pledged to not vote for it if they hadn’t read it in its entirety, I think we would have very few votes.”
Representative Henry Waxman admitted he didn’t know the details of his own Cap and Trade bill.
And Senator Arlen Specter said they couldn’t read the whole bill, because they have to “make adjustments very fast.” Link:http://www.redcounty.com/note-representatives-us-constitution-should-be-your-guide
More constituents knew what was in the HC Bill than Congress did. I do agree many constituents are lazy when it comes to researching their candidates before voting for them; but hopefully this Novemeber that won’t be a problem!
Dave says:
May 20, 2010 at 5:48 pm
Susan, nihil sub sole novum (nothing new under the sun.) Jefferson had this in the Declaration of Independence: “all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” Hard-working Americans have been hard at work supporting themselves and their families. As individuals they give time and money to their churches, charitable organizations and to the community. They never saw the slow switch when public offices became places of profit instead of places of honor. Hard-working Americans have been too busy to be political activists and “organizers.” I think they’re realizing quickly that they cannot afford to be too busy too much longer.
I think the masses have become too accepting of pronouncements from a self-anointed elite class. Universal healthcare? Let’s see, Social Security, Medicare, Medicaid, PGBC, Amtrak; failure, failure, failure, failure, and failure. Why would anyone think the government being everyone’s doctor is a good thing?
The moral fabric of Americans having become frayed, Americans have succumbed to the siren song of the free lunch. Too many Americans think it is morally acceptable to have others provide for that which they can, but refuse to, provide for themselves. I love Janine’s
line about America being built by Americans, not with their hands out, but with their hands at work. Contrast that with Nancy Pelosi’s recent utterance about the healthcare bill: ““We see it as a entrepreneurial bill – a bill that says to someone, if you want to be creative and be a musician or whatever, you can leave your work, focus on your talent, your skill, your passion, your aspirations because you will have health care.”
So, if the marketplace has determined that you really suck at something, no worries, the taxpayers will subsidize your “artistic efforts.”
Jimmy Green says:
May 20, 2010 at 6:43 pm
Hamilton’s arguments that the Federal Government would never usurp the States sovereignty in its laws simply due to the lack of interest or as Hamilton states “can never be desirable cares of a general jurisdiction”. is something I agree with not because of a lack of desire by the fed’s but rather a restraining system of checks and balances working properly to enforce this restraint. Power generally begets more power when it can and Hamilton knew this so a simple belief the Feds would have no further interest to usurp state sovereignty regardless of a constitution seems week at best.
This paper seen in the perspective that the constitution will work as written would in effect allow everything Hamilton wrote in essay 17 to work as so written. In that context I agree with Hamilton and we could rewrite essay 17 as essay common sense.
Our attachments are greater to those nearer. Our bias would be towards our State. Even the state criminal and civil laws or justice will bind the people to their states. “Unless you’re guilty.” Okay all common sense.
The exception is Hamilton’s belief that the feds need to worry more about the states encroachment on the fed. The congress will be enacting “federal” legislation and since the “federal” courts will determine the constitutionality of the “federal” laws vs. the states.
I would have thought this alone would give Hamilton pause in his belief on the reality or not of state encroachment.
Hamilton upbringing and early adulthood probably colored his view differently from the average Americans as some have pointed out to me.
Also the essays were written to achieve consensus in New York on ratifying the constitution so some liberties may have expressed Hamilton’s desire but not actual beliefs.
I’m curious to know if Hamilton believed there was a threat to state sovereignty or if he cared. He understood the corrupting influence of power. The drive of power for powers sake and the inherent jealousy and ambitions to abuse the common man in pursuit of power. Yet he seems devoid of understanding that when the Federal Government is left to determine the constitutionality of any law against a sovereign state through the federal governments own federal courts that your only asking for trouble. The final arbiter of constitutional law is the Supreme Court. Just a bunch of federal “lawyers” sitting around deciding what they believe is write or wrong. If they follow a fairly strict interpretation of the constitution then were all reading from the same play book. Life is fine, the sun shines and the bees buzz. It’s when decisions based on egos or the sudden finding of a hidden meaning in the constitution that no one before them found or god forbid “I want to leave a legacy”. Then the rule book is always changing and we start to look like those feudal systems Hamilton discussed. This was an inherent danger the founders overlooked that we need to remedy today less we move further away from the founding documents.
Susan Craig says:
May 20, 2010 at 8:17 pm
There’s the rub. (to quote a famous Dane). What we have at federal level is not the deliberative body it was envisioned to be. They are trying to be all things to all people and being none to everybody. They are reactive thinking [and I use the term loosely] that we being an instant society need everything done yesterday if not sooner.
Roger Jett says:
May 20, 2010 at 8:34 pm
Dave, You asked earlier in reference to the 17th Admendment, ” what was it that sold the Admendment to the states?”. I think the answer to that question is that it was the desire of the people. Overtime their was enormous dissatifaction over the process of having U.S. Senators elected by state legislatures. Pressure was exerted on both the U.S. Congress and upon the state legislatures to allow their direct election by the citizens. Congress resisted, but state legislatures acquiesced to the will of the people. By 1912, (29) state legislatures elected U.S. Senators via state referenda. It was only after the state legislatures were on the verge of achieving a two-thirds majority in a movement to call for a convention for a constitutional admendment, that congress relented and proposed the 17th Admendment. The Admendment was ratified by 37 out of a possible 48 states with only one state explicitly rejecting it.
Susan Craig says:
May 20, 2010 at 8:46 pm
I don’t know but when it was briefly covered in either my high school or college history courses I think the selling points were supposedly “We the people” are supposed to be the final say in our ‘democracy’ (note how the fact we are a representative republic is not to be spoken) so why should there be another body of our ‘betters’ choosing the most powerful position in the legislature. Somehow they neglected to point out it is the directly elected representatives who have the power of the purse and that legislation at least nominally is to originate from there too.
Will Morrisey says:
May 20, 2010 at 9:47 pm
There had been numerous attempts to amend the Constitution to require direct election of senators; the first such attempt was in 1826. By the time the amendment was passed in 1912, 29 of the 48 states had direct elections `in effect’; that is, they had nonbinding elections, but the state legislators pledged to vote for the top vote-getter. Amendment 17 is one of the Progressive-era amendments; as one would expect, the argument was that democracy in principle should involve direct popular election of legislators. The Heritage Guide to the Constitution has a good, short account of the matter.
Janine Turner adds an important point about the income tax amendment, passed around the same time. These two amendments were characteristic moves of Progressivism: If you are out to build a centralized, modern state, you need big revenue source, such as an income tax (mere tariffs won’t do); in addition, you need political structures that do not in any way depend upon the will of the subordinate political structures in the system. This sets up a system that appears to be more democratic than its predecessor (and in some respects is more democratic) while at the same time funding a bureaucracy that will effectively serve as an UNelected `fourth branch of government’–that is, as a new and oligarchic element in the regime.
Roger Jett says:
May 21, 2010 at 12:55 am
Dr. Morrisey, Many seem to be in agreement that the 17th admendment was a poor decision. I’ve tried to listen and remain open on the matter, as I have evaluated the various arguments for and against it’s ratification. I have to entertain thoughts about where would we be now if we still left it up to the state legislatures to determine who represents in the Senate. Who can say what impact the 17th Admendment has had in the last 96 years or so, but certainly there has been some effect caused by it. What that might be is speculative at best. One point however is that the legislative landscape at the state level has been dominated by one party consistently for a long, long time, while at the national level there has been substantially more balance between the parties in the U.S. Senate. I don’t want to argue that we are always better off if a particular party is in the majority. However, I believe most people recognize that when we have a party that has too large a majority for too long a period of time, then abuses occur. Many Americans breathed a little easier when the balance of power shifted ever so slightly in the Senate this past January. If Article I, section 3, were still in effect , with partisan politics as it is, what would be the status in the Senate. We currently have Republican control over 14 state legislatures and Democrat control over 28 state legislatures. In seven state legislatures neither party controls and apparently Nebraska’s Legislature is considered nonpartisan. In my mind, I see this scenario resulting in at least 56 Democratic Senators and at least 28 Republican Senators, with a lot of contention transpiring in the remaining 8 states over how to decide who gets the remaining 16 Senate Seats. I for one am glad it’s the people who decde.
Dave says:
May 21, 2010 at 12:59 am
This is better than a college seminar. Thanks for all the great comments about the 17th Amendment. I think the amendment disrupted the balance the Founders’ tried to achieve in accommodating the different faculties of men and hence different material conditions as Madison wrote about in No. 10. The Senate seemed to be designed to keep the levelers at bay. But now you have two lower houses, one of which has a 6-year term–let the great leveling begin, for Madison tells us that “the most common and durable source of factions has been the various and unequal distribution of property.” (No. 10) To “the People” of the populism movement who wanted a senate that looked like them, I have one thing to say–”How’s that working out for you? A few years back a study was done of the financial wealth of senators and found that 40 percent of them were millionaires. Not quite a mirror image of the general populace.
Isn’t getting rid of the aristocratic leanings of the senate like Hamilton’s example of when the sovereign and the common people “effected a union between them fatal to the power of the aristocracy[?]” In this context, I can’t help thinking about the title of a history book on the Russian Revolution by Orlando Figes–”A People’s Tragedy.” The people always think they’re going to come out way ahead and they never do.
As I read more and more about our early republic, I’m troubled with a recurring thought–Have we become a people incapable of governing ourselves?
Susan Craig says:
May 21, 2010 at 8:18 am
The more we push self-esteem over self-accomplishment and allow “the devil made me do it” instead of insisting on the self-determination of ones actions the less governable we become. Governance begins with self.
Will Morrisey says:
May 21, 2010 at 9:09 am
Roger Jett makes a key argument. My point is simply that one can’t have two opposite things at once. That is, you can’t have federalism as “The Federalist” conceives it and also have the popular election of senators that has brought greater representation to the Republican Party in the Senate–unless you figure out some other institutional device that would shore up the states by giving them a more direct voice in the federal government. Alternatively, under a system of renewed control of state legislatures over the Senate, Republicans would need to take state legislative elections much more seriously and work to win majorities in them. There would undoubtedly be much more media focus on such elections if more were at stake in them. When it comes to state legislative elections, maybe Republicans have reaped the harvest of their own inattention.
Dave says:
May 21, 2010 at 10:31 am
Roger, thanks for your insight. But the people did decide before the 17th Amend., it’s just that under the framers’ plan they decided indirectly by electing the local legislators. The senate was to be the repository of the accumulated wisdom of the nation. It was set up to throw cold water on the heated passions of the lower house. They were supposed to be the best and the brightest; an aristocracy of merit not heredity (if my ancient Greek does not fail me, I think aristos means best or most noble.) The unique concerns of the senate laid out in the constitution were far removed from local concerns. Treaties, foreign trade, federal appointments, and national security were not what the common people were thinking about on a day-to-day basis–they wanted to know if the crops and animals were taken care of.
I haven’t had a chance to read up on the 17th Amend., but my guess is that there had to be corruption, or abuse of power of some kind, to upset the people of the time.
The American people of the 21st century are too ignorant of the long-term impact of their ill-considered public policy desires. Our rights of private property will always be sacrificed on the altar of democracy. If the masses can confiscate the wealth of the few through the use of government under the color of “social justice,” “economic justice,” “environmental justice,” and “shared responsibility,” they will. The senate was supposed to be populated with disinterested statesmen of integrity and honor–closer to Franklin than Franken. The civic knowledge landscape of the American electorate and the elected is not a pretty picture. The Intercollegiate Studies Institute’s (www.isi.org) reports for the last few years present a dismal, horrifying dumbing down of Americans. We’ve gotten to the point where someone like me, just a common man, could now be seen as an elitist.
Just give the people their bread and circuses (panem et circenses) and the individual rights and liberties of others can be trampled without notice or concern to the long-term detriment of all.
Dave says:
May 21, 2010 at 10:57 am
Susan, we do irreparable harm to the individual and his potential to lead a meaningful and fulfilling life when we show such little respect for his free will and his autonomous self-determination by not holding him accountable for the consequences of his actions.
I got an idea. If anyone wants a bailout, they must seek it from family, friends and willing strangers. The anonymity of individual and corporate welfare payments lacks the transparency to make people accountable. There’s no sense of shame, no sense of honor; just entitlement. It’s so easy to spend other people’s money.
Susan Craig says:
May 21, 2010 at 1:23 pm
Dave, that is my prime objection to a majority of national welfare programs. It subtly tells the recipient that they can’t make it therefore they need to be cared for. Enslaving those take the ‘entitlement’.
Dave says:
May 21, 2010 at 2:28 pm
Susan, to me it’s even more insidious than simply telling the recipients that they can’t make it. The “welfare” is sold as something they are entitled to because their situation came about through no fault of there own–certain external constraints kept them from living a life of excellence. But for certain classes of people holding the recipient back because of prejudice, monopoly power over capital, or any other made up reason our recipient would be the next Edison or Gates. The system allows people to forget that before the government can “benefit” certain individuals, it must necessarily deprive others. A government has nothing prior to taking from the governed.
Roger Jett says:
May 21, 2010 at 7:50 pm
Dave, I find that what Dr. Morrisey and you have had to say today has great merit and serves to help us focus more upon the real underlying issues and less upon the “appropriateness” or, perhaps the “inappropriateness” of the 17th Admendment. The Founders sought to preserve sovereignty to the states and to the people in those areas which were not specifically enumerated to the federal government. I believe we each agree that to the detriment of America we have drifted substantially away from where the Founding Fathers intended for us to be . In my opinion some of that drifting may have been the result of unrealistic expectations on their part. After all, much that they attempted was experimental and on a grand scale. However, while they may have been mistaken in a few of their methods, they proved to be overwhelmingly correct in their concepts, precepts and principles. Our goverment as built upon our Constitution, has withstood many tests over a period of time that is unequaled in history. However, I believe I’m on target when I say that there is a consensus that we are in grave danger of losing our republic form of government. We face many difficulties. By way of what Dr. Morrisey calls a Fourth Unelected Branch of the federal government (bureaucracy), the executive branch is managing to usurp power from the legislative branch. By judicial activism, the judiciary branch further usurps power from the legislature as they legislate laws from the bench. Of course as has often been discussed already, the federal legislative branch in conjunction with the federal judiciary has routinely overriddened the sovereignty of the state governments. We the people have grown selfish, complacent, apathetic and in increasing numbers more and more dependent upon the federal government. Such actions and lack of action invites bondage. We still have a “republic” and it’s time for us to wake up, cast off our fears and fight to save it.
Kay says:
May 21, 2010 at 11:21 pm
I have nothing to add, except my thanks for all the bloggers and essayist Mr. Duncan. As one of you mentioned, this is better than a class. I read today one little ray of hope: the Constitution is selling like hotcakes. The Heritage Foundation, the Cato Institute, and even our Congressional offices who have free copies are experiencing a rush of requests for the Constitution.
Dave says:
May 22, 2010 at 9:24 am
Roger, I wholeheartedly agree. Thanks for taking the time to write so many well thought out comments for this project. You used the word “drifted” and that is a word that has found its way into my vocabulary with increasing frequency. Paul Rahe used it in the title of his book Soft Despotism, Democracy’s Drift. I haven’t read it yet, but it did get me to read selections of Tocqueville–check out the short chapter six of part four in volume two entitled What Kind of Despotism Democratic Nations Have to Fear. Tocqueville foresaw the Nanny State and the Administrative State 175 years ago.
I’m not well read enough to see the big picture yet, but I’m going to keep reading.
Federalist No. 18 – Cathy Gillespie
Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 18, Federalist No. 18Friday, May 21st, 2010
Another week of 90 in 90: History Holds the Key to the Future draws to a close! Thank you to Andrew Langer for your participation as a Guest Constitutional Blogger! And thank you to everyone who is posting such well thought out and researched comments.
In Federalist 18, the founding fathers are telling us that History, indeed does hold the Key To the Future, as the name of this blog indicates.
Not even a fourth of the way through the 85 Federalist Papers, and we have all been amazed at the foresight of the founding fathers. They seem to have an uncanny ability to see the future. We know they did not have a crystal ball or special powers, so what was their secret? The answer is that they were extremely well read students of history, philosophy, and human nature. They took the time to think; they actually thought about the future, and used their knowledge to predict outcomes if certain paths were chosen.
Today, we live in an instant gratification society. If a problem is not immediately upon us, it is not dealt with. If a problem looms twenty years away, we do not want to address it. Our founding fathers had a much longer vision looking ahead, and looking back.
The depth of knowledge of the founders about ancient civilizations, and the lessons drawn from them is fascinating. As Juliette, Janine’s daughter observed, they knew all this and didn’t even have Google!
The founders took the time to study these ancient civilizations so they could draw the important lessons from them: the necessity of a closer union so the strong states would not tyrannize the weak, that “a weak government, when not at war, is ever agitated by internal dissentions, so these never fail to bring on fresh calamities from abroad,” that a stronger union can repel invaders.
Somewhere along the way our society has lost respect for history. People want to alter it, to make it fit their world view. In arrogance we believe we are immune from the mistakes of the past and don’t take the time to analyze events or draw lessons from them.
In today’s comments, Ron made an important point – to change this culture of disrespect for and ignorance of history, we need to take action! He encouraged us to “find some historical event that you’re passionate about, do the research, and tell the story. Service clubs need speakers for every week’s meetings, so there are plenty of opportunities. We just have to do it. Taking action is important. Exercises like this should stimulate us to some action; if we finish this FP exercise and go back to living our lives as we did before, then we’ve gained knowledge, but done nothing to rediscover our heritage or, more importantly, to help others do the same.”
Ron is so right!! As we read the Federalist, our eyes open to many truths, one of which is the importance of looking at lessons from history as we move forward. We need to find ways to take action, and share what we are learning with others. Whether it is Ron’s idea of speaking to civic clubs, or simply forwarding a link to this blog to your personal email list, you can make a difference in opening people’s eyes to the founding principles of our country, and the importance of knowing the United States Constitution.
Thank you to each of you for all you do for our Nation!
Good night and God Bless!
Cathy Gillespie
One Response to “May 21, 2010 – Federalist No. 18 – Cathy Gillespie”
Barb Zakszewski says:
May 24, 2010 at 6:39 pm
I like Ron’s idea too. We must take the knowledge we are gaining and share it, or it will just grow old and stale in our brains. I’ve been talking to everyone I can think of, informing this of this website and the knowledge I’m gaining…I actually write a small column for the monthly newsletter of a club I belong to and have told our editor of my plans to start writing a summary of the what’ I’m learning here each month!! I’ve constantly encouraged my club’s members to become active, and as Janine says, “knowledge is POWER!!!”. Let’s all spread the word!!
Federalist No. 18 – Janine Turner
Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 18, Federalist No. 18Friday, May 21st, 2010
Today my 12-year-old daughter read Federalist Paper No. 18 to me as I was driving her to ballet class after school. As she was reading, she would stop to look up words she didn’t know and yet had some understanding of the culture because she has been studying Latin and Greek this year. Her first comment was, “Wow, he knew all this and he didn’t even have Google!”
I agree with our guest Constitutional scholar, Mr. Andrew Langer, (I thank you for blessing us with you scholarly insights again today, Mr. Langer!) that one of the Providential aspects of our country’s founding and birth of the United States Constitution is that the deliberators and creators were so well read and prolific in their knowledge.
In the book I mentioned earlier this week, Miracle at Philadelphia, it recounts how James Madison asked Jefferson for a few books, “Whatever may throw light on the general constitution and droit public of the several confederacies which have existed.” Jefferson sent some, by the hundreds. Madison instantly threw himself into the study and wrote essay after essay in preparation for the challenge that lay ahead.
Thus, coupled with extreme knowledge and intellect was another most needed ingredient, passion. Carolyn Attaway quoted Churchill in her blog today about how people don’t rise to the occasion until it is too late.
In this regard I actually have a spark of hope. I see and sense an awakening of the American patriotism, passion and practicality. Americans are taking action, speaking out and yearning for truths and our founding American principles – just like all of you great patriots who are dedicating your time to join our “90 in 90.”
Americans have a keen sense of right and wrong, justice and injustice. It is in our blood. We will rally and rise to the occasion. The prevailing theme of these Federalist Papers – union – stimulates our cause and fortifies us with knowledge and inspiration.
I thank you for joining us. Please continue to spread the word and please reach out to your children and/or a child you know and teach them about the history of our great country. History proved to be a beacon for Publius and our American history will prove to be the beacon for us.
God Bless,
Janine Turner
9 Responses to “May 21, 2010 – Federalist No. 18 – Janine Turner”
Dawn says:
May 21, 2010 at 8:08 pm
Well said, Janine! Your point about the depth of learning and knowledge of the Founders is something I was pondering just the other day. These were men who did not have the equivalent of today’s High School diploma, and yet they were scholarly, well read, most well informed and excellent critical thinkers. I think we would do well to look at not only how these men thought, but also how they learned: as you said, by extensive reading for “extreme knowledge and intellect” plus that potent catalyst; passion.
Marc W. Stauffer says:
May 21, 2010 at 11:45 pm
Actually, they were very well educated, with most of the founding fathers having degrees, many in law. Many also held degrees in Ministry. The educational philosophy of the time included religion, morality and knowledge and was far more rigorous and demanding than today’s. Have you ever read The New England Primer? This was the introduction book to reading…a first grade equivalent book. Spelling was up to six syllables and there was much memory work. By fourth grade, complex math problems were calculated without the use of pen and paper (head math). Webster’s “Blue Back” speller was being used; creating the first “spelling bee’s” competitions. It was not uncommon for young people to enter the university system at the young age of 14. Fisher Ames (First Amendment creator) entered Harvard at 12, Charles Carroll of Carrolton (a Declaration signer) entered college at 12, Benjamin Rush (Declaration signer) graduated from Princeton at 14, Jonathan Trumbull (Con. Supreme Court Justice) passed the Yale entrance exam at 7 1/2 but was held back to enter with his peers at 13. James Iredell (Supreme Court Justice) was appointed to the North Carolina office of the Treasury as their Secretary at 17, the list goes on and on.
When you read about the lives of the Founders you suddenly realize what extraordinary men they were.
Dave says:
May 22, 2010 at 10:10 am
Thanks Marc for making me feel really stupid:) I remember reading a letter of Thomas Jefferson to a friend discussing a course of study for this friend’s son. Jefferson listed the required reading list and thought that with a modicum of dedication the son should finish the course of study in about three years. How did Jefferson define “a modicum of dedication?” Fourteen hours of reading a day! Contrast that with the results of a study done in 2003 of the reading activity of any kind done by 15- to 24-year-olds. This age group, our future leaders, read a whopping 8 minutes per day. Source: The Dumbest Generation by Mark Bauerlein.
Barb Zakszewski says:
May 24, 2010 at 6:41 pm
I have a book I bought a couple years ago, called “The constitutional Convention”, which is comprised of James Madison’s detailed notes of the proceedings, including many of the arguements for and against each article and phase of the Constitution. I started reading it, then put it aside, but guess what, I’ve picked it back up again!!
Carolyn Attaway says:
May 24, 2010 at 7:20 pm
I think it is up to the parents to instill the love of reading into their children, it is not a natural pasttime for most. When our children were born, Sunday became reading day, first to them, then later by themselves. The TV could not be turned on before 6pm, and only after 2 hours minimum of reading was done and discussed. Now our children are avid readers, and read everything. We still have table discussions on what we read, and debate our point of views. They have an immense vocabulary and can talk knowingly on most topics. And now, reading is done daily, their choice.
Susan Craig says:
May 24, 2010 at 7:58 pm
I saw an 8th grade graduation exam from back in the late 1800′s and if most ‘College’ graduates didn’t flunk it, I’ll eat my hat.
barb Zakszewski says:
May 24, 2010 at 8:19 pm
Shameful, isn’t it?? What isn’t being taught in our schools anymore. I remember having to memorize the Preamble to the Constitution in my 7th Grade History class. Now the kids are barely aware we even has a governing Constitution. Most kids think our Constitution is what the Supreme Court and Obama says it is..Sad indeed..That is why this site is SOO important!!
Mireille Cantrell says:
June 8, 2010 at 2:46 pm
Researching the trend toward homeschooling is growing year by year to become the fastest trend in education. The government is controlling what is taught in public schools and parents are concerned about the truths in our history that is being left out of our textbooks.
If America’s history is removed from the minds of its people, not only honor and pride will be lost, but the very freedoms for which our founding fathers fought and died for. Without liberty there remains only slavery and the will of the people will be removed by the government. We need to remember the past in truth because we are the result of this past.
Clarity Brown says:
June 8, 2010 at 4:33 pm
I think more people would do home-schooling if they weren’t so afraid of ‘how’ to. I know when my kids were just about ready to start school, I didn’t even consider it an option at the time. I was too afraid, and assumed there was no way I could teach my kids. Plus, I had no idea on where to get the information to know how and what to home-school them with.
Of course at the same time, I had no idea that the government was using schools in most places to push an agenda. If I had known that, I probably would have gone out of my way to find out this information.
They’re both in high school, now. I wouldn’t think of pulling them out, since they’ve been in the system too long. But I did make sure to keep them informed on everything happening, and fortunately for me, they both have an open mind on politics and what’s going on.
Federalist No. 18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)
Andrew Langer, Federalist Paper 18, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 18Friday, May 21st, 2010
Federalist #18
What sets the founding of the American republic apart from the founding of so many nations on Earth was the depth and breadth of knowledge, research, analysis and debate that went into it. This is made evident from Madison’s Federalist #18, written under his pseudonym “Publius”. In 18, Madison delves deeply into the experience of the ancient Greek states and the various federations, alliances, and confederations that they had historically formed. In an era without instant electronic access to libraries of information, the sheer amount of scholarship presented in these pieces is nothing short of astounding.
Federalist #18 charts the shortcomings that arose within these various confederacies, presenting them as analogs and object lessons for the then-current struggles the fledgling republic was experiencing. The message was simple: we must learn from these mistakes, and make every effort to correct where the learned Greeks were deficient. It is the essence of archival scholarship: those who do not know history are doomed to repeat it.
Two key lessons emerge. First and foremost, the issue of balancing minority interests against those of a powerful majority, and vice-versa. It was only though the careful historical scholarship of the founders that the delicate structures that we have today were created—and direct lines can be drawn from these lessons to the creation of two very different legislative branches, one stemming from direct democracy (The House), the 2nd stemming (initially) from a more genteel (but, in my estimation far more responsive to the people) source of power (The Senate, which until the ratification of the 17th Amendment drew its members from the nominations of state legislatures); the electoral college (which serves to balance the interests of rural and urban population centers); as well as the very system of dual sovereigns that underpins the system of federalism.
The second lesson arose out of the first—that whatever federal union would be created, would have to be strong. That even though federalism “secures to citizens the liberties that derive from the diffusion of sovereign power” (The Supreme Court in Coleman v. Thompson, 501 US 722, 759 (1991)), nevertheless there would still have to be a strong and unified central power, to ensure that the nation would not only grow and prosper, but be able to effectively defend itself. There is strength to be had in numbers, and this is the essence of E Pluribus Unum (Out of Many, One).
Call it happenstance, call it the coincidence of timing and talent, or call it (as I do) divine providence. The bottom line is that at the time when this nation needed learned minds and steady hands guiding it, those men were to be found leading it. Their grasp of the lessons of history (both the mistakes, and triumphs) are evident in Federalist #18.
Andrew Langer is the President of the Institute for Liberty
Federalist No. 19 – Janine Turner
Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 19, Federalist No. 19Tuesday, May 25th, 2010
Howdy from Texas! I hope “y’all” had a great weekend. I hope you had a chance to start reading, ‘Miracle at Philadelphia.” It is such a great companion piece to what we are doing and did y’all watch the History Channel’s, “America: the Story of US?” It is fantastic!
I thank you for joining us today and I thank Professor Knipprath’s words of wisdom!
I hope you have a chance to check out my daily video today, (it’s on the website or the link to YouTube is on Facebook), and my daughter’s weekly video as National Youth Director, Week #2
Please spread the links via e-mail and Facebook. Today’s videos encompass quotes from Senator Patrick Moynihan and President Ronald Reagan and highlight the 1st Amendment and William J. Bennett’s book, “America: The Last Best Hope.”
As I read Federalist Paper No. 19 by Alexander Hamilton today I was intrigued with the following quote regarding sixteenth century Germany, “Military preparations must be proceeded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions, of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field.”
I find this phrase to be remarkably relevant today. We are experiencing so much “discussion” regarding threats to our country from foreign countries, so much “discussion” with foreign countries, so much dissension amongst our political parties and so much clashing pretensions from our Congress and Executive Branch that our vision is being obscured in regard to the fact that our enemy is in the field.
And Alexander Hamilton’s words about the lack of military alertness echoes forth a warning, too.
“The small body of national troops which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.”
Are we prepared?
God Bless,
Janine Turner
Federalist No. 19 – Cathy Gillespie
Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 19, Federalist No. 19Monday, May 24th, 2010
Professor Knipprath, thank you for an essay that goes way beyond Federalist 19, addressing the natural order of the universe! Your observations not only reflect what we have seen in history, but also what we are seeing in our country today.
Federalist 19 continues to reveal to us that the United States system of government as outlined in the Constitution is not just the result of our founding fathers’ vivid imaginations and creativity. The system of government they designed is based on an astute observation of history, an analysis of strengths and weaknesses of the governmental systems of many civilizations, and the improvements upon those systems our founders devised, taking into account their deep understanding of human nature, the people of the United States, and the resources of our great land.
Publius’ arguments for ratification are compelling because he doesn’t simply give an opinion, he backs up his position with example after example.
One of the last sentences of Federalist 19 caught my eye:
“So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed.”
Unlike many governmental systems in history, the system of government designed by our founders, within the structure of our Constitution, has allowed our country to withstand differences capable of “trying our strength.” Our system of government has not failed us, even in trying times. We survived the Civil War. We survived the Great Depression. We survived riots in the 1960’s. We survived World War I, World War II and terrorist attacks upon our country. We will survive the current immigration problems besieging many of our states. Through the course of history we have calibrated and recalibrated the course of our Nation through our elected representatives.
I believe that is what Andy was trying to say in a post this weekend:
“This country was founded on the ability to change direction in government by the vote. That happened two years ago because a majority of people felt change should happen. If that change went too far, then an opportunity to reset the course will occur in November.”
and what Janine says in her FoxNews Op-ed, Your Vote is Your Voice: http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/
Going back to Professor Knipprath’s essay, an informed, educated and engaged citizenry is the energy that keeps our Republic from decay. It is what keeps our system of government so carefully constructed by our founders, from failing us during the trying times.
The responsibility rests with We The People. When we understand our rights embodied in the United States Constitution as well as the principles upon which this country was founded, we can elect those who will use the Constitution as our guiding light as we forge the course of the future, keeping us strong during the times capable of “trying our strength.”
Good night and God Bless!
Cathy Gillespie
Federalist No. 19 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)
Federalist Paper 19, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 19, Joerg W. KnipprathMonday, May 24th, 2010
E Pluribus Unum. “Out of Many, One.” This aphorism is one of the mottos adopted by the Confederation Congress in 1782 for the Great Seal of the new United States. It not just describes the union of states that was put together through the efforts of the Second Continental Congress. That particular choice also recognizes the relative novelty of the political experiment Americans were undertaking, a novelty memorialized as well in a motto on the Seal’s reverse, Novus Ordo Seclorum, “A New Order for the Ages.”
Federalist No. 19 continues the examination of dangers from weak confederations, a topic that has, in one form or another, been at the core of most of Publius’s preceding efforts. As in the adjoining papers, the theme is the tendency of weak confederations towards internal turmoil, external weakness, and eventual collapse. Here, Madison focuses on the weaknesses of the Holy Roman Empire of the German Nation, an entity intended to re-create an old order for the ages.
The historical evolution of the Germanic realm that Madison describes is the opposite of E Pluribus Unum. “Out of one come many” better represents the unfolding of the usual order of things. That theme is common in creation explanations from religion, philosophy, and science. God created Adam, then Eve from Adam, who together multiplied. For Plato and his later interpreters, reality followed from the singularity of the Form of the Good. In physical science, everything developed from the singularity that is the source of the Big Bang. Under the theory of biological evolution, all life multiplied from some original single-celled organism. Out of one, many.
Likewise, the usual order of things is for systems, once established, to move from flourishing to decay, from order and unity to chaos and multiplicity, from the whole to the parts. This holds true for physical and biological systems, as well as systems of human organization. The body decays. Stars decay. Personal relationships decay. Political orders decay. Personal experience and a basic study of science and history lead us to these common sense conclusions.
Following initial Creation, subsequent creations may form new systems from pre-existing parts. People come together to form new families, communities, and states. At the level of states, these events are infrequent, and, as Madison points out in a later essay, usually the result of one charismatic man’s influence. But any such creation is immediately threatened by the tendencies towards decay and multiplicity.
The protection against decay and chaos is “energy.” To maintain our bodies, we use energy through food. Plants use the sun’s energy to stay alive. In families, it takes energy (physical and emotional) to maintain a well-functioning unit. So it is with political systems. The Germanic realm was created by Charlemagne, a very energetic statesman. But subsequent emperors were more ordinary, and the system itself failed to provide the structures that would allow the government to act with the requisite energy to maintain it. This need for “auxiliary measures,” that is, constitutional structures, to insulate the country from instability caused by variability in the qualities of the governing officials is raised in several essays.
Publius frequently raises the critical quality of energy in government in various writings. To underscore the force of his argument in Federalist 19, Madison’s recitation of the emperor’s formal powers suggests, not too subtly, those under the Articles. The princes, with their own claims to particular sovereignty, produced chaos within the system and intrigue from without. Madison’s warning about the deleterious effects of the decision to devolve power onto “circles” within the Empire was a pointed rebuke to supporters of the Articles who argued that common interests and customs within regions of the United States would produce amicability and desire for concord among neighboring states in ordinary matters, while the Confederation took care of external challenges. The Empire’s structure could not provide the conditions for energy in government when the emperor’s personal ordinariness could not surmount the system’s deficiencies. Neither could the Articles. The Constitution would.
Too little energy in government is a problem; so is too much. The sun’s energy is necessary for living systems. Yet too much energy kills as relentlessly as too little. Much of the debate over the Constitution was not about the need for energy in government, but about the amount. Some opponents of the Constitution thought that the Articles supplied enough. Others agreed with Publius that the Articles were defective, but worried that the Constitution went too far.
Though the particulars of Madison’s historical account might be open to question, his basic conclusions have merit. Still, the Empire lasted a thousand years. Indeed, Antifederalist writers lauded the relative stability and continuity of the systems that Madison derides. For well over three centuries (from the early tenth through the thirteenth), the Empire functioned effectively and energetically. It will take more than another century for the United States to reach that longevity. Meanwhile, we must ask whether the system that has emerged under the Constitution provides the right amount of energy to the central authority—or too much. Or did the Framers get the structure right, but have the people, through a lapse of republican virtue and political participation, permitted politicians and bureaucrats to stretch the structure beyond its original contours and to draw energy from individuals and other constituent parts to the central government?
As the mottos declare, the forming of the United States was a creative act to forge one out of many, first under the Articles and then, “to form a more perfect union,” under the Constitution. This was to be a new order for the ages, one that would seek to avoid the inevitable decay and dissolution through a novel constitutional accommodation. There is, too, a revealing third motto on the Great Seal, “Annuit Coeptis,” translated as “He [God] Approves Our Undertakings,” to complete the description of the project at hand. To avoid the fate of the polities that Madison describes in Federalist 19, we must remain vigilant to keep our constitutional, political, and social order true to the aspirations expressed in all three mottos and in the Constitution.
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 www.tokenconservative.com
Federalist No. 20 – Cathy Gillespie
Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 09, Federalist No. 18, Federalist No. 20, Federalist No. 20Wednesday, May 26th, 2010
“Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”
Thank you Mr. Duncan for your excellent observation that the founders relied on experience to ascertain truth, not “their unaided ability to reason out new solutions,” not “subtle thinking and cleverness,” and definitely not partisan politics.
Thanks to our enlightened, well educated founding fathers, the United States of America rests on the foundation of thousands of years of lessons learned from many civilizations. As Hamilton observed in Federalist No. 9, “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.”
Our culture does not value history as much as it once did. And there is an undisputable massive effort underway to re-write the history that we are teaching our children. If our leaders are ever to return to a framework for decision making that incorporates an objective look at history, we must all work, in our own way, to instill in our children and fellow citizens a renewed passion for learning about the past. We must work to preserve the integrity and accuracy of the history taught in our schools.
I am still thinking about Ron’s call to action last week in the comments section of Federalist No. 18, and how important it is that we all engage in culture creation.
As Janine so eloquently wrote in her op-ed, A Call to Arms for America’s Parents, we as parents must take responsibility for teaching or children history. We can start with some of the excellent books by Dr. William J. Bennett, including The American Patriot’s Almanac and America: The Last Best Hope Volume I and II. We can encourage our children to enter Constituting America’s We the People 9.17 Contest, asking them to think about and articulate how the U.S. Constitution is relevant today. And we can share the 90 in 90: History Holds the Key to the Future project with our families.
Sign up for our newsletter email list and forward the emails out to your friends. Forward the link to Juliette Turner’s Youth Videos like the one below where she reads from Dr. Bennett’s book and talks about the First Amendment.
Juliette Turner\’s Weekly National Youth Director Video
We can each have an impact in our circle of influence. And if we all work in our own small way to change the culture, to encourage an awakening to our country’s roots, foundation, and founding principles, to encourage a thirst for learning the lessons written for us in history, we will succeed.
Good night and God Bless!
Cathy Gillespie
Federalist No. 20 – Janine Turner
Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 20, Federalist No. 20Tuesday, May 25th, 2010
The Ransom of Reason
Reason be and reason we
Away our distant shores
Wander not and wanton trot
Afraid of written mores
Did we not through seasons see
The meaning, yet for many
We forgot the how,
We riddled out the penny
“I know this and I know that
Believe me for I’ve the vision
Follow me and listen now
For I rewrite the mission
We is the forgotten us
It matter not for you
I seek your best and vest my truths
It is I who reap the view.”
Freedom this and Freedom that
Ring in empty vestibules
History renders ghosts forgotten
Lost the written tools
“I seize the rapture
Seek doleful and the bane
Meeker making spirit spree
I linger not in vain
Feed the weakness, starve the heart
Watch the soul regress
Rhyme and reason take their toll
Happy opportune the guess.”
By Janine Turner
Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison)
Federalist Paper 20, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William C. Duncan 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 17, Federalist No. 20, The Articles of Confederation, William C. DuncanTuesday, May 25th, 2010
Federalist 20 is one of a series of essays that discuss the governmental precedents of other nations as illustrations of some of the weaknesses of the Articles of Confederation. In it, James Madison discusses the Netherlands, painting a picture of a weak government held together by a strong magistrate and the pressures created by hostile surrounding nations. Madison underscores the fact that the government has overstepped its constitutional bounds on occasion because those bounds do not allow it to meet emergencies.
A lesson here is that a weak and ineffectual government is a threat to liberty just as an overly strong and active government would be. He explains that the experience of the Netherlands demonstrates: “A weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.” The implication for the United States Constitution is that it must create a government capable of meeting true emergencies and dealing forcefully with threats from other nations. The failure to do so not only could result in dissolution, but ironically, could lead to too strong a government: “Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.”
Madison attributes the weakness of the constitution of the Netherlands to “the calamities brought on mankind by their adverse opinions and selfish passions” and recommends that Americans “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.”
In addition to evoking gratitude, there is another important lesson in Federalist 20 for current political debates.
In the Pennsylvania Convention, John Dickinson had taught: “Experience must be our only guide. Reason may mislead us.” At the end of Federalist 20, Madison explains why he has spent time describing the precedent of other nations in words that echo Dickinson’s: “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”
An obvious application of this point is to the ongoing debate over whether our government should continue to press for greater and greater social controls. It would seem obvious that the unequivocal disaster of socialist and communist governments ought to warn us away from that precipice.
More generally we can heed the Framers’ example of willingness to learn from experience rather than to trust only in their unaided ability to reason out new solutions. Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.
Returning to a theme from the discussion of Federalist 17, there is a temptation to apply not experience, but ideology, to problems we face as a nation. Doing so appeals to a hubristic temperament. Some will always be dissatisfied if political reality is not made to conform to prefabricated theories even when doing so requires compulsion and control. In fact, the ability to control society may be the attraction of such theories; at least to some of their adherents.
The Framers eschewed easy answers and paid the price in experience, deliberation and study to create a secure foundation for our national government. That foundation incorporates the lessons of experience. Our response to current challenges must do the same.
Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor
16 Responses to “May 25, 2010 – Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”
This morning I sent the following message to my children.
“Those who are not informed of what they possess will not recognize when it is taken from them. Nor, can they preserve it for their prodigy.
William Duncan has blogged an informative op ed in response to our reading of FEDERALIST No. 20 this morning and I invite you to take a few minutes and read it.
https://constitutingamerica.org/blog/?p=578
Love,
Dad”
Understanding what is needed won’t help much if I don’t take some positive step toward implementation. Eventually we can all begin to demand that those seeking elective office exhibit an of understanding of and a desire to support the truths we believe in.
Madison and Hamilton state that “a weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.”…..It is in the name of “safety” that the government has continued their unrelenting power grab. I’m sure we have all seen what an overbearing parent does to the will of a child. When does a parent let the child grow up and fend for himself? This goes for both “safety” concerns as well as being financially responsible. How brilliant these two men were when they said, “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.” Our “new” system works. Why are we not rejoicing to God that it has brought us thus far and doing all we can to protect it rather than looking back with fondness upon the many systems that have failed time after time?
What crystal ball did they have? Or was it just a true understanding of history and its lessons?
This paragraph brought me up short!
This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.
We have Michigan, California, Louisianna and Arizona. We have Islamic radicals, several countries that don’t like us very much (Venezuela, North Korea and Iran) not to mention those that wouldn’t mind seeing us taken down a peg.
Thanks for the Dickinson quotes, Mr. Duncan, especially “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”
For the longest time, I had tried to show several otherwise very logical and rational friends, all with advanced degrees, including PhD, the folly of their thinking, by comparing reality to their ideology. For example, an atheist friend believes Radical Islam is not a problem and we should not be fighting a war in the Middle East. I pointed out that an atheist has the most to fear from Radical Islam because they would be forced to convert to Islam or be killed. Since an atheist does not believe in life after death, they would be most disappointed to be killed before their otherwise natural death; yet, if they are true to their atheism, they should not convert. Therefore, I would submit that Atheists should be the ones whom we might expect to be most adamant in pursuing the war on Radical Islam, to insure that they are never faced with that impossible choice.
After awhile it finally hit me that logical and rational reasoning, supported by experience and facts, was 100% ineffective in arguing with those whose ideology trumps all facts and experience. Now, generally, I ignore their comments and don’t waste time. It seems that my time is better spent discussing with those who are fence sitters and open to ideas rather than those who are confined to their ideological straitjackets.
I wonder what Mr. Duncan might think about the utility of arguing with these kind of ideologues and what advice he might have for us so we can be more effective? Certainly marriage counseling has many similar circumstances and I would assume similar roadblocks are encountered there.
Mr. Duncan, well said. Thank you.
Charles for Father of the Year!
Maggie, I concur. With increasing frequency we are told of a crisis and the impending doom if we don’t grant Washington more power, control and more of our money.
And we haven’t been rejoicing to God for our good fortune for over one hundred years, because some pointy-headed, hubristic “intellectuals” thought man could do better. Man can create that utopia that God has so cruelly and stingily withheld. After two world wars one would think our days of longing for a man-made utopia contrary to “the laws of nature and of nature’s God” would be over.
This study of the Federalist papers has really brought home to me the plain fact that a thorough knowledge of history is not “a useless course of study. I’ll never use it in my life. Why take it?” It is so very true that our current administration (and many others before it) DO rely on their pure ideological goals and either ignore or never learned the lessons of history.
The wisdom obtained and applied by the Founders required diligence, dedication and knowledge. The personal principles each contributing writer and scholar to our Constitution and foundation of our country came with sacrifice. I believed that they recognized their own inadequacies and were willing to listen to experience and to the history. B. Franklin once said, ” The doors of wisdom are never shut.”
There is a book titled ‘The World Turned Upside Down’, that demonstrates that reason comes out of religion and that eventually all genres of thought that say religion is inimitable to reason and logic eventually hit a point which is unreasonable and illogical. The author is Melanie Phillips.
I, too, continue to be interested in the impact of ideology on both 1) failing to see the importance of experience and 2) the desire of some to expand the power of central government. Can you recommend a good history of ideological development in American politics?
I was concerned that no one responded to Carol Frenier’s writing yesterday about what this ideology from Europe is that we keep referring to as the one that is a threat to the America that our founders gave us. I immediately think of a mandatory course in 11th grade, “Americanism vs Communism.” Bet that’s not mandatory anymore. Whether you want to call it Socialism or Communism, it is an ideology that gives the wealth to the political or ruling class and makes the rest of us basically equal. (See Russia, China, Cuba, Venezuela) A European book that was recently translated into English is “The Coming Insurrection” by the Invisible Committee, how to bring down governments, even the family. (Amazon.com has it) Also, study Saul Alinsky’s Rules for radicals and the Cloward and Piven strategy, you can Google those. They also preach how to overwhelm the welfare system in order to bring American capitalism to an end. The Drudge Report has a story today how “government provided benefits are at record high” and “paychecks from private businesses at record low.” (About 42%) Who is going to pay all these benefits? Unions want a 165 Billion Dollar bailout for their pensions. State worker unions want 100 Billion Dollar bailout. This is what the radicals want. Who is rioting in Greece? Labor Unions and Radicals. I’m afraid we are being set up by Overspenders in Washington, who want to collapse free enterprise and all our liberties. That is why this Federalist study, learning what Americanism is again is so terribly important.
As Susan pointed out, the paragraph that begins ‘This unhappy people . . .’ could very well be written to some extent of America today. Reading headlines such as “Redistribution Victory: Private Pay Plummets, Govt Handouts Soar”, “ObamaCare Lawsuit Reveals National Grab to Regulate Individual Decisions”, and “Nonpartisan Proof: Cap-and-Trade Is an Economy-Killer”, brings home the point addressed in Paper 20 that ideology over experience always leads to failure. I believe that many nations have their eyes fixed on us, some praying for our strength, and others for our demise.
Which leads me to the most important statement that I have read so far in the Federalist Papers; with added words “Experience is the oracle, the divine revelation of truth; and where its responses are unequivocal, absolute, they ought to be conclusive, decisive and regarded with reverence, sacred.
As Mr. Duncan points out, “Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.”
Of this great strength in our Constitution, can we make the argument that our Congress is not paying much heed to the second application, and that many of America’s citizens themselves have forgotten the valuable lessons of history? I am always taken aback when I mention a relatively known country such as Wales, and the large number of people who do not even know that Wales is a country, much less where it is located.
So how can one study the history of a country, if they do not even know that that country exists? One of my favorite videos on AFV is when the father of a little 2 year old girl asks her to point to various states and cities on the map, and when she is correct in her answer, she does the “Smarty Pants Dance” (It still makes me giggle) Anyway, maybe we should take this lesson and apply it to students of all ages, reinforcing the idea that knowledge of history makes one very wise.
The premises and arguments of The Federalist Papers are seeping into my being. Two weeks ago I wrote a two page letter to my congressman (remember the NY 23rd district race) with concerns, and ended it with: “Our founders were wiser than the whole Congress put together today, having foresight because they had hindsight on what works and does not work for a nation to prosper. They did not live in the moment because they desired that the Constitution be a lasting document, not like the legislation Congress is passing that will destroy us as a people.” Because of the essayists and commentators on this project, my thinking is being refined and focused on the whys behind our wonderful Constitution. May we all have opportunities to pass onto others what we are learning.
The Ransom of Reason
Reason be and reason we
Away our distant shores
Wander not and wanton trot
Afraid of written mores
Did we not through seasons see
The meaning, yet for many
We forgot the how,
We riddled out the penny
“I know this and I know that
Believe me for I’ve the vision
Follow me and listen now
For I rewrite the mission
We is the forgotten us
It matter not for you
I seek your best and vest my truths
It is I who reap the view.”
Freedom this and Freedom that
Ring in empty vestibules
History renders ghosts forgotten
Lost the written tools
“I seize the rapture
Seek doleful and the bane
Meeker making spirit spree
I linger not in vain
Feed the weakness, starve the heart
Watch the soul regress
Rhyme and reason take their toll
Happy opportune the guess.”
By Janine Turner
May 25, 2010
The God that the founders turned to in 1776, is the same One today. Without Him, we will not succeed in our desire to re-found our nation on the principals of the Declaration of Independence and the Constitution. Make no mistake. Without Him, we will be overwhelmed by the agenda from others. Our founders didn’t just have incredible knowledge of history, they believed in God, and His special purpose for America. That was their strength. We must have the same strength today. Those who believe in America, must believe in the God of our Founders, Who gave the incredible power and foresight and knowledge to help them to create our exceptional-ism, never before in the history of the world, a country of freedom and liberty and justice for all. Truly, a miracle.
Janine……that’s absolutely beautiful!
Laurie, I agree. Even the “Deist” of our day can see that we live in “a time that try men’s souls”, but it will require that “we the people” once again awaken to the faith of our fathers. A faith that not only acknowledged Him the “Creator” as He was ….., but that He is and that He will always be the “Sustainer” and “Giver” of all good things. You said in your post that “they believed in God, and His special purpose for America.” There are those who dispute that and have long been laboring in the margins of our society to knit a fabricated false rewrite of history. Unfortunately, they are no longer operating in the margins. They are positioned in high places and with each day they seek to entrench. As you say, “Without Him, we will be overcome by the agenda of others”. We can reason and trust that He that is the “First Cause” is more than able and can effect the restoration and sustainment of all that we desire, “a country free and liberty and justice for all”.
Federalist No. 21 – Janine Turner
Federalist Paper 21, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 20, Federalist No. 21, Federalist No. 21Thursday, May 27th, 2010
Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”
As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.
If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.
Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
The answers are in the United States Constitution.
Spread the word.
God Bless,
Janine Turner
P.S. I thank you Horace Cooper for joining us today and for your brilliant insights
Federalist No. 21 – Cathy Gillespie
Federalist Paper 21, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 21, Federalist No. 21Thursday, May 27th, 2010
Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: www.twitter.com/secretdelegate .
The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.
Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!
In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.
From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.
How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.
All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!
For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:
Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.
Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.
Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.
What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”
Good night and God Bless!
Cathy Gillespie
Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton)
Federalist Paper 21, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 13. Guest Constitutional Scholar Essayists, Federalist No. 21, Horace CooperWednesday, May 26th, 2010
The Federalist #21: In Defense of Politics
Hamilton opens Federalist #21 with a continuation of a theme: it will be easier to understand the need to adopt the new Constitution if the defects of the old Articles of Confederation are better understood. He embarks on an effort to outline what he calls the “enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves.”
He starts with the fact that under the Articles of Confederation, the federal government had no power to enforce its rulings. He sees this as an almost fatal flaw. He complains that the “most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode.” In addition to the hardships that beset any government incapable of enforcing its on rules and laws, Hamilton explains that such a posture is certainly unique among nations. He argues that there are no nations — kingdoms or any other kinds of governments which operate without the fundamental ability to carry out its interests.
A second flaw in the present system is that in almost all respects the states are left to fend for themselves. In one crucial way, Hamilton points out this isn’t even in the interest of states. What happens in the event there is a local insurrection? There is no ability for the governor of one state to enlist the citizens of another state to step in and offer assistance. Thus, there is the potential that states would have to devote significant resources solely for domestic armies that would lay in wait for an uprising meanwhile draining the treasury. Collectively one might imagine this duplicative waste across the several states equaling more than the amount that a federal government would use to handle the same concerns. Additionally, the mere fact that the federal government could respond to an internal insurrection could be sufficient to prevent one from forming altogether. Hamilton further points out that the Constitution’s guarantee that all its citizens would have a “republican” form of government means that in the event the leaders of a state attempt to declare a dictatorship or otherwise suspend democratic control the Federal government could intervene to return liberty back to the hands of the people.
Hamilton turns next to the taxation system set up under the Articles of Confederation. The “quotas” system that he derides essentially assessed the states themselves instead of having direct taxing authority. Hamilton explains that a system based on state assessments would fundamentally fail to meet the needs of the American government. It would be insufficient and in his view significantly inequitable in that it simply presumed that all states were equal in most respects financially. Hamilton explains that “there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative.” Furthermore he explains, “there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.” While making his argument for a federal consumption tax, Hamilton demonstrates a degree of clarity about the consequences of tax rates being too high that many modern leaders would do well to recall. If you tax too high, you get less. Hamilton explains, “It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.
With the three defects that Hamilton identifies by implication the answers provided in the U.S. Constitution are clearer and more readily understood. The Federal government in the Constitution has the power to enforce its rules, defend each of the states individually and collectively and finally assess taxes directly rather than through the states. Prior to this change the Federal government was indebted, powerless and in many ways so weak, it threatened the liberty of all Americans because it was unable to defend them against most threats.
Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation
12 Responses to “May 26, 2010 – Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation”
Cathy has called us to encourage children to participate in this project and contest. I’ve forwarded the link to a principal of a Christian school, but it then occurred to me that schools will be closed for the next several months. So, I sent a link to the woman at my church who runs the Children’s ministry; Sunday schools and Vacation Bible Schools will continue to operate all summer, so they are a good source to get children involved with Constituting America. If we all contact our church children’s ministers, we might get more kids involved.
That’s a fantastic idea Ron. I’ll be sending a link to my church’s youth leaders.
Good move Ron; It is frustrating, to me, to see how easy it is to acquire this information, and to realise that many of our leaders don’t seem to possess it. We have a mid-term election this year and I decided to send the following email to a candidate for Congress from my District.
“I would sure feel more comfortable casting my vote for you, if I saw that you were participating in this program.
http://www.constitutingamerica.org/
It appears that too many of our leaders have not made a commitment to understanding our Constitution and why it developed as it did.
Knowing that those who seek leadership roles are truly committed to preserving that which has made US the greatest Nation in existence, is important to all voters.
You cannot preserve it, if you don’t understand and live it.
Seeing your name in our daily blogs would mean to me that you truly do understand and that you are truly committed to preserving our way of life.”
With the first flaw identified in #21 has merit I don’t think the power of enforcing unfunded mandates was something the founders envisioned. Unfunded mandates in many ways contribute in major ways to not only State budget woes but to the health care costs problem.
With the second expounded, we see an abrogation of that in the current illegal alien situation. The invasion of our country by people who start off their residency demonstrating a disrespect for our laws is compounded by the movement for boycotts between neighboring states.
Problem 3 is a well duh! I find the counter-intuitive fact that the more you tax the less you get one of the things that I can not understand how the people in politics do not see it.
Susan people in politics do see it and they ignore it. It is all about the next election cycle and what will get them reelected. When politics became a very profitable profession with life time benifits and very little service is when “We” the people started loosing control of our government and as the number of citizens grew that do not have an investment (income tax) in our government they demand more and more and politicins are all the more ready to give it to them to insure their election to office.
I suppose I sort of knew that. But being the pie-eyed optimist I hoped that it was not across the board.
With much insight and skill, Horace Cooper has expounded upon the increased focus that Hamilton has placed toward the “defects” and shortcomings of that form of government prescribed under the old Articles of Confederation. In my post, I ask to be allowed to take a bit of a light-hearted yet I hope pertinent look at that process that we as a nation went through as we debated, charted and then negoitiated our course by which we arrived at a newly designed and better government.
I begin by confession to the fact (as my family will verify), that I have this tendancy to reduce and relate many things (for which I devote much time), to either an episode of the old Andy Griffith Show, or to a scene from the movie “O Brother Where Art Thou”. Well today’s epiphany was inspired by the afore mentioned movie and it helped me grasp a better understanding of how things were for our young country during that time that we were linked together under the “Articles of Confederation”. If you are familiar with this movie, let me direct you to a scene that appeared early on. The main characters, Everett, Pete and Delmar while in prison have formed a “confederacy” with the common goal of achieving freedom. While they are able to escape the chain gang, they are still hindered by the fact that they are in shackles and chains that link them together. As they make their awkward and laborious run for freedom, they must work as a unit because they are literally bound to each other. Necessarily, a joint and coordinated effort must be made in order to put distance between them and the pursuers hounding them. Disaster strikes as they attempt to hop a freight train and it is quickly revealed that there are serious “defects” in their newly formed confederacy. The outside viewer quickly realizes even if Everett, Pete and Delbert fail to fully do so, that this small confederacy, as it is currently formed, is in great danger of not surviving. As they made their run to hop the train, Everrett manages to make it inside the freight car, but fails to remember that his success as an individual is linked to the rest of the confederacy. Delmar only makes it halfway in and Pete after running too great of a distance, falls down and of course Delmar and then Everrett are pulled from the train. After this debacle they individually arrive at the conclusion that a convention is needed in order to review and reconsider the the current form of government for this “outfit” and debate what changes are needed.
The individual wills are causing division and friction within the group. Also, it has become clear that there has been a failure to determine and define definite lines of authority by which effective leadership can be achieved and maintained. Pete is especially unhappy with Everett’s presumption of a leadership position. Everett makes the case that he, because of his superior intellect should lead. SORRY! I’ve apparently exceeded an allotted amount of space. Hope to finish in another pos
This is a continuation of my earlier post at 4:20pm. Everett makes the case that he, because of his superior intellect should lead. However, the viewer has already witnessed Everett’s failure to help Delmar and Pete succeed in getting into the freight car ….. a failure that caused the whole confederation to fall off the train in defeat. Self proclamations and self appointments do not make leaders “bona fide”. Later scenes give us further reason to question the ability of Everett to act in the best interest of the others. Everett is determined at all cost to hold his position as “pater-familias”, but finds himself in grave danger of losing his headship over his seven young daughters. If a man fails his wife and daughters, can he then be trusted to be the “bona fide” leader of our little confederacy? Oh constant sorrows!
Pete displays that he is independent minded and strongly stands up to argue and vie for the leadership role. He has common sense, is committed to duty and loyal (especially to kinfolk). Pete will not be railroaded (though he might fall down while catching a train), but does he have vision and the overall capacity to lead?
Delmar is the valley of humility in between the two mountains of self-interest. Instead of siding with one faction over another he simply takes the diplomatic position of ” I’m with you fellars”. We chuckle, but that individual quality was greatly needed during the time of transition from the old way to the new. Delmar best represents the many who are first and formost self-governed by the “golden rule” and they serve to be cohesive for the group at large. They hold us together during times of heated debate so that the debate can be completed and hopefully the best interest served. Thankfully, our Founders were successful in their great endeaver to bring about a strong constitutional republic. A government that has enabled us to protect our persons, our property and our freedoms. Thankfully, long after they lost their chains and shackles, Everett, Pete and Delmar also went on to form a more perfect union ….the “Soggy Bottom Boys”.
Thank you Mr. Cooper for your insightful analysis of Paper 21.
The 3 flaws that Hamilton describes are indeed matters of grave importance for the reasons he mentions, as well as National Security beyond invasion by a foreign power.
In the second flaw Hamilton points out that States are left to defend themselves, and the trouble the States incur may be too large for them to handle alone.
Today, many States have to fend for themselves because the Federal Government won’t help them whether by choice or oversight, many speculate on the reasons, but the fact remains that many States are without federal assistance. Border States have to deal with illegal immigration relying on their own resources to guard against illegal entry and activity. Gulf States have to direct their own cleanup efforts from the BP oil spill because of the absence of Federal help; and then on the other hand the Federal Government criticizes them for taking action.
I believe we as a country are at the point where Hamilton states “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.”
The third flaw is very present in our Congress today. Hamilton states “If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.” My daughter and I were discussing our economy today, and how that states compared to each other.
On average, the northern states are heavy laden with unions and high taxes, whereas the western states are quickly becoming bankrupt because of their liberal policies. Yesterday the headlines disclosed the following: Paychecks from private business shrank to their smallest share of personal income in U.S. history during the first quarter of this year, a USA TODAY analysis of government data finds. At the same time, government-provided benefits — from Social Security, unemployment insurance, food stamps and other programs — rose to a record high during the first three months of 2010.
According to news reports, most states in the Sunbelt have the lowest taxes and largest amount of private businesses. Even though all states are struggling to balance their budgets, and are having to make major cuts in state programs, the Sunbelt states are generally faring better than their sister states. This example tends to support Hamilton’s third flaw and should give high tax states and the Federal Government pause.
2nd attempt. Chuck, I sort of knew that but being a wild-eyed optimist did not wish to believe it was deliberate.
Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: http://www.twitter.com/secretdelegate .
The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.
Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!
In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.
From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.
How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.
All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!
For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:
Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.
Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.
Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.
What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”
Good night and God Bless!
Cathy Gillespie
I was really surprised when I read the argument for the Consumption Tax. We have this same idea being raised and fought for today with the Fair Tax. The IRS has become way to powerful and invasive and the tax system in our country is broken just as it was back when we were under the Articles of Confederacy. I have been learning so much from these posts and will continue to read and eventually catch up with everyone.
Federalist No. 22 – Janine Turner
Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 22, Federalist No. 22Friday, May 28th, 2010
Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?
1. Though the genius of the people of this country..
2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.
3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.
Are these words being honored in our American government today?
God Bless,
Janine Turner
Federalist No. 22 – Cathy Gillespie
Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 22, Federalist No. 22Thursday, May 27th, 2010
Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.
The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:
“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.”
One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.
If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!
Good night and God Bless!
Cathy Gillespie
Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton)
Federalist Paper 22, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 15, Federalist No. 21, Federalist No. 22, William Morrisey PhDThursday, May 27th, 2010
The Federalist #22: In Defense of Politics
Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15. To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics? This seems an odd question. There seems to be no shortage of politics in the modern world. And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?
Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics. In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life. Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it. An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child. Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.
The small, ancient polis and the larger feudal communities lent themselves readily to political rule. In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts. Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.
By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes. Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise. At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.
The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical. They solved the problem in principle by adopting and refining the idea of federalism. A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
Why should we want it to? Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning. Your character as a human being suffers. In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation. But so will everyone else.
The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states. As Publius has argued in this series, however, the Articles constitution contradicted itself. The general or federal government could only raise revenues and soldiers with the consent of the member states. But there can be no “sovereignty over sovereigns.” Disunion threatened. Foreigners sneered and circled for the kill.
Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect. As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.
Publius now turns to the remaining defects, both material and moral. Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another. Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”
Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it? Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.
To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system. Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.” Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.
The Articles government has only one ruling institution, the Congress. The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states. But this caused another problem. Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.
Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime. This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble. Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches. This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.
Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.
14 Responses to “May 27, 2010 – Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”
There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.
In my opinion, these groups of Federalist essays proves those naysayers wrong.
The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.
Hamilton would in no way support “bigger” government if he awakened in 2010 America.
Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.
Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.
Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.
If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.
Few of them today, would acknowledge that “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.”
Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22
Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”
As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.
If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.
Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
The answers are in the United States Constitution.
Spread the word.
God Bless,
Janine Turner
P.S. I thank you Horace Cooper for joining us today and for your brilliant insights
Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.
The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.
Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
“empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.
@Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.
I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.
To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
What are you going to do?
What are you going to do?
What are you going to do?
Have we come to that place in history again?
One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:
“US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link: http://www.breitbart.com
Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.
I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.
On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.
Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.
Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.
Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.
Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.
The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:
“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.”
One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.
If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!
Good night and God Bless!
Cathy Gillespie
Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?
1. Though the genius of the people of this country..
2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.
3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.
Are these words being honored in our American government today?
God Bless,
Janine Turner
May 27, 2010
I thank our guest scholar, Dr. Will Morrisey, for joining us today!
Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!
What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.
Federalist No. 23 – Cathy Gillespie
Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 08, Article II Section 2 Clause 1, Article II Section 2 Clause 2, Article II Section 2 Clause 3, Federalist No. 23, Federalist No. 23Saturday, May 29th, 2010
As I read Federalist 23, I thought about attacks the United States has endured in the last century: especially the air attack on Pearl Harbor, and September 11, when hijacked commercial airliners were flown into the World Trade Center and the Pentagon, and United Airlines Flight 93 was crashed before it could reach its target. These types of attacks have been unimaginable to the people of the United States, even our leaders at the highest levels of government, until they occur. And the only certainty is that our country will eventually be attacked again, in a new creative way, that we once again cannot imagine.
Alexander Hamilton knew this. His words, “The circumstances that endanger the safety of nations are infinite….” and, “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,” ring true as we remember the wars our country has fought through the years since 1787, and the many times the President has had to send troops into hostile situations.
The founders wisely built checks and balances into our national defense. While the Congress is given the power in Article I, Section 8 to declare war and to raise and support troops, the President is designated as the Commander in Chief in Article II, Section II, a power used broadly by Presidents to send troops where the President has deemed necessary. The War Powers Act of 1973 attempted to clarify and formalize consultation with Congress by the President when sending troops into hostile situations, and put a time limit on troops sent by the President without Congressional approval. The Constitutionality of this law has been questioned, some have advocated for its repeal, and most recently in July, 2008 a bi-partisan Commission led by former Secretaries of State James Baker and Warren Christopher, recommended improvements.
While there is tension between the executive and congressional branches over the parameters of their war powers, it is imperative that our government provide for our defense, and be given the power to do so. Whether it be stopping Hitler and Japan in World War II, halting the spread of communism, as was attempted in Vietnam, or fighting terrorists in Afghanistan and Iraq, our American Troops, directed by our Commander in Chief, have bravely kept our country safe and preserved our liberty.
It is fitting we read Federalist No. 23 on this Memorial Day Weekend. Let us honor those men and women who have sacrificed their lives so that our freedom lives on, and let us be thankful for the wisdom of our founders who knew that providing for the common defense was best left in the hands of our federal government.
Cathy Gillespie
Federalist No. 23 – Janine Turner
Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 22, Federalist No. 23, Federalist No. 23Saturday, May 29th, 2010
Today, our guest Constitutional Scholar of the day, Mr. Troy Kickler’s, insightful essay states, “Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”
I find this quote intriguing, especially the section ”..duty would bind the representatives to the Constitution and public opinion.” This singular line encapsulates wisdom and inspires reflection.
The first reflection is upon the word, “duty.” Duty seems to be a word that is lost in our American culture today. As the decades descend from World War II, the sense of duty to ones country appears to be diminishing. I looked up the word, “duty,” and found the following definition: ”a social force that binds you to a course of action demanded by that force. ” The definition was followed by a quote by John D. Rockefeller, Jr., ”every right implies a responsibility; every opportunity an obligation, every position, a duty.” Today the focus of America’s representatives as well as many Americans and the American culture seem to be one of self-interest. With the blessing of the Providential rights that are secured for us in our Constitution lay a responsibility. One of those responsibilities is to know, respect and understand the United States Constitution, as well as to encourage others to do so. The same should apply to the American Culture. How far we have drifted from the days when patriotism and love of country were, as President Ronald Reagan said, “in the air.” Is our country perfect? No. But as the Former Senator Patrick Moynihan said, “show me a better one.” We, as patriots who love our country and appreciate the founding principles upon which she was founded, need to rise to counter the palpable negativity that permeates our air today. One has to question whether our Congressional representatives are bound to their duty of their country and constituents, or to themselves.
The second reflection is upon the statement that duty would bind representatives to the “Constitution.” “..bind one to the Constitution.” The more I read the United States Constitution and the Federalist Papers, the more I realize how much we have strayed from the Constitution in cultural thought, personal awareness, legislative acts and supreme court rulings. This slow usurpation is due to a lack of knowledge and by a lack of pressure applied on our representatives to uphold the Constitution’s principles. As a Republic we rule through our representatives, thus, our vote is our voice. The checks and balances of our government begin with us. Thus, I suppose, there is a responsibility that we, as patriots, must own – if our representatives have grown callous and irreverent regarding the Constitution, it is because we have allowed it by our lack of diligence and duty to hold them accountable. How well do they know the United States Constitution? How do they intend to abide by its stipulations? These should be the questions of paramount importance.
The third reflection is upon the two words, “public opinion.” “Duty would bind the representatives to the Constitution and public opinion.” Public opinion seems to be virtually ignored by our representatives today. As mentioned in Federalist Paper No. 22 and in previous papers, Publius had a respect for the “genius of the people.” The American people have a genetic disposition and inherent ability to seek the truth and know the truth and American patriots rise to the challenge of duty. ”The experience of history” has proven this to be a tried and true trait of Americans. All of the attempts by the current branches of government to “reason” their way around the Constitution and govern a Republic without respecting the Constitution, and the history of the American spirit, will do so in vain. Duty to preserve our great country, founding principles, bill of rights and free enterprise will be the Paul Revere ”call to action” of our day.
God Bless,
Janine Turner
Federalist No. 23 – The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, From the New York Packet (Hamilton)
Daren Bakst, J.D., L.L.M., Federalist Paper 23, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Daren Bakst J.D. L.L.M., Federalist No. 23Friday, May 28th, 2010
Federalist #23
When Alexander Hamilton attended the 1787 Constitutional Convention in Philadelphia, he was thirty-six years old. Despite his young age he was a leading statesman, who was knowledgeable not only regarding current events at home and abroad but also the classics and the historical lessons that they contain. The future, first U.S. Secretary of the Treasury, Hamilton incorporated his political observations and knowledge into The Federalist.
Hamilton penned more than half of The Federalist essays. In them, he pointed out the defects of the Articles of Confederation and argued that the Constitution and the powers that it enumerated to the national government were necessary for the Union’s survival. To remain under the Articles, Hamilton contended, meant certain death for the Union, for the states would continually act in their self-interest and ignore the Union’s interest. Laying the foundation for his reasoning in subsequent commentaries (24-29), the New York lawyer put forth this particular argument in Federalist 23: “The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.”
When debating Anti-Federalists–those who questioned or opposed the Constitution’s ratification–Hamilton and other Federalists used the word “energetic” to describe a government that had power to fulfill its given responsibilities such as providing for a national defense. An “energetic” government was not one that encroached on individual rights. It meant simply giving life to a dormant national government and allowing it to exercise and fulfill its responsibilities.
In Federalist 23, Hamilton asks what are the proper duties of a national government. He contends they are providing for the common defense, preserving public peace, regulating interstate commerce and foreign trade, and conducting foreign affairs. For the remainder of the essay, Hamilton emphasizes why it is essential for the national government to provide for the common defense and what means are necessary for it to ensure the Union’s longevity.
To charge someone with a responsibility yet not empower them to perform their duty is imprudent. That is what Hamilton believed. In Federalist 23, he writes that if the national government is given the task of providing for the common defense then it should have the necessary authority to do so. Even the framers of the Articles, Hamilton points out, understood this necessity: they allowed Congress to ask the states for unlimited requests for men and money to wage war; however, they erroneously trusted states to provide adequate goods and munitions and men for the national government to use at its discretion. States many times ignored requests.
The assumptions of the framers of the Articles, Hamilton declares, were “ill-founded and illusory,” and he claims that states worked strictly for their self-interests. To make the Union last, a change in governmental structure, Hamilton contends, was imperative: power and the means necessary must be given to the national government to provide for a common defense. To meet this particular end, Hamilton argues that the federal government should, in effect, bypass the states and “extend the laws of the federal government to the individual citizens of America.”
In regards to national defense, Hamilton believes it is “unwise and dangerous” to not give the national government power to provide for a common defense: the 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.” He reminds his political opponents that to withhold such means and power from the national government is counterproductive and welcomes national instability. (Hamilton was aware of the lingering Anti-Federal skepticism and considered many of their objections to be merely nitpicking).
The change in government was needed to preserve national interests, and the proposed federal government was worthy of the people’s trust. Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that “interest, reputation, and duty would bind the representatives to the Constitution and public opinion.” That belief is expressed and implied in Federalist 23.
Although Anti-Federalists and Federalists waged a genuine and intense intellectual battle, both were concerned with protecting American liberties. In many ways, they were champions of freedom and had much in common. Both considered constitutions essential to the existence of a free society, and both believed that restraints should be placed on government. Both would be horrified how far many modern-day lawmakers and constitutional theorists have strayed from original intent.
–Troy Kickler, Ph.D., is Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., is Director of Legal and Regulatory Studies at the John Locke Foundation.
Federalist Paper No. 24 & 25 – Janine Turner
Federalist Paper 24, Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 24, Federalist No. 24, Federalist No. 25Tuesday, June 1st, 2010
On this Memorial Day season, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.
Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.
It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.
No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.
Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”
We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.
They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.
They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.
They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.
They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.
A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “Can any man think it would be wise, to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part, would be to desert all the usual maxims of prudence and policy.”
Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”
A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”
Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”
On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.
May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.
God Bless,
Janine Turner
Federalist No. 24 – Cathy Gillespie
Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 08, Article II Section 2 Clause 1, Article II Section 2 Clause 2, Article II Section 2 Clause 3, Federalist No. 24, Federalist No. 24Monday, May 31st, 2010
It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)
Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.
Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.
I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring the government’s control of the military, balancing power between the legislative and executive branches. The abuses that the anti-federalists feared have not come to pass.
An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.
God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.
Cathy Gillespie
A Memorial Day Message from Constituting America
Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Janine TurnerOn this Memorial Day, 2010, let us remember and give thanks for those who have made the ultimate sacrifice for the preservation of our freedom. Let us honor them by thanking those brave men and women currently serving in our military, and our veterans.
It is fitting that the Federalist Papers we are reading this weekend address our national defense. Thanks to the foresight of our founding fathers, we have the greatest military in the world, and the best men and women serving, all of whom take an oath to “support and defend the Constitution of the United States.”
Thank you to our armed forces, and may God be with you as you perform your duties. You are in our prayers.
Wishing you all a Blessed Memorial Day! God Bless our Troops!
Janine Turner and Cathy Gillespie
Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton)
Allison Hayward, Federalist Paper 24, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 24, The Articles of ConfederationMonday, May 31st, 2010
Federalist 24
Allison R. Hayward
Federalist 24 continues Hamilton’s argument in favor of strong national government for national security purposes. Here, he addresses the explicit complaint that the Constitution would permit standing armies in peacetime.
Critics of the Constitution feared that standing armies would become either a tool for those in power to seize power in perpetuity, or a means to usurp elected government with a military one. Colonists in America were not far removed from the days of Oliver Cromwell, who after prevailing in the English Civil War became Lord Protector of England, Ireland, Scotland and Wales. Quite possibly the families of many of the colonists reading the Federalist Papers migrated to the New World to escape Cromwell’s Britain (or the Restoration aftermath, plague, fire, and general 17th century misery). Certainly many were familiar with the fall of the Roman Republic at the hands of the Roman General, Julius Caesar. In any case, popular opinion would have feared standing armies as a destabilizing force and a threat to democracy. This is thus a powerful argument that the Federalists need to answer.
Hamilton responds to these critics in several ways. First he implies that these critics misinterpret the constitutional separation of powers. He reminds them that the Constitution places the responsibility for raising an army with Congress, not the President. Moreover, any appropriation may be for no longer than two years. Under this division of authority, the election branch – Congress – which is most responsive to the public, must consent to military mobilization. Unlike the Roman and English examples, sole military authority is denied the American Executive. Moreover, the existing regime under the Articles of Confederation contains no standing army limit. This fact allows Hamilton to imply that the anti-Federalist criticisms are disingenuous.
Moreover, notes Hamilton, the world poses security dangers to America apart from “formal” war. The nation is bordered by territories of Britain, Spain and France, and much of the frontier is inhabited by native Americans. Any of these could threaten Americans (and America) if the nation relaxed its guard. Frontier garrisons in particular require support even during “peace.” Finally, for American to meet its potential as a commercial power, it needs to build a navy, which requires outlays for dockyards –even in peacetime. Hamilton argues that the Constitution properly leaves these decisions to Congress, the people’s elected representatives.
Today, the Pentagon’s proposed budget for the coming fiscal year is $708 billion, including a $56 billion “black budget” for classified programs. About 1.5 million individuals are in the active service, about 560,000 in the Army alone. Notwithstanding concerns voiced through time about the size, expense, and “military industrial complex” the United States has, since World War II, maintained a large professional armed force. Moreover, it has done so under the supervision of the Executive – not, as Hamilton contended, under Congress.
Further, military spending is seen by many Congressmen as an important part of their representative role – not simply to keep the country safe, but to keep constituent military contractors profitable. One wonders what Hamilton might have made of the current political “war” over the military’s budget, in which the Defense Secretary has demanded the end to certain programs. Yet Congress insists on keeping them.
Allison R. Hayward is the Vice President for Policy at the Center for Competitive Politics.
7 Responses to “May 31, 2010 – Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton) – Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics.”
Great Job Janine! I am impressed with your determination tho I am not at all surprised!
I share your views : )
Juliette is gorgeous !
I have long felt that America has had a schizophrenic relationship with its military. Stemming from two factors: desire to be a most Christian nation living in peace, and a recognition of human nature. On one hand experience and faith (the insult of the British quartering of troops, desire to live in peace and threaten no man, and a belief that a military in the hands of a tyrant would threaten our liberty) inclined us to wish to do away with standing armies. On the other hand the recognition that the proven, visible ability to fend off invaders and threats allows for security and freedom (freedom requires vigilance). Out of these factors come our constant debate on things military. The Articles of Confederation left it in the hands of the States. In effect in today’s world it would be as if there were no regular army, navy or air force just the various guard units in each state. The opposing view was a standing force sole under Federal jurisdiction a permanent military such as was in existence at the time, uneducated and owing allegiance to the leader a separate ‘career’ path or class. What has developed is an amalgam of these two views a small voluntary standing military which depends in time of strife on a ready militia (national guard). The oath our military takes its oath from top to bottom “protect, preserve and defend the Constitution”. It, also, chooses from educated or those who wish to be educated not from those lacking knowledge or understanding. All of those in the military are instructed as to what is or is not a lawful order and are encouraged to resist any unlawful instruction. Yet to this day we still have the debate how much is sufficient and necessary. We continue to think that a “Peace Dividend” is to be had by the reduction and/or elimination of a standing military.
I am a Philadelphia-born Constitutional Libertarian, which is to say that I am not talking about a political party, I am referring specific ideology and not a party platform.
Above all, I feel that the Constitution as it was written, including the Bill of Rights, which is part of the Constitution, And the articled of Confederation from which this nation was born, are the only things that stand between freedom and tyranny. That being said, it is also as relevant today as it was in 18th Century America, that we still require the vigilance of citizens to protect the liberties granted to the people at this nation’s founding.
Sometimes it seems that we are being attacked from many sides, and I do not doubt that it is accurate. We have always been loved and hated by other nations, but mostly we are resented for the very freedoms we enjoy.
All Americans must stand together as one voice in demanding that our Congress repeal the damage caused by the 16th and 17th Amendments, charge Congress with it’s obligations to coin (and print) currency and set the value thereof (and use gold/silver to give it real value) and end the extortion of the Federal Reserve System and it’s collection agency the Internal Revenue Service.
Return the selection of Senators to the State legislatures, who we have elected to represent us in our sovereign States, and remove the two party system from its monopoly on the electoral process.
Instead of election day, each State may have an election week, and hand-written ballots used instead of electronic machines and mail-in ballots. Because of the importance of votes, it must be done in such a way as to insure the integrity of the system for all citizens.
We must save our nation by restoring Constitutional integrity to the federal government, and control of the armed forces returned to Congress. The President only assumes status of Commander in Chief when a war is declared by Congress, and then power is voided after the war is over or two years unless Congress acts too extend the war and hence Presidential powers beyond two years. But not in perpetuity.
It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)
Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.
Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.
I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring their control. The abuses that the anti-federalists feared have not come to pass.
An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.
God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.
Cathy Gillespie
@Fred, welcome. I consider myself a fiscal and social conservative with libertarian leanings. As I continue to read the Federalist debate and early American History while watching the shenanigans of today, I must say I could inveigh against all factionalism along with the most vehement of our Founding Fathers. I see it in the stasis in Washington and it is part and parcel of the intellectually incurious who have voted the line since Methuselah was in diapers.
As a veteran, I stand with other Veterans who have served this nation with dignity, courage, and honor. In our time, which young people today see as antiquated, we saw the Constitution as a document representing the very heart of America. Even though we were divided by different beliefs in life the Constitution was the very umbrella that kept us united as one people. Different states (republics) but one nation. It was to be honored,cherished, and respected. Due to that belief, when we as veterans went to battle to serve our nation we did so with committment, dedication, pride. Unfortuinatley, people today do not talk this way anymore for they have so taken the Constitution and freedom for granted that they, as we speak, are in danger of losing their freedom.
The Constitution is like the Ten Commandments – When we look at them both is reveals to us the goals we strive to reach. Yet, at the same time it shows us our weaknesses and vulnerablities. When we vote, we should look and ask each candidate their interpretations of the Constitution and how their campaign is based on the Constitution. Yes, They need to prove themselves from here on out. We can no longer take their word for anything. I would be interested in how many of our politicians today truly can tell you about the FEDERAL PAPERS and the CONSTITUTION. Because by the actions of our some current government officials they do not mind violating it.
It is our obligation, as young and old Americans, to protect the Constutution and remove any politician that violates it. That is why we all, old and young, need to know the Constitution and keep it in the forefront of our minds when it comes to politics. For those of us who served, risked, and watched friends die, it is heart wrenching to see the real threat of Socialism creeping in the back door knowing that all the sacrifice could be for nothing if our children/grandchildren live under any other form of government than a Constitutional Democracy. For God and Country. God give the youth of today the courage to stand for Democracy.
@ Gary….I agree with everything you said, with the exception of our children living under a Democracy. We are NOT a democracy…we are a Republic. This is one of the big problems we have today. People don’t even realize what form of government we are supposed to have. How, then, can they protect and keep it?
We The People 9.17 Contest Update and Federalist No. 25 – Cathy Gillespie
Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 24, Federalist No. 25, Federalist No. 25Wednesday, June 2nd, 2010
DON’T MISS!! Juliette Turner’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE
We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.
Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.
Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!
And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.
If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!
As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day.
Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.
In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!
A hard task at 2:26 a.m. as I write this post!
Good night and God Bless,
Cathy Gillespie
Federalist No. 24 & 25 – Janine Turner
Federalist Paper 24, Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 24, Federalist No. 24, Federalist No. 25, Federalist No. 25Tuesday, June 1st, 2010
On this Memorial Day season, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.
Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.
It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.
No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.
Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”
We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.
They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.
They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.
They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.
They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.
A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “Can any man think it would be wise, to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part, would be to desert all the usual maxims of prudence and policy.”
Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”
A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”
Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”
On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.
May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.
God Bless,
Janine Turner
Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton)
Federalist Paper 25, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 24, Federalist No. 25, Joerg W. KnipprathMonday, May 31st, 2010
Alexander Hamilton began his Revolutionary War service as a member of a New York militia unit. He then joined the Continental Army as an artillery officer and became General Washington’s adjutant in 1777. After resigning that post, he persuaded Washington to give him a position as a field commander at the decisive Battle of Yorktown in 1781. From his experience as line officer and staff member, Hamilton was well aware of the capabilities of a trained army and those of the militia. More, in 1783, the Confederation Congress had appointed Hamilton to head a committee to investigate the creation of a standing army.
That background stands out in Federalist No. 25. Supporting Congress’s power to create a standing army, Hamilton rejects the argument that, if there is to be such an institution, it should be under the control of the states. Hamilton also rejects a more moderate position supported by Brutus and other Antifederalists that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime. He uses a rather trite “where-do-we-draw-the-line” argument to defend drawing no line at all. Brutus has a ready response: Just specify the purposes for which peacetime troops may be raised and kept, and require a two-thirds vote for Congress to act.
But, rejoins Hamilton, “how easy would it be to fabricate pretences [sic] of approaching danger?” A peacetime army might be kept up, through collaboration between Congress and the President, on the flimsiest of excuses and for however long they judge the danger to exist for their own political ends.” Hence, there should be no restriction on Congress’s power to raise and keep a peacetime army. Because a limited power might be abused, there must be an unlimited power? It is this logical leap that the Antifederalists reject.
Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action. As Publius notes in several other essays, government thrives on crisis, while individual liberty shrivels. Power flows from the individual to government, from local governments to the central government, and from the legislative and judicial branches to the executive. Such crises fuel an explosion of political energy that produce dangerously excessive unity over individuality, and conformity over liberty, at least temporarily. Government officials gain from such crises, be they real or contrived. “Never let a good crisis go to waste,” is a brilliantly apt aphorism of this phenomenon. Wars and natural disasters are real crises, but one frequently hears crisis terminology used to describe more run-of-the-mill political issues, from “wars” on poverty and drugs to health care and obesity “crises,” to justify government intrusion into individual autonomy. Not long ago, there was even a “hidden” child care crisis, with government efforts made all the more critical because the crisis was so insidious no one recognized it.
Hamilton also anticipates the assertion that the militia suffices for the national defense, an argument he roundly rejects. This was a particularly sensitive ideological issue for Americans of the time. The myth of the citizen-soldier was a powerful republican tale. The ideal soldier was Cincinnatus, the Roman consul-turned-farmer who was subsequently called to be dictator and general during a war, which offices he resigned upon successful completion of the military campaign. He then returned to his farm. Making this republican myth concrete for Americans was that they had their own Cincinnatus in the person of George Washington. Revolutionary War officers formed the Society of the Cincinnati to promote this republican ideal.
The militia embodies the ethos of the citizen-soldier. Hamilton pays due homage, but recognizes the inferiority of the militia to a regular army in sustained military operations. “The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were.” As he noted in Federalist 24, even in peacetime the militia would be unsuited to perform regular soldiering duties such as guarding the frontier. “The militia, in times of profound peace, would not long, if at all, submit to be dragged from their occupations and families, to perform that most disagreeable duty.” Worse, he declares, is the economic inefficiency of compelling the militia to such service, produced by a loss of labor and industrious pursuits and by the expense to the society of frequent rotation of the militia. Since militia service was universal for adult males of a wide age range, such burdens would be even more objectionable than if they fell on a body of citizen volunteers, such as today’s National Guard.
Our current military system depends on a combination of a professional standing army in active service and volunteers in the National Guard and in various reserve units. The system has advantages in training and professionalism, which become more important as the technology in fighting becomes ever more complex. The war-fighting skills of the massed citizen soldiers of the ancient Athenian hoplite formation or of the Roman legion were relatively simple to master. Today’s warfare is infinitely more complex, and continuous campaigns are measured in years, not weeks. Relying on citizen-soldiers, even volunteers in the National Guard, for long commitments produces hardships and economic dislocation, as news reports often point out. This is well worth remembering when politicians blithely call for a state’s national guard to be deployed to guard the frontier against trespassing aliens, or when cuts in the defense budget are proposed while the scope of military commitments abroad continues at a high level.
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.
15 Responses to “June 1, 2010 – Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”
On an average there is at least one sentence per paper that brings me up short. This papers contribution is: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.”
Some interesting stats to consider. About 60 years ago, before the Korean War, our population was about 150 million; today it’s about 310 million. Before the Korean War, we had a standing peacetime Army and Marines of about 15 Divisions; today, our standing Army and Marines, in time of war, is about 13 Divisions. Before the Korean War, we were not at war; today, we’ve been at war for 9 years and yet have not increased the size of our active Divisions. We’ve actually decreased them, in spite of a 100% increase in population. I don’t know what an appropriate size is of a standing military in time of peace, but it seems to me that, during a time of war, there should be some kind of increase. I don’t think our current military size is a threat to our population, given the 100% increase in popluation and the decline in the standing military, but I do think that it is inadequate to perform our multiple missions without having our professional volunteers burn out with family stress that comes from the multiple deployments that are today’s reality.
First let me add my thanks to Janine and Cathy for this wonderful forum.
I would agree with Ron Meier that in the manner our military has been used our smaller force has caused undue hardship on those who serve and their families as well. I would suggest, however, that with our superior military technological capabilities, we have badly mismanaged the use of our forces.
The scope and techniques of our armed forces activities are dictated by our political leaders. Of the 535 members of the 111th Congress only 121 are veterans. This is less than 25% and this percentage declines with each new congress. The major concerns seem to be political correctness and collateral damage. I don’t think political correctness was even a “buzz phrase” during WWII and had we been overly concerned about collateral damage we would have never dropped the atomic bomb which ended that great war. I am not a war monger but do believe that whatever might we have we should be willing to use if we are to engage in warfare and I am much less concerned about collateral damage in foreign lands than I am about the lives of our young men and women who serve so selflessly. War is hell and “playing nice” is not only too costly but encourages our adversaries.
Having stated this position I would like to suggest that there exists at least three good reasons for required national service; 1) fresh troops to take some of the burden from our career military personnel, 2) a larger pool of those who have truly served our country from whom we might choose future leaders and 3) a larger number of future Americans with greater sense of national pride that can only be gained via service to country or close relationships with those who serve. As a Viet Nam era veteran I can assure you that I see this deep sense of patriotism diminishing as time goes by.
Please note that in the preceding paragraph I used the phrase “required national service” as opposed to suggesting a re-institution of the draft. I think all young people should serve but also think they should have the choice of opting out of military service if they choose. We have plenty of other areas where service could be applied.
@W.B., I agree about the ‘required national service’. If it can be kept out of the political paws, I think things like Vista and Peace Corps should be offered as viable options for national service.
It’s natural to accept a professional standing army as better equipped and trained than a militia and the control resting in the Federal Governments hands instead of the states is obvious to me. Hamilton’s experience in the military makes this quite clear. I believe he short changes himself somewhat by not heeding more seriously the concerns about the inherent dangers of our liberties that could result from a standing army. I have not yet read the anti federalist papers but the point mentioned by the Anti federalists according to Prof. Knipprath “that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime”. Seems to be a practical approach. This would be somewhat like a trip wire giving us warning of an approaching storm without incurring the high cost and inherent dangers of a continual standing army.
Under the scenario of the Anti Federalists I wonder if our military would have been used in past conflicts such a Somalia or Bosnia or any U.N. police actions which I doubt the founding fathers would have agreed with. Also something that bothers me were incidents such as the Pennsylvania mutiny in 1783 by a small part of the Continental Army over pay. If I remember this was one of the reasons the Federal Government relocated away from Philadelphia and eventually established the federal district of Washington D.C. Is there any chance of this reoccurring if our economy takes a serious nosedive beyond anything we have experienced so far?
George Washington in his farewell address stated “Overgrown military establishments are, under any form of government, inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.”
Another General who became president, Dwight D. Eisenhower warned in his farewell speech of 1961 “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”
I grew up as a kid on a Marine Corps base “Camp Lejeune” so I know the professionalism and power of our armed forces. In reading history it seems some of our most prominent members of America and other countries understood the value of a standing army but also gave us stern advice on the inherent dangers. Let’s hope we understand both clearly and use the military in the interest of our country only.
On this Memorial Day season, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.
Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.
It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.
No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.
Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”
We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.
They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.
They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.
They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.
They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.
A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “Can any man think it would be wise, to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part, would be to desert all the usual maxims of prudence and policy.”
Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”
A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”
Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”
On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.
May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.
God Bless,
Janine Turner
June 1, 2010
W.B. Neate – I thank you for your kind words! And I thank all of you great patriots for joining us and for being a part of our blog. I am learning so much from your perspectives!
God Bless.. Janine
To Professor Joerg Knipprath: Thank you I look forward to each of you posting with anticipation.
Great comments again, and, as Janine writes, especially fitting on Memorial Day. Susan, that quote is from Fed. 28, I believe, but it is a very important principle that many of the founders had actually lived. It also fits well with the historical purpose behind the Second Amendment, which protects people’s right to own weapons. Although that right extends to personal self-defense, those who adopted it were keenly aware of the right of self-defense against a tyranny by the people organizing themselves into a militia. Kind of a “nuclear option,” if all other means have failed. But that’s a whole other topic.
Upon reading #24 this caught my eye: “…a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.” I found myself thinking not of today’s army or navy, but rather the current administration’s response to the immigration, financial and health care ‘crises’. Then today, right on cue, Professor Knipprath’s comments on #25: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action.”
One of the basic differences between the two political parties, or if that is too confining for your tastes, for those on the left vs. those who are ‘conservative, is that the statists (as Mark Levin accurately calls them) believe that government is the answer to all problems. But the basic inconvenient truth countering that is that our country was founded on the premise of individual liberties and limited government. These days even the most sincere calls for civility and ‘bipartisanship’ can’t bridge that divide.
That statist mentality is what leads the left to call for all solutions to be ‘comprehensive.’ How else could the government solve a problem if its not a total-control solution.
I have detected a similar strain in some of these blogs. Don’t get me wrong, this forum and all of its participants are demonstrating exactly the kind of involvement required in these times. However, we cannot realistically expect a complete and immediate return to the kind of government we are reading about in these timeless papers.
History teaches us a lot. And, it has much to teach us about the time that this great country has been in existence (i.e. since these papers were written). For instance, all of these concerns about standing armies have been proven to be groundless. As one of the Pope Pius’s put it (paraphrasing here) there has been no greater institution for good in the world than the United States Army. General Colin Powell put it this way: “In all the wars America has fought in this century, we have sought no more land in conquest than enough to bury our dead.”
Re. Jimmy Green: George Washington also said this: “To be prepared for war is one of the most effectual means of preserving peace.”
More applicable quotes:
“Let us speak courteously, deal fairly, and keep ourselves armed and ready.” –Theodore Roosevelt
“Whatever enables us to go to war, secures our peace.” –Thomas Jefferson
“The urge to save humanity is always a false front for the urge to rule it.” — H.L. Mencken
Juliette’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE
We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.
Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.
Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!
And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.
If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!
As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day. Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.
In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!
A hard task at 2:26 a.m. as I write this post!
Good night and God Bless,
Cathy Gillespie
Oops caught me out; reading ahead the quote is as you say, Professor.
Professor Knipprath is my absolute favorite guest blogger. Today’s is particularly excellent!!
I’m with you, Ryan. I especially like that he revisits his blogs and adds clarification and answers questions.
Sorry for the delay in posting, I wanted to read the essay first. I must say these are really remarkable. They have debates a lot like my grandparents said used to happen when they were kids.
Federalist No. 26 – Janine Turner
Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 26, Federalist No. 26Wednesday, June 2nd, 2010
“…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”
When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.
These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.
“the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”
“against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”
“and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”
Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.
How will America survive?
If American’s do not know what they have they will not know when it is slowly being taken away from them.
As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”
The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
The tenth amendment needs to be revisited and rekindled.
We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!
It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!
God bless you!!
God bless America.
Janine Turner
Federalist No. 26 – Cathy Gillespie
Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 26, Federalist No. 26Wednesday, June 2nd, 2010
Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!
I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at https://constitutingamerica.org/contestsignup.php Please keep spreading the word!!
Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!
Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:
IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.
I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.
ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.
chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
2 : given to fantastic schemes
Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.
Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”
Good night and God Bless!
Cathy Gillespie
Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton)
Daren Bakst, J.D., L.L.M., Federalist Paper 26, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Daren Bakst J.D. L.L.M., Federalist No. 26, Troy Kickler PhDWednesday, June 2nd, 2010
At the start of Federalist No. 26, Alexander Hamilton addresses the challenging balancing act required between legislative power and liberty. Using this as a jumping off point, he makes the case that the legislature must have the power to provide for the national defense.
While he acknowledges the balancing of interests, he argues that the scales tip toward having strong legislative power when it comes to national defense. Restraining legislative authority in the area of national defense “is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.”
He explains that it would “endanger the public safety” if there were “impolitic restrictions on the legislative authority.” He goes on to suggest that anarchy would result and the American people would not support such an anarchy.
Hamilton then turns his attention to the question of standing armies during peacetime. Pointing to England, he explains how it had lived under the rule of monarchs who had almost unlimited power. After the Revolution of 1688, the monarch’s power to raise armies was drastically reduced.
The only manner in which an army could exist in peacetime was with the consent of the Parliament. As Hamilton argues, even in England where the desire for liberty during this time was great, the only restraint believed necessary was to prohibit the executive from having sole power to raise armies.
The British revolutionaries who fought for liberty knew that there was a need for troops in peacetime. There always needed to be troops ready to meet any contingency that faced the nation. By placing power with the legislature, this was the proper balance between liberty and public safety.
According to Anti-Federalists, in particular Brutus in his “Tenth Letter,” those opposed to standing armies in peacetime were concerned with executives gaining excessive power. To support this argument, they used Rome and Britain as examples.
In Rome, writes Brutus, Julius Caesar changed “it [Rome] from a free republic…into that of the most absolute despotism.” In Britain, the armies had been used by Oliver Cromwell to take away the people’s liberty.
Hamilton though counters these concerns by stressing the role of the legislature. One key protection was the appropriations process. The legislature must, every two years, vote on whether to allow a military force. Their constituents could hold them accountable at the ballot box if their actions were inconsistent with their will.
Further, according to Hamilton, state legislatures would protect their citizens. Hamilton saw a strong federalist system where states fought against the encroachments by the federal government. States would not simply voice their concerns, but they would be the vehicles by which the citizens would be protected.
Since Hamilton’s time, a key component to the power of state legislatures has been lost. Until 1913, state legislatures had the power to elect Senators. They were not elected like they are now by a direct vote of the people. This was a major check that states possessed in preventing excessive national power.
However, under the current system, state governments are mere shadows of what Hamilton envisioned. This does undercut his argument. The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds.
Fortunately, the military has never posed a significant threat to domestic tranquility. This can be attributed to numerous factors, including the legislative check on executive power that Hamilton articulates in Federalist No. 26. Given our country’s past and current foreign threats, he appears to have been correct in espousing the need for a standing army in peacetime.
– Daren Bakst, J.D., LL.M., is Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., is Director of the North Carolina History Project.
11 Responses to “June 2, 2010 – Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project”
So much of what’s in our Constitution is a result of the experiences that our founders had had before — things that worked and things that didn’t. This practical approach to setting up rules makes a big difference. Something as straightforward as the legislature’s role in defense was improved by the trial and error of the founders. I guess this makes me wonder why so many rules and proposed laws today seem to defy this tradition. Cap and Tax and the health care takeover come to mind. Have these worked anywhere before? Why must we be the experimenters?
I’ve always felt that reform and power are pendulums which never stops at the bottom of the swing in perfect balance. The first, as an example, unions vs. owners, in the late 19th century owners were developing fiefdoms within their spheres so to empower the labor force unions were developed. In government it is liberty vs. order. What is counter intuitive is that reasonable boundaries are necessary to fulfill the promise of the Declaration of Independence for Life, Liberty and the Pursuit of Happiness. Rules like Fences make good neighbors.
As with our constitution the legislature does indeed have the power to provide for the national defense in Section 1 article 8 of the constitution. I’m not certain how the Federal Government got around the issue of “no appropriation of money to that use shall be for a longer term than two years.”
The concern is in today’s world the executive branch is more inclined to initiate war regardless of the congress. I think WWII was the last time the legislature actually declared war as constitutionally required. Today the military is essentially at the Presidents disposal to be sent wherever, whenever. Does this imply the executive branch not the legislative is actually in charge of providing for the common defense? It seems a power vacuum has played out between the two branches and the Congress has surrendered its authorizations for war. This should be troubling to everyone. Besides this issue I do agree that in theory the legislative branch should have what ever power is needed to provide for the common defense. Although I’m not certain how to determine what size of a standing army we truly need.
As Professor Kickler and Bakst pointed out “The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds”.
This can be seen quite acutely in what former President Eisenhower termed the military industrial complex.
Today’s attempts to kill most any major weapons system take a Herculean effort. Not because every weapons system is needed or wanted but simply because the cancellation of said system will involve the loss of thousand of jobs across many states. The congressman of those states will fight tooth and nail to maintain those jobs. And the defense contractors are clever enough to spread the development across as many states as necessary to ensure its survival. Sadly even weapon systems the pentagon does not want are built because the congressman is unwilling to allow the jobs to be lost. This is a detriment to the military and taxpayers.
The mention of Rome via the Anti Federalist papers is amusing in that it’s hard to see that occurring to our republic currently. However as with Rome the executive power increased until Caesar took control as virtual dictator effectively ending any remnants of a republic. Today as I mentioned a power vacuum has been occurring in which the executive branch is wielding more power simply by taking it from the legislative branch.. This jeopardizes the check and balances needed to maintain a healthy republic especially in times of war. Although I don’t think were close to crossing a Rubicon in America I definitely have my concerns about the average citizens role as seemingly something less then “We the people” .
Sorry meant to say Article 1 section 8
Congress essentially delegated to the President, via the War Powers Act, the ability to respond to an act of war quickly (which the President already had under the Constitution) and to become involved in military actions that constitute acts of war.
Congress has tried to delegate away one of their most important functions and We The People have allowed them to do so – to our shame.
Remember the old saying “An ounce of prevention, is worth a pound of cure.”…? There being a time for everything… now is the time for the pound.
James Madison Federalist papers
Military: country capable of supporting without breaking the bank.
Population 300 million
Army 1/100 population= 3 million
organized Militia 25 * Army= 75 million
Militia@Large rest of population capable of bearing arms
Basically, every “war” since the Korean “War”, that the United States has fought in, has been Unconstitutional, in a strict sense. The President can go before Congress as FDR did in WWII, and ask for a declaration of War. But not even the Gulf wars and the current conflicts in the middle East are constitutionally declared wars, because the President has not done his Constitutional duty properly and Congress certainly has not either. No doubt, Congress has abdicated its role, in favor of politics and winning elections. Several of the wars including Korea and Vietnam have been police actions that the spineless United Nations have gotten us involved in. I would love to have seen GW Bush go before Congress after 9/11 and request a declaration of war, but against whom? The Taliban, Al-queda. Terrorists are much more elusive and undefined than a Nazi Germany or an imperalist Japan. So instead, we fought against and continue to fight these elusive terrorists, without an actual declaration of war. I don’t know what the answer is here, the United States must defend itself, but to grant SOO much power to one individual certainly cannot be what the Founders intended. We must go back to the Constitution and to the arguments made in the Federalist and see what those intentions were and try to find the answers that are already there.
Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!
I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at https://constitutingamerica.org/contestsignup.php Please keep spreading the word!!
Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!
Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:
IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.
I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.
ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.
chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
2 : given to fantastic schemes
Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.
Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”
Good night and God Bless!
Cathy Gillespie
“…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”
When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.
These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.
“the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”
“against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”
“and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”
What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
The tenth amendment needs to be revisited and rekindled.
Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.
How will America survive?
If American’s do not know what they have they will not know when it is slowly being taken away from them.
As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”
The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
The tenth amendment needs to be revisited and rekindled.
We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!
It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!
God bless you!!
God bless America.
Janine Turner
June 2, 2010
“…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”
When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.
These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.
“the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”
“against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”
“and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”
Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.
How will America survive?
If American’s do not know what they have they will not know when it is slowly being taken away from them.
As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”
The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
The tenth amendment needs to be revisited and rekindled.
We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
We must be vigilant!
It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!
God bless you!!
God bless America.
Janine Turner
June 2, 2010
It helps me a great deal when I see the explanation. It seems unusual that there was such a controversy over the control of the military. But that does seem to show that our founders had a lot of foresight in that they anticipated problems and then resolved them. I guess what I don’t understand is how we’ve gotten so far away from that ability. Are modern Americans less bright or is the divine no longer influencing our nation’s path?
Federalist No. 27 – Cathy Gillespie
Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 27, Federalist No. 27Friday, June 4th, 2010
Thank you to our Guest Constitutional Scholar Blogger, Julia Shaw! And thank you to all who posted your comments today.
While reading Federalist 27, I found myself thinking, “How was Hamilton so wrong?”
He begins by arguing with one of the premises of the anti-federalists:
“As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature.”
Hamilton may be correct that people will be accepting of the federal government if it is well administered, but as Peter Roff so correctly points out in his coment today, it is impossible to effectively manage the behemoth the federal government has become. And while most people do not mind the exercise of federal authority in the internal matters enumerated as federal powers in the Constitution, what they do mind is the federal government’s usurpation of those powers that according to the 10th Amendment are ”reserved to the States respectively, or to the people.”
This quote startled me as well:
“The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern.”
Ask any small businessperson who is struggling to comply with EPA, OSHA, IRS, and numerous other sources of “red tape,” if his or her affection towards the federal government is strengthened or weakened by all the mandates, regulations, rules and laws with which he must comply.
Hamilton could not have imagined the reach the modern day federal government has into U.S. citizen’s “internal” lives. He had no way of knowing the 17th Amendment would be added to the U.S. Constitution, one of many factors that threw off the systems of checks and balances the founders had so carefully constructed to avoid a power grab by the federal government.
Hamilton got this right, however:
“It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.”
Many would argue that we are moving into the “odious and contemptible” zone with the ever expanding powers of the federal government contained in some of the legislation passed in the last few years. At least 13 states would deem the health care bill “odious and contemptible,” as they mount their constitutional challenges to it.
In the comments section tonight, Adam proposed an interesting idea – a fourth branch of government entitled the Accountability Branch. I would argue that branch already exists, but it goes by another name: “We The People.” We are charged with keeping the government accountable. As Janine wrote so eloquently in her Fox News Op Ed, Your Vote is Your Voice, http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/, our power to vote is the great leveler in restoring the balance to our government.
In order to use that power wisely, We The People, of the Accountability Branch, must be educated and awake. Thank you to all of you for your participation, and for your wakefulness! Let’s keep spreading the word, and inviting others to join us!
Good night and God Bless,
Cathy Gillespie
Federalist No. 27 – Janine Turner
Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 27, Federalist No. 27Thursday, June 3rd, 2010
“Man is a creature of habit. A thing that rarely strikes his senses, will have but a transient influence upon his mind.” Alexander Hamilton, Federalist Paper No. 27.
Bingo. Once again, from the minds of Publius rings relevancy today. The United States Constitution is a thing that rarely strikes the senses because it is so infrequently discussed or taught. Consequently, it has but a transient influence upon American’s minds and passions. The mainstream American culture is basically void of any mention or remembrance of the United States Constitution. Hence, our calling, as concerned American’s who value our Constitutional Republic, is to rally our Republic and curb the tide of irreverence that is engulfing the United States Constitution.
We must make it prevalent and relevant to the senses of our citizens. Knowledge is power. Culture is contagious. The United States Constitution is critical. Actually, it is in critical condition and its survival is the antigen to the disease of socialism. It embodies the vaccine that needs to be boosted in American society.
Man is a creature of habit and without the awareness of the basic structure, the true intent and the proper application of the principles of our United States Constitution then our Republic will be but a fleeting memory.
It is projected that by 2020 our economy will match the failing economy of Greece and democracy as we know it, America as we know it, will meet its demise. The spending must cease and the only way to accomplish this is to reinvigorate the can do spirit that built America. As John F Kennedy said, “My fellow Americans, ask not what your country can do for you; ask what you can do for your country.”
We must counter the culture. One way to do this is to have parties in your home to study the Constitution and encourage people to join our “90 in 90” or refer people to the essays that are in our “90 in 90” archives. Cathy and I want to build a library that will provide a richness of resources to be utilized at any time.
Another way to counter the culture is with our children, the youth of our country. The culture is sending them the wrong message and the awareness of the Constitution is either vague, repugnant or nil. I thank you for getting your child, or a child you know, to join our contest. Taking the time out of “summer time slumber” or “summer time frenzy” is the first step to requisite better habits.
Our sense of pride in our country needs to be rekindled, and the paramount awareness of our rights and our basic foundation needs to be reaffirmed, by infusing the culture the American grassroots way. If not by the culture or mainstream media, then by the sheer will of dedicated Americans, like you.
God Bless,
Janine Turner
Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton)
Federalist Paper 27, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Julia Shaw 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 27, Julia ShawThursday, June 3rd, 2010
We are all familiar with the recent skepticism about government’s performance. Ever since Rick Santelli’s rant on the floor of the Chicago Board of Trade, Americans across the country have gathered in tea parties to discuss and protest the plethora of bad policies pouring forth from Washington. Frustration with government, though, is not limited to tea party participants. The recent oil spill in the Gulf Coast has renewed discussions on the left and the right about what the federal government can and should do in such emergencies.
How should we understand the recent frustration with government and skepticism about its role? Writing as Publius in Federalist27, Alexander Hamilton explains the cause of such dissatisfaction and the suggests a remedy to restore the people’s confidence in and affection for government.
In Federalist27, Publius addresses the charge that the new government “cannot operate without the aid of a military force to execute its laws,” ultimately because “people will be disinclined to the exercise of federal authority in any matter of an internal nature.” Publius counters the presumption that people will be disfavor this new government, arguing that “I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”
Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.
This is not an unfamiliar argument. President Obama acknowledged that Americans were desperate for a well-administered government. But when Obama proclaimed in his inaugural address, “the question we ask today is not whether our government is too big or too small, but whether it works,” he suggested that effective government is unrelated to the size and scope of government. Good administration is necessary for good government. But this does not mean that good administration is unrelated to the size of government.
But Federalist27 anticipates Obama’s argument. Good administration is inseparable from limited government. Publius explains, in Federalist27 and throughout the entire Federalist, that the constitutional design of the government lends itself to gaining the affection of the people. In Federalist27, Publius highlights the expanded choice in election, the selection of the senate, and the reduction of factions as examples of the changes that will engender good will toward the new government. The rest of the Federalist discusses in greater detail the powers and limits on the new government. And, it is this limited government of enumerated powers that “the citizens are accustomed to meet with it in the common occurrences of their political life, [and] the more it is familiarized to their sight and to their feelings, the further it enters into those springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community.”
Considering that people have affection for good administration, and that good administration is inseparable from a limited government, it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations. Every day, entitlement programs grow, government spending increases, and Washington bureaucrats issue new regulations to control our lives. It may be a difficult task to return to limited constitutional government, but, as Publius reminds us in Federalist27, the affection of the people and the long-term health of the country depend upon the such a return.
Julia Shaw is a research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies.
16 Responses to “June 3, 2010 – Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton) – Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies”
Oops! “the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit.” I fear that in arguing for the increased power of the central government also put his finger on the problem we face today. Via gradualism and how can you argue against the good of these mandates the creatures of habit have grown used to the meddling of the nanny state.
In the town hall of Siena, Italy, is a very large classic fresco painting of the Effects of Good Government and the Effects of Bad Government, painted in the 14th Century. Now, I wish I had spent more time looking at it than I did. You can google that to find various descriptions. As I understand, Siena, at that time, was a republic. We might all benefit by spending some time examining the painting and its various meanings to better understand where we are today and what we have to do to get back to where we started. It would be good to have a reproduction of that painting in the Congressional Rotunda.
This leapt off the page at me….”A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people.” I do not think of this as “distance” in a literal sense, but rather “distance” in their understanding of the every day man. Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.
Military force is not needed but honestly lets agree that many taxes and fees that are charged to us often unfairly would never be paid if their was no implicit threat of fines, incarceration ,loss of property, violence of some type by the federal or local government if you do not obey them. Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.
The administrative efficiencies of the government good or bad would have little bearing on us in a constitutionally run government. The issue as mentioned is the relative size and intrusive nature of it into our personal lives.
No doubt the Federal Government was corrupt a hundred or more years ago but that corruption did not affect us much. The constitution was still in effect and the wall preventing the Federal Government from meddling in our private life was limited
Most every serious problem in America today can easily be traced back to unconstitutional decisions the Federal Government made and the judicial system approved. Is there any limit to the government’s intrusion into our private life?
Are we becoming wards of the government?. Each one of us should be furious about this. Unless you wish for a cradle to grave welfare state or maybe entered the country illegally then the Federal Government is the nightmare on Elm Street. Or from another great show “We are the Federal Government….Resistance is futile…..You will be assimilated
You life as it has been is over. From this time forward you will service us” or something cool but scary like that.
I believe our guest blogger Julia Shaw hits the nail on the head when she states “it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations”. I believe this is primarily what we all tend to think and the comments I have read from you all tend to support that idea.
Maggie says: “Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.”
Absolutely true, the only question of importance now is what are we willing to do to change this. What efforts or discomforts are we willing to accept for a restoration of the government and the constitution of the people.
Jimmy, let me pose the question to you this way. Consider you and your neighbors homes to be a microcosm picture of two countries. Let us say that is common knowledge that both of you have on your properties something of great value. You are not armed, while your neighbor is known to have at least one gun. I consider this the individual equivalent of a national standing army. Which house is more vulnerable to thieves?
Okay Susan I give. Please explain your point and the relevence to essay 27.
Thanks
Jimmy
“Man is a creature of habit. A thing that rarely strikes his senses, will have but a transient influence upon his mind.” Alexander Hamilton, Federalist Paper No. 27.
Bingo. Once again, from the minds of Publius rings relevancy today. The United States Constitution is a thing that rarely strikes the senses because it is so infrequently discussed or taught. Consequently, it has but a transient influence upon American’s minds and passions. The mainstream American culture is basically void of any mention or remembrance of the United States Constitution. Hence, our calling, as concerned American’s who value our Constitutional Republic, is to rally our Republic and curb the tide of irreverence that is engulfing the United States Constitution.
We must make it prevalent and relevant to the senses of our citizens. Knowledge is power. Culture is contagious. The United States Constitution is critical. Actually, it is in critical condition and its survival is the antigen to the disease of socialism. It embodies the vaccine that needs to be boosted in American society.
Man is a creature of habit and without the awareness of the basic structure, the true intent and the proper application of the principles of our United States Constitution then our Republic will be but a fleeting memory.
It is projected that by 2020 our economy will match the failing economy of Greece and democracy as we know it, America as we know it, will meet its demise. The spending must cease and the only way to accomplish this is to reinvigorate the can do spirit that built America. As John F Kennedy said, “My fellow Americans, ask not what your country can do for you; ask what you can do for your country.”
We must counter the culture. One way to do this is to have parties in your home to study the Constitution and encourage people to join our “90 in 90” or refer people to the essays that are in our “90 in 90” archives. Cathy and I want to build a library that will provide a richness of resources to be utilized at any time.
Another way to counter the culture is with our children, the youth of our country. The culture is sending them the wrong message and the awareness of the Constitution is either vague, repugnant or nil. I thank you for getting your child, or a child you know, to join our contest. Taking the time out of “summer time slumber” or “summer time frenzy” is the first step to requisite better habits.
Our sense of pride in our country needs to be rekindled, and the paramount awareness of our rights and our basic foundation needs to be reaffirmed, by infusing the culture the American grassroots way. If not by the culture or mainstream media, then by the sheer will of dedicated Americans, like you.
God Bless,
Janine Turner
Jimmy, and I quote ‘Military force is not needed’ even if it is not used it has a function.
In America under ‘posse comitatus’ the standing military is not permitted to act internal to the boundaries of the union. The only ‘military’ body that may be called to internal action are the individual state guard units and that only at the behest of that states governor. Under the Constitution the military is purely an extention of foreign policy whether it is declared war or the ‘big’ stick that others know we have and are not afraid to use when provoked.
Susan, yes thats correct if I understand you correctly were talking about coercion. My statement of “Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.”
The government always gets what it wants by the implied threat of force, rarely the actual use of it. Hopefully I understood you correctly but maybe not.
Jimmy
“I hope we have once again reminded people that man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts.” — Ronald Reagan
Okay your point was [if I understand you right] is that for government coercion to occur our government has found a way to do it without military involvement? Okay there we can agree. One of our founding fathers said [and I probably paraphrase] ‘Where government fears the people you have liberty, where the people fear the government you have tyranny!”
This observation “Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.” is the central point of Federalist 27, in my judgment, and of much of the debate in which we find ourselves today. Big government is hard to administer, is arbitrary and ineffective – which is part of the reason people feel the way they do about the IRS, the Post Office, the EPA and, at the local level, the DMV. This point is certainly worht thinking about in the contemporary context.
Enslavement:
Though it be by whip and chain or by excessive common laws and many taxes its name does not change!
I know this posting is late, but I’ve been unable to participate for a few days. I too was struck with “I believe . . . general rule that their [the people] confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”
The “badness” of our government over a long period of time has lead to the mistrust now felt by the people. I hope and pray that we will be able to reverse this trend, or we will be lost!
Greetings from NYC. I am here, with Cathy and Juliette, and we are Constituting America. Be sure to tune in tomorrow to Fox News midday as I am going to be a guest on Megyn Kelly’s show. I will, also, be on Glenn Beck’s Show, the Founding Father’s Friday, on Friday! Yea! Great exposure for Constituting America and our “90 in 90” and our We the People 9.17 Contest for kids. Deadline for our contest entries is July 4th – so please continue to spread the word!
I am glad to have Marc S. Lampkin back with us today, thanks Mr. Lamkin for your wonderful insights and I was also really happy to see some of our regular bloggers back today, such as Maggie and Carolyn, as well as some new bloggers…welcome!
I find that I agree with Carolyn Attaway’s blog entry today. My favorite quote from today’s reading was the following:
“Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”
As Carolyn said, our military fights for our love of country not for the love of a leader. Our military also fights for a love of his countrymen. We are brothers and sisters, neighbors and fellow citizens. Our unity through diversity is what makes us unique. Our Constitutional forefathers gave us a brilliant structure, and roadmap, to keep us that way, to keep us unencumbered by the weight of heavy-handed government. Our freedoms have given us our opportunities and identity and breathed life into our bond as a brethren working together. Our limited government has given us the ability to dream. Our sense of adventure has flourished and made America great because Americans have not been censored. Rooted in this spirit is a moral compass that has guided our way. If we loose this, we loose everything.
Alexis de Tocqueville summed it up best:
“I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies; and it was not there; in her rich mines and her vast commerce, and it was not there. Not until I visited the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, America will cease to be great.”
God Bless,
Janine Turner
June 7, 2010
Federalist No. 28 – Cathy Gillespie
Federalist Paper 28, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 28, Federalist No. 28Sunday, June 6th, 2010
Thank you to Dr. Morrisey for your insight into Federalist No. 28, and for checking back in with us over the weekend! You are a wonderful resource to our “90 in 90” Participants!
It is interesting to me that Hamilton seems to be calling for the federal government to use the military to enforce domestic law in some circumstances. He mentions specifically “seditions and insurrections.”
However, the American people have a strong history of opposing military enforcement of domestic law, unless requested by the state. Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.
After the Civil War, during Reconstruction, U.S. soliders were utilized to enforce law in the South. The issue came to a head during the election of 1876. Democrats dropped their challenge of this very close election (Rutherford Hayes won by one electoral college vote, but Samuel Tilden won the popular vote), when a compromise was reached to pass the Posse Comitatus Act of 1878:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Federalist No. 28, and the subsequent Posse Comitatus Act are both very relevant today, because in 2006, President Bush could not send federal troops in to Louisiana to assist in the aftermath of Hurricane Katrina, until he was specifically requested to do so by Governor Blanco. As a result, the federal government was not able to respond as quickly as many would have liked.
Later that year, an attempt was made in the 2006 Defense Authorization Act to revise the Posse Comitatus Act, to enable the President to respond more quickly in these types of emergencies. While the measure passed in 2006, it was repealed in 2008. As United States Citizens, it is “in our genes,” to be wary of standing armies, and certainly military enforcement of domestic law.
As I read Federalist 28, the below quote reminded me of why it is so important we all continue our effort to educate our youth and citizens about the U.S. Constitution and the and the foundation it sets forth regarding our freedoms and rights.
“The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them.”
Thank you to all of you who are joining us in our mission, speading the word and taking the time to blog with us!
Have a Blessed Sunday, and we look forward to blogging on Federalist 29 tomorrow!
Cathy Gillespie
Federalist No. 28 – Janine Turner
Federalist Paper 28, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 28, Federalist No. 28Saturday, June 5th, 2010
Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”
I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.
Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.
“The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.
However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.
Alexander Hamilton states in this paper, “The obstacles to usurpation, and the facilities of resistance, increase with the increased extent of the state: provided the citizens understand their rights and are disposed to defend them.”
“Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.
God Bless you for your willingness and courage,
Janine Turner
Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton)
Federalist Paper 28, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 22, Federalist No. 27, Federalist No. 28, William Morrisey PhDFriday, June 4th, 2010
The Federalist #28: Federalism and Rebellion
Publius has turned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense. In #27 he began consideration of perhaps the most sensitive topic in any federal system, namely, military defense against internal rebellions. He argued that union finds its primary bulwark in peaceful habits of cooperation. Frequent appeals to armed enforcement of the union will only weaken the union–either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force. The careful limitation of federal powers—“the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.
Nonetheless, times will come when only force can preserve the Union. Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.
Recall the fundamental law of contract enunciated in #22: no party to a contract may unilaterally and legally violate the contract. This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament. The revolution occurred not because the colonists rebelled but because the British government had.
At least as often, some part of the people will rebel. Indispensable to good government, rule by law will not always suffice. Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like. Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.
As a revolutionary warrior, Publius maintains the right to revolution against tyranny. The “original right of self-defense,” part of our natural right to life, always remains “paramount” to “all positive forms”—i. e., all conventional, man-made forms—“of government.” The human institution of government rightly serves God’s `institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority. This much we know from the Declaration of Independence: In some circumstances the rule of law rightly gives way to illegal but just force.
Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles. Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states. The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia. A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights. The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation. “The people, by throwing themselves into either scale, will infallibly make it preponderate.” By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.
Here the argument of Federalist #10 for the value of an extensive republic reappears. There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole. Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America. States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves military and fight back.
This raises an obvious question: What if an unjust group or faction controlled distant states? Could the federal government suppress the rebellion? Publius cannot predict the outcome of such a struggle. If asked, he could only say that under the weak government of the Articles, no such just suppression could occur at all.
Professor Will Morrisey is the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College
13 Responses to “June 4th, 2010 – Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”
This paper seems by implication to say that the 2nd amendment was an understood given if not a directly stated right of the people. I wonder why in this contract in its unamended form only specified the obligations and duties of one side but only implied those of the other side?
Susan, if I understand your question correctly, I think that the Founders agreed that the right to self-defense was a natural right, thus `given’ by God. One of the early commentators on the U. S. Constitution, St. George Tucker, writes, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.” Under the Articles, this right simply could not be infringed by the national government. The Framers of the new Constitution were trying to strengthen that government, so they emphasized the need for a government capable of defending itself against rebellion. By 1789, when Congress debated the Second Amendment, the opposite worry prevailed. Worried about the prospect of a standing army, the Congress thought that militias regulated by the civil governments of each state would obviate the need for such a force. They hoped that militias would suffice to repel any invasion. We see this as late as 1829 in William Rawle’s book, “A View of the Constitution of the United States.” He argues, “Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.” A few years later, Joseph Story adds, to these points the need of the citizens to defend themselves against “domestic usurpations by rulers.” Notice that these commentators expect that any “regular” army would need to be “raised”; there would be no regular standing army.
Or am I missing the point of your question?
This explains a lot. I sometimes have wondered about the rationale about the dispute over the standing military force. On the one hand, I believe in a strong national defense. But I’ve thought about the fact that the same force could ultimately be turned against the nation. I don’t really fear it per se, but it is sort of a quandary as to what to do about it. But Professor Morrisey explains it quite well.
Hamilton’s understanding of times when the national government will use force to quell insurrections or other internal calamities is understandable given the times he lived in. I think the last time federal force was used was the war between the states from 1861-1865. Not sure if that’s a civil war or the south loosing their own revolutionary war.
The civil rights movements of the 1960’s used federal troops in Little Rock I think, but that was not out of sedition or succession concerns.
Hamilton’s views on the necessity of force to preserve the union seems common sense. It’s the couple of centuries of hindsight we have that keeps getting in the way.
His view of stopping an usurpation in a state as harder then a federal usurpation because of limited territory or geographical areas seems secondary to the usurpers partial or complete control of the militias and belief of the citizens in the usurpers. You know the old “divide and conquer” routine. An usurpation of power by the Federal government likewise seems to be more based on convincing the people that no real usurpation has taken place and then placating them with cheap beer and all the gladiatorial games in the form of ESPN you can watch. At least for the men. Otherwisw entitlements and free medical care for all.
It think he believes that if the states invade our rights through an usurpation of power then the strength of the Federal Government will set things right and of course the States will set the Federal Government proper if their invading our rights. We decide which one is right or wrong. You have to love how this works in theory.
The last paragraph mentions peoples apprehension of a strong standing federal army as suffering from a cureless disease. Nice to know political humor transcends the ages.
You have to appreciate the fine line Hamilton is walking to find the correct balance between having the proper sized standing national army to safeguard the Union and the people of any rogue despotic state. Yet weak enough such that the states and people can throw off the tyranny of that army under a despotic federal government. In actuality we have had no real fear from our standing army and I think Hamilton was right, at least for now. However as people loose confidence in the government things may start to change.
Partially professor, in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.
Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”
I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.
Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.
“The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.
However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.
Alexander Hamilton states in this paper, “The obstacles to usurpation, and the facilities of resistance, increase with the increased extent of the state: provided the citizens understand their rights and are disposed to defend them.”
“Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.
God Bless you for your willingness and courage,
Janine Turner
June 4, 2010
“in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.”
I don’t think this is the right way to look at the BoR, the preamble to which describes it as a collection of “further declaratory and restrictive clauses”; and certainly any obligations conferred by those amendments fall entirely on government entities. The contractual obligations of the people WRT the government are fulfilled in their entirety when We the People provide the government with the wherewithal to carry out our orders.
Susan and yguy raise an interesting question regarding modern `social contract’ theory. Prior to any contract between the people and the government must be a contract among the people themselves. This idea may be seen in the Preamble: “We the People of the United States… do ordain and establish this Constitution….” A given population in effect contracts with itself–individuals and families contract with one another–to establish the several levels of legal institutions by which they govern themselves. In so doing, they empower and limit these various governments, in each case (to quote another document familiar to all of us here) “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If we think of the question in this way, the amendments amount to refinements of–and later on, perhaps, near-contradictions of–the original contract. The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.
Thank you Professor Morrisey, you have given me food for thought.
Many contributors to this blog have marveled at the wisdom of Publius and the Founding Fathers in crafting and implementing our Constitution with all of its carefully devised checks and balances and protections for our individual liberties. It has come up more than once (especially in Janine’s comments) about how amazing it is that so many of the arguments for limited government and those protections of our freedom make it seem as if Publius was looking well into the future to our troubled times.
In these last few papers, Publius addressed the widespread fear of a standing army at the time of the formation of the Constitution. Hamilton argued that the states would be a effective counter to federal overreach in this and other areas of potential intrusion into our liberty. As Jimmy points out: “You have to love how this works in theory.” The argument has proved to be unnecessary on the issue of a standing army and sadly not true in most other areas of individual liberty. The states have failed miserably in that duty to counter the federal government’s relentless intrusions into individual freedom.
As Cathy points out: “Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.” On the other hand, the standing army fears in America have been proven to be completely ungrounded.
During each of my several visits to the Vietnam Memorial I became more and more convinced that the real long-term value of that ‘conflict’ was the validation of civilian control of the military and the irrationality of those ancient fears of a standing army (‘cureless disease’ indeed). In our country’s long history of military engagements I don’t believe that there has ever been a situation that came closer to justifying a military ‘coup’ or something similar. The disastrous meddling in military missions and even sorties by Johnson and McNamara was nothing short of treasonous by the metric of the number of lives needlessly lost, both among our personnel and the Vietnamese, not to mention the stain our country still carries of that defeat . The details are easy enough to verify. I don’t know for sure (I was just a junior Navy pilot) but I would bet the farm that among the more principled senior officers I got to know and admire in my subsequent career there were many who would lay awake at night agonizing over the tragic choices and the possibilities.
It didn’t happen. Not even under those most trying of circumstances. There is nothing to fear from our standing army or armed services. Never has been.
Several very good points have been made about historical uses of federal troops: Alabama and the Civil War. (I’m married to a southerner, so I know the ‘war of southern independence’ arguments.) However, the southern states did participate in the rebellion against England. And they did enter into a legal and binding contract of confederation and then did vote for ratification of the Constitution. I always felt that calling the Civil War the ‘war of southern independence’ was just a clever way of avoiding the real moral issue at stake.
As for any theoretical rebellion, the problem arises of how do you define terms like tyranny and despotism? Maybe its like pornography: “I can’t define it, but I know it when I see it.” Many people seem to be seeing it these days.
As to the states’ abdication of their role as protectors of its citizens from an overreaching federal government, we may be seeing a turnaround with this legal opposition to Obamacare. To date, more that 20 states’ Attorney Generals have joined in the lawsuit challenging its constitutionality. Several more states (whose constitutions require that such a challenge to federal law originate in the state legislature) have began the process to join in. Those numbers get pretty close to the 38 required to call for a constitutional convention.
‘The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.’
I don’t think I could disagree more adamantly. WRT federal powers, 1A and 2A can reasonably be considered extensions of A1S9, which includes limitations on the federal legislative power under the necessary and proper clause. The preexisting rights are alluded to in those amendments to clarify the limits on government, not to place such rights on a par with “positive rights” like suffrage which require governmental validation.
IOW, while the federal government is generally tasked with protecting the rights you mention, it is not under the color of 1A or 2A that this is accomplished, but by obedience to the Constitution in general in pursuance of the objectives stated in the Preamble.
I have a tendency to wince when people talk of civil rights as opposed to ‘natural’ or God given rights. A Civil right is not immutable and can be changed at the pleasure of the governing power, whereas a ‘natural’ or God given right is and can not be rescinded or amended by a governing power.
The following quotes come from a transcription of an old “Break Point” radio broadcast by Chuck Colson entitled “Rights Talk”:
“Where once we had spoken of government aid programs, we began speaking of entitle-
ment progams. Suddenly, it wasn’t just an act of compassion to help the poor, the sick, or the elderly. It was a right to which they were entitled. rights came to mean basisc needs, which in turn gave way to wishes” …”every right I claim imposes an obligation on someone else. If patients have a right to medical treatment, then doctors have an obligation to administer it. If criminals have a right to a lawyer, then the state has an obligation to supply one. If people have a right to financial security, then the government has an obligation to dole out welfare benefits. For each new right that is created, a whole network of laws and regulations is written to enforce the corresponding obligation” …”Notice the irony here. The old concept of rights was designed to limit state power- to define areas free from govern-
ment interference. But the new concept of rights expands state power” …”A larger and larger portion of our lives is vulnerable to government control- exactly what the old kind of rights were designed to prevent”… ” What a sad irony: As Americans demand more and more rights, we enjoy fewer and fewer freedoms” … “The entitlement mentality is threatening the fundamental freedoms that were once the whole point of human rights”.
We in America have become far too preoccupied with our “rights” and have lost sight of our responsibilities that preserve our “freedoms”
Federalist No. 29 – Janine Turner
Federalist Paper 29, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 29, Federalist No. 29Tuesday, June 8th, 2010
Greetings from NYC. I am here, with Cathy and Juliette, and we are Constituting America. Be sure to tune in tomorrow to Fox News midday as I am going to be a guest on Megyn Kelly’s show. I will, also, be on Glenn Beck’s Show, the Founding Father’s Friday, on Friday! Yea! Great exposure for Constituting America and our “90 in 90” and our We the People 9.17 Contest for kids. Deadline for our contest entries is July 4th – so please continue to spread the word!
I am glad to have Marc S. Lampkin back with us today, thanks Mr. Lamkin for your wonderful insights and I was also really happy to see some of our regular bloggers back today, such as Maggie and Carolyn, as well as some new bloggers…welcome!
I find that I agree with Carolyn Attaway’s blog entry today. My favorite quote from today’s reading was the following:
“Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”
As Carolyn said, our military fights for our love of country not for the love of a leader. Our military also fights for a love of his countrymen. We are brothers and sisters, neighbors and fellow citizens. Our unity through diversity is what makes us unique. Our Constitutional forefathers gave us a brilliant structure, and roadmap, to keep us that way, to keep us unencumbered by the weight of heavy-handed government. Our freedoms have given us our opportunities and identity and breathed life into our bond as a brethren working together. Our limited government has given us the ability to dream. Our sense of adventure has flourished and made America great because Americans have not been censored. Rooted in this spirit is a moral compass that has guided our way. If we loose this, we loose everything.
Alexis de Tocqueville summed it up best:
“I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies; and it was not there; in her rich mines and her vast commerce, and it was not there. Not until I visited the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, America will cease to be great.”
God Bless,
Janine Turner
Federalist No. 29 – Concerning the Militia, From the Daily Advertiser (Hamilton)
Federalist Paper 29, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 29, Marc S. LampkinMonday, June 7th, 2010
Federalist #29 written by Hamilton continues the focus on the subject of the militia and the standing army. Hamilton is quite enthusiastic in embracing the needs for a common or national military force. He explains, “THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.”
In Hamilton’s view, the efficiencies of having one national force as opposed to 13 were significant enough even to overcome the fear that this national force might oppress the people. Since domestic rebellions in a given state were of interest to the national government (as part of its responsibilities for national defense) as well as to the particular state where the rebellion occurred, it wouldn’t be necessary for a state to expend the resources necessary to handle such a capability and the national force would provide a sufficient capacity to handle such problems.
Arguably, Hamilton claims there could even be advantages that a national force might have over a state force in such a situation. He says, “uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness.”
In Federalist #29, Hamilton wants to respond to those who say that the new Constitution would be far better if somehow the national defense power remained diffused between the several states. Hamilton believes this would be in the long term destructive to the new American nation. Moreover, remarkably he turns the argument on itself. If a standing army is a threat to liberty he asks, why have thirteen standing threats? Hamilton asserts, “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.”
A second point that Hamilton makes is that sometimes the type of federal or national response needed may not include the need for lethal force. Because the federal government might have various alternatives to pick from it may not see the need to respond first with a purely military show of force. A federal government may have a variety of administrative forms that it can use to respond to a given situation, varieties that a state government might not have or if it does to have it across multiple states would be unnecessarily duplicative and therefore inefficient.
Next Hamilton directly addresses Posse Comitatus – also sometimes referred to as sheriff’s posse – originally part of the English common law it involves the authority of a law enforcement officer to obtain assistance from non law enforcement personnel to assist him in keeping the peace or to pursue and arrest a felon. Hamilton insists that critics can’t have it both ways. They cannot say that the federal Constitution should be opposed because it does not explicitly provide for this authority or be opposed because its power to engage in posse comitatus is unlimited. Hamilton argues, It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it.”
Then Hamilton turns to the question of the threats associated with the national militia. Repeating arguments he has made earlier, Hamilton expands upon the concept that not only would 13 armies be unnecessarily duplicative, but it also would be financially and personally burdensome on the people as the force necessary by the aggregation of the states armies across the several states would be greater than the total force used by the national level and even this wouldn’t succeed because the burden would ultimately be rejected by the people. Hamilton explains, “It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured.”
Finally, Hamilton asks whether the critics who worry about the national militia are being serious. After all the national army is not made up of people from a foreign land, he says. “What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”
In addition, how could the federal government agree to unfairly subdue a state when not only the state is represented in the federal government, but all of the other states through their representatives would need to consent to such an action. “Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens?”
In Hamilton’s considered view opposing the new constitution over the issue of a militia at the federal level is a red herring. The benefits of having national concentrated authority far outweigh any perceived gains of dispersing this authority over multiple states.
Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School
Federalist No. 30 – Janine Turner
Federalist Paper 30, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 30, Federalist No. 30Tuesday, June 8th, 2010
Howdy from NYC! Today Cathy, Juliette and I had a very successful day promoting Constituting America! It is such a joy to promote the United States Constitution and the brilliant Federalist Papers. We were on Glenn Beck’s radio show this morning and then on Megyn Kelly’s show on Fox News this afternoon. Check out the links on our Facebook sites to view and they will be up on our site shortly.
How lucky we are to be able to study these great works together and I thank Janice R. Brenman for her wonderful insights today on Federalist Paper No. 30! I am also thrilled that we have many new bloggers today. Join us today and visit our archives if you desire to reflect upon our essays from the past 35 days.
There were, once again, many powerful and relevant points made in Federalist Paper No. 30 by Alexander Hamilton.
“I believe it may be regarded as a position, warranted by the history of mankind, that in the usual progress of things, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources.”
The relevancy for America, and Americans, today is obviously our tremendous debt. We have built a huge conglomerate of necessities that are certainly not equal to our resources. This statement serves as a warning to us.
We have accumulated so much debt that our liberty cannot be sustained.
Another quote from Alexander Hamilton echoes our current dilemma.
“But who would lend to a government, that prefaced its overtures for borrowing by an act that demonstrated that no reliance could be placed on the steadiness of its measures for paying.”
What happens when we are so in debt that we cannot repay our lenders, such as China? What happens when we cannot pay our bills or even borrow money because we have “demonstrated that no reliance could be placed on the steadiness of its measures for paying.”
It is easy to spend other people’s money. This is what many of our Congressman and Representatives are doing. They are spending our money with absolutely no regard as to how it will be repaid – long after they are out of office. Our massive expenditures and social programs have no financial foundation.
May Alexander Hamilton’s dream not vanish, the “..hope to see the halcyon scenes of the poetic or fabulous age realized in America..”
God Bless,
Janine Turner
Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet
Federalist Paper 30, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Janice R. Brenman 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 30, Janice R. Brenman, The Articles of ConfederationTuesday, June 8th, 2010
Alexander Hamilton is widely known as the first Secretary of the Treasury, and one of the strongest advocates of our Constitution. Born illegitimately in the Caribbean to a Scottish merchant father and a mother of French Huguenot descent, he was already managing the affairs of an accounting office by age 15. After penning an essay in French detailing the devastation from a local hurricane, Hamilton was offered educational opportunities in the new, promising American colonies. He volunteered with a local militia, and became an aide to General Washington during the Revolutionary War. Afterward, Hamilton began an expansive career as a lawyer and political activist. One of his most enduring achievements was authoring many of The Federalist Papers (originally known as, The Federalist), a series of manifestos advocating the ratification of the United States Constitution.
To maintain anonymity, Hamilton, along with co-authors James Madison and John Jay, used the pseudonym “Publius” (after famed Roman Empire consul) to publish articles in three prominent New York newspapers, and later in bound volumes. These articles reflect Hamilton’s enthusiasm for the new American country and his sharp mental abilities. His death, via a duel with political rival Aaron Burr, was the final touch on a life filled with vigorous advocacy in the public policy arena with a special focus on promoting a strong national government for the United States.
Federalist Paper #30, “Concerning the General Power of Taxation.” is perhaps Hamilton at his finest. Hamilton begins by explaining that the National Treasury exists to subsidize a wide range of legitimate pursuits of the federal government. The Articles of Confederation gave Congress responsibility for managing needs of the confederacy, yet did not provide the means to do so.
Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government positioned to furnish a functioning army, paying government employees, repaying current and future national debts, and other appropriate expenses. He posited that a government cannot function absent some taxes, and its power to collect taxes among the populace is necessary. Without taxes, the people would be plundered as a substitute for legitimate taxation, or, the government would eventually perish.
Hamilton delves into what many of his contemporaries saw as a substantive controversy: internal and external taxation by the new federal government. Hamilton explains the difference between an external tax and an internal tax, and then describes how the federal government should be responsible for both. An external tax is a custom duty levied against any item coming into a colony to raise revenue – for example, a piece of machinery made in England. The duty is paid by the shipper and passed on to the consumer, in the form of a higher price for that machinery. An internal tax is unrelated to imports or exports. The Stamp Tax in England set an example – an excise tax imposed on stamped paper for legal documents (including licenses and permits), bills of lading, pamphlets and newspapers. Therefore, the price of a newspaper included the cost of the stamp placed on the paper as the tax.
Critics of the new Constitution charged that internal taxation should be used exclusively by the State governments and external taxation reserved for the federal government. Hamilton noted this ideal to be “romantic poetry” and that external taxes alone, on items such as commercial imports, cannot provide enough revenue for a government as extensive as the one proposed, especially in times of war. Disallowing the federal government from internal taxation violates the maxim of good sense and sound policy he argues. Essentially, critics claim internal taxation should be the sole authority of local government, and trade revenues should go to the federal government. This policy, however, not only subordinates the federal government, but also forces it to rely on states for security and prosperity of the nation as a whole. Eventually, the Union would weaken and create conflict between the federal and state government, and perhaps even between the states themselves.
This conflict becomes even more evident during wartime. The United States was in its infancy, thus capital reserves minimal. The federal government could not depend on State requisitions alone – a loan would be needed for even the wealthiest of nations since no government would extend credit to the United States absent a reliable method of debt repayment. Dependence on the states, which might not prove reliable, would force the federal government to seek loans in the private markets essentially subsidizing loan sharks that would charge the new government high interest rates. For any other national emergency, some might fear funds allocated via taxation would be diverted, even if the national government has the unrestrained power of taxation.
However, two considerations will quiet these fears: (1) during a crisis the full resources of the community will be used for the benefit of the Union; and, (2) deficiencies can be supplied by loans. Thus, Hamilton argues for a federal internal tax as well as an external federal tax.
Special thanks should be given to a myriad of sources (including Mary E. Webster) with regard to translating the complex lexicon of Chancery Standard used in the Papers into modern English.
Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000 Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.
22 Responses to “June 8, 2010 – Federalist No. 30 – Concerning the General Power of Taxation, From the New York Packet – Guest Blogger: Attorney Janice R. Brenman”
“Revenue . . . must be had at all events.”—Hamilton No.12
“Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.”—Hamilton No. 30
Okay, okay, I get it—the general government needs a dependable and sufficient supply of money. The questions remain: For what purpose and from whom? And most importantly, how is the federal government going to be restrained from taking too much from the citizens?
According to Hamilton, the proper check on government taxing is the limit of the “resources of the community.” That’s great if you get to spend other people’s money by becoming the first Treasury Secretary under the new Constitution. It’s not so great in the early years of the 21st century given that, in the last 80 years or so, the federal government has increased its share of the GDP by about 25 times.
I wish I could go back in time and knock some sense into the good Colonel. With the benefit of hindsight and that oracle of wisdom, experience, we all know that the federal government has an insatiable appetite for citizens’ hard-earned dollars—it never has stopped, and it never will stop, at simply taking money for only those necessary, enumerated objects. One need only review a random sampling of the earmarks (bribes) in any recent legislative monstrosity to discover the government will redistribute our money for just about any project here at home or even abroad.
What’s happening to various countries in the EU should be a cautionary tale for Americans. The problem countries got in their current situation by the same big-government formula our current administration seems to be adopting: Tax and spend, tax and spend, borrow and spend, borrow and spend . . . . The end is not good—worthless dollars in Americans’ pockets and shared misery for all but the various elite groups. And every aspect of the everyday life of Americans (and now with ObamaCare, the manner and time of our deaths also) will be under government control.
LIMITED GOVERNMENT IS THE ANSWER. “PUBLIC WELFARE,” “SOCIAL JUSTICE,” “ECONOMIC JUSTICE” ARE THE DISTRACTIONS.
George Will has a good piece on the Limitless Welfare State:
http://www.jewishworldreview.com/cols/will060310.php3
Granted that taxes are a necessary evil where it went off the rails is that we allowed the situation where people were able to vote themselves other peoples money.
So much to wrap the brain around!! Again, as I read each paper the clarity of how far this country has moved from the outlining principles over the years is amazing…and I thought most of our politicians were contitutional lawyers/professors! The intended use of taxation has been mutated, leaders manipulate the English language to justify their encroachment into the private sector and individuals.
BUT…I read ahead Federalist 31 this morning and without spilling the beans, there is a fabulous point made. One that we’ve all heard before and one that is in full action mode across the country!!
Dave,
I think your argument just underscores how we as citizens need to stay involved and monitor our government. When they get out of hand, kick them out of office. I think many of the founding fathers views where predicated on the idea that the citizenry would cherish their freedoms/rights and would jealously protect them. My reading of their writings show quite a distrust of government. We were expected to constantly question and limit what it does, we are the ones to decide the limit of the resources of the community not government. Do you allow the employee to decide his own pay or do you set it?
I imagine they would be shocked, dumbfounded and maybe even disgusted at the state of the citizenry’s protection of its rights today – just give us some government cheese and we’ll go back to sleep.
Ms. Brenman in the first sentence of paragraph #4, “Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government …..,” highlights what has been lost in our system of taxation. No longer do “all citizens have a stake.” Not only do nearly 1/2 of our citizens pay no federal income tax, but a large and growing portion of this group are recipients of government/taxpayer subsidies. Most sadly these subsidies, along with much of our government spending, come from borrowed funds. I am fearful that this may become a voting block too large to overcome.
Our system of taxation has morphed from a means of “balancing benefits and costs of government” to a means of social/economic engineering. In large measure the left uses the system to pander to the masses and the right uses it to curry favor with big business. Regrettably I can’t remember who said it but early in the last century it was said that Democracy will fail when the elected realize they can bribe the electorate with their own money. Well, I think they long ago figured it out.
Survival of life in America as we have known it requires our returning to our founding roots of truly limited government and a method of taxation less susceptible to misuse. Surely the time has come for a Flat or Fair tax. If only we could elect statesmen, rather than politicians, to step up to the plate, make the tough, unpopular decisions and lead with boldness.
“How can it undertake or execute any liberal or enlarged plans of public good?” This is the essence of the problem today – a definitional problem. The left argues that the “public good” is far more expansive than the right believes it to be. Until we come to grips with and fully understand just how wide and deep the “public good” should be allowed to be, we will not get off the track we’ve been on since FDR’s time. We are arguing this today, but we have not yet reached the crisis stage. History demonstrates that problems are not really addressed until the crisis bubble is pricked by some outside third party (e.g., China refusing to buy more of our bonds). Our legislators are like real estate bankers who will continue to loan money as long as it’s available long after their rational brain tells them that the ending will be ugly. We now know the ending will be ugly, but it’s business as usual in Washington, DC.
There is wide space to debate what is important to national security. To the extreme, we’ve seen national interest used to justify globalism, i.e., all nations must be intricately woven economically to prevent wars, save the environment, distribute resources most efficiently, etc. The debate has gradually pushed us to where we now finance the defense of other nations, fund wars to defend/install democratic societies, bailout state governments and private enterprises, and so on. There is now a huge federal bureaucracy engaged in nothing more than enforcing and collecting the federal income tax. As many early Americans feared, the power of taxation has helped to create the monster that now paradoxically dictates how we live and pursue happiness (and if we should live) under the guise of protecting us. The monster is now attacking wealth-makers and producers and will see its money supply drastically diminished as a result. This seems to be purposeful and intended to destroy our great nation.
The words Hamilton wrote to promote the need for a general power of taxation were meant to reassure the citizens of his time of a responsible government. However, when read today, during a time of high national debt and undisciplined spending, these words tend to leave a sour taste in my mouth.
Two statements in particular sent an aversion through me as we tackle present day events, and rereading Hamilton’s words, I wonder if the Founders even envisioned such abuse to our tax system.
Hamilton writes “Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?”
This first statement tends to have been twisted over time to such a degree that today a large number of citizens feel that it is the government’s job to ensure their needs are met and their pursuits are guaranteed. Many people today do not even make the connection between their taxes and what the government can spend. I believe it was a mistake to begin the practice of taking owed taxes out of paychecks. Americans should all have to pay their taxes at the end of the year by writing a check to the government. I think that would be a major wake up call.
The second statement is “The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require.”
Again, I find this logic to have grown out of hand and explode our national debt to a point where recent polls show the same number of citizens that worry about our national debt equals that of those who worry about our national security. Whereas Hamilton was concerned about our national security, and the need to have funds to supply a defense against invasion; today Congress has taxed companies and citizens to such a high degree that is has become a national security problem.
@ W.B. Neate – It was alarming to read the statistics earlier this year that the number of those receiving government entitlements was larger than those paying taxes. And to top it off, over the past 1 ½ years the number in government jobs grew at a larger pace than private sector jobs.
There is a great article in the National Review today by Senator DeMint entitled “Constitution of No”. It is a great read! I highly recommend it.
I understand what Hamilton is saying, and totally agree that the federal government has need of the right for taxation in order to fund the defense and other things that are for “the benefit of the Union.” However, it is everything in that latter category that muddies the waters. “For the benefit of the Union” is totally subjective and takes us into the chaos that we are experiencing now. According to one side, the benefit of the Union is served if the government levies taxes and then spends tax money to feed and house people with low-paying jobs. The other side argues that the good of the Union is served by using that tax money to give credits to companies who can then create jobs for those same people. The elephant in the room is that neither option is the job of the government and has nothing to do with the benefit of the Union as a whole. It only directly benefits certain members of the Union with the hope that it will somehow benefit all. In other words, the tax money is neither needed nor used correctly.
I had to laugh at Hamilton’s rhetorical question: “But who would lend to a government that prefaced its overtures for borrowing, by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying?” Can we say, “CHINA!!?” We have demonstrated all of the above and still the money comes flowing in as we spend, spend, spend.
Finally, Hamilton states: “But two considerations will serve to quiet all apprehension on this head; one is that we are sure the resources of the community in their full extent, will be brought into activity for the benefit of the Union (addressed above); the other is, that whatever deficiencies there may be, can without difficulty be supplied by loans.” The ease of borrowing ALWAYS gets individuals, corporations and countries in trouble. If borrowing is difficult, spending is kept down. To me, Hamilton’s argument lacks the establishment of any kind of boundaries on either taxation or procurement of loans. If there is no boundary on the latter, then there can be no boundary on the former.
It is rather ironic that this man, so supportive of a strong federal government that could borrow money whenever deemed necessary, had to resign from his position as Secretary of the Treasury because of financial problems of his own. According to World Book, it is because of his views that totally clashed with those of Jefferson and Madison, that the definition of two separate political parties formed and Hamilton led the Federalist Party that favored big government. He was the original liberal progressive!!
It is very obvious from this next section of the Federalist, dealing with taxation, how much Hamilton supported a very strong Federal government and how much he distrusts the States. He seems to dismiss the arguments from the “anti-federalists” that the Federal government, with almost unrestrained powers of taxation, could become abusive of its citizens…Fast forward 230 years, huh? Still, I do believe he had the best interests of the country at heart, and could not possibly foresee what would happen today…with the confiscatory nature of taxes both at the Federal, state and local levels. I’m not sure if he just did not want to believe that something like that could happen, of if he was just too naive in this particular matter. There was a post from earlier today where the person asked, how is the Federal government going to be restrained from taking too much from its citizens…I did not see an answer in the Federalist up to this point, and I believe we have already crossed that point, witness the TEA parties of today.
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Until we repeal the 16th and 17th amendments and the Federal Reserve Act (which isn’t Federal and has no reserves) and abolish the Internal Revenue Service we will never get control back from the Federal leviathon. The income tax is what gives the Federal Government its massive power.
It would seem to me personally that the majority of the ordinary citizen is not at all worse off in comparison with the genuine American federal government though the fed government can get to execute by some other laws. The governing administration can potentially manage their debt by publishing moolah and their debt deal techniques are helped by simply the number one military on the planet.
@Kimi, yes the ordinary citizen will be harmed by the indiscriminate publishing of moolah! This is what the Weimar Republic did to try and manage Germany’s debt from World War I. Part of what brought the National Socialists to power was that ordinary citizens needed a wheelbarrow of ‘published moolah’ to purchase a loaf of bread and milk.
Kimi….when money is just indiscriminently published it makes the value of said money (and that already in existence) worthless. Monetary value needs to be based on something tangible…ie…gold. If the government floods the market with “new” currency, the money you already have becomes devalued.
Nice piece. As expressed in the comments above, it seems well accepted that the federal government needs taxes in order to function. The rub lies in the questions of how much and from whom. The extreme liberals want to drove out innovation and turn the taxation system into a social engineering mechanism (basically the fine job done by Europe). Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. Neither way works which is why we have the modified system that we do—which swings from left and right of center like a pendulum with each election cycle. That being said, the current system is unsustainable fiscally because of internal and external forces—the aging of our population and the “flattening of the world” which means we are no longer a hegemic force able to continually grow our way out of the problem and the promises made decades ago are no longer feasible. In essence, the realities of the current state of affairs mean that we cannot have a “fair” taxation system under either model. When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly. While expecting our slower growing economy to afford continually increasing debt or tax burdens to fund the ballooning social program obligations is equally impractical. With the system going broke as it is things can only get worse from the perspective of both the left and the right and will continue to get worse until there is some genuine problem solving versus the spin game that has overwhelmed politics in the modern era.
Taxing should be extremely limited and should never exceed ten percent. People should get together locally and pay for local parks, schools, police, etc. The politicians pay themselves too much money and their salaries are too high.
@Darren “When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly.
” Federalist Paper 20 addresses this issue through what can only be called a Fair Tax in today’s language. “…by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and in general, all duties upon articles of consumption may be compared to a fluid, which will in time find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his frugal: and private oppression may always be avoided by a judicious selection of objects proper for such impositions”.
As to your other assertion; “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. ”
I know of no conservatives who want the poor to “grind away in angst or die”. What I am my fellow conservatives would like is for the poor (and I was formally of their ranks, although I am hardly rich now) to as said by Benjamin Franklin, learn to fish as opposed to being given the fish time and time again. That is the biggest issue we have is that our government has made our citizens dependent on the government through entitlements. If someone is in need of assistance it should come from family, friends, church, and their local community. Government should be the absolute last resort used and only in times of true emergency.
Darren writes: “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die.”
This is simply patent nonsense, and it’s a Progressive calumny without foundation. A conservative desire not to create or facilitate a welfare state cannot be seen to imply that conservatives, or Libertarians, want people to die in the streets from starvation and disease.
What Conservatives and Libertarians alike value is self-reliance and methods of public support of those truly in need that does not debilitate them and keep them in economic slavery, which is what the welfare state does.
Moreover, I have no objection to requiring people to save for their retirement, but the giant Ponzi scheme of Social Security today, where the current working generation is burdened with supporting all the retirees still living is simple insanity. Conservatives want Social Security REFORM, and my vision of it is to put one’s contribution into a PRIVATE savings account that the federal government has NO ACCESS to, rather than giving it to the government to skim and waste.
As for “1% controlling 90%” this is also nonsense. It’s what I call the Socialist Zero Sum Fallacy. This fallacy is based on the logical and rational error that Socialists make in assuming that in order for one person to acquire wealth, another person, or persons, must be oppressed and must give up wealth. It’s based on a deliberate misunderstanding of economics holding that there is a fixed supply of “wealth” and pouring it from one bucket into another advantages one person while depriving others.
But it’s a lie, and a deliberate one at that. It’s all part of the propaganda of Progressivism.
Any competent economist can tell you that the wealthiest people in the U.S. don’t keep their money under their mattresses, it’s constantly circulating and creating even more wealth for everyone, and for the nation. Wealth generates more wealth in nearly unlimited supply.
It must also be noted that the wealthiest 1/10 of 1 percent of taxpayers pay more than 40 percent of the government’s income tax revenues, so to say they don’t pay enough is preposterous.
I’m with Seth on this. If it was an across the board 10% not only would everybody (to quote our President) “have skin in the game” but also the so-called “evil rich” would still be paying a lions share of the revenue to the government. Just for arguments purpose say I earn $100 dollars a week and Darren earns $100,000 a week. I pay $10 and Darren pays $10,000 so the take is $10,010 government we each have a 10% stake in the game but Darren has provided over 99% of the revenue.
As to the Social Services currently provided by big nanny Fed, one of the biggest complaints is that it is a one-size fits all program. I believe that it is more properly handled at the State and preferably the local level where people are more inclined and conversant to local immediate conditions.
I believe I recall a guest on Beck who was explaining the Laffer Curve, sorry I can’t recall his name, saying that a flat tax of about 14 percent on every transaction would replace all other necessary government revenues. Not positive about this however. Perhaps there’s an economic expert out there who can comment.
And you are absolutely correct that all social services should be dealt with at the state level, and that there is absolutely no need for the federal government to be involved except in the rare case where a particular state cannot meet it’s social services needs.
But to have every bit of tax revenue sent to Washington, have 20 percent or more skimmed off the top to do nothing more than pay for federal bureaucrats who turn around and send it BACK to the very states they took it from in the first place is pure economic idiocy.
It sometimes seems as if no one recognizes the fact that the vast majority of our tax money sent to Washington is not sent there to fund the legitimate functions of the federal government, it’s sent there to fund the political redistribution of that very same wealth back to the states, who have become dependent upon that federal largess to pay for all the unfunded mandates that the federal government imposes upon them using the carrot-and-stick method.
If the states would simply say “no thanks” to the federal handouts, as Colorado Springs did recently, not only would the federal government lose legitimacy for it’s bureaucratic burdens, but the states would be freed from federal intervention. Much of the interference we suffer under from the Feds is caused by our own state legislatures knuckling under to conditional grants from the Feds. The biggest carrot they have is the federal highway system, which they use to coerce states into, for example, setting DUI standards and mandating seat belts.
It’s all about politics, of course, because even state politicians have to bring home the federal pork, or so they believe, to get elected. They think (and probably correctly) that if they don’t do what the feds want and take the federal grants (extracted from us in the first place), state voters will be mad because some other state got a grant and they didn’t.
Which makes it our fault for not ourselves demanding austerity and flight from the federal teat by our state legislatures. Weaning ourselves away from federal largess is the beginning of restoring our liberty from oppressive federal taxation.
Seth, right again.
June 9, 2010 – Federalist No. 31 – Cathy Gillespie
Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 31, Federalist No. 31Wednesday, June 9th, 2010
“IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.”
Federalist No. 31 has one of the strongest beginnings and endings of any of the essays I have read so far. Hamilton begins by reminding us of the importance of “primary truths,” and “first principles.” When our elected officials are guided by the first principles and truths upon which our country was founded, our freedom and prosperity will be protected.
Mr. Cooper makes an excellent point in his essay today, that instead of scrutinizing specific tasks the government takes on, our elected officials should start from the macro level, and apply first principles in every decision, asking the question, “is this task a legitimate function of the federal government?”
After laying out the importance of the guiding truths in discerning the legitimate functions of government, Hamilton makes the case for the federal government having the “unqualified power of taxation,” so it has the resources to fulfill those duties and powers for which it is responsible, according to the Constitution.
Our modern day problem is that the federal government has utilized its power to tax, to fund powers far beyond the scope of those enumerated in the Constitution.
Hamilton could not imagine the federal government’s modern day usurpation of powers because the checks and balances the founders designed were meant to curb governmental encroachment. Indeed, because of the power of the states in selecting U.S. Senators (before the adoption of the 17th Amendment), Hamilton envisioned States more likely to usurp federal powers, than the other way around.
Hamilton closes by reminding us that the responsibility to stop the encroachment of government at the state or federal level, rests with the people, thus ending Federalist 31 as strongly as he opens it. “We the people” must keep government within its proper scope and powers “delineated in the Constitution.” He states that the people “hold the scales in their hands,” and hopes they “will always take care to preserve the constitutional equilibrium between the general and the State governments.”
“Everything beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.”
How will “We The People,” adjust the scales to bring the constitutional equilibrium back into balance? It is clear the founders expect us to.
Good night and God Bless,
Cathy Gillespie
June 9, 2010 – Federalist No. 31 – Janine Turner
Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 31, Federalist No. 31Wednesday, June 9th, 2010
Howdy from Boston! It is thrilling to be here in a city that has so much revolutionary history! Juliette and I walked around in the rain and saw State Hall and Park Church. (Be sure to watch our behind the scene video!) We also saw the graves of Samuel Adams, Paul Revere and John Hancock. I spoke Samuel Adam’s words over his grave, “The pooling of property and redistributing of wealth are despotic and unconstitutional.” The bells then started to ring from Park Church so I said recited it again!
As I read Federalist Paper No. 31, I felt such a since of wonder and also such a sense of gratitude that I am having this opportunity to read the words of Publius. Understanding their interpretation of the United States Constitution and their vision of the country is empowering and incredibly relevant.
I am most intrigued with how the structure and checks and balances of our then newfound government were founded with such reason and based on the guidance and wisdom of history. As I read and digest their words, I am realizing how far we have strayed from their original intent. One of the ways is with the seventeenth amendment. This was a pivotal part of the balance of government. The seventeenth amendment was one of the ways that the states could keep their power. The senate was to represent the states and the house the people.
I wonder if the healthcare bill would have ever passed if the Senate had been left in its original intent? I also wonder if the Federal Government would ever have had the opportunity to become so vast and powerful if the Senators had continued to be elected by the state legislatures? Who has been looking after the states’ interest since the passing of the 17th Amendment?
The Federalist Papers reveal that Publius and our Constitutional forefathers never intended for the federal government to become so intrusive into the states’ rights, the states’ affairs or citizens’ lives. Alexander Hamilton writes in Federalist Paper No. 31, “I repeat here what I have observed in substance in another place, that all observations, founded upon the danger of usurpation, ought to be referred to the composition and structure of the government, not to the nature and extent of its powers. The state governments, by their original constitution, are invested with complete sovereignty.”
Do our states have complete sovereignty today?
Another interesting statement in Federalist Paper No. 31 is: “As in republics, strength is always on the side of the people; and as there are weighty reasons to induce a belief, that the state governments will commonly possess most influence over them, the natural conclusion is, that such contests will be most apt to end to the disadvantage of the union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members.”
Is this true today? I say it is not true today.
Alexander Hamilton’s last paragraph of Federalist Paper No. 31, is our call to action, “Everything beyond this, must be left to the prudence and the firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the state governments.”
“Everything beyond this must be left to the prudence and the firmness of the people; AS THEY HOLD THE SCALES IN THEIR OWN HANDS..” This quote has a tremendous amount of treasure. We, the American people must have prudence and firmness in regard to our governmental affairs. Publius talks often about the “genius of the people.” We should not underestimate ourselves. We should call upon our prudence in governmental affairs and we should be firm. The best way to do this is to be vocal and to vote. We the people rule… through our elected officials.
When I think about the shift in power in our governmental structure and checks and balances, I think about how our founding fathers would be greatly distressed. I, also, ponder upon the political environment during the years around 1913. Why was this amendment allowed to happen? Were our predecessors not firm, informed or prudent?
Of course, this will very likely be the thought process that our grandchildren may have about our generation? “Why did they allow our liberties to be constrained, our country to be diminished, by living beyond their means?”
It was we, the American people, who were to hold the scales in our hands. It was we who were to preserve the constitutional equilibrium between the general and the state governments. We the people. If our country fails it is because we the people have let it. Benjamin Franklin, when asked what he had constructed for the people during the Constitutional Convention, responded, “A republic, if you can keep it.”
Do our children know that they are the, “we the people?”
Or do they think it is the, “we the government?”
It is by our actions, education and involvement that they will see the true intent of our founding fathers, our United States Constitution and a government of the people, by the people, for the people. May it not perish from the earth.
God Bless,
Janine Turner
June 9, 2010 – Federalist No. 31 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)
Federalist Paper 31, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 31, Horace Cooper, The Articles of ConfederationFederalist #31 continues on the topic of the taxing power of the new central government. Contrasting his significant math and science knowledge with his considered skepticism about humankind generally, Hamilton suggests basic maxims ought to apply as a principle for government’s effective operation. Just as the maxims in geometry, that “the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other, Hamilton asserts that in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. In other words instead of putting the focus on the means of a particular government activity, greater attention should be paid to whether the purpose is a legitimate one or not.
Rather than merely scrutinizing the technique by which the central government carries out it task say, bailing out automobile manufacturers, Hamilton suggests greater consideration be given to whether it is a legitimate function of the federal government to concern itself with the success or failure of car manufacturers. 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 but a regard to the public good and to the sense of the people.
Unless one is particularly scrupulous as to what responsibilities are assigned to the federal government, Hamilton’s view of seemingly unlimited powers of the federal government particularly in the area of taxing authority comes across as audacious and perhaps even dangerous. However, it is clear upon review that the real danger lies in not carefully assigning duties and responsibilities of the central government.
One key charge of the new government was and remains today, national defense. In the context of taxation, Hamilton asks how national security can really be put in the hands of the central government if it does not have the ability to call upon the resources, as it needs to carry out its duties. This is no spurious charge. One serious problem with the Articles of Confederation is that ostensibly the National Congress had responsibility for national defense, in practice it could not pay for or mandate the carrying out of many of its foreign policy priorities. Over time this reality could prove quite provocative to the enemies of the new country in America.
Hamilton sees that taxing authority is critical to carrying out national security responsibilities. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.
In the military context, this argument is perhaps most powerful. Nevertheless, even outside of that arena one can contemplate areas of responsibility (such as the administration of justice) in which it is necessary to focus on the importance of the objective and therefore loosening the limits on methods. If the area of responsibility is appropriate, Hamilton argued that the central government needed the taxing authority to carry out the responsibility.
Critics charged that a general taxing authority for the federal government would make it difficult for states to raise the resources they need for their responsibilities, as the taxes of the federal government would tend to crowd out the resources needed by the states. It is true that excessive taxation would have that effect, but not necessarily taxation generally. Hamilton recognizes that there will be legitimate responsibilities that government should carryout. If those are excessively funded or there are duties undertaken greater than the legitimate responsibilities that government should have, the flaw is not with taxing authority but instead with the government’s makeup or its design. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers.
Powers split among a bicameral legislature along with an executive and judicial branch each with unique and overlapping authorities providing a check and balance against each other resulting in a greater protection of liberty for all the citizens will do more than a limit on the type of taxation policy.
Hamilton closes essay #31 with an observation that reveals a great amount of prescience for such a young man. He says that the same risks that could lead to a national government over-reaching in its power and authority over the people existed just as well with the state government. While at the time it was nearly universally assumed that state governments — being close to the people — would never overstep their bounds, it appears today that composition and structure matter just as much as the state level as it does at the local level. Modern state governments have taken on most if not more of the duties of the central government’s welfare state with far fewer organizational or structural restrictions on doing so than exist at the federal level. Taking the opposite view of Hamilton, many states have balanced budget requirements but no formal limits on the types of duties that it may assume. Often as a result the residents in these “ambitious” states are extremely overtaxed. States like Texas and to a lesser degree Florida have far more limits on the accepted tasks of the state government and their residents are taxed less. Nevertheless, regardless of one’s concerns about the lack of formal limits on taxation in the constitution, Hamilton concludes it is by far the safest course to lay them altogether aside, and to 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; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.
Horace Cooper is the Director of the Center for Law and Regulation at the Institute for Liberty
Wednesday, June 9th, 2010
June 10, 2010 – Federalist No. 32 – Cathy Gillespie
Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 32, Federalist No. 32Friday, June 11th, 2010
Thank you to Professor Knipprath for your excellent insight into Federalist No. 32. We greatly appreciate your generous gift of time to the 90 in 90: History Holds the Key to the Future Project!
The purpose of Federalist 32 seems to be to reassure citizens that the Federal Government’s power to tax will not preclude states from raising the revenue they need to operate their state governments. While making that point, Publius gives us an excellent tutorial in the balance of power that exists between the federal government and the states, under the Constitution:
“the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”
This sounds very much like the language in the 10th Amendment:
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Publius goes on to explain the three types of cases where the Federal government is granted exclusive authority, overriding state sovereignty:
(1) “Where the Constitution in express terms granted an exclusive authority to the Union;
(2) where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority;
(3) and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.
Making it clear that states will be allowed to levy taxes on “all other articles,” except imports and exports, Publius does caution that it might not always be prudent for the federal government and states to exercise their concurrent taxation powers and tax the same articles, but that “an inconvenience of the exercise of powers” doesn’t “extinguish a pre-existing right….” Most people would agree that modern day levels of taxation at the state and federal levels have passed the point of prudence!
The balance of power between the federal and state governments Hamilton describes in the beginning of the essay was structured to ensure our freedom. The disturbance in the equilibrium of the balance of power between the federal and state governments has resulted in greater levels of taxation at the state and federal levels, thus limiting our personal financial freedom and damaging the economy.
As unfunded federal mandates on the state governments have grown, the states’ need to raise revenue has increased. IRS.gov lists only nine states without an income tax! As the states’ need to raise revenue has increased, they have become more and more dependent on federal dollars, with mandates attached, thus altering the balance of power even more. As the federal government has ventured in to areas our founders never intended, its need to raise revenue has increased as well.
Once again, we see the damage done by disturbing the delicate balance of power so artfully designed by our founding fathers. The more we learn about the original structure and design of our government, the better equipped we are to work to restore the equilibrium which protects our liberty.
Good night and God Bless,
Cathy Gillespie
Federalist No. 32 – Janine Turner
Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 32, Federalist No. 32Howdy from Boston, well, really Quincy and Cambridge!
Juliette and I had an amazing day. It was a day devoted to one of our most influential founding fathers, John Adams.
We started our day with a trip to Quincy, sections of which used to be named Braintree. We visited John Adam’s very modest childhood home and then a few cobblestones away, the small, simple home where John lived with his brilliant wife, Abigail.
I was mesmerized when I saw the tiny desk where Abigail wrote all of her letters to John throughout the Revolutionary war. My sense of awe was rekindled when the Park Ranger recounted the story of how Abigail, realizing her son’s promise, and realizing the needs of her future country, sent her ten-year-old son abroad with John. She knew the experience would give him a wealth of knowledge – a knowledge that America would need in her future leaders. John and John Quincy traveled across the Atlantic in February. Their ship hit hurricane force winds and was struck by lightning and four crewmen died.
Abigail was and is an example of a wife and mother who knew no bounds of fortitude and selflessness. This is why I wrote about her in my book, “Holding Her Head High.”
A statue of Abigail Adams with her son John Quincy, who would become our 6th President, was in the town square. Inscribed on the statue were her words: “Improve your understanding for acquiring useful knowledge and virtue such as will render you an ornament to society an honor to your country and a blessing to your parents.” She is an inspiration for me as a patriot and a mother.
In John and Abigail’s first home was an even smaller desk than Abigail’s It was on this desk that John wrote the Massachusetts’s Constitution. Included in his draft of the Constitution for the Commonwealth of Massachusetts were: three branches of government, a bi-cameral legislature, a supreme court of the land, as well as, a list of “rights”. I would like to study the Massachusetts’s Constitution. The fact that the states had their own constitutions before the United States Constitution holds a revelatory poignancy to the modern day debate regarding states’ rights.
In Federalist Paper No. 32, Alexander Hamilton argues a point regarding the levies of money and the states’ power:
“because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the state governments, and a conviction of the utility and necessity of local administrations, for local purposes, would be a complete barrier against the oppressive use of such a power.”
This statement illuminates, once again, the original intent of the federal government, which was to respect the state’s rights and to be a federal power held to accountability through the checks and balances of both the people and the states.
After Juliette and I visited the original homestead of John and Abigail Adams, we visited Peacefield. Peacefield was the home of John and Abigail Adams after the war. In this home I saw the original furnishings: dishes, chairs, paintings and thousands of John Quincy’s original books on exhibit in the land’s first library – the John Quincy Adam’s Library. A poignant point that resonated through the experience of visiting their homesteads was sacrifice – a sense of duty for their country. John and Abigail were willing to put themselves in great peril – a peril based on value, faith and righteousness.
It is worthy to note that John Adams was chosen to be the one to represent America in England as our first ambassador. John Adams walked in to greet the king, the king who wanted to hang him, and announced that he was there to represent our new country – the United States of America. I am also in awe of the fact that it was John Adams who so valiantly fought for the Declaration of Independence and suggested that Thomas Jefferson write it. It was John Adams who nominated George Washington to be the General of the Revolutionary army. It was John Adams who, on his own accord and literally on his own, traveled to Amsterdam and negotiated a 3 million dollar loan for the our revolutionary army who had no shoes and were suffering tremendously. It was John Adams who was one of the five who negotiated the magnificent Treaty of Paris that ended the Revolutionary War. It was John Adams who predicted that the French revolution would be a bloodbath that would end in tyrannical government. The list goes on and on.
John Adams is truly an American hero. May we teach our children about his great genius, sacrifice and dedication to our country. May he be an example of what it is to be a selfless American patriot. When Juliette and I visited the room, which held the tombs of John Adams and Abigail Adams, John Quincy Adams and Louisa Catherine Adams, I was overcome with emotion. In this room, as tears flowed down my cheeks, the director of the Church of the Presidents, Arthur W. Ducharme, told me how important “Constituting America” was to the future of our country. It was a moment I will never forget.
God Bless,
Janine Turner
Thursday, June 10th, 2010
Federalist No. 32 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)
Federalist Paper 32, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Federalist No. 32, Joerg W. KnipprathIn various essays, the reader has met Alexander Hamilton, polemicist; in Federalist No. 32, Alexander Hamilton, constitutional lawyer, takes a turn. The topic is whether the power to tax granted to the national government under Article I, Section 8, clause 1, of the Constitution deprives states of the power to tax. In a logical and (mostly) clear progression of premises and conclusions rooted in classic exegesis of the Constitution, Hamilton lays out the argument that the state and national governments have concurrent powers to tax. The matter of “exclusive” and “concurrent” powers is an exploration of the mechanics of our federalism.
From the perspective of government, the power to tax is an essential aspect of sovereignty and self-determination. Our personal experience tells us that dependence on others for funds makes one less fully autonomous and in control of one’s life. Just as an invigoration of Congress’s power to tax was an essential part of the Philadelphia Convention’s mission, retaining the power to tax is essential to state sovereignty, and Hamilton seeks to assuage concerns on that point.
Powers granted to the national government are exclusive only if the Constitution says so (such as the power to make laws for the District of Columbia), if the power is expressly prohibited to the states in some manner (such as the states’ lack of power to tax imports and exports), or if a reservation of the same power to the states would be “absolutely and totally contradictory and repugnant” [italics in original] to the national government’s exercise of the power. All other powers are concurrent, and any conflict between the governments over whether one should tax an activity that the other is already taxing is merely a matter of pragmatic policy. Based on the language of the clause that grants the power to tax to the national government, and the clause in Article I, Section 10, that expressly prohibits the states from taxing imports and exports without Congress’s assent, Hamilton concludes that the power to tax is concurrent, not exclusive.
Today, interpreting powers as concurrent is preferred. That maximizes the residual sovereignty of the states. But, since it does nothing to reduce the powers of the national government, reading a power as concurrent merely multiplies the layers of (often duplicative) government regulations, as, for example, applicants for many types of permits know well.
Hamilton’s argument seems so clear, one wonders why he even made the effort. The answer lies in the sophisticated attacks from the Antifederalists that foretell of political conflict over the practical ability of both the national government and the states to seek tax revenues from the same sources, and over the broader issue of overlapping powers in this novel federal system.
The opponents, led by “Brutus,” see a deeper constitutional problem rooted in an inevitable grab for power by a national government that will seek ever-greater amounts of revenue, to the detriment of the states.“The power to tax is the power to destroy,” as Chief Justice Marshall would write later in McCulloch v. Maryland. Ultimately, the individuals or assets taxed will bear no further assessments. At that point, Brutus predicts, the national government will use the taxing power, the necessary and proper clause, and the supremacy clause to pass laws to gain pre-eminent access to available revenues and to preclude the states from gaining revenues needed to maintain their governments.
While one may question whether such a dire scenario will ever play itself out at a constitutional level through explicit federal legislation to prohibit state taxes (or whether such a law would even be constitutional), it is already happening indirectly. The national government’s hunger for tax revenues is becoming more voracious as ever more aspects of individual lifestyle choices are transferred to national bureaucracies. That leaves the states increasingly hard-pressed to find sources for taxes not yet tapped to the hilt by Congress, though it must be recognized that California politicians, at least, seem to be very creative in finding new turnips from which to squeeze figurative blood.
The national government has long exercised control over the states by distributing to them grants subject to conditions intended to induce state compliance with federal mandates. Those grants are funded through taxes that, if the national government did not levy them, would be available to the states, which could spend the revenues raised without needing to comply with federal mandates. This creeping control over state sovereignty through the taxing and spending powers is one aspect of the lawsuit by various state attorneys-general against the recently-adopted health care reform law.
Hamilton also contrasts the situation of an exclusive federal power where no state participation in the area is constitutionally permitted, with the case where, though the states have concurrent power constitutionally with the national government to legislate, there are “occasional interferences in the policy [italics in original] of any branch of administration [that] would not imply any direct contradiction…of constitutional authority.” A slightly modified version of the latter is the current interpretation of Congress’s expansive power to regulate interstate commerce. That power is concurrent, and the states are able, within broad limits, to regulate interstate commerce through, for example, inspection laws and truck weight regulations.
Congress also can pass laws under its constitutional powers that, under the supremacy clause, override (“preempt”) the states’ otherwise proper concurrent regulations. It was precisely this type of scenario that Brutus raised in his alarm about the effect of the Congress’s taxing power on the states’ power to raise revenue. Hamilton has not directly addressed that argument in Federalist No. 32. He attempts a response in the next essay.
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.
Thursday, June 10th, 2010
Federalist No. 33 – Janine Turner
Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 33, Federalist No. 33Howdy from Boston! Juliette and I continued our walk down the red lined path of the Freedom Trail today. (Check out today’s video either through our Facebook link to YouTube or the Video Box on the top of our website.) Boston is an incredibly beautiful city and the history is so well preserved! The city and its people have exceeded all of my expectations and it has been an absolute joy to visit.
We were actually able to walk into the Old Granary Burial Ground today. We saw the graves of Paul Revere, John Hancock, Samuel Adams and the men who were killed in the Boston Massacre. It was truly mesmerizing to be able to see the resting places of such heroes! It was also insightful to see how humbly they were buried. Paul Revere’s initial headstone was just a tiny headstone inscribed, “REVERE’S TOMB.” Everywhere we walked there was a statue of an American hero. If only every city could revere our Revolutionary history in such a reverent way.
Juliette and I were in awe as we gazed upon the beautiful Old State House. It was in this house that the Stamp Act was debated and it was from the East Balcony where the Declaration of Independence was first read to the people. Can you imagine such a moment?
FYI, I handed out Constituting America business cards and bracelets to fellow tourists along the way! Constituting America in Boston! (We are going to have bumper stickers soon so if you are interested in one, or even extras to pass out, e mail us!)
In regard to Alexander Hamilton’s essay today, I feel like I should say, “Same Subject Continued,” It is just remarkable to me how often Publius refers to the fact that the states would continue to have their rights, the federal government would remain small, and that the American people would be vigilant if the government ever started to cross its bounds. In today’s reading, Federalist Paper No. 33, Alexander Hamilton states:
“If the federal government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify.”
Need I write more? Spread the word of the pertinent relevancy of our United States Constitution and Federalist Papers! It a “measure to redress the injury done to the constitution.”
God Bless,
Janine Turner
Friday, June 11th, 2010
Federalist No. 33 – Cathy Gillespie
Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 08, Federalist No. 33, Federalist No. 33In Federalist No. 33, Hamilton defends the Necessary and Proper clause, found in Article I, Section 8 of the United States Constitution:
The Congress shall have 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.
Hamilton’s main defense of the clause, as Professor Knipprath points out, is to say that the clause merely restates a power that exists with or without the clause.
Driven by curiosity as to why the framers included the controversial words, if the power existed with or without them, I did some research.
I found the following information in the excellent resource book, The Heritage Guide to the Constitution, Edwin Meese III Chairman of the Editorial Advisory Board:
The necessary and proper clause served two purposes in the framers’ minds:
1. to allow the Congress to do what was necessary to organize the government (create executive departments, set the number of Supreme Court Justices, divide out judicial power among courts).
2. to help carry out Congress’s enumerated powers contained in Article I, Section 8.
In his essay on pages 146-150, in The Heritage Guide to the Constitution, David Engdahl tells us the opponents of the Constitution nicknamed this clause the “sweeping clause,” or the “general clause,” and Brutus, their spokesperson, said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.”
Engdahl tells us that James Wilson who authored the clause, explained at Pennsylvania’s ratification convention that he saw the clause as “limited,” and “for carrying into execution the foregoing powers.” Wilson stated that the clause authorizes what is “necessary to render effectual the particular powers that are granted.” In other words, the clause authorizes no more than the powers already enumerated, and is to assist in fully effectuating those powers.
The Necessary and Proper Clause has become the proverbial camel’s nose under the tent, much as the anti-federalists feared. Congress is able to justify certain laws constitutionally by enacting legislation that is within the scope of its enumerated powers, but the same legislation may also affect areas outside of the enumerated powers, adding to the “federal creep,” unintended by the founders and predicted by the anti-federalists. As Professor Knipprath points out, the Necessary and Proper Clause is aptly nicknamed the “elastic clause.”
Hamilton’s answer to this problem is clear,
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
This is why it is so important that “We The People” are educated, and understand the “just bounds of authority.” If we don’t know the Constitution, how will we know when it is injured?
Thank you to all of you who are joining us on this educational journey! Your energy and enthusiasm is inspiring, and we are learning from every comment on the blog!
Please continue to forward our web address, http://www.constitutingamerica.org to your friends, and encourage them to join us.
If you are silently reading along, please add your voice to our blog!! 90 in 90: = 180 is not complete, without YOUR thoughts!!
Have a great weekend!
God Bless,
Cathy Gillespie
Friday, June 11th, 2010
Federalist No. 33 – The Same Subject Continued: Concerning the General Power of Taxation, From the Daily Advertiser (Hamilton)
Federalist Paper 33, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 33, Federalist No. 44, Joerg W. KnipprathAfter the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.
The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.
This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”
In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.
Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”
Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.
Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?
Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.
Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.
Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.
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.
Friday, June 11th, 2010
Federalist No. 34 – Janine Turner and Cathy Gillespie
Federalist Paper 34, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, 15. Essays by Cathy Gillespie, Federalist No. 34, Federalist No. 34, Federalist No. 34Howdy from Independence Hall in Philadelphia! Actually we just entered Interstate 95 South! Cathy, Juliette and I are returning from Philadelphia to Washington, D.C. Cathy is driving, Juliette is editing the behind the scene video and I am typing tonight’s essay on Federalist Paper No. 34 which Cathy and I are doing in tandem.
Cathy, Juliette and I were in Philadelphia scouting locations for our Constitution Day celebration of our Constituting America, “We the People 9.17 Contest” winners. It is going to be so much fun!! We are planning our events, which will include press opportunities, regional and national; entertainment; historical enlightenment and a bevy of educational wonders.
We visited the brilliant National Constitution Center, and we are excited to reveal the news that they have offered to exhibit ALL of the winners’ works at the center. Our winners’ works will be a part of the legacy honoring the United States Constitution. Our winners will also stand as a tribute to American citizens and other children regarding the value of knowing and respecting our Constitution.
The minute we walked into the doors of the Constitution Center we were enveloped by the magnificence of our founding fathers’ document. The details about the Constitution, exhibited in both a formal and modern way, instantly intrigued our senses. They had mesmerizing movies and interactive information at our fingertips and we wanted to stay for days.
One of our favorite places was the Signers’ Hall, which had statues of all of the signers of the United States Constitution, in animated conversation. It was so cool!! (Be sure to watch our Philadelphia behind the scenes video!) David Eisner, the President and CEO of the Constitution Center, has offered to have a screening, reading and performance of our winners essays, songs and short film (and the behind the scene documentary we are going to film of the winners) in the Kirby Theatre in front of a distinguished audience and press.
We then joined our Constitutional colleague and friend, Rochelle, who guided us through other visually stimulating opportunities in front of momentous monuments such as Independence Hall!! The winner’s trip to Philadelphia is going to be an enriching experience for all of us and an inspiring event for the country.
If you haven’t yet encouraged your children or children you know to join our “We the People 9.17 Contest” then please do so. There still is ample time! Entries are due July 4th.
Now we turn our attention to Federalist Paper No. 34.
The topics are varied in this paper but there were a couple of Alexander Hamilton’s statements that captivated Cathy’s and my interest.
“Let us recollect, that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambitions, of others.”
“To judge from the history of mankind, we shall be compelled to conclude, that the fiery and destructive passions of war reign in the human breast with much more powerful sway, than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquility, would be to calculate on the weaker springs of the human character.”
These two paragraphs represent Alexander Hamilton’s
genius and foresight. However “mild and beneficent” we may be, we are powerless to “extinguish the ambition of others.” How relevant is this statement to the challenges we face today with terrorism. A strong defense is the only rational choice when up against the “fiery and destructive passions of war” that weave within the fiber of human nature. If we do not remain vigilant then we will be basing our decisions along side the “weaker springs of the human character.” History has proven this time and time again and our forefathers always based their decisions upon the lessons of history.
When one doubts the timely application of the writings of the Federalist Papers and the resiliency of the Constitution, one needs to simply become acquainted with the phrases such as these by Alexander Hamilton in Federalist Paper No. 34.
America is under attack, and unfortunately will continue to be. We must not align ourselves with the weaker side of human nature. We must always be readily prepared to carry the torch of peace, freedom and prosperity with the wiser forces of human nature: wisdom, willingness, and a watchful eye that is buoyed by a strength and fortitude that defies the enemy.
God bless from now Mount Vernon, Virginia!
Janine Turner &
Cathy Gillespie
Monday, June 14th, 2010
Federalist No. 34 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)
Brion McClanahan, Ph.D., Federalist Paper 34, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Federalist No. 34By the time Alexander Hamilton wrote Federalist No. 34 on 4 January 1788, he had been publishing essays on the topic of taxation at a blistering pace. He penned two the day before, and he authored seven essays, each around two thousand words, in the span of twelve days. No. 34 directly addressed portions of essay No. 7 by the Antifederalist Brutus, presumably Robert Yates, which appeared the day before in the New York press. Read in tandem, the two provide a window through which readers can clearly view the competing positions of the Antifederalists and Federalists.
Brutus charged that the unlimited taxing power for the general government under the Constitution would result in two scenarios: “Either the new constitution will become a mere nudum pactum [naked promise], and all the authority of the rulers under it be cried down, as has happened to the present confederation—or the authority of the individual states will be totally supplanted, and they will retain the mere form without any of the powers of government.” He additionally argued that coequal taxing authority as designed in the constitution was impractical in a confederated republic. In his estimation, taxes should be “divided” between the States and the general government “and so apportioned to each, as to answer their respective exigencies….” Thus, Brutus advocated a true federal republic that maintained State sovereignty, and in particular the expressed and limited taxing power of the general government. Simply stated, Brutus feared the destructive effects of a “national” government on State and local authority.
Hamilton retorted that history had proven this position incorrect. The Romans had two equal and often hostile legislative bodies with the power to repeal and annul the acts of the other, “yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.” But, Hamilton argued, the Constitution did not allow either the States or the general government to “annul the acts of the other,” and he also contended that the “wants of the States will naturally reduce themselves within A VERY NARROW COMPASS…” Hamilton countered that if the Framers had adopted Brutus’ line of reasoning, then the States would also be limited in their respective areas of taxation, either exclusively or proportionally, and the end result would be State subordination to the general government, the very thing Brutus argued against. Hamilton was admitting, however, through his statement that States would have “a very narrow compass,” that the Constitution created a “national” and not a “federal” republic.
States, Hamilton opined, would need little to support their domestic affairs while potential “contingencies” may require the vast and unlimited resources of the central authority. Limit the taxing power of the general government, and you limit the ability of the common defense. In his mind, history had proven that foreign and domestic dangers would arise and as such the “national” government should have the means to preserve the “tranquility” of the republic. “To judge from the history of mankind,” Hamilton stated, “we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiment of peace; and to model our political systems upon speculations of lasting tranquility, is to calculate on the weaker springs of the human character.”
Brutus agreed with Hamilton’s assessment of human nature, but he also believed that the States had a primary role in resisting foreign or domestic disruption. States ensured domestic peace by “administrating justice among its citizens,” and through “the management of other internal concerns.” This was the basis of the “happiness of the people,” and if the States did not have the resources to maintain peace—if they could not raise enough revenue—then they would be easily “subdued by foreign invaders.” Like Hamilton, Brutus believed history had proven his point, and if the States were robbed of adequate taxing power, then the “peace and good order of society,” what Brutus called the “province of state governments,” would suffer. After all, Brutus argued that the object of government was to, “save men’s lives, not to destroy them,” and as such the “united states” should be an “example of a great people, who in their civil institutions hold chiefly in view, the attainment of virtue, and happiness among ourselves.” Central authority and excessive taxation were not required to do so and could potentially result in internal discord.
Here are the two competing visions of the American order: Hamilton the nationalist; Brutus the champion of a federal republic. While Brutus incorrectly thought that the States would disappear if the Constitution were ratified, they have certainly been reduced to little more than administrative provinces for the federal government, and he was correct that revenue would be a consistent problem for State and local governments. Surely, State efforts to combat illegal immigration—“foreign invaders”—could be better augmented by revenues destined for federal coffers, and internal discord caused in part by excessive centralization and taxation has been a problem in American history. For his part, Hamilton never envisioned this happening. He firmly believed in 1788 that the States were an essential component of the new government, though not to the same extent as Brutus. As he later said, “The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.”
Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers, and has written for townhall.com, humanevents.com, lewrockwell.com, and thetenthamendmentcenter.com. He currently teaches history at Chattahoochee Valley Community College in Phenix City, Alabama.
Monday, June 14th, 2010
Federalist No. 35 – Janine Turner & Cathy Gillespie
Federalist Paper 35, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, 15. Essays by Cathy Gillespie, Federalist No. 35, Federalist No. 35, Federalist No. 35Hello from Virginia, three miles from Mt. Vernon! The Gillespies are so glad to have Janine and Juliette staying with us for a few days during their East Coast Constituting America Tour! They began in New York last week, travelled to Boston, and yesterday we visited Philadelphia (with a side trip to the Jersey shore)!
Today began with Janine and Juliette taping a radio interview with Laura Ingraham! Stay tuned to this site for news as to when it will air!
We then walked the halls of Congress, and visited several Members, including Congresswomen Michele Bachmann and Marsha Blackburn, and Congressman Scott Garrett, the Chair of the Congressional Constitution Caucus. We saw many groups of young people touring the Capitol Complex, and we took the opportunity to talk to as many of them as possible, and invited them to enter our We The People 9.17 Contest! We got a great reaction from them, and many indicated they would enter! Remember, entries are due July 4th!!!!
We were excited to learn about the Congressional Constitution Caucus. We should encourage our elected Representatives to join this caucus, and assist Congressman Garrett in his mission of educating members of Congress about the original intent of the Founding Fathers.
Tonight, the Gillespie house is buzzing with Constitutional Activity! Janine is preparing for an interview with Fox News, Juliette and my daughter Mollie are editing the Behind the Scenes Video of our trip yesterday to Philadelphia, and Janine and I are writing our Federalist Paper No. 35 essay together, since we are in the same place.
Thank you to Joseph Postell for an excellent analysis of Federalist No. 35: a continuation of Publius’s discussion of taxes, and reflections on the nature of representative government. How fitting we are blogging on this subject, on a day we walked the halls of Congress!
Publius begins his essay by stating several maxims regarding taxes, including:
“All extremes are pernicious in various ways.”
“Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself.”
“When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital.”
“The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition.”
“Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous.”
And, most importantly: “It might be demonstrated that the most productive system of finance will always be the least burdensome.”
The theme of these quotes is that the consumer, the merchant, and ultimately the economy suffers when taxes become oppressive. When raising taxes to address “necessities,” false reasonings do not render the hoped for results. For example, the stimulus bill was supposed to lower the unemployment rate to 8 percent or below, but despite all the money spent, unemployment has not reached that target. Would a less “oppressive” means, such as cutting taxes, have yielded better results?
In Federalist 35, Publius also responds to various criticisms the anti-federalists made regarding the makeup of Congress. The ratification opponents argued that only a Congress reflective of the public at large, with the same percentage of merchants, landowners, manufacturers, etc as exist in the general population of the country, could truly represent the interests of the people. Publius explains that this will never happen if people are free to vote for whoever they choose. He goes on to point out that the nature of a representative government is to look past the faction that the Representative may personally hail from, and work toward the greater good. Because members of Congress are dependent upon the votes of their constituents, Publius states that Congressmen will take care to inform themselves of the opinions of all their constituents, seeking out the best policies for all, and not just individual factions.
Publius ends with a description of qualities that he feels those who make decisions on tax policy for the country should have:
“There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one.”
And calls on each citizen to judge for himself who best meets that criteria:
“And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.”
As “considerate citizens,” our next turn to “judge” will be November 2, 2010. May we all exercise our judgment, and our precious right to vote!
God Bless,
Janine & Cathy
Wednesday, June 16th, 2010
Federalist No. 35 – The Same Subject Continued: Concerning the General Power of Taxation, For the Independent Journal (Hamilton)
Federalist Paper 35, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 35, Joseph Postell PhDIn the midst of discussing questions of tax power and policy, Federalist 35 ventures into a fascinating argument about the nature of representation in a democratic republic – a very relevant question today.
The argument about representation is a response to an Anti-Federalist claim that the House of Representatives will be too small to contain citizens from all classes and occupations, and that this will prevent “a due sympathy between the representative body and its constituents.”
When we first read this, we can’t help but identify with the Anti-Federalists. In 21st Century America there could hardly be less sympathy between our representative body and its constituents!
But upon further investigation, Hamilton argues, we will see that the Anti-Federalists’ argument is “made up of nothing but fair sounding words.” Most significantly, he rejects the call for “an actual representation of all classes of the people by persons of each class.”
There are two related problems with the Anti-Federalists’ argument, according to Hamilton. The first is that it misunderstands the nature of representation. The Anti-Federalists presumed that representation should produce a legislature that is a “mirror” of the public at large. It should look like a microcosm of the people themselves if they could assemble directly for the purpose of making laws. Representation, in this view, is merely a practical mechanism which should reflect direct democracy as much as possible. It should not refine public opinion.
The second but related problem with the Anti-Federalists’ argument, Hamilton claims, is that representatives are not mere guardians of a particular interest. They are supposed to pursue the common good of the whole society. To argue that a legislative body should contain a composite of classes and occupations equal to the society at large is to imply that a cobbler’s interest can only be pursued by a cobbler, that an attorney’s interest can only be pursued by an attorney, and so on.
Such a claim is an affront to the Founders’ principle of equality, because it assumes that it is impossible for representatives to transcend the particular interests of society and pursue the good which is common to all. It implies that our interests are so different that they cannot be reconciled, and that the only alternative we have is a constant struggle of class against class, economic interest against economic interest.
In essence, the basic question is this: are we merely the sum of a variety of interests, or is there something higher than our parts? Should our legislature simply be composed of a variety of classes and occupations, each looking out for itself, or should representatives be chosen who can transcend these particular interests and combine them for the good of the whole?
Hamilton and the Founders were not so naïve as to think that various economic interests will always be harmonious. But they argued that representation would subordinate the pursuit of these particular interests to the pursuit of the general good. The way to do this is not to give every interest a seat at the table, but to keep representatives accountable to all of their constituents.
Hamilton argues, “Is it not natural that a man who is a candidate for the favor of his people and who is dependent on the suffrages of his fellow-citizens…should take care to inform himself of their dispositions and inclinations and should be willing to allow them the proper degree of influence upon his conduct?” Electoral accountability is the way to ensure that representatives pursue the public good, because it forces representatives to be informed of all of the interests of their constituents.
“This dependence” on the votes of the people, Hamilton concludes “and the necessity of being bound himself and his posterity by the laws to which he gives his assent…are the only strong chords of sympathy between the representatives and the government.”
In today’s politics, it often seems like representatives more often seek to satisfy particular interest groups than pursue the common good of the whole. Some have argued that the Founders wanted it to be this way. But in Federalist 35 Hamilton reminds us that a representative republic allows us to be governed by those who place the public good over the clash of particular interests.
Most importantly, we can only pursue the common good by abandoning the idea of separating ourselves into classes. Dividing ourselves into separate classes overlooks the natural human equality that is the basis of our rights, and it overlooks the common interests and affections that bind us together as Americans.
Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. He recently received his Ph.D. from the University of Dallas.
Tuesday, June 15th, 2010
Federalist No. 36 – Cathy Gillespie
Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 36, Federalist No. 36Another great day for Constituting America as Janine and Juliette continue their Constituting America East Coast Tour!
Today I had the privilege of joining Janine at the DC FOX Studios, where she taped an interview with Chris Wallace of Fox News Sunday. Janine will be featured as Power Player of the Week this Sunday, June 20. Click here to check your local listings for airtime!
I can’t think of anyone who deserves it more. As founder and Co-Chair of Constituting America, Janine has put her visionary idea into action, and is making a difference at the most fundamental level of our political system. She is reminding us of our roots, inspiring us to learn about the Constitution, and the founding principles of our government. I am honored to serve as co-chair of this effort with her, and am looking forward to seeing her as Power Player of the Week this Sunday!
Regarding tonight’s Federalist Paper No. 36:
Barrels of ink in the Federalist Papers were devoted to taxes – a sensitive subject for our forefathers. Taxation without representation had been one of the causes of the American Revolution, and Publius obviously saw taxation as an issue that could derail ratification if not sufficiently understood.
Taxes are no less sensitive an issue for the public today. Many a candidate has lost an election after being accused of raising taxes, wanting to raise taxes, or not paying his taxes!
In Federalist 36, Hamilton closes out a seven part series of explaining the federal and the states’ role in taxation, as well as defends the Constitution and the structure and powers set out for taxation. Again and again through this seven part series it is evident that Hamilton could not have predicted the size and scope of today’s federal government, and the tax burden it puts on the American people.
Hamilton had envisioned minimal state taxes:
“When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.”
However, states tax much more than land these days! Only nine states don’t have a state income tax! What happened? One contributing factor to the ever increasing taxes at the state level are unfunded federal mandates, another way the federal government has crept slowly across Constitutional boundaries. As I was doing a bit of research for tonight’s essay, I stumbled upon a fascinating website:
The National Conference of State Legislators, http://www.ncsl.org Standing Committee on Budgets and Review has a section on their website called Mandate Monitor . Unfunded federal mandates are tracked and catalogued on this site. The most recent edition of the unfunded federal mandates list can be downloaded on this link: http://www.ncsl.org/documents/standcomm/scbudg/CatalogJune2009.pdf
Check out this weblink and list to see how much and what kind of burden our federal government is putting on the states!
As Jesse reminded us tonight, and as Janine likes to say: “Knowledge is power!”
Please continue to spread the word about Constituting America, our 90 in 90: History Holds the Key to the Future Blog, and the We The People 9.17 Contest for Kids! Please invite your friends to join us in our educational journey!
Thank you to all who are participating with us on the 90 in 90 Blog! Your voice is important, and we thank you for your gift of time, and your well thought out contributions.
Good night and God Bless,
Cathy Gillespie
Thursday, June 17th, 2010
Federalist No. 36 – Janine Turner
Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 35, Federalist No. 36, Federalist No. 36Howdy from Washington, D.C. and Mt. Vernon! Cathy, Juliette and I had another busy day Constituting America. We meet with some grassroots groups to get the word out about our Constitution and then we traveled to Fox News to tape a segment for Fox News Sunday! So be sure to set your Tivo to Fox News Sunday. It will air on local Fox and the Fox News Channel this Sunday!
I know that Federalist Papers N0. 35 and 36 are primarily dealing with taxes but I am rather intrigued with some other statements that are made by Alexander Hamilton about the prerequisites of a Congressional representative. I am struck by the lack of bias in his predetermination of the qualities of a representative.
“But even if we could suppose a distinction of interest between the opulent landowner, and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last.”
“Where the qualifications of the electors are the same, whether they have to choose a small or large number,
their votes will fall upon those in whom they have the most confidence; whether these happen to be men of large fortunes or of moderate property or of no property at all.”
“There are strong minds in every walk of life, that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all.”
This paragraphs, and especially the last, best represents the greatness of America – that in America any person of a strong mind may rise superior to the disadvantages of situation, and command the tribute due to their merit.
This, of course, was the personal journey of Alexander Hamilton. (I wrote about his mother in my book, “Holding Her Head High.) This was, also, the promise for the American people from a new nation in its embryonic stage. This was the promise that had germinated in the minds of our forefathers, men who, in their own right, deserve merit and study. They were men who had the brilliant insights, the reverence for Divine Providence and the fortitude to bring both the awareness of inalienable rights and the freedom to dream to fruition.
It is hard for us, who experience our freedoms daily with an ease that parallels the involuntary rhythm of breathing, to fathom the journey our ancestors bridged into the age of enlightenment. We have to stand back and really absorb their air to truly comprehend the magnitude and genius of their visions.
It is an honor to read our United States Constitution and the Federalist Papers. It is a door equally open to all, as are opportunities of every genre.
Let’s keep it that way.
God Bless,
Janine Turner
June 16, 2010
Federalist No. 36 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton)
Federalist Paper 36, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Janice R. Brenman 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 36, Janice R. BrenmanFederalist 36: A Final Word on Taxes
The Federalist Papers contains seven entries specifically addressing how our fledgling nation was to handle the delicate and potentially volatile issue of taxation. Having touched upon Essay #30 dealing with taxation previously, let’s bookend the topic with a brief synopsis of #36 it is focusing specifically with the central government’s power of taxation: “The Same Subject Continued: Concerning the General Power of Taxation.”
The challenge of taxing a wide number of people fairly lies in the ability to ascertain who and how much to tax. Hamilton stressed the need for a non-oppressive tax code; one which reflects the interests of diverse individuals, ranging from merchants to carpenters to blacksmiths to lawyers. It was his hope that each individual would see the need to contribute a portion of their resources to insure continued economic growth, keeping safe a nation poised to give them the privilege of practicing trades as they saw fit and that they would be therefore more willing to comply with the taxing authority.
As Hamilton has observed, a government can be potentially be too efficient when it comes to preserving the power it has by attempting to take more power. A heavy handed taxing authority would be an example of this. Therefore, it would be preferred to collect monies from a wide swath of workers, while simultaneously shielding the “least wealthy part of the community from oppression.” As the nation was deemed to be a representative republic, congressional representatives selected locally should represent each district to the national government. Ideally areas with more residents would contribute a bigger share of taxes than those which were more rural.
Hamilton vehemently opposed poll taxes whereby a “head tax” was equally levied on every adult in the community. Though poll taxes can raise large sums of money, Hamilton criticized them as unfair burdens and would “lament to see them introduced into practice under the national government.” Poll taxes survived in the Deep South many years until deemed unconstitutional by the Supreme Court when they were used to limit the franchise.
The taxation issue and related debates have been around for a while. Disputes involving taxation upon the populace have existed between democratic governments as well as despotic ones. It is Hamilton’s view that a central taxing authority was necessary for economic growth of the Nation as a whole and for the new government to be able to effectively carry out its duties.
For a country that has gone through so many economic cycles, through boom and bust, one can only wonder how Hamilton would have kept our budgets balanced today, since our government has taken on so many more responsibilities and duties than he ever would have imagined. The size and scope of government today not only contributes to the present recession, it approaches a near crisis level of debt. Maybe it seems simplistic, but limited government focusing on specific tasks specially authorized in the Constitution would put our nation in a much stronger financial position and ensure individual liberty for all American.
Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.
Wednesday, June 16th, 2010
Federalist No. 37 – Janine Turner
Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 37, Federalist No. 37Howdy from Washington, D.C. Cathy, Juliette and I visited the Supreme Court today and Senator Scott Brown at the Capitol. I wanted to talk with him about laying a wreath at President John Adams grave since Senator Brown is from Boston and John Adams is from Quincy, just outside of Boston. As it so happened he already had that on his books! Yea! Be sure to watch our behind the scene video tonight! It is fun. Juliette worked really hard on it.
Be sure to show it to your kids as it may give them ideas for our contest!
Tonight’s Federalist Paper No. 37 by James Madison was just brilliant. I am going to simply transcribe some of my favorite statements because they are so thought provoking and wise and well, what more do I need to add, except that every member in Congress today should be required to read them.
“It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation, which is essential to a just estimate of their real tendency to advance, to obstruct, the public good.”
“Nor, will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, we liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.”
“The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands.”
“But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.”
“.. delineating the boundary between the federal and state jurisdictions…”
“The real wonder is, that so many difficulties should have been surmounted; and surmounted with an unanimity almost as unprecedented, as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance, without partaking of the astonishment. It is impossible for the man of pious reflection, not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.”
“.. we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed in a very singular degree, an exemption from the pestilential influence of party animosities; the 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 either 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 new experiments.”
THIS IS THE WISDOM WE NEED IN THE LEGISLATIVE AND EXECUTIVE BODIES TODAY. (AND NOTICE HE WAS NOT AFRAID TO MENTION “THE ALMIGHTY.”)
God bless,
Janine Turner
June 17, 2010
Federalist No. 37 – Cathy Gillespie
Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 37, Federalist No. 37Wow! What a day! We wrapped up the last day of Janine and Juliettte’s Constituting America’s East Coast Tour with a wonderful morning at the Supreme Court. We learned about Chief Justice John Marshall (considered one of the greatest Chief Justices of all time), Marbury vs. Madison (which established the principle of judicial review), and some interesting trivia about who can qualify to be appointed as a Supreme Court Justice! We saw the beautiful chambers, and some other parts of the building not often seen. We even saw the bust of John Jay, one of the authors of the Federalist Papers! It is interesting this third branch of the government did not have a permanent home until the Supreme Court building was opened in 1935.
On a personal note, I had a bit of a challenging day, as we found a leak in my closet (and mold!), I got stopped by the Capitol Police because I didn’t put on my turn signal before turning (and had left my purse at home with my driver’s license in it!) and my health insurance was accidentally cancelled (it has since been reinstated), but in between all those events, Janine and I kept reading today’s Federalist Paper, No. 37, and discussing it, so we could get ready to write our essays tonight!
I found Federalist No. 37 a breath of fresh air, after wallowing in the weeds of taxes for the last seven papers. It was nice to take a break, and zoom out to the big picture of the Constitution once again. Madison, the father of the Constitution, is the perfect voice to remind us of the challenges that had to be overcome to produce this majestic document, a perfect balance of energy, stability, and liberty!
In this current environment of political polarization and bickering, I was especially interested in Madison’s observation that, “In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question.”
Today’s frenzied pace of life, which is so dependent on sound bites, and video clips, leads even more to elected officials and citizens who are tempted to pre-judge proposed policies without trying to understand them. Simply because a proposal comes from one political party or the other leads to snap judgments, and subjective analysis. To solve the tough problems our Nation faces, we need to find more of those who have “a sincere zeal for the happiness of their country,” and “a temper favorable to a just estimate of the means of promoting it.” We need more people in our country today – citizens and leaders – who are willing to objectively consider proposed policies, and find common ground to work for solutions.
Of course, it is hard to find common ground if we aren’t starting from the same foundation. That is why it is so important that we understand the founding principles of our country.
As we think about our own government and citizens, bitterly divided by factions, we can see that it was truly a miracle that the Constitution was produced! Madison’s quote:
“The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution,”
reminds us of the hand of God in the proceedings of the Constitutional Convention and the miracle that took place there.
May the miracle of the Constitution serve to inspire us and our leaders to work towards common goals and solutions, grounded in the founding principles of limited government, free enterprise and individual freedom.
What a gift it is to read the words of our founding fathers, and let them light our way!
Good night and God Bless,
Cathy Gillespie
Friday, June 18th, 2010
Federalist No. 37 – Concerning the Difficulties of the Convention in Devising a Proper Form of Government, From the Daily Advertiser (Madison)
Federalist Paper 37, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Joerg W. KnipprathFederalist Nos. 37 and 38 depart from Publius’s usual fare of panoramic examination of the weaknesses of historic confederations or dissection of particular objections to the Constitution. Instead, Madison takes up the cause of the project as a whole and of those who remained in Philadelphia to see it through. The thematic thread running through Federalist 37 is “fallibility,” with repeated reminders of human limitations that call for humility and compromise.
His style varies, moving from the evocative tone of the raconteur to the righteous indignation of the remonstrator to the mild defensiveness of the weary apologist. His annoyance with the quantity and variety of criticisms is palpable. He impugns the motives of opponents whom he accuses of a “predetermination to condemn.” Unlike the uncritical enthusiasts who support the project and whose motives may be good or ill, these opponents have no good or even excusably misbegotten motives. To Madison, they act from personal gain or the unwavering arrogance of their righteous certitude.
Madison fears that the project might, like Gulliver, become tied down by the carping of Lilliputian critics. He knows that delay works against success of any significant and controversial political innovation. He declares, therefore, that he will appeal not to minds already made up, but to the honestly persuadable reader. He pleads with readers to consider the difficulties inherent in an undertaking as momentous as the crafting of a constitution, difficulties that necessarily result in imperfect compromises that expose points for easy attack. It has been said, “A camel is a horse designed by committee.” The Constitution is a camel, a durable and adaptable animal to be sure, but not a sleek and pampered horse planned by “an ingenious theorist…in his closet, or in his imagination.”
Benjamin Franklin, in a speech near the close of the Philadelphia Convention, revealed his doubts about parts of the Constitution. Ever the committed skeptic, he then declared his support “because I expect no better, and because I am not sure, that it is not the best.” Franklin expressed hope “that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility” and sign the Constitution. As Madison writes in the next essay, no government is perfect, so that form which is least imperfect is best.
Madison describes the difficulties faced by the Convention in balancing energy in government, stability of laws, and republican liberty, that is, those fundamental characteristics of good government that can be at odds with each. All constitutions share minimum common ground in that they reflect by whom and how governing authority will be exercised. He lays out the delicate balance the Convention had to strike in ordering that authority:
The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time the same. A frequent change of men will result from a frequent return of electors; and a frequent change of measures, from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.
Republicanism. Liberty. Stability. Energy. Ideas that animated the Framers, as reflected in numerous essays by Publius, those were also the objects of the Convention’s plan. That plan had to be practical, driven by experience, not by unbending fidelity to some abstract theory. The vastness of the project and the limitations of human ability complicated the task. It was not merely determining the republican operation of government through elections and representation. It was also the daunting work of designing a new federal structure by balancing the state and national political domains, and of properly calibrating the separation and interaction of the three branches of the national government, all while damping the jealousies among states and regions.
This endeavor is made difficult by the “indistinctness of the object [the absence of fixed rules of nature to show how these institutions should be designed to accomplish the objects of the plan]; imperfection of the organ of perception [the fallibility of the human mind that prevents us from recognizing the perfect path], inadequateness of the vehicle of ideas [the limitations of language in the expression of ideas].” Madison regrets that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.” Interpretation of written text must start with the words. But every writing suffers from the inherent vagueness and imprecision of language. For contracts, laws, and constitutions, which affect groups of persons, the reader’s mere subjective impression will not do, and recourse must be had to various extraneous sources of meaning. Those imperfections may mar the Constitution; but they will also mar any alternative.
Madison is moved to wonder “that so many difficulties should have been surmounted….It is impossible for any man of candour to reflect on this circumstance, without partaking of the astonishment. It is impossible, for the man of pious reflection, not to perceive in it the finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Due recognition of the fallibility of all involved requires of them humility about their own wisdom and at least a spirit of sensible compromise (though not, by that, a lack of firm principles). Those are the marks of statesmen in contrast to mere politicians, and Madison calls on both sides to be statesmen.
Good advice through the ages.
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.
Thursday, June 17th, 2010
Federalist No. 38
Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 38, Federalist No. 38Howdy from Hollywood! Cathy and her daughter, Mollie, Juliette and I are in Hollywood, “Constituting America!” We met with a producer today regarding many things, including ideas for television specials and our game show! Tomorrow we are meeting with many, many people in the Hollywood industry to spread the word about our “90 in 90” blog and our “We the People 9.17 Contest!!”
Juliette and I have had a whirlwind trip starting in Texas. We traveled to New York City, Boston, Washington, D.C., New Jersey, Philadelphia, Washington, D.C. and now to Hollywood – all in the span of less thank two weeks!! We are “Constituting America” from the Atlantic to the Pacific!
I thoroughly enjoyed our Federalist Paper No. 38 today by the splendid James Madison. As he mentioned last night, it truly was the miraculous power of the “Almighty” that brought the new Constitution to fruition. I do believe we all agree, that with the rancor and division in our current Congress, we will never be able to achieve such levels of genius as that exhibited by the distinguished members of the Constitutional Convention.
Yet, I believe we are at as equally a dangerous crossroad now as we were in 1787. Sickness strikes our generation and it is permeating to our posterity. Will we heed the call of the doctor? Vision appears to be the most potent medicine necessitated by our current crisis. Sacrifice appears to be the most needed human virtue and bravery the highest knock at the door. Who will answer?
I believe it will be the genius of the people.
Common sense seems is my summary of today’s Federalist Paper. The array of history recounted by James Madison, which describes how other countries gave the construction of their Constitutions to the power of one man, is stunning. “Fears of discord and disunion” blinded their best interests. Once again this reflects the amazing feat of unity in our historic Constitutional Convention.
James Madison’s following argument is also striking:
“..They have proceeded to form new states, to erect temporary governments; to appoint officers for them;
and to prescribe the conditions on which such states shall be admitted into the confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered.; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for and INDEFINITE PERIOD OF TIME.”
Once again, it is common sense. Common sense reveals the tremendous burden of debt that is threatening our liberty – on all levels – social, spiritual, financial, physical. Is this going to be dealt with by our Congress? Do their hearts beat with that of pride or with that of the patriot? Will we be saved from “the dangers threatened by the present impotency of that assembly?”
We the people must prevail. We must sound the alarm with our voices and our votes. Many good men and women serve in our current Congress. May God bless them yet, “…a consultation is held: they are unanimously agreed that the symptoms are critical.”
James Madison speaks a truth that all Constitutionalists believe. It is spoken here in this Federalist Paper. He warns about the “discord and ferment that would mark their own deliberations” and that the Constitution would not stand a fair chance for “immortality.”
“Immortality.” The Constitution was written for immortality! Our current dire straights, discord and ferment threaten our Constitution’s immortality. Ironically, it is only with our Constitution’s breath that our country will be saved. It is common sense.
God Bless,
Janine Turner
Friday, June 18th, 2010
Federalist No. 38
Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 38, Federalist No. 38First, a reminder to watch Fox News Sunday, for Janine as Power Player of the Week! Chris Wallace does a great sit down interview with Janine about Constituting America! Check your local listings for airtimes!
Thank you, Professor Knipprath for your essays yesterday and today. You have a great way of not only explaining, but augmenting and filling in the gaps!
I would like to echo Seth’s comments today, lauding the open and vigorous debate the founders engaged in during the ratification process. In this essay, Madison takes on the anti-federalists in the most direct attack yet, by listing their objections, including a lack of bill of rights, disagreement on how the bill of rights should be framed, unequal representation for big states in the Senate and small states in the U.S. House, concern about the power of direct taxation, wariness of possible taxes on consumption, worry of a tendency towards monarchy, etc. The list goes on and on.
Madison eloquently points out that the document is not perfect, but better than the alternative:
“It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect.”
Indeed, one of the most beautiful traits of our Constitution is that the founders knew it was not perfect. They had a mechanism to address that: the amendment process.
The amendments trace our country’s history, and are a vivid reminder for all to see of our country’s attempt to refine this majestic document. Some of the amendments have been wiser than others. Some corrected grave injustices, and some made changes that in hindsight may have been better left unmade. But they all reflect the founders’ intent as to how the Constitution should be modified, if change is to be made. Even the amendment process contains checks and balances!
Federalist No. 38 is an example of our country’s grand tradition of political debate at its finest. Through the Federalist and Anti-Federalist Papers, both sides were thoroughly aired in a way that is a lost art in our modern culture.
Thank you to all who participate in the civil, intelligent and insightful political discourse on this site, in the true tradition of the founding fathers!
Have a wonderful weekend,
Cathy Gillespie
Friday, June 18th, 2010
Federalist No. 38 – The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed, From the New York Packet (Madison)
Federalist Paper 38, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Federalist No. 68, Joerg W. KnipprathWhile Federalist 37 defends the Philadelphia Convention and the Constitution by recalling the difficulties involved in completing such a complex and novel undertaking, Federalist 38 is a full-throated attack on the Antifederalists. To counter the accusations—at least formally defensible—that the Convention was a revolutionary body that threatened liberty, Madison first reminds his readers that the Convention differed from historical procedures for constitutional innovation. Traditionally, such change was put in the hands of (or seized by) a single law-giver. The danger to liberty posed by such a charismatic leader was avoided by the use of a multitudinous assembly. On the other hand, such an assembly has all the characteristics of faction that he described in the previous essay as making the Convention’s work so difficult.
After this rather mild prologue, Madison sets to work. He likens the United States to an imperiled patient and the Convention to a panel of physicians. The latter agree that the situation is critical, but not so desperate that it cannot, “with proper and timely relief…be made to issue in an improvement of his constitution.” [Here the reader pauses briefly to acknowledge the clever pun.] Then a prescription for relief is made, only to trigger an invasion of nay-sayers who, though they admit the danger, alarm the patient against the cure and prohibit its use. This reminds one of risk-averse bureaucracies that prohibit or stall the use of new drugs for grave conditions because the potential side-effects are not entirely ascertained.
Worse, the objectors cannot agree exactly why the cure is bad. Nor can they agree on an alternative. Madison obviously relishes the opportunity to list various objections, all arranged for maximum ridicule. Though he avoids names, Madison’s examples likely would have brought to readers’ minds various specific opponents, particularly in the New York and Virginia ratifying conventions. Mocking the opponents’ portrayed disunity in order to blunt the dangerous calls for a new convention that were resonating with the public, Madison uses the variety of the objections to declare that the Constitution would likely be immortal if it were put in effect “not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. [Emphasis in original.]”
His role as a champion of the Constitution prevents him from giving rhetorical quarter to his opponents, but they were not the intemperate and intellectually vapid lot Madison portrays through his caricatured compilation. Opposing specifics of the Convention’s product hardly makes one deserving of ridicule. Madison should know. Of 71 proposals he made or strongly and openly supported at the Convention, he lost 40 votes. His desired constitution would have looked remarkably different and more nationalized than what emerged.
Both sides were composed of patriots who ardently desired the success of the republican experiment and the United States. Both sides also had partisans who pursued the more parochial interests of their respective states, as well as their own personal objectives. Usually these conflicting interests operated in the same individuals to varying degrees. The strategic disadvantage the opponents suffered was that they were not a tight-knit cadre, as the writers of The Federalist were. And, of course, they lost. The victor writes the history. But many of them were leading intellectuals, lawyers, politicians, and other educated members of the country’s elite. As Publius infrequently identifies the writers to which he is responding in a particular paper, I should like to take a few lines to mention some of the opposition leaders.
The many effective and famous Antifederalists included Patrick Henry and George Mason of Virginia, Samuel Chase and Luther Martin of Maryland, and Samuel Adams and Elbridge Gerry of Massachusetts. Some opposed the whole project; Henry declared he did not attend the Convention because he “smelt a rat.” Others just wanted a bill of rights. George Mason was one of the most important contributors at the Convention, but, along with Gerry, declined to sign when the Convention refused consideration of a bill of rights. Still others eventually supported the Constitution with varying degrees of enthusiasm.
Many Antifederalists used pseudonyms, in the custom of the day. There was Robert Yates, writing sixteen papers as “Brutus.” Judge Yates was a New York delegate who attended the Philadelphia Convention with Hamilton but left when the delegates moved beyond their charge only to consider revisions to the Articles. A moderate opponent, he was later recruited as a Federalist Party candidate for governor. His influential writings were widely circulated and known for their constructive and analytical criticisms, many of which, unfortunately, have manifested themselves over the years in the federal government that has evolved. Contrary to Madison’s claim, Yates often made suggestions for alternatives. It is curious that Publius never mentions Brutus by name (as he does a few others), although reading the former’s writings, it is clear from the language and the order of argument that he is often responding to the latter’s critiques.
George Clinton, likely author of seven “Letters of Cato,” was the longest-serving governor in American history at 21 years and a two-term U.S. Vice President. He presided over the New York convention and was a moderate opponent of the Constitution who favored adoption conditioned on amendments. His “letters” were widely read, and some historians believe that the effectiveness of his letters impelled the Constitution’s supporters to write The Federalist in response. Cato is specifically mentioned by Publius.
“A Federal Farmer” is traditionally associated with Richard Henry Lee of Virginia, a career politician who was, among many other things, a member of the Confederation Congress. More recent scholars believe that the writer is attorney Melancton Smith, a member of the Confederation Congress and the New York ratifying convention. Hamilton considered the Federal Farmer the most persuasive of the Antifederalists, and refers to him in Federalist 68. The tone in the two pamphlets containing eighteen letters is generally analytical, readable, and moderate. That makes it less likely that Lee, an emotional and powerful orator, is the author. Smith eventually voted for the Constitution, with amendments.
Towards the end of the paper, Madison engages in a dubious tactic of defending the Constitution by declaring the ways that the Confederation has exercised broad powers. That may seem good in theory, but it is unlikely strategically to convince those who are weighing arguments for and against the Constitution. Though the point is to make the Constitution sound tame, one can just as easily draw a different conclusion: If the Confederation Congress is so dynamic, why is there need for change? That said, inducing most of the states to cede their western territorial claims to the United States, taking control of the territory, and passing the Northwest Ordinance as a model of colonial administration for the territory was probably the Confederation’s finest domestic policy success and showed the—ultimately unrealized—potential of the Articles.
Friday, June 18th, 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
Federalist No. 39 – Janine Turner
Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 39, Federalist No. 39Howdy from Texas! We are home, after a whirlwind trip Constituting America, up and down the east coast – the birthplace of our country. I was still Constituting America today though – in the grocery store check out line. The woman behind me had two children and I told her all about our Contest!
I want to thank our Constitutional scholar, Professor John S. Baker, for his insightful essay today and for all of you who are blogging with us. Isn’t this an amazing and insightful journey?
Federalist Paper N0. 39 is stimulating. I am, once again, intrigued by Publius’ knowledge of history. James Madison’s detailed description of other republics compared to the one they constituted in the Constitution was a treasure to read. It is powerful to ponder upon the dichotomy of the roadmap our founding fathers constructed for us, as well as how it differed from other countries who claimed to be republics.
Our Constituting founding fathers truly experienced a profound profusion of ideas and their compromise, their willingness to see the bigger picture, proved revolutionary in an intellectual and spiritual way. Their
“balance of powers” were delicate, yet firmly planted upon the bedrock of the “genius of the American people.”
Their virtue, insightfulness, valor, willingness, foresight, bravery and determination have a reach upon the American spiritual landscape like a long branch of a Live Oak tree. Sturdy and protective and evergreen was their love for the country and their roots were immersed in the waters of wisdom.
I do believe, for those of you reading this who are of faith, that we should pray for these attributes to guide our leaders, representatives and “genius of the American people” today. If you are reading this and not of faith, then a meditative thought picturing a people who rise to meet our country’s challenges with dignity and grace will be powerful. It will meet with the prayers and lift America into a realm of enlightenment.
It begins with prayers and thoughts, and resonates with action. Awareness, Acceptance, Action. We are aware of the greatness that birthed our country, has kept it thriving and holds the seeds of hope. We accept the mission put in front of us – the mission to hold our representatives accountable to the “genius of the American people” and to fight to maintain a Republican America for our children – a Republic that holds the values, the rights and the structure of free enterprise we enjoy today. We take action by spreading the word about the United States Constitution because it is the glue that holds our freedoms together.
When the President and Congressmen and women take office, they swear to uphold the United States Constitution. They swear to preserve, protect and defend the Constitution. I marvel that it does not say preserve, protect and defend “the people.” I now know that it states, “preserve, protect and defend the Constitution,” because it is the Constitution that protects the people.
Without the preservation of the Constitution, without the respect of the Constitution, without the awareness and utilization of the Constitution, “We the People,” lay vulnerable to the dangers of tyranny, socialism, and being stripped of our rights. Without representatives that respect our Constitution, without a people who are informed about the Constitution – we are not protected.
Spread the word.
God Bless,
Janine Turner
Tuesday, June 22nd, 2010
Federalist No. 39 – Cathy Gillespie
Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 39, Federalist No. 39There are still two weeks left for young people to enter the We The People 9.17 Contest!
How is the Constitution Relevant Today?
Entries due July 4th!
High School Students: We need more short film, PSA and song entries!! We are accepting essays from high school students as well. Prizes including $2,000 per category; trip to Philadelphia; possible TV appearance!!
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Now for Federalist No. 39:
Thomas Jefferson called the Federalist Papers “the best commentary on the principles of government … ever written.” Federalist No. 39 certainly lives up to this quote!
This paper reads like a textbook, and wouldn’t it be wonderful if it were a part of our childrens’ textbooks! I am betting it is not often included.
First the definition of a Republic:
“a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior,”
Next, a careful analysis of the national vs. federal qualities of the components that make up the “real character of the government”:
(1)” the foundation on which it is to be established” – (ratification is a federal act)
(2) “the sources from which its ordinary powers are to be drawn” – the sources of power are national (U.S. House); federal (U.S. Senate); and a combination of national and federal (Executive Branch/Election of the President).
(3) “the operation of those powers” (national)
(4) “to the extent of them” (federal)
(5) “the authority by which future changes in the government are to be introduced” (neither “wholly national nor wholly federal”)
Federalist 39 makes clear the depth and breadth of the system of checks and balances the founders so carefully constructed. The three branches of government, and the enumerated powers of the national government are some of the more obvious checks and balances of our Republic. But the fact that the elements which make up the character of our government (foundation; sources, operation and extent of power; and authority by which changes are made) are so well balanced between federal and national qualities is amazing! It is like cutting into a beautifully decorated cake, and finding intricate designs within, and on the various layers.
It is the depth with which these checks and balances are etched into the structure of our government that gives me hope that our Constitution and our Republic will survive. Though we may drift from time to time, there are systems built into the Constitution that allow “we the people” to bring our country back onto the intended path when we stray too far outside the Constitutional framework.
The Constitution is our roadmap. We must look at it, read it, understand it, and respect it. It must stay in our national consciousness. How else will we know when we have taken a wrong turn?
Our liberty hangs in a delicate balance. When the balance is disrupted, we lose our freedom!
Thank you to all of you who are blogging and adding to the debate, and our collective understanding! And a big thank you to Professor Baker for your enlightening essay!
Good night and God Bless!
Cathy GillespieMonday, June 21st, 2010
Federalist No. 39 – The Conformity of the Plan to Republican Principles, For the Independent Journal (Hamilton)
Federalist Paper 39, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, John S. Baker Jr. PhD, The Articles of ConfederationFederalist 39 answers attacks that the proposed Constitution is not “republican” and not “federal.” In his response, Publius effectively redefines both terms.
Claiming the proposed government is not “strictly republican” is a serious charge. Publius recognizes this, saying “no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or the honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”
The term “republican” ( Latin “res publica,” or “public thing”) had an uncertain meaning. Common to its various understandings would have been an opposition to an hereditary monarchy and aristocracy. Republicanism referred to self-government, but proponents and opponents of the new Constitution had very different ideas about what that meant.
On the one hand, Publius acknowledged that “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” On the other hand, the vision of republicanism offered by The Federalist was quite different from that of the opponents.
Those opposing the Constitution, the Anti-federalists, generally believed that a republic could exist only within a small territory where citizens were able to know one another, live a communal life, and directly govern themselves. Their reading of the French political writer Montesquieu and the example of the ancient republics convinced them that liberty was possible only in such republics. Thus, the Anti-federalists argued that the government to be created by the Constitution would deprive the people of their liberty.
Publius had already argued in Federalist 9 that “the petty republics of Greece and Italy” leave one “feeling sensations of horror and disgust” because “they were perpetually vibrating between the extremes of tyranny and anarchy.” He also observed that opponents to the Constitution apparently were unaware that the states were already larger than the republics discussed by Montesquieu and that he praised the benefits of a larger “confederate republic.” Indeed, The Federalist contributes to political theory the idea that liberty is better protected in a large republic, as fully explained in Federalist 10.
Federalist 39 asks “What then are the distinctive characters of the republican form?” Publius finds that political writers have wrongly applied the term to states that do not deserve to be called republics. Consulting principles of government, Publius says “we may define a republic to be, or at least may bestow that name on, a government which…” (emphasis added). In other words, he is giving his own definition of the term republic, one which corresponds to principles embodied in the new Constitution. Thus, Publius says a republic may be defined as “a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure [presidential appointees], for a limited period [members of Congress and the President], or during good behavior [federal judges].”
Finally, Federalist 39 contends that the language in the Constitution explicitly prohibiting titles of nobility and guaranteeing the states will have a republican form of government proves the republicanism of the proposed government.
This large republic was also to be a (con)federal republic. But the Anti-federalists also charged that the Constitution violated the federal form. Publius did not actually deny this particular charge. Rather, he contended that “a just estimate of [the argument’s] force” requires first ascertaining “the real character of the government.” Before explaining that the real character is only “partly federal,” he added that the argument’s force also depended on the authority and duty of the Convention. In the following essay, Publius will argue that the authority of the Convention, as well as its duty to the people, justified creating the form of government proposed by the Constitution.
Given the common understanding of “federal” at the time, the Constitution did violate the federal form. Prior to adoption of the Constitution, the words “federal” and ‘confederal” meant the same thing, just as “flammable” and “inflammable” currently have the same meaning. The Federalist, itself at times, used these terms interchangeably. Clearly, however, the Constitution proposed to create something different from the existing confederacy.
Federalist 15 had identified the great vice of a confederacy as the attempt by a league of states to legislate for state governments, rather than for individuals. The Articles of Confederation did not directly govern individuals, but the Constitution would do so – within its limited list of powers. The new government’s ability to reach individuals and the “necessary and proper clause” prompted the Anti-federalist fear that the Constitution would completely consolidate power in a national government.
Publius had to explain that the Constitution would not create a consolidated national government. Federalist 39, therefore, explained the mixture of federal and national elements among five essential aspects of the Constitution: its ratification or foundation [national], the sources of its ordinary powers [partly federal –the Senate; partly national-the House], the operation of its powers on individuals [national], the extent of the powers, i.e., limited [federal], and the method of amendment [neither wholly federal nor national]. Based on this mixture of elements, Publius concluded: “The proposed constitution, therefore, …is, in strictness, neither a national nor a federal constitution; but a composition of both.”
This “compound republic” created by the federal Constitution came to be known as “federalism.” As a result, the “federal” form became distinguished from the “confederal” form existing under the Articles of Confederation. This new form of federalism involved a residual – rather than complete – sovereignty in the states. Indeed, as a limited Constitution, neither the federal nor the state governments were “sovereign” in the true sense of the word as a supreme power answerable to no other power. Rather, under the Constitution, “We the people of the United States” are the political sovereign and the Constitution is “the supreme Law of the Land.”
Some argue that the Anti-federalists correctly predicted the consolidation of power in the national government. Such an argument, however, overlooks the critical shift of power caused by the Seventeenth Amendment. That amendment took the election of US senators from state legislatures and gave it to the voters. As a result, the key federal, i.e. state, protection against the concentration of power was lost. That is to say, the Seventeenth Amendment deprived the states of their direct representation in the federal government. As long as the state legislatures elected senators, the states had the ability to pressure enough senators, even if only a minority, to prevent incursions on state power. State legislatures no longer have that ability.
John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University, regularly lectures for The Federalist Society and teaches courses on The Federalist for the Fund for American Studies.
Monday, June 21st, 2010
Federalist No. 40 – Cathy Gillespie
Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 40, Federalist No. 40Federalist No. 40 brings up a subject I have been curious about since embarking upon this journey through the Federalist Papers in April. How did the delegates, charged with revising the Articles of Confederation, justify constructing an entirely new government?
Madison lays out the case brilliantly. First quoting the recommendation of the Annapolis Meeting in September of 1786, and then the Congressional Recommendation of February 1787, Madison carefully analyzes the language used. He emphasizes the words, “such further provisions adequate to the exigencies of the union,” from Annapolis, and the words from the Congressional recommendation “establishing in these states a firm national government,” and “such further provisions…adequate to the exigencies of government and the preservation of the union.”
He then questions, if the goals in the mission statement are “irreconcilably at variance with each other,” i.e.:
a “NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected?”
Madison points out that one phrase deals with means, “alterations and provisions in the articles,” and the other with the ends, “national and adequate government adequate to the exigencies of government and the preservation of the union.” Madison argues the ends are more important than the means. While this view gave us our Constitution, it is an arguably dangerous view for our elected officials to take, and one that has been employed from time to time throughout our history and other civilizations to justify various acts.
Possibly realizing the danger of this mindset, Madison goes on to argue that, in fact, the it may not be impossible to reconcile the two charges of “alterations and provisions in the articles” with a “national and adequate government.”
He proceeds to walk through each step, stating:
1. an alteration of the TITLE, could “never be deemed an exercise of ungranted power.”
2. “ALTERATIONS in the body of the instrument are expressly authorized.”
3. “NEW PROVISIONS therein are also expressly authorized.”
4. Is “power is infringed, so long as a part of the old articles remain?”
Madison identifies the major departure from the charge of Annapolis and the Congressional recommendation as the change in the ratification process, from the requirement of the confirmation of all states, to the requirement of the approval of nine states. The founders altered the ratification process because they did not want to put the fate of the union in the hands of the 13th state.
While Madison lays out the case for the scope of governmental reform undertaken by the delegates, in the end he reminds us that whatever the delegates proposed, “it is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”
In the end, the judgment rested with the people, as it does with us today.
God Bless,
Cathy Gillespie
Wednesday, June 23rd, 2010
Federalist No. 40 – Janine Turner
Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 40, Federalist No. 40Howdy from Texas! What a glorious day for the Constitution! My daughter and I marveled as we heard that a Federal judge had struck down President Obama’s six month moratorium on the drilling of oil in ocean waters. Whether one agrees or disagrees with President Obama’s decision, it is just awesome to see our Constitution’s checks and balances at work. Truly. My daughter and I discussed how the checks and balances keep tyranny from rearing its ugly head. It will be interesting to see what the Judge’s decisions will be through the appeals court process.
This is, of course, an example of why it is tremendously important that we, as citizens and guardians of our country, and our children, our future, know that we have a government of checks and balances. We, America’s citizens, are a delicate, yet vital, part of that balance. Within our voice and our vote is the weight of reason.
I thank you for joining us today and I thank Joseph Postell for his insightful essay! James Madison’s Federalist Paper No. 40 encompasses many pearls of wisdom. I found the following passage to be particularly intriguing:
“..the latter (the convention) have accordingly planned and proposed a constitution which is to be of no more consequence than the paper on which it is written unless it be stamped with the approbation of those to whom it is addressed.” By this he means, the people, through representation. One of the Federalist Paper’s phrases that repeats and repeats in my ear is, one they use quite frequently, (and I do too!) “the genius of the people.”
Awareness, Acceptance. Action. “We the People,” through people like you, are going to spread the word about the United States Constitution and Federalist Papers. We will accept our calling and then “We the People,” will take action, making educated decisions based on a foundation of knowledge. Based upon the principles of our founding fathers we, the modern day, “genius of the people” will persevere and transcend the wills of those who chose to bring America down. Knowledge is power. History is the key to the future. Our Constitutional founding father’s believed this then and we believe it now. They based our Constitution on the trials and errors of history, not ideology or rhetoric. Our Constitution has withstood the test of time. We must preserve, protect and defend the Constitution. It starts with you. It starts with your children. It starts with you family, friends and acquaintances. Spread the word!
God Bless,
Janine Turner
Wednesday, June 23rd, 2010
Federalist No. 40 – The Powers of the Convention to Form a Mixed Government Examined and Sustained, from the New York Packet (Madison)
Federalist Paper 40, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joseph Postell, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 40, Joseph Postell PhDOne can only imagine the difficulty James Madison had writing Federalist 40. The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?
Consider that when the Convention assembled in the summer of 1787, a government already existed in America. Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles. Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.
Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!
Indeed, there were difficult legal questions regarding what the Constitutional Convention did.
Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”
In answering the first question, Madison defends the legality of the Convention’s recommendations. In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles. But if these two objectives were incompatible, “Which was the more important, which the less important part?” The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.
Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it? Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”? At what point does altering the government become destroying it?
Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them. Under the Constitution “the states are regarded as distinct and independent sovereigns.” Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.” Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”
Madison admits that the Convention departed from the Articles in one respect: the amendment process. However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”
Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.
In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject. Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”
The Constitution was ratified by the people, not by the Convention. How could the people lack the legal authority to change their Constitution? The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a 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.’”
The lessons of Federalist 40 are important even today. Madison explains that in a free society the people are the masters of the government, rather than vice versa. In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.
The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change. Such a government would deny the people the basic right to govern themselves. Instead, the Founders left us an amendment process because they foresaw the need for future changes.
However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government. Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.
Tuesday, June 22nd, 2010
Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. He recently received his Ph.D. from the University of Dallas.
Federalist No. 41 – Janine Turner
Federalist Paper 41, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 41, Federalist No. 41Howdy from Texas! I thank you for joining us today and I thank Professor Knipprath for his most insightful essay!
James Madison’s Federalist Paper No. 41 is full of profundities.
“It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the Constitution necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.”
I know that James Madison was referring to the defense of the country but I believe this statement is applicable to today’s cultural attack on the Constitution. To oppose the Constitution to serve one’s ego, or one’s personal agenda, is vanity. If fact, it is worse than vanity, it is a misuse of power and with every small misuse, with every defiant gesture disregarding the Constitution or with every action usurping the Constitutional limitations placed on one’s power, one chips away at the Constitution. This defiance infects the Constitution with a germ, a conduit, which multiplies, misappropriates, and jeopardizes our country’s structure, our liberties, and our future.
The Constitution isn’t an ideology to be twisted to fit one person’s, or one’s party’s, ambition. The Constitution is the foundation upon which our country was built and the tracks upon which our country has traveled through days, years, decades and centuries. The engine on this track is the principals and vision laid out in the Constitution. The conductor is the people. To manipulate, dismiss or disregard the Constitution is to derail the train, running it into the edge of a precipice.
Does the future of our country dangle on the edge of a cliff today?
As James Madison says, “A bad cause seldom fails to betray itself.” To dismiss the United States Constitution is a bad cause.
“Every man who loves peace; every man who loves his country; every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of America and be able to set a due value on the means of preserving it.” James Madison words and our Constitutional founding father’s actions reflect their belief that the Constitution would preserve America.
Today that preservation starts with the citizen’s knowledge of the Constitution and the Constitution’s pervasive prevalence in the American culture.
As John Adam’s said, “Liberty cannot be preserved without a general knowledge of the people.
Spread the word.
God Bless,
Janine Turner
Thursday, June 24th, 2010
Federalist No. 41 – Cathy Gillespie
Federalist Paper 41, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 41, Federalist No. 41, Federalist No. 51Yesterday we passed the halfway mark for the 90 in 90: History Holds the Key to the Future Program ! We are more than halfway through our 90 day journey to read the Federalist Papers and U.S. Constitution in 90 Days!
A big thank you to all our 90 in 90 particpants. We thank you for taking the time to read, and share your thoughts. Some of you blog so regularly, I feel I know you! Others pop in from time to time, and it is always refreshing to read a comment from a new person!
Please continue to spread the word, and invite your friends. Every comment adds to our group’s understanding. Don’t be shy! Your comment or thought may be just the thing someone needs to read!
Thank you to Professor Knipprath for your enlightening essay. You continue to be one of our groups’ favorite guest Constitutional Scholar Bloggers! We appreciate you coming back on during the day to add comments and answer questions. Today, your analysis of the Congress’s power to spend, and the general welfare clause was very helpful!
What a gift it is to read the writings of these brilliant men and have the benefit of hindsight – to be able to look back 222 years and see which of their predictions were correct, where the anti-federalists’ fears were substantiated, and to be able to heed their wise words, relating them to situations we face today.
As Professor Knipprath points out, Madison once again returns to addressing the anti-federalists’ fears of a standing army. Abuse at the hands of the British Army was a real and painful memory to our founding fathers. And throughout history standing armies had become enemies of the people they were charged with protecting.
Madison wisely recognizes the need for the Union to be equipped to protect itself:
“How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack.”
This statement is even more true today, when our enemy cannot be pinpointed geographically, and is ever present. Thankfully, the anti-federalists’ fears of a standing army were unfounded. As I mentioned in my Memorial Day essay, a recent Rasmussen poll showed that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.
While the anti-federalists’ fears of a standing army were never validated, their fears of Congress’s power to spend certainly were!
Madison protests:
“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been 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,” amounts 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 could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”
If Madison were alive today, I believe he might owe the anti-federalists an apology! The anti-federalists’ worst fears about “an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare,” have been realized. Congress’s taxing and spending is out of control, and the national government has reached into areas far beyond its enumerated powers.
What are we to do? In Federalist 51, Madison states, “A dependence on the people is, no doubt, the primary control on the government.”
“We The People” are to exercise our control.
“Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, a be able to set a due value on the means of preserving it.”
I look forward to the next few Federalist Papers, as Madison defends the Congress’s powers, and we examine them in depth.
Good night and God Bless!
Cathy Gillespie
Thursday, June 24th, 2010
Federalist No. 41 – General View of the Powers Conferred by the Constitution, For the Independent Journal (Madison)
Federalist Paper 41, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 37, Federalist No. 38, Federalist No. 41, Joerg W. KnipprathIn a lengthy essay, Madison embarks on a series of defenses of Congressional powers that he pursues in more detail through Federalist 46. In Federalist 41, he proposes to divide that task over the course of the following several essays by examining whether any particular power is unnecessary and improper and also whether the entire mass of powers is dangerous to the continued vitality of the states.
He opens with a reminder that, in the end, the Constitution is a practical undertaking, not a theoretical blueprint for an ideal state. He derides the opponents as having “chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power of trust, of which a beneficial use can be made.” He proceeds with a powerful and very relevant indictment. “[This tactic] may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good; and that in every political institution, a power to advance the public happiness, involves a discretion which may be misapplied and abused.”
This passage richly describes a basic phenomenon in politics. Human institutions are designed by imperfect beings to control imperfect beings and administered by imperfect beings. “A government of laws, not of men,” matters, but only to a point. In the end, government is still administered by humans. Perfect systems are imaginary. “Utopia,” which we treat as if derived from the Greek “Eutopia” (a good place), actually is Greek for “not a place.” Utopias do not exist. Rhetorical appeals over potential, yet unrealized, abuses of power are a staple of political discourse. When considering the merits of politicians and political choices, there are always ideological purists who accentuate slight differences rather than bountiful similarities. For them, a political figure who does not perfectly reflect their own vision of the perfect system is suspect, and a political choice that deviates even in minor particulars from their utopian views must be condemned. The perfect, as the saying goes, becomes the enemy of the good. As he did in earlier efforts, such as in Federalist 37 and 38, Madison urges more temperate and balanced reflection.
After some general observations, he returns to a favorite topic of contention, the keeping of a peacetime army. He proclaims that the matter “has been too far anticipated, in another place, to admit an extensive discussion of them in this place.” Yet, he proceeds to declaim about the topic for half the paper, evidence once again of the frequency and relentlessness of the opponents’ attacks. Those attacks resonated with the public and with many delegates because of the troubling history of standing armies and the tension they reflect with republican ideas.
Two passages stand out. The first is, “Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” There are those who will happily give to the government powers to intrude into the most everyday matters, but act aghast when miliary funding is sought or when a state (reacting to the failure of the federal government to carry out its responsibility in such matters) seeks to protect its people from threats to security coming across the border. This kind of attitude inverts the purpose of government, to provide for personal security for people and allow them to pursue happiness as befits them, not to reduce people to a state of dependency on the government for personal needs.
The second passage is, “It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” As Publius has written before, necessity knows no bounds in the law. The first rule of nature, for individuals and societies, is self-preservation. There always exists, as countless writers on political theory have declared, a natural right of self-defense. For the proper exercise of that right, there must be a right to arm oneself with reasonable means, a right that applies to individuals as much as nations. Any attempt to restrict that right will fail, as the impulse to self-preservation will prevail at least in those individuals or societies who have not become personally or civilizationally enervated. Indeed, restricting that right will undermine the legitimacy of the constitution itself, as respect for the whole is undermined by repeated violations of an unsustainable provision.
The last portion of the essay discusses a power that has become a conspicuous symbol of the expansion of government, the power to spend. Madison objects that opponents of the Constitution have mislead the people in arguing that the power to “lay taxes…to pay the debts, and provide for the common defence and general welfare of the United States,” gives the Congress the power to legislate for the general welfare. First, he declares correctly that this is a nonsensical reading. “A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents…must be very singularly expressed by the terms ‘to raise money for the general welfare.’” The general welfare language, then, is not a broad grant of power that would make the following enumeration of powers superfluous and contradictory, but a limitation on the power to spend the revenue raised under the taxing power.
As an interesting historical side note, during the Convention, the clause, derived from language in the Articles, was intended to prevent spending of money for “internal improvements” that promoted the welfare of particular states or localities, rather than the general welfare of the United States. But Pennsylvania’s Gouverneur Morris, a strong nationalist who was also the principal draftsman on the Committee of Style that was responsible for the final wording of the text, surreptitiously inserted a semicolon between the power “to lay and collect…excises,” and the limitation of “to pay the debts….” That made the latter seem like an independent power, just as the other powers were separated by semi-colons. Connecticut’s Roger Sherman discovered Morris’s sleight of hand, and the Convention voted to replace the semicolon with a comma.
Second, Madison defines the general welfare as defined by the following specific clauses. He maintained that position in later debates. Hamilton, in contrast, during the debates in the Washington cabinet over the Bank of the United States, claimed that the other enumerated powers of Congress already include within them an implied power to spend for those objectives. Thus, a power to establish post offices includes the power to pay for them. According to Hamilton, the power to spend for the general welfare goes beyond the objectives listed in the Constitution. That is the long-established view of the Supreme Court, as well.
However, that raises the question of what limits exist on the power of Congress to spend. After all, if Congress can spend for objects not within its enumerated powers, it might be able to do indirectly what it cannot do directly. Spend money to control education, for example. Hamilton insisted that the limit was that the spending had to be for the “general” welfare. Yet, unlike the Convention, he also supported spending on subsidies for manufactures and, after some initial misgivings, on internal improvements. He had a much laxer view of “general” welfare.
Today, that leaves Congress in charge of defining “general” welfare. Since many expenditures are earmarked for projects that benefit particular individuals, companies, or communities, the Congress is adept at cloaking rather everything as somehow affecting the general welfare. The spending power has gone far beyond the understanding of the Framers. Bloated spending may prove to be much more of a threat to the national well-being of the country than the standing armies that prompted such concern.
Wednesday, June 23rd, 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.
Federalist No. 42 – Cathy Gillespie
Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 42, Federalist No. 42“But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”
This quote sums up the challenges the founders faced in pulling such disparate interests together for the common good. Each state presumably had laws in place that favored their particular state. From commerce to naturalization, the elected leaders of the states had crafted policy to benefit their parochial interests. Even though Madison makes very convincing arguments for the necessity of the powers claimed by the Congress, it must have been very difficult for the States to cede some of their authority, even for their collective long term gain.
It is indeed a miracle that the delegates were able to set aside their states’ “impatient avidity for immediate and immoderate gain,” and produce the United States Constitution!
“Impatient Avidity for immediate and immoderate gain,” continues to be the stumbling block for many governmental reforms today, aggravated by our immediate gratification culture. If we want to read a book, we download it to our Kindle. If we want to watch a movie, we download it to our laptop or TV. We grab songs mid-air straight off the radio and pull them into our iPods! Hungry? Pop a meal into the microwave or drive through your favorite restaurant. Want to go somewhere? Hop on an airplane. Talk to someone? Call them on your cell or text them! If our computer is “slow,” meaning a page takes a few extra seconds to load, our blood pressure rises.
Given this way of life, it is no surprise that we want quick fixes to the policy problems our country faces. We don’t have the patience to work out the hard issues. Unlike our founding fathers, we have been unwilling to make short term sacrifices for long term gain.
Instead of doing the hard work necessary to reach a consensus in line with our country’s founding principles, and that most Americans could accept, health care reform was hurriedly passed in a matter of months.
Most people agree a simpler income tax code such as a flat tax, or a national sales tax in place of an income tax, would be an improvement on our complicated system! Yet, those who benefit from the complex code, or who currently pay no taxes, find it hard to support a reform that would cause them to personally sacrifice short term, but in the end bring more freedom and prosperity to all.
The same holds true for social security reform. Those currently receiving social security, or those who are about to receive it, do not want to give up their “immediate…..gain,” to support a reform that could ensure long term security of our citizens.
Our energy policy poses a similar challenge. We know our dependence on foreign oil is a problem, and depending on our relations with the world, could put our country in a crisis situation. But what are we doing to address it?
Susan mentioned immigration policy as another example of a “hard issue,” that our leaders have not had the tenacity to tackle.
These types of reform and legislative action take long term vision, and often cause some short term sacrifice. Our founders had the vision and fortitude to work through the tough problems and overcome “the clamors of an impatient avidity for immediate and immoderate gain.”
Can our elected officials do the same? We The People must make our voice heard, and encourage them to pursue policy with a zeal for the overall good, in line with our founding principles, despite “clamors of an impatient avidity for immediate and immoderate gain.”
Good night and God Bless,
Cathy Gillespie
Friday, June 25th, 2010
June 24, 2010 – Federalist No. 42 – Janine Turner
Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 42, Federalist No. 42Friday, June 25th, 2010
Howdy from Texas!!!
“But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned before public bodies as well as individuals, by the clamours of an impatient avidity for immediate and immoderate gain.”
– James Madison
The rising voice of the American people is mild, by this I mean reasonable, and it is being drowned out by a clamorous Congress and Administration seeking immediate gain. It is not unreasonable that the people want to be heard: Our forefathers had a great respect for the “Genius of the People.” It is not unreasonable to want:
A solvent budget
An economy based on honest, free enterprise,
Borders that are secured,
States supporting each other,
States regaining adequate sovereignty,
Terrorism taken seriously,
Respect for our allies,
Health care that remains in the hands of the caregiver and not in the grips of the Government,
The respect and adherence for the Constitution and its principles,
A government that does not prohibit the religious freedom of the people.
We as citizens plead for a selflessness from our leaders that reflects the magnificence, sacrifice, vision, and love of country and country men that embodied our founding fathers.
Our liberty, our Republic, our sacred honor, relies upon it.
God Bless,
Janine Turner
Federalist No. 42 – The Powers Conferred by the Constitution Further Considered, From the New York Packet (Madison)
Federalist Paper 42, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 42, Horace Cooper, The Articles of ConfederationIn Federalist #42, James Madison attempts to clarify the importance of national powers found in the Constitution that are essential to the successful operation of the government particularly in national and international affairs. Categorizing these powers as second and third class was a means of distinguishing them not to disparage them. Among them are: relations with foreign nations including the ability to make treaties, to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; and to regulate foreign commerce as well as interstate commerce between the states among others.
It is noteworthy that among the “second class of powers” he refers to is specifically the power to regulate and ban the importation of slaves. Rather than hide or downplay this provision, Madison like many of the founders understood that while the acceptance of the institution of slavery was part of the compromise that allowed them to go forward with the Constitution, they made sure the public understood their anti-slavery sentiment and their plans to exercise the powers at the federal level. Madison reminds his readers that “while it is to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation” within the space of 20 years “It ought to be considered as a great point gained in favor of humanity …. within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; …..it will receive a considerable discouragement from the federal government, and may be totally abolished..” As Madison predicted and although it is often unmentioned, Congress banned the importation of slaves in August of 1808 the same year that the Constitution gave them the authority to do so.
In any event, Madison explains that while several of the international powers existed within the Articles of Confederation, others did not. Treaty making and ambassadorial relations were among the powers of the first government. However, the Constitution made treaty making easier by requiring two-thirds of the Senate to ratify them and caused ratified treaties to be treated as the equivalent of federal law in terms of conflicts with state laws.
On the other hand, the Articles failed to adequately address the issue of defining and punishing piracies and other felonies committed on the “high seas.” Madison explains that the Constitution is far superior in this regard because although tribunals were authorized under the Articles, the actual definition of the violations as well as the scope of activity covered was not provided for in the Articles. Madison feared that such a scenario could mean that one of the States could have a law defining an offense as piracy that the other states do not recognize. When a breach of this law occurs, Madison laments that such a situation could result in the other states being obligated to submit manpower and related resources to defend claims that they do not even recognize or embrace.
Since the regulation of international or foreign commerce had been addressed in other contexts, Madison passes on it here.
Among the third class of powers that Madison references are those involving “the harmony and proper intercourse among the States and these include: “to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, 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 to establish post offices and post roads.”
It is difficult to look at this list of authorities without seeing the merchant class sympathies of Madison and the founders. While it may seem incredible today to consider, Madison and Hamilton were not neutral on the question of whether the new government should be pro-business or not. Explicitly empowering the federal government to coin money, establish standards for weights, prevent counterfeiting, enact bankruptcy laws as well as create a federal mailing system and construct federal highways make much more sense if one understands the founders’ sympathies for America being a mecca for entrepreneurship and related economic opportunity.
Madison makes clear that the power of interstate commerce was tied to international commerce and without interstate commerce power state and local governments would continue to have the authority to frustrate trade. “A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”
Madison recognizes commerce and business activity as crucial to the success of the American system. Madison makes clear that even in the context of Indian relations that commerce with the tribes was a key issue that warranted national government attention. “What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.” Madison argues that with this issue handed completely and explicitly to the federal government the nation would get the benefits without undue restraint interfering.
Next Madison turns to the question of rules of naturalization. Instead of the uniform system that we take for granted, Madison complained about the fact that each of the former colonies had adopted its own views for immigration policy which prevented the new government from deciding in a sophisticated way who it desired to become citizens and who it didn‘t. “The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is 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,” etc. …. The result is that some states essentially had the ability to confer upon individuals rights that they could exercise all across the nation based solely on the happenstance of which area they entered.
Just as Madison argued that it was in our nation’s interest to have a uniform immigration policy established by the Federal government one would imagine his displeasure at the failure of today’s federal government to maintain control over its on rules with regard to immigration policy. Either because of complexity of compliance with immigration rules, a failure to construct adequate border barriers, limited personnel assigned to immigration enforcement etc, the federal government today is allowing a hodgepodge policy to form influenced more by where or how a person enters the United States instead of ascertaining in advance who should be allowed to enter.
Madison concludes the essay with a statement that reaffirms his view of the importance of business and commerce. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.
Thursday, June 24th, 2010
Horace Cooper is a legal commentator and is the Director of the Institute for Liberty’s Center for Law and Regulation.
Federalist No. 43 – Cathy Gillespie
Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 43, Federalist No. 43The entry deadline for We The People 9.17 Contest is drawing near! The deadline of July 4 is only 9 days away. There is still time to enter, though, and we would love as many entries as possible!!
Most schools are now out for the summer, so please sit down with your child, grandchild, niece, nephew, or other children in your life, walk through the rules and guidelines on this link: https://constitutingamerica.org/downloads.php and encourage them to enter our contest!!
If you have high school kids, our contest is especially cool! The high school winners and a parent or guardian will be our guest for an exciting trip to Philadelphia on September 17, Constitution and Citizenship Day. Once in Philadelphia, the National Constitution Center has offered to show the winning short film and PSA in their theater, and use their theater as a venue for the winning song to be performed and the winning essay read. We have a press conference planned, and a possible appearance on a television show is in the works! High school students also receive $2,000 for the winning entry in each category: Short Film, PSA, Song and Essay. We are especially hopeful for more Short Film, PSA, and Song submissions, so encourage that teen in your life, grade 9-12 during the 2009-2010 Academic Year, to get their creative juices flowing, and get busy this weekend!!
Elementary and Middle School kids are part of the contest, too!! Middle School students may submit a song, or an essay and Elementary School kids submit a drawing, which will be used as the official greeting card for Constituting America, or a poem. Younger kids will receive gift cards and other cool prizes.
The winning entries will be showcased on a Behind the Scenes downloadable DVD that will highlight the first prize recipients, contain educational material about the U.S. Constitution, and interviews with the winners. We are making this DVD available on our website as a teaching tool for schools on September 17, Constitution and Citizenship Day, a day all educational institutions receiving federal funds are required to present educational programs about the U.S. Constitution.
We The People 9.17 challenges kids to think about how the Constitution is relevant to their lives today, and express themselves in new and innovative means. By creating their contest entry, they internalize a deeper interest in and awareness of our United States Constitution.
As for Federalist No. 43, I was amazed at the thoroughness of the founders in addressing some of the not so obvious, but important elements of a Republic. The laundry list of miscellaneous powers all contribute to “the safety and happiness of society.”
One of the most important powers listed in Federalist 43 is that of amending the Constitution:
“That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. 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.”
The existence of an amendment process for the Constitution shows that our founders knew it was not a perfect document. There is a process for changing it. And even the amendment process contains checks and balances!
The Constitution is not a living, breathing document that changes with the times, or at the whim of a judge, Congress, or the President. That does not mean it cannot be changed. There is a process that should be respected, and the difficulty of making a change causes us to respect the amendments. They are reminders of our struggle as humans, and as a country to continually strive to improve, and to correct our mistakes. If we find an amendment doesn’t work, we have the freedom to repeal it, but even if repealed, the amendment will always be there, a reminder of what we tried.
Thank you to all who have blogged with us this week. A big thank you to Professor Knipprath for your thoughtful, well researched essays!
Don’t forget to recruit some kids to the We The People 9.17 Contest! It’s not too late!! Entries due July 4th.
Have a wonderful weekend,
Good Night and God Bless!
Cathy Gillespie
P.S. See you Monday, for Federalist Paper No. 44!!
Friday, June 25th, 2010
Federalist No. 43 – Janine Turner
Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 43, Federalist No. 43Howdy from Texas. I thank you for joining us today and I thank the amazing Professor Knipprath for his diligent and intelligent contributions as one of our regular and treasured scholars! Isn’t it rewarding, this process of reading through the Federalist Papers?
I must admit that some nights, I am plowing through the night’s reading with such fatigue that I discover that my eyes are crossing. And yet, I persevere with the indefatigable spirit of our forefathers because I am constantly challenged by their sacrifices and tenacity and their marvelous wisdom. This is what our “90 in 90” is providing, a window of wisdom.
As I start the nightly reading I, at times, wonder how I will get through the pages and yet by the time I am finished with the reading, I am always exhilarated by the revelations I have encountered and most especially by the relevancy to today’s issues.
There are many aspects to tonight’s paper that are worthy of notation. One paragraph in particular:
“promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right to their writings and discoveries.”
These words, freedoms and rights were the engine to the ingenuity and entrepreneurial genius in our country. Great minds were no longer restricted by the limits of ownership. The great ideas and industry of men were no longer chained by the denial of the fruits of their labor.
Men could now dream, fly and hope without being tethered. Free enterprise. The acknowledgment of hard work, tenacity and brilliance with the rewards that naturally align to such achievements are what led the likes of Thomas Edison to try again and again, at least a thousand times, until he successfully created the light bulb.
This is human nature, a psychology of the mind and soul, which our forefathers truly seemed to understand. Men will soar on eagle’s wings when they are free to pursue life, liberty and happiness.
This is one of the greatest arguments against Socialism and Communism, an argument that has been proven by the disastrous accounts of history. To stifle the hope, the industry, by withholding the rewards, is to kill the drive, the spirit.
To see the success of such freedoms and ownership of accomplishments, one has to only look around and see the vast array of astonishing accomplishments in our country from trains, planes, telephones to the heart transplants of modern medicine. Human nature thrives on incentives. Human nature flies on Providential inspiration.
Yet, men are not angels. Hence the check and balances that were intrinsically woven into our Constitution and founding principles. The modern day, knee jerk reaction is to concur with the prevalent belief that the checks and balances were solely to govern the rise of greed and quest for power. This is one reason.
Another reason, it seems, was to govern the jealousies and quest to dominate. Domination dresses in many guises. One that is less obvious in today’s culture, because citizens so quickly and conveniently forget the horrors of history, is an attempt to dominate through a permeation of the cultural thought: that the desire to succeed and flourish is unfair.
It is hard to get many balloons, filled with air, into confinement. It is easy to get many balloons under control when the air is out of the balloon. A flat spirit cannot rise. Why else would communism deny God, squelch creativity and punish free enterprise?
The trend of today is to teach our children that to succeed is bad. The trend of today forgets to teach our children their rights. Why else would the United States Constitution be touted as irrelevant and locked into trunks in dusty attics? Better yet, how many schools have copies of the United Stated Constitutions in their classrooms or libraries? How many households have a copy in their home?
“From each according to his ability, to each according to his need.” Polls reflect that most American’s today believe these words are in our Bill of Rights. They are the words of Karl Marx. Is it any surprise this is becoming the mantra of America?
It is because American’s do not know. It is because America’s children and college students are not required to read and study the United States Constitution.
Our saving grace will be the rise of our educated voices and the prevalence of our vote. Our saving grace begins with educating our nation’s children. It starts with knowledge. It starts in the hearts of Americans. It starts in the home. Spread the word. Talk with your children.
Teach them the words of Emily Dickinson,
“We never know how high we are
Till we are called to rise;
And then, if we are true to plan,
Our statures touch the skies.”
God Bless,
Janine Turner
Friday, June 25th, 2010
Federalist No. 43 – The Same Subject Continued: The Powers Conferred by the Constitution Further Considered, for the Independent Journal (Madison)
Federalist Paper 43, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Declaration of Independence, Declaration of Independence, Federalist No. 40, Federalist No. 43, Joerg W. Knipprath, The Articles of ConfederationIn Federalist 43, Madison continues his examination of Congress’s enumerated constitutional powers, presenting a miscellany of provisions. Tucked away at the end of this rather lengthy essay, as if Publius half hopes the reader will be too fatigued to notice, is a matter of signal importance, the provision that only nine states’ approval was necessary to establish the Constitution. Publius dismissed this matter as inconsequential in the extended discussion of the legitimacy of the Constitution in Federalist 40.
One problem for the Philadelphia Convention was that it ignored the requirement in the Articles that any amendment (and certainly a wholesale replacement) had to be by unanimous consent of the states. Madison could have justified the nine-state requirement by declaring that the Constitution was a new project entirely severed from the Articles, and that the old system was dissolved when the Framers met in convention. Dissolving the bonds and returning to a “state of nature” had been the basis for the revolutionary founding under the Declaration of Independence. If the states were once again in a state of nature towards each other, unbound from the prior rules, the approval of the nine states, binding them alone, was proper. Every state that wanted to join had to agree, thereby preserving the social contract fiction of individual and unanimous consent.
For solid reasons, Madison does not select that option. For one, to do so would implicitly endorse charges that the Convention was incompetent to act beyond its mandate because the Constitution would be “revolutionary.” For another, in Federalist 40, Publius emphasized the continuity between the Articles and the Constitution. Likewise, Madison in the current essay describes the change as one merely of political form of an existing civil society, not as the foundation of a new commonwealth. All require obeying the Articles’ unanimity provision for constitutional change.
He is left, then, with intellectually more meager rationalizations. One of these is such strained legalism mixed with a splash of late-18th century American constitutional theory about the deficiency of the legislative amendment process under the Articles that he introduces the concoction with a self-conscious “Perhaps.”
The other is one of unvarnished pragmatism, untethered to any constitutional support. He appeals to the “absolute necessity of the case” (Rhode Island, not having sent delegates, was unlikely to approve); the lesson of “our own experience” (Maryland’s four-year long failure to adopt the Articles during the crucial period of the Revolution); “the great principle of self-preservation”; and the “safety and happiness of society…at which all political institutions aim, and to which all such institutions must be sacrificed” (the ends justify the means, just as in Federalist 40). The lesson here is that necessity creates its own legitimacy, and matters of extreme national interest and safety cannot be burdened by constitutional technicalities. In political theory this is the doctrine of “reason of state,” something that executives long have understood.
A few brief points about some other provisions mentioned. Several involve the organic connection between the national and state governments. The sections regarding admission of new states and control over territory belonging to the United States were intended to give express authority to what the Confederation had done in regards to the western territories. They provide a constitutional basis for the acquisition and integration of the new lands that marked the westward expansion across the continent.
The guarantee to each state of a republican form of government assumes that each state will meet the minimum of avoiding monarchy or hereditary aristocracy. Beyond that, republics can take varied forms, and Publius pledges the federal government to avoid interfering with the states’ choices among them. There are many who have argued that the Supreme Court’s reapportionment decisions violate that pledge.
The protection against invasion commits the Union to a fundamental covenantal obligation. Though “invasion” usually suggests military force, it can mean any threat to the stability of the state from outside its borders, particularly an armed threat. Arizona, facing spill-over from the Mexican drug cartel violence, as well as a more general criminality from illegal entrants onto its territory, might plausibly argue that the federal government has breached that covenant and forced the state to act on “the great principle of self-preservation.”
There are provisions related to the capacity of the national government to exist as a practical sovereign, such as the creation of a federal district as the seat of government. It is noteworthy that this section draws a clear distinction between “district” and “states.” Recent statutory proposals to extend voting representation in Congress to the residents of the District of Columbia must founder on that distinction and on the Constitution’s textual requirement that voting and representation (beyond the “municipal” government of the district) rests on residing in a “state.” Perhaps a cession of most of D.C. (excepting the main government district) to Maryland would solve the problem.
Requiring approval of amendments by three-fourths of the states (and introduction by two-thirds of the states or of the members of each house of Congress) represents a confluence of experience and constitutional theory. Early state declarations of independence and constitutions, both of which altered the existing constitutional orders in those states, were commonly done by majority votes of the legislatures. Such practices reflected the constitutional theory inherited from Great Britain that the legislature virtually represented the general will of the commons expressed through the instruments of parliamentary sovereignty.
However, those practices conflicted with the developing American doctrine that constitutional changes were “explicit and authentic acts” of popular sovereignty superior to ordinary laws. Legislation was, after all, merely an act by the people’s agents in a body created under a constitution. In that view, constitutions were not only descriptions of how things were run, but commands of how they must be run. Constitutions were law, created by the ultimate earthly lawmakers, the people. Since direct participation of the entire people was unrealistic, constitutions were to be proposed by special assemblies and approved by popular vote or a supermajority of representatives. The Constitution relies almost entirely on the supermajority vote principle.
The requirements for amendment were also recommended by experience. Legislative majorities are transient and, therefore, likely to lead to considerable instability and flux in constitutional structure. The experience with continuous constitutional agitation in the states during the 1770s and 1780s alarmed the Framers. At least equally alarming, however, was the hurdle presented by the unanimity requirement of the Articles. While its conformance to emerging American constitutional theory was pristine, it was a practical disaster by frustrating needed reformation. The Framers, being nothing if not practical in their project, sought to craft a method for amendment that was neither prone to instability by too frequent amendment nor to paralysis through too-stringent requirements. Debate continues about whether their solution has worked well, given the relative infrequency of formal amendment, or is too constraining and has resulted in giving the unelected courts too great a role in altering constitutional norms.
Friday, June 25th, 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.
Federalist No. 44 – Janine Turner
Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 44, Federalist No. 44Howdy from Texas. I thank Professor Knipprath for joining us today, and all of you who have joined us on our blog.
When Juliette and I were in Boston we ran into a semi- circle of statues surrounding the American flag. One of the statues was inscribed “Religion” and the statue was of a man praying as he looked up to the flag. The other statue was inscribed “Industry” and it was a man at work. The other statue was inscribed “Learning” and it was a young man reading a book.
These are the three virtues that keep America great.
1. Religion – a moral basis for our lives and a moral compass for our country
2. Industry – the great American work ethic, free enterprise
3. Learning – as John Adams said, “Liberty can not be preserved with out a general knowledge of the people.”
I say, “Liberty can not be sustained with out a general knowledge of the United States Constitution.”
Americans are grossly void of such knowledge, even with the “Cultural Elite.” Recently, a respected political analyst stated that the Constitution denied him and women the right to vote.
This statement represents the negative knee jerk reaction to the Constitution and why the “irrelevancy” aspect permeates our society. The rest of the panel piped in about the Amendments, saying that they are a part of the Constitution, to which this particular analyst commented that they should then be taught with the Constitution.
Well, the Amendments ARE the Constitution, the continuation of our Constitution. They tell the history of our country, warts and all, in an honest and forthright way. Why wouldn’t it be taught? The continuing pages of our Constitution mirror our country’s continuation. The amendment process was stipulated in the Constitution because our founding fathers knew the “genius of the people” would want to make changes. It is there for all of us to see – past, present and future generations – the growth of our country and thus the relevancy that the Constitution imbues.
The most ironic question begs, why would this political analyst assume that Cathy and I would want to start a foundation that stresses the learning of a Constitution that would deny African Americans the right to vote, deny women the right to vote? Not to mention, deny the Bill of Rights – the first ten amendments?
This is the great challenge that we Constitutionalists encounter today – the misinterpretation of the Constitution – the easy, convenient dismissal of the Constitution as antiquated – the mantra that it is a document that is to be tossed aside.
When we, as Americans toss aside our Constitution, we toss aside our individual liberties. Tread on the Constitution and we tread on our freedoms.
Disregard our roadmap and we lose our way.
Dishonor the principles and we lose our dignity.
Renounce its structure and we lose our footing.
Blight its flame and we die in the darkness of a people who knew not, sought not, her own country’s light.
The learning of our Constitution is the moral industry of our day.
Janine Turner
Tuesday, June 29th, 2010
Federalist No. 44 – Cathy Gillespie
Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article I Section 09, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 33, Federalist No. 44, Federalist No. 44In Federalist No. 44 Madison completes his list of and defense of powers delegated to the federal government. In this essay he discusses restrictions on the authority of the States in Article I, Section 10 of the Constitution. Most of these restrictions make sense, even today, such as the restriction on States entering into treaties, coining money, producing paper money, granting any title of nobility etc.
In Article 1, Section 10, States are also prohibited from passing bills of attainder and ex post facto laws. I wanted to know more about this, and did a little research in the Heritage Guide to the Constitution . On page 170 essayist David Forte writes, “The framers regarded bills of attainder and ex post facto laws as so offensive to liberty that they prohibited their use by both Congress (Article 1, Section 9, Clause 3) and the states.” Essayist Daniel Troy points out “these are the only two individual liberties that the original Constitution protects from both state and federal intrusion.”
It quickly came back to me that ex post facto laws are retroactive laws, punishing an act that was lawful when it took place.
I had to look up bill of attainder, though. Webster defines bill of attainder (also known as an act or writ of attainder) as “an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.”
Madison states, “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.” David Forte, in the Heritage Guide, points out that some States had enacted these types of laws after the Revolution, and our founding fathers wanted to eliminate these tyrannical practices many had suffered under, under the crown.
It is interesting to note that the federal government’s powers are specifically enumerated in the Constitution, while the States’ powers are not enumerated. By listing only what the States are prohibited from doing, the groundwork is laid for what eventually became the 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Madison spends a good deal of the second half of his essay defending the “necessary and proper clause.” We last heard about the “necessary and proper,” clause in Federalist No. 33, The Same Subject Continued: Concerning the General Power of Taxation, by Alexander Hamilton.
In both Federalist 33, and Federalist 44, Publius addresses what is to be done if the federal government oversteps its bounds, as many opponents of the necessary and proper clause feared.
Hamilton stated in Federalist No. 33:
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
And Madison in Federalist No. 44:
“If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning……in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.”
A recurring theme of the Federalist Papers is that the responsibility to uphold the Constitution rests with the people.
To uphold the Constitution, we must first know it, and understand it.
I am grateful for all I am learning each day. Some days I learn from an enlightening quote that pops off the page. Other days, I delve deeper into a topic I don’t quite understand or want to learn more about. Every day, I learn from all of your blog comments and through our wise and talented Guest Constitutional Scholar Bloggers. Thank you to Pofessor Knipprath for being one of our most frequent contributors! We love your essays!
Thank you for joining us on this journey, as we strive to continue learning, so we can live up to the phrase our founders bestowed upon our collective intellect, “the genius of the people.”
Good night and God Bless!
Cathy Gillespie
Monday, June 28th, 2010
Federalist No. 44 – Restrictions on the Authority of the Several States, From the New York Packet (Madison)
Federalist Paper 44, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 44, Joerg W. KnipprathFederalist 44 completes a series that examines specific grants of power to Congress. Madison identifies two classes of powers. One involves direct limits on the states; the other involves a direct grant to Congress and indirect limits on the states.
Among the first, Madison cites prohibitions—carried over from the Articles—against foreign policy by states, a practice that is inconsistent with even weak notions of union. A more significant innovation is the prohibition on the coinage of money and the use of paper currency (bills of credit). Such activities, he believes, can be carried out responsibly only by the national government, a conviction that, one trusts, would be shaken to its foundation were he alive today. His disquisition on the perils from profligate printing of paper money is illuminating:
“The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states ….”
Why he believes that the federal government would be less scandalously addicted to easy money policies than states such as Rhode Island is difficult to fathom, and he undertakes no explanation. Presumably, he places his faith in the contest of interest groups spread throughout the large republic, especially debtors versus creditors, that would limit the likelihood of an extended “rage for paper money” that he condemned in Federalist 10. If so, he misjudges the effect on spending from “log-rolling,” “earmarks,” and patronage fostered by special interest groups and guarded by entrenched Congressional barons. Even if these factions were unlikely to influence the federal government individually, they quickly learned to act in concert, a habit that the pragmatic Framers either were derelict in ignoring or believed might be controlled through constitutional structures.
His explanation for the prohibitions of bills of attainder (legislative decrees of criminal guilt against an individual or group that were routinely used against political opponents in 16th and 17th century England) and of ex post facto laws (laws that retroactively criminalize conduct), as well as of laws that impair the obligation of contracts, is instructive. The last clause arose from experience with the practice by states to cancel public and private debts (at first those owed to British subjects, but later also obligations owed to American creditors) and to meddle otherwise in vested contract rights. A contentious topic at the Convention, Madison justifies the “contracts clause” as needed to combat economic distortions and social disturbance caused by persons seeking government support for their economic schemes: “[The people] very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”
However, if such interferences with vested contracts were to originate in federal law, they would still be invalid. Like bills of attainder and ex post facto laws, they are so fundamentally destructive of security in one’s person and property, Madison writes, that they violate the “first principles of the [Lockean] social compact.” This raises an interesting point, one eventually taken up by the judiciary. If a constitution does not expressly address the legislature’s power to abridge a particular personal right, does that silence permit the legislature to limit that right? Or are there extra-constitutional limits on the discretion of the political majority, beyond those expressly enumerated in that constitution?
If appeal may be made to such extra-constitutional principles in political debate to prevent adoption of a law (which surely may be done), will such an appeal also lie in a judicial proceeding to declare the law unconstitutional once it is adopted (a much more dubious proposition)? If the answer to the last point is affirmative, exactly what principles may be considered, and how would the judge know? “First principles of the social contract” flows easily from the pen of the writer and the lips of the orator, but it is freighted with assumptions and epistemological uncertainties. Judges are chosen for their knowledge of the law, not their “wisdom” as political or moral philosophers, notwithstanding any contrary assertion by the occasional Supreme Court nominee.
Are same-sex marriage, polygamy, suicide, or abortion part of such “first principles”? We can be fairly certain of what Publius would have said. What about the right to pursue a calling or to run a business without a myriad of labor, environmental, and other regulations that dull initiative? The response of the Framers in 1780s republican mode (not in the then just-emerging “classic liberal” mode) might be surprisingly equivocating.
The second class of grants to Congress discussed in Federalist 44 includes the necessary and proper clause and the supremacy clause, topics already addressed by Hamilton in Federalist 33. The examination of the necessary and proper clause is a preview of the famous McCulloch v. Maryland case in 1819, considered by many the Supreme Court opinion with the greatest impact on American politics. The initial issue in McCulloch was Congress’s power to charter the Second Bank of the United States, a controversy that had begun even during the Articles with the debate over Robert Morris’s Bank of North America and persisted through the wrangling in George Washington’s cabinet in 1791 over Hamilton’s proposal for the First Bank of the United States.
Congress has no express power to charter corporations or banks. Echoing Publius, Chief Justice Marshall noted in McCulloch that every power to accomplish an end carries with it, by necessary implication, the power to adopt the means to achieve it. This is a fundamental principle of agency law, and Congress has been delegated certain tasks by the people. It is also an inherent aspect of government. But there is a flaw. The Constitution is not silent about those means.
Luther Martin, Maryland’s wily attorney general in McCulloch, argued instead that the necessary and proper clause provides an express definition of the means to be employed, thereby negating any theory of implied powers. He then claimed that “necessary and proper” requires a showing of indispensability. Marshall disagreed, ruling that “necessary” meant “convenient” or “appropriate.” His interpretation vastly expanded the constitutional discretion for Congressional action. In light of that ruling it is noteworthy that Madison describes the power conferred under that clause as “indispensably necessary” and equates this to those means that are “requisite,” which the dictionary defines as “essential.” One is left to speculate whether the role of the national government might be different today, had Martin’s—and, apparently, Madison’s—more restrictive definition prevailed.
Monday, June 28th, 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.
Federalist No. 45 – Cathy Gillespie
Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 33, Federalist No. 45, Federalist No. 45“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison, Federalist No. 45
In Federalist 45, Publius once again assures us of the limited, but necessary nature of the federal government’s powers. In previous essays Madison and Hamilton have assured readers that if, in the unlikely event, the federal government oversteps its bounds, the states will sound the alarm, and the people will rise up to defend the Constitution.
Of course, the picture painted by Madison of the few and defined powers of the federal government in Federalist 45 is radically different than our reality today. One is tempted to ask, how did these wise men get their prediction of the future so wrong?
Assuming the structure of government designed by our founders was sound and sufficient to preserve individual liberty, a more appropriate question might be, how did our country deviate from the roadmap they laid out for us?
The Constitution, as designed by our founding fathers, creates a system of government designed to preserve the peoples’ individual liberty. Our liberty hangs in a delicate balance of power between the federal government and the states.
As with any delicate structure or piece of machinery, when you move a part that affects the balance, the structure begins to fall, or the machine ceases to function in the way in which it was intended.
One of the key points Madison makes in his assurance that the federal government will not encroach upon state governments is the provision in the Constitution that “The Senate will be elected absolutely and exclusively by 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, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.”
The 17th Amendment, which took the appointment of U.S. Senators out of the state legislatures’ hands, and provided for the direct election of U.S. Senators by the people, fundamentally changed the structure of government the founders had designed. An important check on the federal government’s power was removed.
The other factor Publius did not foresee was the phenomenon of federal funding offered to states with strings attached. As more burdens are placed on states by the federal government through unfunded federal mandates, the enticement of federal dollars with strings attached grows. When states accept this type of funding, the federal government’s reach into the states’ purview increases.
Federalist 45 reminds us of what our country could look like, had the checks and balances laid out by the founders not been slowly eroded. For many years, “We the people,” have not been paying attention.
As we go forward, we should remember Hamilton’s words in Federalist No. 33:
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
What a gift these words of Hamilton, Madison and John Jay are, patiently explaining the United States Constitution, and our founders’ vision for our country! We cannot understand what we are losing, if we don’t understand what we had.
We cannot know if the Constitution is “injured,” if we do not know what is in the Constitution. Thank you Professor Knipprath, and all the blogger commenters, for augmenting our understanding!
As Janine likes to say, “Your vote is your voice.” In these federalist papers we are finding our voice, and in November, our voice will be heard!
Good night and God Bless,
Cathy Gillespie
Tuesday, June 29th, 2010
Federalist No. 45 – Janine Turner
Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 14. Essays by Janine Turner, Federalist No. 45, Federalist No. 45Howdy from Texas and wow, wasn’t today’s reading of Federalist Paper No. 45 a wild ride? If anyone ever suggests that the Federal government is not bigger than originally intended I will simply refer them to the following words of James Madison.
Federalist Paper No. 45.
“The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state government, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several 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 the state. The operations of the federal government will be most extensive and important in the times of war and danger; those of the state governments in times of peace and security.”
The above paragraph provides a mountain of evidence concerning the true intentions designated for the federal government.
Federal Government State Government
1. Powers are few and defined 1. Powers are numerous and indefinite
2. Powers are exercised principally 2. Powers extend to
on external objects, as war, peace lives, liberties,
negotiation and FOREIGN and properties
commerce; power of taxation of the people
connected primarily only to and the internal
these powers order, improvement and prosperity of the state.
3. Operations most extensive 3. Operations most
in times of war and danger extensive in times of peace and security
The Federal powers of today are most certainly not few and defined. They overshadow and overwhelm the state governments with many unfunded mandates and manipulations. The Federal powers have spread their presence beyond war, danger and foreign commerce. Federal powers have muscled their way into every aspect of American’s lives.
It is obvious that the true intention of regulation regarding commerce was for FOREIGN relations only. The modern day usage of the word “commerce” has been twisted into many renderings invading the states rights and rerouting the true intention of the federal governments original purpose, which was to manage and negotiate FOREIGN commerce.
The states’ powers were to extend to the areas of life, liberties, properties, internal order, improvement and prosperities.
Today’s Federal government has taken the sovereignties of the states and the individual rights of the citizens into their domain. The usurpation of state’s powers are tangible. The cast was thrown and the states hooked with the bait of benefits. The tide of control rose and never
abated. American citizen’s let it happen as they were sunbathing, napping on the beach.
The American people, however, have now awakened, and have discovered that they have been burned by the noonday sun and are drowning in the tide of commerce. They have discovered that their liberties are hooked in the “commerce” of the government.
The balm for the burn lies in the checks and balances and true intentions of the United States Constitution. The life raft of liberty lies with the passion and the purpose, the learning and the voice of the “genius of the people.”
We the People have independence bred into our blood. We have true grit written in the genetic code. We have the generational work ethic embedded in our family tree. We have the wisdom of our Providential faith that yields the prevailing power of our survival.
We, “the forgotten man,” have not been forsaken. Our Constitutional forefathers blazed the trail. We will once again set upon the path of our Constitution, which will balance our checks. The road may be rocky and the path may be steep but obstacles have never stymied the American’s spirit and it won’t now. A new turning has begun.
God Bless,
Janine Turner
Tuesday, June 29th, 2010
Federalist No. 45 – The Alleged Danger From the Powers of the Union to the State Governments Considered, For the Independent Journal (Madison)
Federalist Paper 45, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 45, Joerg W. KnipprathHaving examined various powers granted to Congress, Madison in Federalist 45 invites the audience to step back from the particular tiles to gaze at the whole mosaic of the Constitution. But, is he presenting the creation from a proper angle? Or, is the Constitution modern art, where the meaning is created by the viewer? One certainly gets that sense reading some Supreme Court justices’ opinions.
Madison’s conclusion that even the mass of federal powers will not be dangerous to the authority left in the several states is astonishing from our vantage in the light of experience, but understandable from his. He discounts “the supposition, that the operation of the federal government will by degrees prove fatal to the state governments….I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first….” He grounds his judgment on four supports, loyalty from the people to the more local government; states as critical constituent parts of the national government but not the reverse; fewer federal bureaucrats than state officials; and the limited number and scope of federal powers.
As to the first, loyalty to local government may indeed be more natural. But such loyalty depends on personal relationships and bonds of community, a concept that has limits. In the 1790 census, the largest city, New York, had 33,000 inhabitants. There were only five cities with more than 10,000 inhabitants. Today, the average Congressional district has nearly 700,000 residents, almost the 1790 population of Virginia, by far the largest state then. Under classic republicanism, the size of political community is a key factor for its success. Aristotle postulated that the citizens “be of such a number that they know each other’s personal qualities and thus can elect their officials and judge their fellows in a court of law sensibly.” Plato fixed the ideal number of citizens at 5040 adult males, or about 30,000 to 50,000 residents if women, children, aliens, and slaves are included. Perhaps not coincidentally, the Constitution fixed the initial size of Congressional districts at 30,000 residents, a number that Federalist 57 asserts would produce about five or six thousand voters.
When today’s average state assembly district in California is larger than all but one of the states in the union in 1790, the notion of community with its interacting social, religious, economic, and political relationships has long since been stretched beyond reality. Basing loyalty to governments, local or national, on distinctions between current orders of representational magnitude is doomed to fail. They lie beyond the easy grasp of human comprehension. Everyone understands the difference between ten dollars and a thousand dollars. But the difference between ten billion and a trillion dollars is the difference between a lot and a lot more, too abstract to be meaningful, though the difference in each set between the larger and the smaller amount is of the same order of magnitude. Distinctions of loyalty to government on that scale become impossible, too, at least in the sense of the civic republicanism that Madison treasures. Loyalty becomes an abstraction, not a republican reality that affects our concrete actions.
Regarding the second point, the states indeed are critical components of the federal structure but not vice versa, just as he describes (excepting the election of Senators). But there is a great difference between the formal structure and the political reality. The Framers failed to anticipate the growth of modern political parties. Those parties have taken on much of the role Madison assigns to the states in influencing the selection of federal officials. Thus, the latter are far more independent of state officials than Madison asserts.
Conversely, it is true that the federal government has no direct formal role in the selection of local officials, though the Supreme Court’s reapportionment decisions and U.S. Department of Justice supervision of local elections under the Voting Rights Act throw even that in doubt. As a matter of policy, however, state and local officials are increasingly dependent on federal officials and agencies. One need only recall, among many examples, the state officials deploying, hat in hand, to Washington for federal money to cover state budget deficits (caused in part by heavy federal taxation that dries up sources for state revenues); the aftermath of Hurricane Katrina where state and local officials waited, figuratively paralyzed, for federal rescue; and California state officials’ generally unsuccessful pleading with members of Congress and federal agencies to divert enough water from protecting the habitat of the Delta Smelt bait fish to allow tens of thousands of farmers to make a living.
Not much need be said about Madison’s point that the far lower number of federal officials than state or local officials would preserve greater influence for the latter. It is particularly unfortunate that he seeks to assure the reader by stating that for every federal tax collector in a district there would be thirty or forty state bureaucrats. Judged by the size of government budgets as a portion of Gross Domestic Product, it is true that the state and local governments take up nearly as much as does the national government. But all have metastasized, with state and local spending in the last century going from 5% to 20% of GDP, and federal outlays increasing by an order of magnitude from 2.5% to 25%. This looks more like the “multitude of New Offices” created, and the “swarms of Officers [sent] to harass our people and eat out their substance,” about which Americans fulminated against King George in the Declaration of Independence.
Madison’s final point about the respective functions of the different governments also has not turned out as envisioned. True, the federal government still attends to the matters he describes, and the states control most ordinary matters that affect people’s lives. The rub is in the ever more intrusive role the federal government is assuming in matters that also affect one’s daily life. The health care reform debate, the news reports about the parlous fiscal state of numerous other social programs, and the parade of additional planned regulations, are too vivid and recent to require recounting in detail.
Madison is too serious a political thinker to be accused of flimflam. Though one has one’s doubts about Hamilton, most Federalists likely believed genuinely that the opponents were unduly alarmist in their visions of an increasingly dominant national government. Regrettably, political history, especially during the last eighty years, has not placed the constitutional mosaic laid out in Federalist 45 in a flattering light.
Tuesday, June 29th, 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.
Federalist No. 46 – Cathy Gillespie
Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 45, Federalist No. 46, Federalist No. 46Federalist No. 46 – The Influence of the State and Federal Governments Compared – How is this relevant today?
Tomorrow, Virginia Attorney General Ken Cuccinelli will appear before U.S. District Court Judge Henry E. Hudson to argue against lawyers from the Obama Administration, who have filed a motion to dismiss Virginia’s challenge to the recently passed healthcare bill.
Cuccinelli will argue that the provision that forces citizens to purchase health insurance by 2014 or pay a fine, is in violation of the Commerce Clause of the U.S. Constitution, because it compels citizens to engage in commerce.
Virginia recently passed a law stating that Virginians do not have to purchase health insurance. Florida has filed a lawsuit similar to Virginia’s, and over 20 states have joined.
Cuccinelli is quoted in today’s Richmond Times Dispatch as follows, “”The Commerce Clause [of the U.S. Constitution] does not give the federal government the power to order you to buy a product. We’re fighting to protect liberty as best as we can.”
The Richmond Times Dispatch article goes on to quote Governor McDonnell as saying that the healthcare legislation would cost Virginia an additional $1.5 billion in health care costs by 2022. One of the primary cost factors is the expansion of Medicaid.
As Madison predicted:
“On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”
And:
“They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.”
Throughout the Federalist Papers, the above themes surface again and again. The ultimate authority of the government derives from the people. If the federal government oversteps its bounds, the people will sound the alarm, and the states will rise to defend their rights.
For many years, and for various reasons the people and the states have let the federal government slowly encroach. But the people are awake, and are awakening the states. The alarm is sounding.
Tomorrow, Cuccinelli’s court appearance is an important step in guiding our country back to the path of liberty, and back to the constitutional structure envisioned by our founding fathers.
AND Thank you to David Kopel! I LOVED the breakdown of how many state, federal, local employees there are, and how many military! Last night when I read Madison’s statement in Federalist 45 that fewer people will be federal employees than state employees, I immediately began trying to find those numbers, and finally gave up, because it was so late. I was happy to read your essay this morning and see that you had them.
Thank you to all those who commented today, and thank you to our founder and co-chair Janine Turner for her great press appearances today on Laura Ingraham and Megyn Kelly! I believe it was Chris Wallace who said Janine is spreading the word like a modern day Paul Revere. I could not think of a better description. All of you who are participating in this blog, and in the Constituting America effort are great patriots, and our founding fathers would be proud.
Good night and God Bless!
Cathy Gillespie
Thursday, July 1st, 2010
Federalist No. 46 – Janine Turner
Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 46, Federalist No. 46Republic For Which It Stands
The states will sound the general alarm
And the people with sufficient storm
Will rally against all usurpation
That Federal forms against the norm
The genius of the people reign
And will forever be the mindful stance
Fervor will forsake the season
And be quieted by right circumstance
The Federal will know its place
And knowledge will be the armor
The people wear to venture forth
Reasoned passion is the banner
They know their rights, stand by law
The branches right all wrongs
With checks they witness righteous measures
And balance out the demigods
Hail the unity, Hail the purpose
Hail the mighty temperate pride
Raise the calling for all posterity
Deny not your inherent stride
Be the voice, be the vote
Continue your living legacy
Be the evergreen of scene
Ring true the blessed liberty
Janine Turner
Thursday, July 1st, 2010
Federalist No. 46 – The Influence of the State and Federal Governments Compared, From the New York Packet (Madison)
David B. Kopel, Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment II, Constitutional Amendment II, David B. Kopel, Federalist No. 46Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.
Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.
Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.
The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.
Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees. This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.
Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”
But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.
Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”
The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.
Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.
Absolutely true, to this very day.
Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.
Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.
This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.
But one major change upset the Madisonian balance. In the 1936 case United States v. Butler, the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.
The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.
So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.
What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.
But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.
Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.
Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:
To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.
In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.
Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.
Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.
Wednesday, June 30th, 2010
David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org
Federalist No. 47 – Janine Turner
Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 14. Essays by Janine Turner, Federalist No. 47, Federalist No. 47Howdy from Texas. I thank Professor Baker for joining us today and for his wonderful essay! I also thank all of you who are joining us for our “90 in 90 = 180 History Holds the Key to the Future,” whether by reading or by blogging!
After reading Federalist Paper No. 47, I am awestruck by our Constitutional founding father’s tenacity and brilliant attention to detail. It is truly obvious that they loved their country. It is truly obvious that they loved their fellow countrymen. It is truly obvious that they knew their history and political theory. It is truly obvious that they had a reverence for the Republican form of government. It is truly obvious that they respected the “genius of the people.” (I just can’t say “genius of the people” enough times!) It is truly obvious that they feared, condemned, and yearned to triumph over tyranny. It is truly obvious they wanted the triumph to be pervasive and permanent.
Tyranny. This is an ugliness and cruelty that we have never, thanks to our Constitution, which has proven to uphold our Republican principles, had to experience. Yet, it was fresh in the hearts, minds and souls of our founding fathers and it was fresh in the spirits of the people.
The checks and balances have served us well. Tyranny has
yet to rear its ugly head, though, at times, the Constitution has been tested and continues to be tested.
After reading, Federalist Paper No. 47, I am more aware of the definitions of both the words, “checks” and “balances,” just as I am keenly becoming aware of the true meaning of “big government.”
“Checks” is obvious. The different branches must keep each other separate and accountable. “Balance” has a new meaning to me, however. The different branches must have a fluidity amongst each other. The branches must flow into the trunk to gather their nourishment from their roots.
The roots are the people and the roots need the rain. They reach across the ground in search for their nourishment. The nourishment is the knowledge, the information. Without the knowledge and information the people have no power and knowledge is power. Here is the most impressive aspect of early America, the representatives were not afraid to give the people the information. There was an honesty and transparency coupled with an intelligence and integrity.
This would answer the question of why our modern day representatives withhold so much of information, including what is in the bill and how they vote. The information is hardly transparent. But have the people demanded it? It is time we do.
I am struck by the intensity, desire and fervor with which the revolutionary citizens participated in the process. I am awed by the respect the representatives gave the citizens. They wrote 85 essays explaining a 7 page Constitution.
What do we get today?
Checks and balances are the delicate framework of our governmental structure. Yet, constituents should check their representative’s actions and balance the political process with the scales of participation and inquiries.
The republic stands on the balance beam of questions and answers for all.
God Bless,
Janine Turner
Friday, July 2nd, 2010
Federalist No. 47 – Cathy Gillespie
Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 47, Federalist No. 47“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”
Federalist 47 begins a fascinating discussion of separation of powers. Thank you to Dr. Baker for your insights on this essay!
“Separation of powers,” and “checks and balances,” are often used interchangeably, but as Dr. Baker pointed out, they are two distinct terms. If our government had merely separation of powers, without the checks and balances, we could fall prey to tyranny through the separate “silos” of government. There would be no impeachment process for a President who violated the law; there would be no Senate confirmation of Supreme Court or high level Administration appointments. There would be no Presidential veto of legislation passed by Congress. And there would be no rulings on the Constitutionality of legislation passed by Congress.
But “checks and balances,” mean that powers cannot be totally separated. They are shared, and that is what creates the balance. The President shares legislative power with the Congress through his veto. The Congress shares executive branch power through their participation in the confirmation process and the impeachment process. The courts share legislative power in their ability to declare legislation brought to them for adjudication as unconstitutional. The states and federal government share responsibility for amending the Constitution through the amendment ratification process. And ultimately, the people are the final check on government, through their vote.
Our founding fathers put the greatest care and thought into designing a system of government that would best ensure our liberty. The structure of our government, under the United States Constitution, is designed to hold our liberty in a delicate balance. I picture our freedom suspended carefully, amidst an intricate structure, with interlocking parts, all dependent upon the other, yet with distinct columns and blocks representing the three branches of government, the federal government, and then the states. Changes to the structure cause our liberty to “shift,” and ultimately, it begins to disappear.
As we have discussed earlier, the 17th Amendment was a major change to the structure of our government. Other changes have happened in less obvious ways, but have had no less an impact on our liberty.
We must understand the careful structure of our government, as set forth under the Constitution, or else we will not know when the separation of powers, and the checks and balances are being disturbed. If we don’t notice when one branch usurps the powers of another, we may not notice the ensuing disappearance of our freedoms, until it is too late.
The Federalist Papers left by our founders are like an owners guide to our Constitution. They explain the Constitution, how it is constructed, why it is constructed as it is, and the historical framework they utilized to make the decisions they did. What a blessing it is that our founding fathers can speak their words of wisdom to us today, through these great papers.
Good night and God Bless,
Cathy Gillespie
Friday, July 2nd, 2010
Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, From the New York Packet (Madison)
Federalist Paper 47, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 09, Federalist No. 10, Federalist No. 15, Federalist No. 39, Federalist No. 47, Federalist No. 48, Federalist No. 51, Federalist No. 84, John S. Baker Jr. PhDAlthough mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47. Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.
Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Thus, the Founders did not believe that voting alone guaranteed liberty.
It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty. For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights. The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” Federalist #84.
Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government. Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”.
For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists. As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken. Montesquieu relied on his understanding of the British Constitution to explain separation of powers. Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists. That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary. Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.
Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.” (emphasis in the original) Rather, he said Montesquieu’s meaning “can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (emphasis in the original). He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.
Publius then considered the state constitutions. He noted “that, notwithstanding the emphatical, and some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.
The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.” Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.
In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies. (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“It is but too obvious, that, in some instances, the fundamental principle under consideration, has been violated by too great a mixture, and 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.”)
Thursday, July 1st, 2010
Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.
Federalist No. 48 & Federalist No. 49 – Janine Turner
Federalist Paper 48, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 48, Federalist No. 48, Federalist No. 49, Federalist No. 49WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!
I want to thank Professor John S. Baker and Professor Colleen Sheehan for their insightful essays and I also want to thank all of our Professors and Scholars who have dedicated their time, talents and energies to inform and educate us about our United States Constitution and Federalist Papers. Each and every one of you are great Patriots!
In Federalist Paper No. 48 it was refreshing to have Thomas Jefferson enter the dialogue. Understanding our Constitutional Founding Father’s vision and true intent of the Branches of Government is powerful. The separation of the branches of government coupled with the need for fluidity is a timeless lesson learned.
A prerequisite for all elected officials and civil servants should be to read, or reread, the United States Constitution and the Federalist Papers. I wonder, if a poll were to be taken today, how many of our elected officials and civil servants have read the Constitution and better yet, the Federalist Papers? Would that not be revealing? They swear to preserve, protect and defend the Constitution. Should they not understand it? It is TRULY represent the dismal state of our country that so few really read, understand and revere the United States Constitution.
We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!
I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”
The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:
“As the people are the only legitimate fountain of power and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”
Should Vice-President Biden reread these words and perhaps think again or at the very least, hold his tongue, when one of “the people” asks about lowering taxes? To respond to the owner of the custard shop that he, the owner, should not “be a smartass” is certainly not worthy of an American leader or representative of a respect for the people who are the “legitimate fountain of power.”
What I find to be the absolute joy in reading and studying these papers is that my inner instincts as an American, my gut, are finding validity. Now my voice is rooted in the wisdom, facts and quotes of the United States Constitution and the Federalist Papers.
Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.
“A great number of laws had been cast violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.”
ISN’T THIS AMAZING? Please spread the words of these quotes from Federalist Paper No. 48, regarding the PUBLIC’S RIGHT TO READ THE BILLS and Federalist Paper No. 49 regarding THE PEOPLE ARE THE ONLY LEGITIMATE FOUNTAIN OF POWER.
Knowledge is to power what action is to results.
God Bless,
Janine Turner
Monday, July 5th, 2010
Federalist No. 48 – Cathy Gillespie
Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 33, Federalist No. 46, Federalist No. 48, Federalist No. 48It is essays such as Federalist 48 that validate Thomas Jefferson’s famous quote about the Federalist Papers, “the best commentary on the principles of government … ever written.”
The checks and balances of our government, so beautifully constructed by the founders, are based on this axiom from Federalist No. 48:
“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
Our founding fathers knew that separating powers into three branches of government was not enough to ensure the liberty of the people. Without “checks,” any one branch could become tyrannical.
It is ironic that the best way to accomplish separation of powers is to not completely separate the powers, but for the three branches to “share” some aspects of the powers, in order to wield checks on each other.
It is also ironic that the legislative branch, the branch closest to the people (at least the U.S. House), is also the branch most likely to overstep its bounds. The quotes in Federalist No. 48 about the legislative branch could easily have been written this year, as in 1878.
“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”
“The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.”
“Where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”
“One hundred and seventy-three despots would surely be as oppressive as one.”
Madison points out the many reasons why legislative branches are prone to usurpations of power:
1. “Legislative power is exercised by an assembly,” …… with an intrepid confidence in its own strength.”
2. There are enough members of the legislative body to “feel all the passions which actuate a multitude,” yet few enough to actually act on those passions.
3. “Its constitutional powers being at once more extensive, and less susceptible of precise limits,” allow it to mask with greater ease “under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (The “Commerce Clause,” and the “Necessary and Proper Clause,” are perfect examples in our federal legislative branch of the “more extensive, and less susceptible of precise limits,” of which Madison speaks)
4. The legislative department has the power to tax (“access to the pockets of the people”).
5. The legislative branch has some influence over the wages of those who fill the federal government jobs (“pecuniary rewards”), and controls the budgets of the departments and agencies.
The founders knew the predisposition of the legislative body, and thus built in checks on legislative power. One of the most important checks they devised was the appointment of U.S. Senators by the State Legislatures. The removal of that “check” by the ratification of the 17th Amendment caused a disturbance in the balance of power, and allowed the Congress to encroach past its enumerated powers further than the founders ever dreamed possible.
In a blog comment on Federalist 46 today, Andrew points out an important truth:
“A key point most posters missed and that was not really addressed in the essay is that it still was voters who have approved of the expansion of the federal government. Voters elected congressmen and presidents who supported the expansion of the federal government. Most are reelected, and there is rarely any movement to undo expansions because those expansions are popular with the majority.”
Andrew is correct. “We The People” allowed the checks and balances to break down. It is “We The People,” who are charged time and again with sounding the alarm and protecting the Constitution.
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Federalist No. 33 (Hamilton)
In order to protect the Constitution, and keep government in check, we must first know the Constitution and understand the principles upon which it was based.
Thank you all for a wonderful week of blog comments, and a big thank you to Professor Baker for his enlightening essay! Federalist 48 is one of my favorite papers yet.
Looking forward to Federalist 49!
Wishing you all a wonderful July 4 weekend as we celebrate the birth our country!
Good night and God Bless,
Cathy Gillespie
Saturday, July 3rd, 2010
Federalist No. 48 – These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other, From the New York Packet (Madison)
Federalist Paper 48, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Federalist No. 48, John S. Baker Jr. PhDThe states had strict separation of powers in theory, but a dangerous mixture of powers in practice. Taking the opposite approach, Publius undertook “to show, that unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.” Theory guided writing of the Constitution; but the text itself is a practical — not a theoretical — document. As Federalist #48 states, “After discriminating, therefore, in theory, the several classes of power, as they may be in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provided some practical security for each, against the invasion of the others.”
The Constitution does not even mention the term “separation of powers.” Rather, the constitutional text formally establishes separation of powers by setting out the powers of each branch in a separate article: Article I (“All legislative Powers herein granted shall be vested in a Congress”); Article II (“The executive Power shall be vested in a President”); and Article III ( “The judicial Power of the United States, shall be vested in one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”). Omitting the term “separation of powers,” into which different persons — especially lawyers — might pour their own meanings, the Constitution instead implants into the text the elements of separation of powers necessary to make it operate in practice, e.g. the President’s qualified veto power.
Rather than “the parchment barriers” on which the state constitutions “principally relied,” the Framers consulted experience and concluded “that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.” In other words, because the three branches are not naturally equal, simply separating them will not protect the weaker branches. Experience has shown that the legislative branch will dominate the other two. According to Publius, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” It may seem surprising to many Americans that the Framers considered the legislative branch to be the most dangerous. Such an attitude is nothing new because it was prevalent at the time of the Constitution’s adoption. As Publius observed, “founders of our republics,,,,seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”
Then and today, there are those who view the President as the greatest danger to liberty. “But in a representative republic,” Publius writes, “the executive magistracy is carefully limited, both in the extent and duration of its power.” Compared to Congress, the President may appear to be more powerful due to the unitary character of the Presidency. Later, in Federalist 70, 73, and 74, Publius explains the unitary executive as a protection of the liberty, particularly in time of war.
Publius tells us “where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jeolousy, and exhaust all their precaustions.. (emphasis added).
If today the President seems to have more power than the Constitution, it can only be because the Congress has delegated that power and, in most instances, the Supreme Court has upheld those delegations. Since the 1930’s, the three branches of the federal government have generally cooperated in building “the Administrative State,” dominated by bureaucratic agencies. While apparently building the President’s power, however, the Congress has 1) avoided accountability and 2) disguised in its de facto influence over executive agencies. Driving this consolidation of power is an opposition to separation of powers.
The Administrative State incorporates certain “checks and balances,” which as discussed in the last essay differs from separation of powers. Federalist #9, which refers to “legislative balances and checks,” indicates that the term “checks and balances” has a different historical meaning. The Constitution’s version of separation of powers does include a checking function of each branch on the other. Federalist 48 explains the concern to give checking powers to the weaker branches, i.e., the President and the Judiciary. The Administrative State has grown because the Supreme Court has approved legislation giving Congress additional checking powers against the President, thereby weakening the Executive Branch. Congress, for example, has created so-called “independent agencies,” which are independent of the President’s control, but under the de facto control of Congress’s power over agency budgets.
Congress’s enhancement of its own powers through the Administrative State confirms the observations in Federalist 48 about the deviousness of legislative bodies. “The legislative department derives a superiority in our governments [because] [i]ts constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (emphasis added).
Publius’s indictment of legislative bodies drew “on our own experience.” The Virginia constitution, for example, required separation of powers; but as Jefferson wrote in his “Notes on the state of Virginia,” quoted by Federalist 48, “no barrier was provided between these several powers.” Publius approved Jefferson’s remark that “An elective despotism was not the government we fought for.”
Federalist 48 concluded “that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Friday, July 2nd, 2010
John S. Baker, Jr. is the Dale E. Bennett Professor of Law at Louisiana State University.
Federalist No. 49 & Federalist No. 50 – Cathy Gillespie
Federalist Paper 49, Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article V, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 43, Federalist No. 49, Federalist No. 49, Federalist No. 50, Federalist No. 50Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges! It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”
These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49. Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.
Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution. In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.
It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason. Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’ final result: Article V of the Constitution.
The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:
Article. V.
“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.”
Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.
To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.
The beauty of the amendment process, as Madison described in Federalist 43 is:
“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.”
In practice, what is our country’s history of amending the Constitution? Has it worked out as well as Madison intended and predicted?
I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:
5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.
Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.
The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.
Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.
Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!
The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”
The amendments to our United States Constitution read like a history of our country. Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.” Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!
Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!
Your Fellow Patriot,
Cathy Gillespie
Tuesday, July 6th, 2010
Federalist No. 48 & Federalist No. 49 – Janine Turner
Federalist Paper 48, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 48, Federalist No. 48, Federalist No. 49, Federalist No. 49WOW. It’s REALLY getting good now isn’t it? Howdy from hot Texas! I have a billions dog ears and stickies on Federalist Papers 48 & 49!
I want to thank Professor John S. Baker and Professor Colleen Sheehan for their insightful essays and I also want to thank all of our Professors and Scholars who have dedicated their time, talents and energies to inform and educate us about our United States Constitution and Federalist Papers. Each and every one of you are great Patriots!
In Federalist Paper No. 48 it was refreshing to have Thomas Jefferson enter the dialogue. Understanding our Constitutional Founding Father’s vision and true intent of the Branches of Government is powerful. The separation of the branches of government coupled with the need for fluidity is a timeless lesson learned.
A prerequisite for all elected officials and civil servants should be to read, or reread, the United States Constitution and the Federalist Papers. I wonder, if a poll were to be taken today, how many of our elected officials and civil servants have read the Constitution and better yet, the Federalist Papers? Would that not be revealing? They swear to preserve, protect and defend the Constitution. Should they not understand it? It is TRULY represent the dismal state of our country that so few really read, understand and revere the United States Constitution.
We, as the informed voice of our country, shall make noise and make sure that our elected officials read these documents, yes? Our vote is our voice!
I love how James Madison describes the American people in Federalist Paper No. 49, “The people are the only legitimate fountain of power.”
The entire paragraph in Federalist Paper No. 49, in its entirety, reads with equal revelation:
“As the people are the only legitimate fountain of power and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”
Should Vice-President Biden reread these words and perhaps think again or at the very least, hold his tongue, when one of “the people” asks about lowering taxes? To respond to the owner of the custard shop that he, the owner, should not “be a smartass” is certainly not worthy of an American leader or representative of a respect for the people who are the “legitimate fountain of power.”
What I find to be the absolute joy in reading and studying these papers is that my inner instincts as an American, my gut, are finding validity. Now my voice is rooted in the wisdom, facts and quotes of the United States Constitution and the Federalist Papers.
Before closing, I want to mention one other paragraph that rings in relevancy: Federalist Paper No. 48.
“A great number of laws had been cast violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature.”
ISN’T THIS AMAZING? Please spread the words of these quotes from Federalist Paper No. 48, regarding the PUBLIC’S RIGHT TO READ THE BILLS and Federalist Paper No. 49 regarding THE PEOPLE ARE THE ONLY LEGITIMATE FOUNTAIN OF POWER.
Knowledge is to power what action is to results.
God Bless,
Janine Turner
Monday, July 5th, 2010
Federalist No. 49 – Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention, From the New York Packet (Madison)
Colleen Sheehan, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Colleen Sheehan, Federalist No. 49, Federalist No. 57James Madison wrote Federalist 49 in part as a response to Thomas Jefferson’s idea that a constitutional convention should be called whenever one of the departments of government oversteps its delegated constitutional authority.
Madison argued that this was a bad idea for five reasons: 1) the proposal doesn’t cover the case in which two departments combine against a third 2) routinely involving the people in rewriting the Constitution would reduce the veneration the citizens have for their laws and government, thereby destabilizing the polity 3) frequent appeals to the people’s fundamental authority would excite their passions and disturb public tranquility 4) if the usurpation of power was instigated by the legislative branch (which is the most likely scenario), it is probably these same men who would be elected by the people to the convention, since they are the public figures most familiar to the people – that is, they have the best name recognition and the most influence, which is how they got elected in the first place 5) if the people didn’t choose their legislators to attend the convention – perhaps because the usurpation of power by some of them was so flagrant – the choice of convention delegates would nonetheless be conducted in a turbulent atmosphere of partisan politics.
In the last case, Madison argued, it would be “the passions, therefore, not the reason, of the public [that] would sit in judgment.” But this is the exact opposite of how good popular government should work. According to Madison, in a well-constructed republic the passions of the public will be controlled and regulated by the government; in turn, the government will be controlled and regulated by the reason of the public.
It is important not to misconstrue Madison’s argument against frequent appeals to the people in this essay. He opposed frequent appeals to the people in their most sovereign capacity – which is what constitutional conventions represent. His claim is that convening a convention to change the Constitution every time there is an abuse of power by politicians is not the best or even, generally, a smart solution. Given that Madison was already a seasoned political leader (albeit only 36 years old) and a realist about human nature, he knew that this would mean a lot of conventions! He also knew that asking the people to reconsider and revise fundamental law on a chronic basis would agitate and destabilize public opinion, which is the very foundation of government and the effective rule of law.
It is important to note that Madison did not argue for a blanket rejection of an appeal to the fundamental authority of the people; indeed, he insisted that a path to constitutional change must be kept open to the people, to be tread on extraordinary occasions. This is of course the purpose of Article V of the U.S. Constitution, which establishes the constitutional amendment process. Moreover, his discussion of reverence for the laws should not be interpreted to mean that the people ought to venerate rather than vigilantly watch over their government. In fact, in Federalist 57 he will stress the importance of the vigilant spirit of the people in restraining government and safeguarding liberty. In the 49th essay, however, Madison is warning his fellow citizens that we should not be unrealistic about the sway of reason in politics. Since most people are not disinterested or dispassionate philosophers, he implies here what he teaches throughout The Federalist: the achievement of reasonable and just public decisions is going to take substantial time and the hard work of communication and public deliberation. Essentially, Madison is saying, let’s be careful not to circumvent these speed bumps, which are constructed for our own safety. Let’s not be impetuous and race headlong at a dangerous pace. Slow and steady wins the republican race.
Colleen Sheehan is Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good.
Monday, July 5th, 2010
Federalist No. 49 & Federalist No. 50 – Cathy Gillespie
Federalist Paper 49, Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 49, Federalist No. 50Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges! It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”
These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49. Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.
Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution. In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.
It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason. Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’ final result: Article V of the Constitution.
The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:
Article. V.
“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.”
Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.
To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.
The beauty of the amendment process, as Madison described in Federalist 43 is:
“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.”
In practice, what is our country’s history of amending the Constitution? Has it worked out as well as Madison intended and predicted?
I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:
5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.
Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.
The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.
Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.
Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!
The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”
The amendments to our United States Constitution read like a history of our country. Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.” Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!
Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!
Your Fellow Patriot,
Cathy Gillespie
Tuesday, July 6th, 2010
Federalist Paper No. 50 – Janine Turner
Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 50, Federalist No. 50Howdy from Texas. Cathy and I are so excited that we have had so many contest entries! I thank all of you who have actively participated in spreading the word about our We the People 9.17 Contest.
I encourage all of you to spread the word about our necessity as citizens to know the United States Constitution and our rights!
I do it throughout the day, with these essays but also I take advantage of every moment to share my enthusiasm. Yesterday, I was quizzing the guys at Starbucks about the Constitution and the Bill of Rights. It was amazing to watch their wheels turn as they tried to remember. They were clear on a few things. I promptly gave them my RAPPS acronym about the First Amendment: Freedom: of Religion, to Assemble, to Petition, of Press and of Speech! I pulled out my Constitution App on my phone and we continued to talk about other aspects of the Constitution.
At my nephews 18th birthday party last night, I asked the young 17 year old next to me if he knew about the United States Constitution. He seemed a bit dazed and confused. I handed him a business card with our website and told him that he was the future of the country and he was going to HAVE to know his rights!!! ☺
So see, all day long we can plant the seeds. Someday, a few years from now, that young man will remember the “crazy, Constitution lady” and will reflect, when his rights are impeded and his country is broke, “oh, so, THIS is what she was talking about!”
We MUST educate our children. They are the future “genius of the people” and they must have the knowledge of our country’s foundation and thesis in order to take action.
As John Adam’s said, “Liberty cannot be preserved without a general knowledge of the people.”
I say, “Knowledge is to power what action is to results.”
So today’s reading was fascinating, as always.
In Federalist Paper No. 50, James Madison talks about how reason was, “distracted by the rage of the party.”
This is certainly relevant to today. Our representatives lack the cool, calm, pacific stage of reason that reaps crucial objectivity; an objectivity that holds within its breast the future of our country and the future of our children’s lives.
However, at times, the salt and pepper of parties is a necessary seasoning.
In Federalist Paper No. 50, James Madison says, “an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.”
If there is no diversity of thought then that means the singular thought is under the persuasive power of tyranny.
James Madison thus concludes that diversity of party is a necessity, though passions should be unified in purpose for a continual, everlasting respect for the Constitutional constructs and for the governing of the people and preservation of liberty.
Being a realist, however, he recognized that passions of men die-hard. Thus, the men of Congress, who are intrinsically involved in the process, the predicament, may not be the best to resolve the situation regarding the Constitutional violation assessment or the Constitutional amendment process.
He then calls on outsiders who are educated on the constructs and crisis at hand and thus better able to serve the cause because they are removed from the passions of the legislature. Hence, a convention of the people may at times be the answer such as the Constitutional Convention of 1787 which was made up of men who were not all necessarily at the time employed by Congress.
This leads us back to James Madison’s words in Federalist No. 49, “The people are the only legitimate fountain of power.”
It is dangerous to think about calling a Constitutional Convention because of the dangerous route it may take. An honest assessment may turn into to a stranglehold by attorneys, and men of disrepute, who could swerve the Convention away from its original intent. Yet, it is empowering to know that the option is available.
Knowledge is to power what action is to results.
God bless,
Janine Turner
Tuesday, July 6th, 2010
Federalist No. 50 – The Same Subject Continued: The Total Number of the House of Representatives (Madison or Hamilton)
Brion McClanahan, Ph.D., Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Constitutional Amendment XI, Constitutional Amendment XI, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XVI, Constitutional Amendment XVI, Constitutional Amendment XVII, Constitutional Amendment XVII, Constitutional Amendment XXII, Constitutional Amendment XXII, Federalist No. 50The authorship of Federalist No. 50 is disputed. Whether it was James Madison or Alexander Hamilton, the author’s arguments have ramifications for our current political problems and, in many ways, exemplify the nature of the federal government under the Constitution. Federalist No. 50 opens with the following premise: “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.” The key to the opening is the last capitalized phrase. The author then proceeds to discuss how conventions called for the purpose of “correcting infractions of the constitution” would be neither productive nor “adequate” to remedy unconstitutional abuse of power by any branch of government.
The author used the State of Pennsylvania as an example to prove his premise. Pennsylvania had a Council of Censors in the 1780s that was charged with the task of determining if the State constitution had been violated and if the executive or legislative body was at fault. But most of the men who held a seat on the Council also served in either the executive or legislative branch and they often split into “two fixed and violent parties.” Their conclusions were often clouded by passion and their decisions ignored by the State government. The author concludes, “This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.” States would always divide into groups, and even if the State tried to remedy the problem by appointing men who had not been connected with the constitutional issue at hand, the author argues that, “The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.”
The author, of course, implied that an outside “referee” would be no better to check unconstitutional abuses of government than the “checks and balances” contained within the Constitution itself. The Senate is a check on the executive; the executive is a check on the congress, and the Supreme Court a check on both. But the author failed to consider one of the principle arguments against the Constitution and the checks and balances system: what or who will check federal power if they have a monopoly on the “checks and balances” system? That was the heart of the anti-federalist critique of the federal judiciary, for example. Certainly, Federalist No. 50 was cogent and persuasive, and the amendment process was always showcased as a fail-proof method of altering the Constitution, but the anti-federalists had much to say on the subject.
One of the best arguments against Federalist No. 50 appeared almost four months earlier in the Philadelphia Independent Gazetteer. The author, An Old Whig, contended that the amendment process as written would never produce beneficial changes to the Constitution. He called the procedures for amending the Constitution a “labyrinth,” and thought that before the process was over, “ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loathe to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with….” Perhaps the Old Whig was correct. Only seventeen amendments have been added to the Constitution since the Bill of Rights were ratified in 1791, and in reality only two, the 11th and the 22nd, limited the power of the central government. Others such as the 14th, 16th, and 17th, increased it exponentially.
Interestingly, if Madison was the author of Federalist No. 50, he reversed his position on the issue of an external “referee” less than ten years after the Constitution was ratified. Both he and Thomas Jefferson argued in the Virginia and Kentucky Resolutions of 1798 and 1799 that the States could interpose their sovereignty or “nullify” an unconstitutional federal law. The question was not which branch of government was a fault—both the executive and legislative branch would be culpable under this scenario because congress passed the law and the president signed it—but whether the “checks and balances” system actually worked. The people of the States, the very people Federalist No. 50 impugned as inferior, would thus rule on federal authority. If the president and the congress in concert can ignore the Constitution—national healthcare, the federal stimulus, the nationalization of the auto industry—and if the federal judiciary is, as it often has been, a rubber stamp for federal legislation, how can it be reasonably argued today that checks and balances work? The anti-federalists warned against such logic, and Jefferson and Madison provided the tonic, Federalist No. 50 notwithstanding.
Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He currently teaches History at Chattahoochee Valley Community College in Phenix City, AL.
Tuesday, July 6th, 2010
Federalist No. 51 – Cathy Gillespie
Federalist Paper 51, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVI, Constitutional Amendment XVI, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 51, Federalist No. 51Federalist 51 – what a quotable paper! We have been busy on Facebook today (http://www.facebook.com/constitutingamerica ), rolling out many of the famous and insightful lines!
Thank you to Professor Baker for your wonderful essay, and for itemizing some of the well known quotes from this paper!
The biggest challenge we face today is our government “controlling itself.” As Publius points out:
“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.”
Publius is quick to knowledge, in this paper and in many others, that the greatest control on government is the people:
“A dependence on the people is, no doubt, the primary control on the government.”
Yet, the founders brilliantly erected a governmental structure designed to control itself, as well. One of the most important controls is the federal structure, with power divided between the states and national government. But power is also divided within the national government, between the three branches, and going even further, the founders gave each of the branches “tools” to “check” the other.
Despite this well conceived structure, our government is not controlling itself today. The national government has encroached upon areas far past its enumerated powers, and into the purview of states, and individual rights. As we have journeyed through these federalist papers, we have often asked, “what went wrong?” How could our founding fathers design a system based so carefully upon history, proven successes, with improvements on historical flaws,that could not protect us from an overreaching federal government.
We have come up with many answers:
*state budget shortfalls (in part a result of unfunded federal mandates) that necessitate federal dollars (with strings attached)
*the addition of the 17th and 16th amendments
*an aggressive Supreme Court that interprets the Constitution as a “living” document
*a Congress that does not always respect Constitutional limits on federal powers
The most important reason, though, may be that the “primary control” on government, “the people,” have failed to pay attention, and to embrace their role.
Without the energy of the people, the structural system can only go so far to set limits on government.
It is now up to the “we the people,” “the primary control on the government,” to bring our system back into balance. When “the people” work in concert with the structure our founders designed, we will once again start to glimpse the America our founding fathers envisioned.
And how do the people control the government? First, by knowledge, and then, As Janine wrote in a recent Fox News Op-Ed: “Your Vote is Your Voice.” http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/
Good night and God Bless!
Cathy Gillespie
Thursday, July 8th, 2010
Federalist Paper No. 51 – Janine Turner
Federalist Paper 51, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 51, Federalist No. 51Howdy from Texas. Here we are at Federalist Paper No. 51! I want to thank Professor John S. Baker for his wonderful essay and gracious time. I also thank all of you who are blogging with us. Isn’t the conversation stimulating? Isn’t it wonderful to have this forum to discuss and interpret the United States Constitution and the Federalist Papers?
I am very intrigued with Federalist Paper No. 51. I feel as if I need to read it again and again. It is filled with perpetually profound paragraphs.
As I read through these papers, many of Publius’ explanations are starting to gel in my mind. One is the importance of faction and the meaning of James Madison’s words, “Liberty is to faction what air is to fire.” Faction not only exists between states but it is essential that faction exist within the government. As Professor Baker stated, so often we hear that we should have harmony in our congress, yet total and complete accordance represents a tyranny and a monopoly, a trumping so to speak, of the diversity of voices in America.
In Federalist Paper No. 51 James Madison states:
“In framing a government that 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.”
Faction is a function of this control.
Another intriguing point of James Madison’s is:
“In a free government, the security for civil rights must be the same for that of religious rights. It consists in one case in the multiplicity of interests, and in the other in the multiplicity of sects.”
Security for civil rights and religious rights represent free government. I wonder how James Madison would view our religious rights in America today?
However, the most stunning, revealing and relevant statement of Federalist No. 51 is the following:
“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.”
We, as citizens, as humans, as spiritual beings must be allowed to seek, succeed, stumble and rise again. It is only through the hard times that we truly learn and grow. I teach my daughter that failure is an essential element of life. She must not fear it. She can only succeed if she can run the risk of failing. True genius requires true grit.
If we take away the freedom to rise and fall, then we take away our primary principle of liberty.
Liberty will be lost in the pursuit of the great cultural equalizer.
Spoon feeding justice to all Americans will not only sap the soul, it will sap our economy which will lead to a decline of industry, a debilitating debt which will jeopardize our freedoms.
Capitalism must be allowed to succeed, fail and rise again.
These are the great ingredients of success: ambition, hunger, drive, competition. This is human nature. Defy human nature and the riddle will unravel.
“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.”
Wise, prophetic words that need to be heard now. As John Adams said, “Liberty cannot be preserved without a general knowledge of the people.”
History holds the key to the future.
God Bless,
Janine Turner
Thursday, July 8th, 2010
Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, From the New York Packet (Hamilton or Madison)
Federalist Paper 51, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, John S. Baker, Jr., Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 09, Federalist No. 10, Federalist No. 39, Federalist No. 47, Federalist No. 48, Federalist No. 49, Federalist No. 50, Federalist No. 51, Federalist No. 62, John S. Baker Jr. PhDFederalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.
Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose. Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”
Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).
As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.” Isn’t this just a cynical approach to government? Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.
The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test. Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”
This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch. Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”
What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government. With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.
The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans. To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”
Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.
It is often said in the media that the American people want the branches of the Federal government to work together. The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people. Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.
In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself. Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.” The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions. As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.” Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.
The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise. This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).
This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress. The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.
One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states. As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.
For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible. The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.
Wednesday, July 7th, 2010
Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University
Federalist No. 52 – Janine Turner
Federalist Paper 52, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 52, Federalist No. 52Howdy from the air! I am traveling to Boston for an historic event! For those of you who watch our videos and read these essays, you know that Juliette and I traveled to Boston in June. We visited the birthplace and homes of my favorite forefather and foremother, John and Abigail Adams!
We visited the burial place that holds the crypts of John Adams, Abigail Adam, John Quincy Adams and Louisa Catherine Adams. When we walked into the crypt, I wept. It was wondrously moving to be standing that near to the great beginnings of America and to the great human beings who sacrificed so much to make it happen.
While I was there, I was informed by Arthur, the Director of the Visitors, that no President, Vice-President, Senator, Congressman or woman, or Governor had ever come to pay respects and lay a wreath on their graves.
I was shocked. I decided then and there I was going to try to do something about it. Graciously, Senator Scott Brown from Massachusetts, agreed to meet with me – this crazy Texan who wanted to have homage paid to the heroes of our Revolution, patriots whose lives are beyond compare.
To my joy, Senator Scott Brown was familiar with my cause and was aware of a ceremony for the Adam’s family that he had been asked to attend in October. “Wonderful!” I shouted. We proceeded to reminisce about the Adam’s legacy.
A week later, I called Arthur at the Church of the Presidents and told him about my mission and my meeting with Senator Scott Brown. That same moment I received an e-mail from Senator Scott Brown’s office that the Senator was going to lay a wreath on John Quincy Adam’s grave in July. “Fabulous!” I exclaimed.
Hence, this is why I am on the plane! Juliette and I are traveling to Boston to be a part of this historic moment.
John Adams, Abigail Adams, John Quincy Adams and Louisa Catherine Adams are shining, brilliant treasures in our American history. Homage is due to them on a large scale.
My next mission is a monument for John Adams in Washington, DC and a portrait of Abigail Adams in the National Portrait Gallery in Washington, D.C.!
The memories of John and Abigail are calling to me. They were not infallible, as men are not angels, but they had a devotion to America that was remarkable in its scope and a work ethic that I may only aspire to emulate.
As I like to say, Knowledge is to power what action is to results.
In regard to our great Constitution and Federalist Paper No. 52, the awe continues, not only in its enlightenment but with the continued precedent it sets. Publius’ mission was to educate the public on the Constitution and it is rich with the historical references. Not to mention that their willingness to explain the “bill,” exhibited a respect for “the people.”
There is another interesting aspect to the process of the Federalist Papers. In the written word, it is hard to deceive and deviate away from the question or explanation of intent. In speeches, our modern day equivalent, doublespeak prevails and “spin” prohibits true assessment of the meaning.
Not only should all bills written by our legislature be published for public consumption, as mentioned in Publics 48, but our representatives should write an essay, or two or three, on why they believe in it and how it best represents their state and America.
It was interesting to read about other countries and how their legislatures worked and did not work. Our Constitutional forefathers were very intent that our representatives remain accountable to the people knowing that a frequent asking of the people for justification, by their vote, would keep the Representatives humble and accountable.
We should reflect as modern day patriots the voter turnout for midterm elections. They are as valuable and viable as Presidential elections, yet so few Americans vote. Our vote is our voice! Let us reach out to inspire our fellow citizens to vote this midterm. To presume that they do not matter is the surest way to continue the downward spiral of our liberties and our Republic.
The Adam’s family is calling to us. Their intellect, honor, dignity and love for America illuminate the path for us. Let us take the road less traveled. Let us journey forth in the pathway of their sacrifices. What a privilege to walk in the shadows of their sublime statures.
God Bless,
Janine Turner
Friday, July 9th, 2010
Federalist No. 52 – Cathy Gillespie
Federalist Paper 52, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 33, Federalist No. 52, Federalist No. 52Greetings from Mt. Vernon, Virginia! Having spent many years working for a member of the U.S. House of Representatives, Congressman Joe Barton of Texas, I am thrilled to see several Federalist Papers devoted to the subject of the U.S. House.
Unfortunately, Congress as an institution and the people who serve there are suffering from a negative public perception. As with any group of people, there are a few who deserve the public’s disdain. And there are others who may not be re-elected this November because they have not carried out their constituents’ will. But based on my experience of working first hand with many of these men and women, I have developed the highest respect for the institution of the U.S. House, and for most of those elected from their congressional districts to serve, Republicans and Democrats.
The founders designed the U.S. House of Representatives to be close to the people:
“As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.”
Publius argues that an election every two years is frequent enough to maintain the people’s liberty:
“I conceive it to be a very substantial proof,that the liberties of the people can be in no danger from BIENNIAL elections.”
This is true, as long as the people uphold their duty articulated in Federalist No. 33, to “take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
Elections every two years keep members of Congress close to their constituents. There are extended breaks from votes during January, February, April, July, August, September, and Congress usually breaks for good anywhere from mid-October in election years to mid-November or mid-December in the off years. During these breaks, most Members of Congress go back to their districts, hold town meetings and other forums, and work hard to meet with their constituents and listen to them.
We have all seen the video footage from town meetings of Congressmen or women who appear to be disengaged, uniformed, hostile to their constituents, or out of touch, especially during the health care debate. From my experience, these members of Congress are the exception, rather than the rule.
Most members of the U.S. House, of both parties, are well informed, hard working individuals who deeply love their country and sacrifice a great deal to serve the people of their congressional district. Most keep their families in their congressional district, and are in Washington only when they have to be, flying in to vote Tuesday through Thursday, and back home Thursday evenings to spend Friday through Monday working in their congressional district.
Most members of Congress are very accessible to their constituents. Any citizen may “walk the halls,” of Congress, and stop in at their U.S. Representative’s office, or any U.S. Representative’s office, often getting to at least say hello to the member of Congress, even without an appointment, if they are willing to wait. And if they request a meeting with enough lead time, most people who want to have a sit down meeting with their member of Congress are usually able to get one scheduled. Janine, Juliette and I walked the halls of Congress recently, and met with Congressman Scott Garrett, Chairman of the Congressional Constitution Caucus, and Congresswomen Blackburn and Bachmann. We even met with Senator Scott Brown on the Senate side! We witnessed all taking the time to say hello to visiting constituents while we were there.
Members of Congress also maintain offices and staffs in their congressional district, whose sole purpose is to serve the constituents, untangling them from governmental red tape, facilitating military academy appointments, and participating with citizens in the community on local projects.
It is understandable that people are frustrated and angry when Congress passes a bill so large no one can read it, with provisions that go against the U.S. Constitution and our founding principles of limited government and free enterprise. But that is where elections every two years come into play. It is the people’s responsibility to make their views known, and the most effective way to do that, is on election day.
In 1994, and in 2006, the people’s voice was heard. Despite gerrymandering (which I agree with Jon and Professor Rowley, is a terrible modern day development) control of the U.S. House shifted, because the people were unhappy.
As we have said many times on these pages before, knowledge is power. Before you judge your member of Congress, get to know him or her, or at least try! Find out their voting record, their attendance record. Do they hold town meetings? If so, attend! Ask a question. Send an email. Write a letter. Request a meeting. Sit down with their congressional district staff. You may be surprised to find out how hard your member of Congress is actually working for you, or you may have your worst suspicions confirmed, and decide a change is needed.
“The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.”
Let’s use that powerful tool granted to us by the Constitution!
Thank you to all of you for your continued participation, and your insightful comments.
Good night and God Bless,
Cathy Gillespie
Thursday, July 8th, 2010
Federalist No. 52 – The House of Representatives, From the New York Packet (Madison or Hamilton)
Charles K. Rowley, Ph.D., Federalist Paper 52, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 02 Clause 1-2, Article I Section 02 Clause 3, Article I Section 02 Clause 4, Article I Section 02 Clause 5 and Section 03 Clause 1, Charles K. Rowley PhD, Federalist No. 52Let 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.
Federalist No. 53 – Janine Turner
Federalist Paper 53, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 52, Federalist No. 53, Federalist No. 53Howdy from Boston! Today was an historical day! Juliette and I had the great fortune to witness Senator Scott Brown lay a wreath on John Quincy Adams crypt, marking our 6th President’s 243rd birthday. It was the first time a sitting Senator has ever done so.
Senator Scott Brown delivered a very inspiring speech and his wife Gail is a beautiful, dedicated American patriot.
It was an honor to meet Peter Boylston Adams! He is a seventh generation Adams. It was a momentous event for me. I handed him a copy of my book, “Holding Her Head High,” because I have a chapter dedicated to Abigail Adams! I told Mr. Adams that I had met with Senator Scott Brown about honoring the Adams legacy and that my next mission was to help facilitate the building of a monument dedicated to John Adams in Washington, D.C. and to have a portrait of Abigail Adams hung in the National Portrait Gallery!
There were many great patriots present at the event today. Patriots who volunteer their time and energies to preserving the legacy of John Adams, Abigail Adams, John Quincy Adams and Louisa Catherine Adams.
Arthur W. Ducharme, the director of the Visitor’s Program of the United First Parish Church, (the Church of the Presidents) is one of the great patriots who were present today. He is a passionate American and is a shining example of one who understands the importance of history. He carries the torch of the Adam’s legacy with dignity and grace.
John and Abigail are smiling from heaven on Arthur Duscharme.
The church has a rich history. The Reverend Sheldon W. Bennett serves as the church’s minister. He is also a descendent of the Adam’s family – from Henry Adams, John Adam’s great, great grandfather. His presentation and prayers were wonderful and afterwards he showed us the cemetery where many of the Adams family are buried, including Henry Adams!
On the tombstone of Henry Adams, John Adams wrote the following words:
“This stone and several others have been placed in this yard, by a great, great grandson from a veneration of the piety, humility, simplicity, prudence, patience, temperance, frugality, industry and perseverance of his Ancestors, in hopes of recommending an imitation of their virtues to their posterity.”
Reverend Bennett said that he finds the words, “personally inspiring.” I find them to be not only inspiring but representative of a legacy that changed America.
Without John Adams we would have not had a Declaration of Independence. Our country’s birth stemmed from John Adam’s perseverance and it was his prudent and industrious habits that guided our country to victory and fruition.
He laid the foundation for our United States Constitution with his brilliant construction of the Constitution for the Great Commonwealth of Massachusetts and the understanding of the importance of, as mentioned in Federalist Paper No. 53, “a Constitution established by the people and unalterable by the government.”
His frugality, temperance and piety as our nation’s first Vice President and second President, tempered a rising nation through its infancy. Without his patience and virtue America would have not prevailed.
His son, John Quincy Adams, mirrored all of these virtues with his astonishing and tireless dedication to his country. He served as a young diplomat beside his father, then as U.S. Minister to Holland, Prussia, Russia and Great Britain, U.S. Senator, negotiator of the Peace Treaty of Ghent, (War of 1812), Secretary of State under President Monroe, promulgator of the Monroe Doctrine, the 6th President of the United States and finally as Congressman in the U.S. House of Representative.
God Bless Henry Adams for the great example he set for his posterity and for John Adams and John Quincy Adams who recognized it and honored it with their lives and legacy.
Today, Peter Boylston Adams and Reverend Bennett are a rich reflection of their heroic heritage.
Never may we take for granted the impact we may have on our country and our children. Daily we are the servants to a great cause, America, our country and Americans our children.
God Bless,
Janine Turner
Saturday, July 10th, 2010
Federalist No. 53 – Cathy Gillespie
Federalist Paper 53, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 51, Federalist No. 53, Federalist No. 53Federalist 53 was a reminder to me of how blessed our country is to live under a system of government “established by the people and unalterable by the government.”
“The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government.”
We forget that in many other countries, terms of office may be capriciously changed to meet the political needs of the office holders.
Publius refers to “frequency of elections,” as the “cornerstone” of free government. A theme throughout the Federalist is the people’s role in protecting their own liberty. Elections are the people’s voice.
Publius also outlines the importance of members of Congress having enough time to learn the job. He predicts that some members of “superior talents; will, by frequent reelections, become members of long standing.”
A recent Congressional Research Service report on the average tenure of a member of Congress stated:
“The average years of service for Members of the 110th Congress, as of January 3, 2007, when the Congress convened was 10.0 years for the House and 12.82 years for the Senate. This is a record for the Senate. House Members who took their seats at the beginning of the 102nd Congress (1991-1993) represent the high point of Representatives’ average tenure (10.4 years).”
This is interesting, compared to the early history of our country, when most Senators did not even complete their six year term. CRS notes that in the early Republic, House Members began to exceed their two year terms after the Fourth Congress, but their average service did rise above four years until 1901-1903. During the Great Depression, the average tenure of a U.S. House member shot up to seven years.
Many people today call for term limits, to bring back the concept of citizen legislator. As these proposals develop, attention would need to be given to the power of staff, especially committee staff, who, if not checked as well, would end up with even greater influence as members of Congress come and go.
Although Publius points out the merit of some seasoned legislators, he also warns, “No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power.”
There are strong arguments on both sides of the term limits issue, but as Publius reminds us in Federalist No. 51:
“A dependence on the people is, no doubt, the primary control on the government.”
The people are the energy of the government. When they are engaged and paying attention, recognizing that knowledge is power, the need for term limits will not be as great. Even the best governmental structures will not reap the desired results, unless the “genius of the people,” the primary energy of government is fully engaged and deployed.
Thank you to all of you who are joining us on this journey through the Federalist Papers. Knowledge is Power!
Looking forward to Federalist No. 54!
Cathy Gillespie
Friday, July 9th, 2010
Federalist No. 53 – The Same Subject Continued: The House of Representatives, From the New York Packet (Hamilton or Madison)
Federalist Paper 53, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Marc S. Lampkin 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 53, Marc S. LampkinIn Federalist #53 James Madison continues a discussion about the description and operation of the United States House of Representatives. In particular his emphasis is targeted to the question of protecting liberty and ensuring electoral accountability through the use of the term for Members of the House of Representatives. Madison observes that there is a natural connection between electoral accountability and the liberty of the people. The question is how often should the elections occur? Madison mentions a prominent saying of the time which was “that where annual elections end, tyranny begins..” implying that regular election cycles particularly those that happen at least once a year were best to limit infringement of the liberty of the people. Madison attempts to explain why the Federal Constitution provides for a 2 year cycle in the House of Representatives and why that length didn’t threaten the freedom of the American people.
Ironically most states have adopted the Federal model of a 2 year cycle for their legislatures. But as Madison notes this ready embrace of the two year cycle was not always the case. When he writes the most popular election cycle for legislatures was every 6 months with a few states having annual elections. Notably Madison observes that South Carolina alone had 2 year cycles.
In any event it is Madison’s view that the specific timeline isn’t as important as the necessity of the elections themselves. But he argues that the single most important talisman for liberty is the immutability of the charter that authorizes government.
Unlike the British system, Madison explains the Federal Constitution does not bestow unlimited power on the legislature to change and make laws and thus liberty is advantaged. In contrast to the American model, governments that place nearly limitless power in their parliaments or legislatures like the British system must be on guard continuously for mechanisms whereby government tyranny can be checked. Madison points out, “The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.”
Madison contends that the American system is predicated on the supremacy of the American citizens and not on the legislature or the executive. In America Congressmen and Senators can’t change their term of office, swap their positions or take on executive or judicial powers. But in Britain they can make these types of changes and according to Madison did. As a result many political scientists of the day had settled on the yearly election for legislatures as a ways to keep the government accountable. But with the US Constitution which places specific limits on the government and can only be changed with the consent of the citizens, liberty is much more readily protected.
Next Madison turns to the specific question of why a 2 year cycle. Perhaps surprisingly, Madison the practicing political scientist reveals himself. It is Madison’s considered view that the two year cycle allows for greater professionalism on the part of the federal official than a shorter cycle might. He comes to this conclusion by comparing the relative knowledge base that state legislators have assuming a one year election cycle. Madison argues that they are capable of learning and addressing the issues of their own individual states within the year time frame.
If state legislators learn about the regulation of ports and appropriate levels of taxation for the own states within a year, assuming the federal government’s issues might add additional complexity and more deliberation at least another year between elections would be useful to ensure that the federal elected officials developed the competence and knowledge necessary to be conversant about the relevant issues they are responsible for. In particular Madison singles out the critical issue of foreign affairs as an area that it would be useful for elected officials to address with some degree of skill. Madison notes: “In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation.”
Wrapping up Madison mentions that the relative distances that elected members of the House would travel also augurs for a longer term of office. And in another endorsement of the professionalization of Congress, Madison recognizes that over time members with superior talents will become members of long standing. Thus unlike the careerism incumbent upon a system that rubber stamps the election of state assemblymen “almost as a matter of course” the Constitution’s election system contemplates that talented and experienced legislators would be preferred so as to avoid “snares that may be laid for them.”
And finally in the event of election disputes a 2 year cycle will give Congress more time to adequately investigate and make an informed determination than might be possible with a shorter term. Madison concludes: “All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.”
Friday, July 9th, 2010
Marc Lampkin is a partner at Quinn Gillespie and is a graduate of Boston College Law School
Federalist No. 54 – Juliette Turner
Federalist Paper 54, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 16. Essays by Juliette Turner, Federalist No. 54, Federalist No. 54Howdy 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
Federalist No. 54 – Cathy Gillespie
Federalist Paper 54, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 02 Clause 1-2, Article I Section 02 Clause 3, Article I Section 02 Clause 4, Article I Section 02 Clause 5 and Section 03 Clause 1, Article I Section 09, Article IV Section 2, Federalist No. 43, Federalist No. 51, Federalist No. 54, Federalist No. 54“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
Federalist No. 54 – The Apportionment of Members Among the States, From the New York Packet (Madison or Hamilton)
Federalist Paper 54, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 54, Joerg W. Knipprath, The Articles of ConfederationAlthough 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
Federalist No. 55 – Janine Turner
Federalist Paper 55, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 55, Federalist No. 55I am still reading the fabulous Contest Entries!! I want to thank all of the students who have taken the time to blend creativity with the Constitution. They are all fantastic!! I am reading the wonderful essays, watching all of the cool videos, PSAs, and listening to the fabulous songs in preparation to sending them to our judges.
Thus, I will have to write my essays for Federalist Papers 54, 55 and 56 starting on Thursday night. I will catch up!!!
In the meantime, I have been pondering a realization:
With our national debt, I do believe we have found ourselves on the cusp of a new age of national sacrifice. These are the times when we are to bridge our thoughts, our motives, our missions with the evaluation: is this best for me or for my country?
Are we, a country of such plenty, able to delay our addiction to immediate gratifications? Without a new national sense of sacrifice – we will have no life, liberty and pursuit of happiness. We will have no rights at all. They will disappear with our national entitlement mentality.
We, the “genius of the people” must prevail against this debt that will doom us. We will.
God Bless,
Janine Turner
Wednesday, July 14th, 2010
Federalist No. 55 – Cathy Gillespie
Federalist Paper 55, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 55, Federalist No. 55Greetings from Mt. Vernon, Virginia! Ed and I make our home on land that once belonged to President George Washington. His home, Mt. Vernon, is not far from our house! I find today’s issue of the total number of the House of Representatives even more fascinating because it was the only issue on which President Washington offered an opinion during the Constitutional Convention! As our distinguished Guest Constitutional Scholar, David Bobb points out, George Washington seconded a motion to reduce the ratio of House Members to people from 40,000: 1 to 30,000: 1. This must have signified Washington’s strong feelings that the U.S. House be “of the people.”
I’ve spent most of my career working in and around Congress and never knew that the original ratio in the U.S. Constitution of U.S. House Member to constituents was 30,000: 1 !! I do know that the average Congressional district today contains roughly 700,000 people. I also know that the immense size of these districts, both by population, and often geographically, makes it expensive to run campaigns, and demanding, schedule-wise, for U.S. House members to be all the places they need to be.
Dr. Bobb points out the last time an adjustment was made in total size of the U.S. House was 1912, when it was adjusted to 435, the current number today. Despite the fact that the size of the U.S. House has not been adjusted since the early 1900’s, I believe it would be very difficult, expensive, and not necessary for quality of representation, to increase the size of the U.S. House.
Increasing the size of the U.S. House would necessitate adding more office space and staff, a difficult proposition on crowded Capitol Hill. Staff are already crammed into every nook and cranny that exist in the House office buildings, and many Committee staff are blocks away in “annex” office space. One could argue that if the size of the U.S. House were to be increased, individual staff sizes per Member and office budgets per member could be reduced. In practice, it is hard to imagine Members of Congress voting to reduce their staff or office budgets, even if the number of constituents they represented decreased.
With today’s technology, members of Congress are able to represent much larger congressional districts, yet be in touch with their constituents in more direct and intimate ways than their 1912 counterparts ever dreamed possible. Members of Congress “tweet”; answer messages on Facebook; participate in “tele-Town Hall Meetings” (large dial in conference calls); hold interactive polls on their websites; hire pollsters to conduct professional polls; receive instantaneous input on legislation via email (rather than wait days for snail mail to catch up with their votes cast); field thousands of telephone calls to their offices, and of course still hold the traditional town hall meetings. In geographically large congressional districts members often traverse the district via airplane. Youtube, 24 hour cable TV news, the plethora of radio and internet talk shows and blogs, all put members of Congress at an engaged citizen’s fingertips.
Many would argue that despite new ways of communicating with constituents, Congress doesn’t seem to be listening. Increasing the size of Congress would not change this phenomenon. Congress listens at the ballot box. Citizens must become educated and engaged, and remember that as Janine so eloquently put in one of her op-eds, your vote is your voice.
As I encouraged in a recent essay, get to know your member of Congress. Go to a town meeting and ask a question. Write a letter, send an email, request a meeting in DC or your congressional district. Visit with his or her staff. Research your U.S. Representative’s voting record. You may be either pleasantly surprised, or have your worst suspicions confirmed. But either way, you will be able to make an educated decision in November.
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 repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery.—Federalist No. 55
Tuesday, July 13th, 2010
Federalist No. 55 Part 2 – Janine Turner
Federalist Paper 55, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 55, Federalist No. 55Howdy from Texas! Juliette and I have returned from our second trip to historic Boston! I have been immersed in the joyous task of reading the hundreds of our We the People 9.17 Contest essays, as well as watching the creative videos, PSAs and listening to the
wonderful songs.
How fabulous it is to see these great young patriots combine their Constitutional knowledge with creativity. The fact that they are thinking about the Constitution is a great step. The fact that they now have the realization that they may influence their peers with their knowledge and passion about our country’s foundation, and cultivate the culture in the process, bodes well for our country’s future.
As I have been speaking across the country, I have been encouraging a new movement among the youth. It is to form, Patriot Clubs! One of the missions of the Patriot Club is to gather and read the Constitution, as well as, discuss the possibility of reciting the Pledge of Allegiance at the flagpole outside of the schools in the morning. This may be incorporated into the prayer time that is currently occurring around the outside flagpoles at schools across the country.
In Federalist Paper No. 55, James Madison once again refers to the genius of the people in regard to the fact that the people would be well guarded by the Federal legislatures.
“I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the state legislatures, and the principles which are incorporated with the political character of every class of citizen.”
The next paragraph is equally as revealing:
“I am unable to conceive, that the people of America, in their present temper, are under any circumstances, which can speedily happen, will choose, and every second year repeat the choice, of 65 or an hundred men, who would be disposed to form and pursue a scheme of tyranny or treachery.”
These words resonate both a wisdom and a warning. We the people must awaken and pay heed to the affairs of Washington, D.C. As James Madison writes, “which can speedily happen..” Our liberties may be taken from us before we even know it is happening.
The wisdom and subsequent warnings in James Madison’s former paragraph may be broken down to three steps:
1. The genius of the people – we must immerse ourselves in learning and knowledge and then we must act. Our vote is our voice. A discussion regarding the 9th Amendment is one of note on this topic.
2. “The spirit which actuates the state legislatures” – the states must rise and defend the rights of Americans and the states to stop the encroachment of the Federal government upon the states. A complete and thorough study of the 17th Amendment is applicable as well as the revitalization of the 10th Amendment.
3. “Principles which are incorporated with the political character of every class of citizen” – this is our battle cry, so to speak. We MUST become a people whose character is etched with a political desire, relevancy, fervor and savvy.
A national turning of perspectives regarding prerogatives is upon us. Instead of putting footballs in the tiny hands of newborn boys, we should put the “Constitution.” Instead of visualizing our daughters as singers, and such, we should visualize and encourage them to be future leaders of our country. Patriots. Political character. Principles. Leaders of Liberty.
As John Adams said, “Liberty cannot be preserved without a general knowledge of the people.”
God Bless,
Janine Turner
Tuesday, July 13th, 2010
Federalist No. 55 – The Total Number of the House of Representatives, From the New York Packet
Federalist Paper 55, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, David J. Bobb PhD, Federalist No. 55A republican government is one in which the people rule—indirectly. How, not if, the people should be represented was one of the vexing questions faced by the delegates to the Constitutional Convention. Especially tricky was determining the size of the House of Representatives, the topic Madison takes up in Federalist 55.
Until the very last day and hour of the Convention’s debate in 1787, the consensus opinion of delegates was that there would be one member of the House for every 40,000 American citizens. On September 17, what we now know as Constitution Day, the final day of deliberations, Benjamin Franklin made a last plea for unanimity in the signing of the document. It was a dramatic speech, and might have made a fitting coda to the Convention but for one last interjection.
Nathaniel Gorham, from Massachusetts, motioned to peg the ratio of each House member per people represented at 1:30,000 instead of 1:40,000, hoping that the new figure might bring on board a few more dissenters who wished federal elected officials to be more accountable to the people. After the motion was seconded, George Washington, who up to that point had not spoken at all during the Convention, despite presiding over it, intervened to offer his own, weighty, second to the motion. The new ratio passed unanimously (even if the Constitution did not).
Despite the adoption of the new ratio, and the promise of a 65-member House of Representatives if the Constitution was ratified, some anti-Federalists still thought the numbers, and the principle they represented, were not quite right. Lower ratios meant less chance of cabal, or undue influence by forces inimical to the common good.
To these complaints Madison offers a direct rejoinder: “Nothing can be more fallacious than to found our political calculations on arithmetical principles.” Fiddle with the numbers all you want, he says, but you are still dealing with people who are prone to abusing power. “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
To avoid mobocracy, then, we must rely upon prudence. Sixty-five House members seems a good number for now; the nation will continue to grow, of course, Madison says. The most important point is not to get lost in the debate over numbers, because however vital it is that we get those right, we must without fail take our political bearings from human nature, not numerical calculations.
“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”
Men are not angels. But they also are not beasts. Don’t trust human beings too much, Madison says. Similarly, don’t get so down on human beings that self-government is thought impossible. Virtue is required for republican, or representative, government. What sort of virtues—“these qualities” that are mentioned by Madison—do you think are “presupposed” by republican government?
As for the numbers, it’s worth noting that had the original ratio of 1:30,000 held constant, the House today would have more than 10,000 members. Today, an average of slightly more than 700,000 Americans are represented by a single member of the House of Representatives. Since 1912 the number of House members has been set by law at 435. Is this ratio in need of a readjustment?
Tuesday, July 13th, 2010
David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.
Federalist No. 56 – Janine Turner
Federalist Paper 56, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 56, Federalist No. 56Howdy from Texas! I was a guest on a radio show this morning and I then completed reading the High School essays. Yea!! They are wonderful!! I just read Federalist Paper No. 56 and I am dashing out to feed the horses, clean stalls and drive an hour into town to pick Cathy up at the airport at 2:00. Whew! (We have meetings for Constituting America in Texas this week.)
I am on a time clock here because Cathy and I are going to be organizing all of our contest entries tonight so that we may mail them to our distinguished judges. I will not have time to write an essay tonight! Thus, I am going to quickly comment on the statement that I found to be thought provoking in Federalist Paper No. 56.
James Madison wrote:
“What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation and the militia.”
Simply stated. Obvious intentions. The Federal government was intended to be small. The states were intended to be sovereign. The voice of the people viable.
Time to reclaim our country.
God Bless,
Janine Turner
Wednesday, July 14th, 2010
Federalist No. 56 – The Same Subject Continued—The Total Number of the House of Representatives, From the New York Packet (Hamilton or Madison)
Federalist Paper 56, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, James D. Best 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 55, Federalist No. 56, James D. BestOne of the criticisms raised against the Constitution was that there were too few members in the House of Representatives to adequately represent constituents.
The rule reads: “The Number of Representatives shall not exceed one for every thirty Thousand.”
Federalist 55 argued that a representative body ought to have enough members to mitigate the threat of corruption, but not so many so as to cause confusion. The initial number would be 65, but a census in three years would adjust this number. Federalist 55 basically argues that the number in the state legislatures varied, and if 65 members were too few, it would be increased in a short time after the first census.
Federalist 56 addresses the objection that a small House would not possess the collective knowledge necessary to make laws.
The first argument is one that we’ve heard before: The powers of the national legislature are limited, and state legislatures would have specific knowledge for the powers retained by the states. “In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.” Since the national government had only enumerated powers, the House did not need a broad breadth of knowledge.
This led easily into the second argument, which was that national law could rely on state laws. “The laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide … little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act.”
Both arguments show that Publius believed the states would handle the preponderance of legislation and act as a safeguard against the federal government.
For these reasons, Publius concludes “that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it.”
This may seem like a minor issue, but in 1787 it grabbed the attention of the most powerful politician in the country. In the last days of the convention, George Washington verbally supported allowing a representative for every thirty thousand, rather than one for every forty thousand. In his convention notes, Madison wrote, This was the only occasion on which the President entered at all into the discussions of the Convention.
During the convention, James Madison also proposed doubling the initial number of congressmen, but as part of the Publius triumvirate, he ended up defending the smaller number.
What about today? Until 1911, the number of representatives was adjusted by population. Since that year, the population criterion has been adjusted to keep the number of representatives constant. The “shall not exceed” clause allowed the House of Representatives to restrict their membership to 435. Congress restricted their growth in number, but not their growth in power.
A quote from Federalist 55 shows that Publius never anticipated a dominating Congress. “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 latter against the liberties of their common constituents.”
James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.
character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.
Madison warns against laws that will not have “full operation on [Congressmen] and their friends, as well as on the great mass of the society.” Making only laws that are universally applicable “has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.” Citizen legislators must not be a privileged class.
Though the Republican take-over of Congress in 1995 spurred the passage of a law that removed Congressional exemption from a dozen anti-discrimination, labor, and safety laws, there yet remain other laws that apply to private citizens but not to Congress. Madison asserts that the American spirit will restrain the legislature from making legal discriminations in their favor and that of a particular class. “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” Where does that place us? As many have said in some variant about republican systems, “The people get the government they deserve.”
Wednesday, July 14th, 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.
Federalist No. 57 – The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation, From the New York Packet
Federalist Paper 57, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 51, Federalist No. 53, Federalist No. 57, Joerg W. KnipprathPublius continues a lengthy examination of the election and composition of the House of Representatives with a response in Federalist 57 to the charge that the chamber will tend towards oligarchy. He finds this an absurdity in light of the short term of the representatives and the liberal and flexible qualifications for both those who will be elected and those who will elect them. But, in the harsh light of experience, is the objection entirely absurd?
Classic democratic and republican constitutions commonly relied on three formal devices connected with the selection of officials to prevent concentration of power in a few ambitious individuals. Those were selection by lot, short terms of office, and term limits. These mechanisms often were used for the selection of civil executive and administrative officers, the “upper house” of the legislature (such as the Venetian Senate), and—in Athens at least—the juries. The “lower house” of the legislature in each of them was not based on representation but on participation by the whole qualified class of citizens. In the House of Representatives, however, the representative principle applies, which makes that body more analogous to the first class of offices. Our system retains traditional democratic essentials in the selection of juries, intended to produce a cross-section of the community, to prevent corruption through jury tampering, and to keep “professional” jurors from accumulating power.
Classic republicanism saw election as “oligarchic,” unlike the “democratic” method of selection by lot. True, election can produce more qualified officials than the uncertainties from drawing lots. Done well, it elevates the most deserving, a point Madison hammers home in his discussion. If it works right, election can produce a true aristokratia, a government of the best. After all, the Athenians selected their strategoi, the military commanders, by vote and without term limits, because military skills are more specialized and crucial than ordinary bureaucratic talents. But the corrupt form of aristocracy is oligarchy, a government of the few for their gain. In that corruption lies the problem.
The classical distrust of elections was precisely what the Antifederalists feared, namely, that certain individuals would gain disproportionate personal power and begin to see their offices not as a public trust but as a personal estate. Inevitably, this would corrupt even the most virtuous newcomer. Moreover, once the official left office, the influence he gained in office likely would cause the office to be passed on to an ally or hand-picked successor, thereby creating a semi-hereditary sinecure. Looking at many members of Congress today (though not just them), one sees this political dynamic at work relentlessly. Short terms have not prevented the emergence of Congressional “barons,” those who spend decades in Congress tending to their fiefdoms. Nor is that entrenchment necessarily due to some great superiority of personal qualities rather than the inertia of party identification among voters and the gerrymandering of districts to protect party and incumbent advantage.
What forms might such corruption take, other than those already mentioned? Among them, Madison concedes the danger from laws that favor politicians, their friends, and particular interest groups, including ones that expressly exempt politicians from the coverage of those laws. Favoring the particular over the general interest is anathema to republican purists, but also a fact of political life that, as Publius has written frequently, must be channeled, as it cannot be cured.
Madison’s proposed solutions are by turns plausible, idealistic, resigned, and non-responsive. He mentions term limitation, by which he means frequency of election. Though many state offices at the time had annual terms, the two-year term for House members is sufficiently republican.
Second, the lack of property, religion, and status qualifications means that the net will be cast widely for suitable candidates. Could additional limits, other than those qualifications expressly written into the Constitution, be imposed by Congress or the states? As to the first, the Supreme Court emphatically rejected that proposition, concluding in Powell v. McCormack (1969) that the list of qualifications in the Constitution was exclusive. The Court also rejected that argument more circumspectly in regards to the very different issue of state regulation of the number of terms to be served in Congress, in Term Limits v. Thornton (1995). Madison’s reference in Federalist 53 to the lengthy terms some likely would serve, somewhat supports the Court’s conclusion. Third, the voters will have the same qualifications that the states themselves deem sufficiently republican.
Madison’s further reliance on politicians’ gratitude and sense of honor as restraining, at least for a while, the various corrupting tendencies is noble, but naive. Homo politicus is, unfortunately, too often characterized by a lack of these desirable natural sensibilities. The sentiment also conflicts with Publius’s admonition in Federalist 51 that, to limit government to its proper purposes, “ambition must be made to counteract ambition.” Madison is closer to the mark in suggesting that ambition for re-election works as a universal motivator for politicians’ behavior. Public choice theory has demonstrated just that.
The problem is that Madison connects that ambition with doing what benefits the voting majority. Leaving aside whether what is good for the immediate majority is collectively good for the people over the longer term, is Madison correct? Again, public choice theory, based on just watching what politicians do, shows that politicians’ self-interest and the rent-seeking by organized special interests better explains voting behavior than a strong attachment to collective good (if the latter can even be determined coherently) or even to the preferences of a weakly-organized majority. Then there is the matter of how that cozy connection between politicians and organized minorities seeking government favors affects the problem of faction that Publius has addressed repeatedly, if voting cannot cure that problem.
He grants that these internal and external controls may be “insufficient to control the caprice and wickedness of men,” but declares that this is all the mind and hand of man can devise, and that these controls reflect traditional republican practice. In Federalist 51, among others, Publius discussed the importance of constitutional structures as auxiliary precautions against the excesses of government. Here, he hedges those bets. Publius is right that the forms of government are important, but can only do so much to temper corrupt extravagances. The system’s success ultimately depends on the quality of people elected by voters possessed of the judgment and character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.
Madison warns against laws that will not have “full operation on [Congressmen] and their friends, as well as on the great mass of the society.” Making only laws that are universally applicable “has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.” Citizen legislators must not be a privileged class.
Though the Republican take-over of Congress in 1995 spurred the passage of a law that removed Congressional exemption from a dozen anti-discrimination, labor, and safety laws, there yet remain other laws that apply to private citizens but not to Congress. Madison asserts that the American spirit will restrain the legislature from making legal discriminations in their favor and that of a particular class. “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” Where does that place us? As many have said in some variant about republican systems, “The people get the government they deserve.”
Thursday, July 15th, 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.
Federalist No. 58 – Objection that the Number of Members Will Not Be Augmented as the Progress of Population Demands Considered (Madison)
Brion McClanahan, Ph.D., Federalist Paper 58, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 58James Madison wrote Federalist No. 58 to defend the construction of the House of Representatives, and in particular to refute the charge that “the number of members will not be augmented as the progress of population demands.” This is an interesting issue and one that demands both a retrospective and contemporary analysis.
He began by stating that the objections against the House on the aforementioned basis “can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld.” Madison simply pointed to the fact that the Constitution explicitly stated that the House will be reapportioned every ten years following a mandatory federal census and that the initial number of representatives was to be for “the short term of three years.” He illustrated that this design was based on several State constitutions, and the United States Constitution, in contrast to the State models, had more teeth. The United States Constitution stipulated that each State must have at least one representative in the lower House and that no member would represent more than thirty thousand inhabitants. States had gradually increased the numbers of representatives in their legislative bodies without such explicit language, and Madison argued that this would surely be the case under the United States Constitution.
Moreover, because the Congress was a bicameral legislature, it could check schemes by one house or the other to seize control of the government. The Senate was, in Madison’s words, the “representation…of the States,” while the House was “a representation of the citizens.” No house, he argued, would allow the other to compromise their specific constitutional authority, and no faction in either house would be able to garner enough support to destroy the other. Of course, Madison was restating his beliefs in the “checks and balances” of the federal government under the Constitution. And, if the Senate, controlled by the smaller States, tried to block reapportionment, the House could refuse to fund the government. As Madison stated, “This power over the purse may, in fact, 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.”
Of course, Madison based his arguments on the premise that the United States Constitution maintained a federal republic and did not create a “national” government. The States still had equal representation in the Senate. He was negating objections that were born from the federal convention in Philadelphia, namely that the “small States” would be swallowed up by the “large States.” In many ways, “large State” and “small State” were code words for “national” and “State’s rights.” The “small States” enjoyed equal representation under the Articles of Confederation in a federal republic. The “large States” often believed they were under-represented and thwarted by “factions” of “small States;” thus, they wanted the greater control a “national” government offered. Madison tepidly argued (he wanted a much more powerful central government at the Philadelphia Convention), as did many Federalists who initially supported the Constitution, that the Constitution did not change the nature of the United States government, only the structure. As such, the House could add members without jeopardizing the equality of the States through the Senate.
Madison cut to the heart of the debate near the end of the essay. Some members of both the Philadelphia Convention and the State ratifying conventions believed that the House contained too few members to be a truly representative body of the “people.” A thirty thousand to one ratio did not allow for enough democratic control of the government. Madison answered by stating, “the more numerous an assembly may be, 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 weak capacities.” Madison said that history had proven that large legislative bodies were typically hijacked by “a single orator, or an artful statesman….Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.” He continued:
The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSE OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.
Madison’s arguments in Federalist No. 58 are contemporary for two reasons. First, his contention that the Constitution did not destroy the federal republic is true when coupled with the Tenth Amendment to the Constitution and the original election of the Senate by State legislatures. The Seventeenth Amendment, which allowed for the direct election of senators, destroyed one vestige of State control over the government. In essence, both houses are now “national” legislative bodies, something Madison argued against in Federalist No. 58 (but supported in his Virginia Plan). Second, Madison was correct when he asserted that large legislative bodies are unresponsive and doomed to failure.
But in 1790, the population of the United States stood at around four million, and the largest State, Virginia, had less than 800,000 people. That is one legislative district today. Twenty-six States have a greater population than the entire United States in 1790 with four States exceeding the 1840 population of the United States. If the Framers believed that a ratio of thirty thousand to one was sufficient for a representative legislative body and that a population of four million constituted a “country,” then would not the States today—forty three of which have a population greater than one million and many which have the approximate thirty thousand to one ratio in the original Constitution—be better handling the majority of legislative issues? The Founders would think so.
Friday, July 16th, 2010
Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He teaches history at Chattahoochee Valley Community College in Phenix City, AL.
Federalist No. 59 – Janine Turner
Federalist Paper 59, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 59, Federalist No. 59Howdy from Texas! Well, I am back at the essay desk after an intense week of having the great joy of reading so many essays! Cathy and I read through each one judiciously, as well as the poems. We also had fun listening to the fabulous songs, watching the PSAs, short films and looking through the artwork. However, it was a time consuming, intensive work and just today are the works off to the judges! Thus, there were absolutely not enough hours in the day to peruse all of the generous entries and write essays!
Wonderful results. We thank each and every one of you who helped spread the word. Cathy and I are presently working on our next phase, which is the Constituting America Winners Behind the Scene Documentary and the Celebration for the winners in Philadelphia – an exciting program, interviews with the press, tours, etc. More to come!
Regarding Federalist Paper No. 59, I find that I am still confused over the “places, times and manners” of then and now – other than the fact that the senate was changed all together with the 17th Amendment.
What is obvious, as our distinguished Constitutional Scholar, Professor Kyle Scott, mentioned today, is the necessity and spirit of debate and a wise, well- informed premise. Hence, the reason for our foundation!
I concur wholeheartedly.
To quote Professor Scott, the need for Americans to, “take our cue from the founding generation—and not just Publius—but all of those who took it upon themselves to embark on a high-minded political debate that touched upon perennial questions of political significance,” is essential now. Now are the times that warrant the awareness, dedication and perseverance of citizens that reflect the deep love of liberty and country.
A paragraph that caught my eye in Alexander Hamilton’s Federalist Paper No. 59 is:
“It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprise to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them.”
Could this be more relevant to today?
The antidote to the “intrigues of foreign powers” is a government with a firm resolve to be vigilant and quick against these sly insurgencies of malice. As mentioned in an earlier Federalist Paper, “The enemy is in the field.” This is true whether it be as obvious as a terror attack or as insidious as the over zealousness of “political correctness” that paralyzes common sense.
God Bless,
Janine Turner
Tuesday, July 20th, 2010
Federalist No. 59 – Cathy Gillespie
Federalist Paper 59, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 59, Federalist No. 59Hello from Mt. Vernon Virginia! As Janine mentioned in her essay last night, we have been very busy over the past few days reading essays and poems, viewing short films and public service announcements, listening to songs, and looking at artwork, all submitted by a diverse group of young people across the country, with theme of how the Constitution is relevant to them today!
The good news is that we received an overwhelming response for our first “We The People 9.17 Contest!” The entries have been inspiring! The contest entrants all worked hard and put forth their very best efforts and creativity!
The bad news is that there are only so many hours in a day, and I have discovered that every now and then, I actually need to sleep! I have missed writing essays on Federalist Papers for a few days, but have been greatly encouraged by the knowledge of, respect for, and dedication to the United States Constitution by the young people who entered the contest.
Stay tuned for updates on the “We The People 9.17 Contest,” including the announcement of our distinguished panel of judges, and September 17 activities in Philadelphia where we will reveal the contest winners!
Federalist No. 59 discusses the advantages of the federal government regulating its elections. As someone who has worked in federal campaigns, I believe it makes sense to have uniform federal election laws, and the only way to achieve uniformity, is to regulate these elections federally.
Through a series of legislative acts, beginning in 1867 when Congress passed a law prohibiting officers from soliciting political contributions from Navy Yard workers, Congress has passed laws to require public disclosure of federal campaign contributions, set limits on individual contributions to federal campaigns, prohibit certain sources of campaign donations, restrict certain types of federal campaign expenditures, and in certain cases, limit federal campaign expenditures if public financing is accepted. Because of abuses that occurred during the Watergate era of our country, the Federal Election Commission (FEC) was established in 1975 as an independent agency, with civil enforcement jurisdiction, authority to write regulations, monitor compliance, and serve as a centralized source of information about federal elections, federal campaign committees, and federal campaign donors.
If you have never taken a few minutes to explore the Federal Election Commission website: www.fec.gov, I highly recommend it. You will find it fascinating! With a few clicks (“Campaign Finance Reports and Data” on left sidebar, and then “Search the Disclosure Database”) you can search Federal Campaign Contribution Data in a variety of ways. You can also read about the latest campaign finance laws and regulations and a history of the FEC.
Like all other congressional powers, our founding fathers devised checks on Congress’s regulation of Federal elections. One check, the States’ power to appoint U.S. Senators, was removed with the adoption of the 17th Amendment. This was an important structural check, noted by Hamilton in Federalist No. 59 as “that absolute safeguard which they (States) will enjoy under this provision.”
While the States have lost their power to have a voice in Congress’s power to regulate federal elections, the judicial branch is still actively engaged. The Supreme Court’s recent decision in Citizens United vs. the Federal Electio Commission (holding that the First Amendment prohibits restrictions on corporate financing of independent advertising in federal election campaigns) is one example.
Of course the most important check is our vote. As Janine Turner stated in her Fox News Op-Ed, Your Vote is Your Voice . Ues it! Research how your member of Congress votes on Federal Election Law issues. Do you agree or disagree? Let your vote be your voice on November 2, 2010!
Monday, July 19th, 2010
Federalist No. 59 – Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)
Federalist Paper 59, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Declaration of Independence, Declaration of Independence, Federalist No. 59, Kyle Scott PhDIn a representative system of government the election of legislators is of paramount importance. Given that the legislature is to be the primary lawmaking body, the election of its members will go a long way in deciding what gets done. Thus, it is no surprise that the method by which members of the House and Senate were to be chosen under the new Constitution became a contentious issue during the ratification debates. On February 22, 1788, Alexander Hamilton published Federalist #59—under the now well-known pseudonym Publius—to address the issue of how the election of members of Congress was to be regulated.
In the Declaration of Independence one set of grievances levied against King George III was the unfair manipulation of elections. Among the long-train of abuses that the King was found guilty of were that “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records…He has dissolved representative houses repeatedly…He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative power, incapable of annihilation, have returned to the people at large for their exercise; the state remaining the meantime exposed to all the dangers of invasion from without, and convulsions within.” The idea that a people ought to determine for itself how its representatives are elected and when the legislative branch meets and dissolves is central to the Jeffersonian conception of self-government and all those who agree with the political theory outlined in the U.S. Declaration of Independence. For without the ability to do so, the people are left unable to govern themselves and must succumb to the whim of the body that does have the power to decide how legislators are chosen and when the legislature is to meet.
Federalist #59 argues that these powers are given to the state except in instances when the national government feels it is necessary to step in. The national government, according to Hamilton’s argument, may alter the times and manner for holding elections of senators and representatives, and may alter the places in which elections are held for representatives, but may not interfere with the places in which senators are elected. Hamilton’s argument was that leaving these powers solely in the hands of the states would leave the Union at the mercy of the states. Hamilton’s fear was of disunion. He argued that the national government should be given a check on the ability of state governments to regulate the election of members to Congress in order to prevent disunion that would result from too much state autonomy. Opponents of constitutional ratification, known collectively as Anti-Federalists and who Hamilton was responding to in #59, did not see disunion as the primary threat to self-government as Hamilton did, but rather the accumulation of political power within a centralized national government.
While the debate over how to determine the means of representation is itself important, it brings to light one of the central debates in American politics—how to balance the need for stability and the need for liberty. We see this debate play out in issue areas as varied as federalism and national security to financial regulation. It is a continuous struggle to find the balance, but it is in the struggle where the balance is found. Had Hamilton faced no opposition then one could justifiably read the constitution as a vehicle for government centralization, but because he faced opposition we know that the constitution was designed to balance the need for a central government with the need to maintain local government structures. We need to take our cue from the founding generation—and not just Publius—but all of those who took it upon themselves to embark on a high-minded political debate that touched upon perennial questions of political significance. By following the founders in this respect we will be able to engage in a reasoned and informed debate about what is most important to us. By doing so we will be able to stay faithful to the wording and intentions of the founders’ Constitution as well as the spirit through which the founding generation governed.
Monday, July 19th, 2010
Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.
Federalist No. 60 – Cathy Gillespie
Federalist Paper 60, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 15. Essays by Cathy Gillespie, Federalist No. 60, Federalist No. 60Federalist No. 60 continues the discussion of the federal government regulating its own elections, this time addressing specific dangers of the national government having this power.
Publius takes each perceived danger and dissects it, asking rhetorically who would be favored by the federal government if the government were to favor a certain class of citizens through regulation of elections. He surmises that the country is diverse enough that every group will be represented and this is not a danger.
He further points out that the Congress is only empowered to regulate the time, place and manner of elections, not who can vote. Qualifications to vote are fixed in the Constitution, “and are unalterable by the legislature.”
How blessed we are as a Nation that our right to vote is protected in stone, in the U.S. Constitution. We forget what uncertainty many around the world face when it comes to elections, and their right to participate.
As echoed in most of the Federalist Papers, Publius ends by reminding citizens of their role in protecting the U.S Constitution and their God given rights, citing the public as the ultimate check against tyranny of the government:
“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?”
What a beautiful system of checks and balances our founding fathers constructed, delicately balancing and protecting our liberty!
On to Federalist No.61!
Good night and God Bless,
Cathy Gillespie
Wednesday, July 21st, 2010
Federalist No. 60 – Janine Turner
Federalist Paper 60, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 60, Federalist No. 60Howdy from mighty hot Texas! I want to thank Mr. Best for joining us today and for his insightful essay!
Federalist Paper No. 60 once again reiterates the importance of checks and balances and the separation of power. If only all Americans were required to read the United States Constitution and the Federalist Papers. How timely they are to our current trials and tribulations and how full of wisdom are their pages.
How can anyone state that the United States Constitution is irrelevant? It is my summation that one can only make such a statement if they lack the education on its principles, power and profundity. Have they read it? The United States Constitution and the corresponding Federalist Papers offer the wake up call that we American citizens need.
Perhaps there should be a prerequisite that all members of Congress, Presidents, Vice-Presidents, etc. take a “People’s Representative” test on the principles of the Constitution. Some representatives have a clear, concise understanding of the Constitution; some do not. Thus, before our representatives are allowed to take the oath that they are to, “Preserve, Protect and Defend the Constitution of the United States” should they not understand it? Isn’t this common sense?
This would be similar to a drivers test. One must take a driver’s test, written and literal, before one gets a driver’s license. Should not our elected officials, who are going to represent Americans and uphold the basis, the foundation of our country understand, truly understand, the “handbook?” Should we not ask this of them? Would we put our children in a car with a driver who did not know how to drive? We are talking about the future of our country. We are talking about our children’s future. An oath to protect the Constitution rings hollow if the oath is based on ignorance.
The 17th Amendment is a serious flaw in the balance of power. Why would the American people allow such a thing to happen? Interestingly, the only state that did NOT ratify the 17th Amendment was Utah.
Alexander Hamilton states in Federalist Paper No. 60:
“The collective sense of the state legislatures, can never be influenced by extraneous circumstances of that sort: a consideration which alone ought to satisfy us, that the discrimination apprehended would never be attempted. For what inducement could the senate have to concur in a preference in which itself would not be included?”
He also states:
“As long as this interest prevails in most of that 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.”
The states lost their power with the 17th Amendment. The people lost the balance of power necessary to maintain a republic as our founding fathers intended it.
Yet, the genius of the people will still prevail if they base their genius on the founding principles of our country. A learned people will rise to resuscitate their country with a breadth of spirit and passion that wisdom warrants.
Alexander Hamilton in Federalist Paper No. 60, states the call to action,
“Would they not fear that citizens not less tenacious than conscious of their rights, would flock from the remotest 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.”
The majesty of the people. The genius of the people.
Our founding fathers believed in us.
We the people.
Spread the word. Teach your children. Tell your family. Call your friends.
We are the roots of the Live Oak tree. The government represents the branches. The government need not feed us. We nourish the government.
God Bless,
Janine Turner
Tuesday, July 20th, 2010
Federalist No. 60 – The Same Subject Continued – Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)
Federalist Paper 60, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, James D. Best 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 59, Federalist No. 60, Federalist No. 61, James D. BestFederalist 59-61 address the federal power to regulate the election of senators and representatives. The clause being defended by Hamilton reads: “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 choosing senators.”
Vox Populi, in Anti-federalist 59, argued against the national congress regulating the election of senators and representatives. This was viewed as an infringement on state sovereignty and a possible tool of national tyranny.
In Federalist 59, Hamilton defended this clause by saying that every government must have the means to defend itself. The safety of the national government depended on its authority to override state rules that were harmful to the election of its own members.
In Federalist 60, Hamilton again argues against unfettered state authority over the election of members of the United States Congress. A national override of election laws is less pertinent than the arguments used by Hamilton. He defends the clause by stressing that safety from oppressive laws comes from the careful distribution of power and divergent methods of selecting each component of the national government.
He says, “the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”
One is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, and the minutes of the ratification conventions. There can be no doubt that the Founders believed that liberty depended on one part of the government acting as an effective check on all other parts of the government, and that meant between the national branches and between the states and the national government. The Founders abhorred concentrated power. They believed that only through judiciously balanced power—constituted by dissimilar modes—could liberty survive the natural tendency of man to dictate the habits of other men.
Hamilton made another interesting argument. If elected officials violated the Constitution to usurp power, “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?”
Tuesday, July 20th, 2010
James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.
Federalist No. 61 – Janine Turner
Federalist Paper 61, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 61, Federalist No. 61Howdy from Texas! I want to thank you for joining us today and I want to thank Professor Kyle Scott for his insightful essay. We are so blessed to have such esteemed scholars donating their time to Constituting America and to all of us who are reading, blogging and eager to learn.
I always strive to find what it is in the Federalist Paper of the day that is relevant to today. I am never without a loss, as there is always something that is brilliantly and passionately poignant.
Today, in Federalist Paper No. 61 by Alexander Hamilton, I was captivated by his arguments, which are consistently coherent and colorful. How much fun it would have been to have watched him in action and listen to his orations. His mind was active, alert, educated and astute. His intellectual reasoning and educated acumen, when paired against his opponent, was like a chess game and Alexander Hamilton was always saying, “check mate.”
The obvious relevancy of Federalist Paper No. 61 to today is in regard to his comparisons that the federal rules of the government regarding elections were no different than the rules of the state. Flip this and we have Arizona.
Arizona’s law is no different than the Federal law.
If anything, the state law is more lenient than the Federal law. Oh, if only, we had Alexander Hamilton here with us today to reveal this absurdity with his eloquent and searing charm.
My friend, Mark Joseph, writes about American’s knee jerk reaction to issues without taking the time to understand them. The link to his essay is at the end of this essay.
Many people in America have lost all reason, all desire to check the facts. One just jumps on the ideological bandwagon of the “party line.”
Political activism without preparation is like a powder keg. It only leads to dangerous incitation.
Corrupt or devious officials in power feed on the naiveté of the people. This is their trump card.
The genius and majesty of the people prevail only with an inquisitive and hungry appetite for the truth.
As John Adam’s said, “Liberty cannot be preserved without a general knowledge amongst the people.”
I say, “Liberty cannot be sustained without a general knowledge of the United States Constitution.”
God Bless,
Janine Turner
Wednesday, July 21st, 2010
Federalist No. 61 – Cathy Gillespie
Federalist Paper 61, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 22, Federalist No. 51, Federalist No. 52, Federalist No. 53, Federalist No. 54, Federalist No. 55, Federalist No. 56, Federalist No. 57, Federalist No. 58, Federalist No. 59, Federalist No. 60, Federalist No. 61, Federalist No. 61Greetings 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
Federalist No. 61 – The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)
Federalist Paper 61, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Federalist No. 59, Federalist No. 60, Federalist No. 61, Kyle Scott PhDIn Federalist #61 Hamilton reveals his theory of constitutional construction in a peculiar way. Hamilton’s view of the role constitutions should serve is consistent with what modern political scientists consider vital for a long-lasting constitution. Constitutions, if they are to last, must be broad and treated with reverence.
The topic of #61 is a carryover from #59 and #60; for the first of these I have already provided comments. The reason Hamilton cannot leave this topic alone is because his opponents will not. Much of the Federalist owes its structure to the fact that Publius was engaged in an ongoing public opinion campaign. If Publius felt that it lacked public support on a particular facet of the Constitution because of an objection raised by an Anti-Federalist then Publius would write another paper on the topic. Because many of the objections are being levied by those who favor a more decentralized structure than what the Constitution proposes; Hamilton uses the states to his advantage. In this paper He shows that, as has been customary throughout the Federalist, the provisions which are incorporated into the Constitution also appear in some of the state constitutions. This is a successful rhetorical strategy albeit one that lacks some logical and philosophical rigor. For instance, while Hamilton never reconciles the Constitution’s inconsistency with the U.S. Declaration with regard to the location of elections, he does make it a more palatable inconsistency to show that the people of New York have dealt with this in their own state without causing much of a problem.
Hamilton gives a straightforward defense of placing the power to determine when and how elections are held in the latter-third of #61, something for which the reader has been patiently awaiting. Putting this power into the hands of the national government is a matter of political expediency. If the power were left in the hands of the states there would be little or no consistency with regard to elections and members elected to the House and Senate would begin their terms anytime between January and December depending upon when their state held elections. One could easily imagine what types of problems this might cause. Of course, Hamilton knows that there is an easy objection to his claim: Why leave the decision to Congress? Why not specify in the Constitution when all elections for national office are to be held? Hamilton’s response is where we see his theory of constitutional construction come through.
Hamilton objects to the inclusion of such a specification in the Constitution because he is open to the possibility that events and changes may occur that would require an amendment to the Constitution as it relates to this matter. If there are such events on a regular basis, amending the Constitution on a regular basis will become necessary. Hamilton does not want to see this happen. For if Constitutions are specific in their provisions, and they contain too numerous provisions, they will require constant amendment. Being so specific is not what Constitutions are for, but rather laws. Constitutions provide the scaffolding and the laws provide the brick and mortar. Moreover, the more we amend Constitutions the more feeble they become, if not in actuality, then at least in perception, which then leads to an actual weakening. If citizens and officials perceive their Constitution as weak, then the whole system runs the risk of collapsing. A Constitution must be held in reverence by the people and officials; which means it should not be tinkered with too much after it is ratified. Hamilton knew this, and so did the Framers who approved of Article V which made the amendment process so difficult and thus unlikely.
Whether we agree or disagree with Hamilton’s position that the threat to a just government comes from below rather than above, we cannot deny that his understanding of constitutional construction is accurate.
Wednesday, July 21st, 2010
Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.
Federalist No. 62 – Janine Turner
Federalist Paper 62, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 62, Federalist No. 62July 22, 2010 – Federalist Paper No. 62 – Janine Turner
Howdy from Texas! The day is finally here! Federalist Paper No. 62. The first Federalist Paper I ever heard quoted. The Federalist Paper that stimulated my 90 in 90 = 180 essay. This Federalist Paper that started it all.
I thank you for joining us today and I thank Professor Will Morrisey for his wonderful essay!
Federalist Paper No. 62 offers so many pearls of wisdom. James Madison was absolutely remarkable.
Here are some of the mind-boggling relevancies.
Dare anyone read these and state that the United States Constitution and Federalist Papers are not applicable to today?
Federalist Paper No. 62 states:
“In this spirit it may be remarked, that 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 is how our founding fathers intended the checks and balances to be. This statement of James Madison is one of the reasons why everyone should read the Federalist Papers. It reveals the real intention of the structure of our government and empowers one with an understanding of the thesis for our government. By acquainting oneself with the facts, one becomes aware of how drastically our founding structure has changed.
Knowledge is power.
“No law of resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states.”
Healthcare would never have passed, nor many of the unfunded Federal mandates if the sovereignty of the states had been maintained and represented in the Senate.
“Excess of law making seem to be the diseases to which our governments are most liable..”
Relevant.
“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,”
Relevant.
“In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, 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.”
Relevantly revealing as to why we needed the Senate to be representatives of the state.
“A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.”
Relevant: we need representatives that are devoted to the people and best understand the ways of congress, laws and legislation.
“What indeed are all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom.”
Relevant: Vet our candidates. Do they know the United States Constitution? Do they have the adequate requisite humility, heart and knowledge sufficient for the job?
“One nation is to another what one individual is to another.”
Profound.
“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action n; but how can that be a rule, which is little known, and less fixed?”
Really, really relevant. This is the quote that started it all for me.
“Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people.”
Relevant.
“The want of confidence in the public councils damps every useful undertaking..”
Relevant.
“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?”
Really Relevant.
“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?”
Relevant.
“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.”
Brilliant.
“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.”
Sagacious.
Relevant. Relevant. All so very relevant.
Spread the word.
God Bless,
Janine Turner
Friday, July 23rd, 2010
Federalist No. 62 – Cathy Gillespie
Federalist Paper 62, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 62, Federalist No. 62In Federalist No. 62 Publius explains that the Senate was intended to be the more deliberative body. It was designed to be very different from the U.S. House. Senators must be older, age 30 instead of the required age 25 for the House; must have been citizens longer, nine years required for the Senate, while only seven for the House; and Senators were to be appointed by State Legislatures (until the ratification of the 17th Amendment providing for direct election of Senators). Senators’ terms of office are six years, while U.S. House members serve for two years.
These differences were meant to slow the legislative process, to provide for a “cooling off” period, from the passions of the U.S. House. There is a famous, often quoted story, of Thomas Jefferson (who was in France during the Constitutional Convention) returning to the U.S. and asking Washington why the delegates had created a Senate. In Washington and Jefferson’s day, people often poured their hot coffee into their saucer before drinking it, to cool it. Washington observed Jefferson doing this, and asked “Why did you pour that coffee into your sauce?” When Jefferson replied the obvious, “to cool it,” Washington answered, “Even so, we pour legislation into the Senatorial Saucer to cool it.”
The Senate’s famous tactic of the filibuster is another longstanding tradition meant to slow the legislative process. The U.S. Senate website notes that until the cloture rule was adopted in 1917, there was no way to stop extended debates except by “unanimous consent, compromise, or exhaustion.”
It is hard to read Federalist No. 62 and not be reminded of the healthcare bill that recently became law. Many of the founders’ words of warning found in this essay could have easily been written just a few months ago about this legislation which was hurried through the Congress, without the thorough vetting or deliberation our Founders intended:
“The necessity of a senate is not less 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.”
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
One might wonder why the Senate did not act as the Founders’ had intended, as a brake on this rush to pass a healthcare bill that many Members of Congress did not have time to read? The fact that State Legislatures no longer appoint U.S. Senators may have certainly had an impact, as well as the general partisanship that exists so much more in the Senate today, than in the past.
One thing is certain, Publius’s careful explanation of the Founders’ intentions in creating the Senate is as good as any political science textbook I have ever read. We should all work to get the Federalist Papers back into the schools and colleges! Thomas Jefferson called the Federalist, “The best commentary on the principles of government which has ever been written.” Federalist No. 62 certainly lives up to that billing!
On to Federalist No. 63!
Good night and God Bless,
Cathy Gillespie
Friday, July 23rd, 2010
Federalist No. 62 – The Senate, For the Independent Journal (Hamilton or Madison)
Federalist Paper 62, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 10, Federalist No. 62, Federalist No. 64, Federalist No. 65, Federalist No. 66, William Morrisey PhDPublius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.
The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will? If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.
The state problem: can a centralized modern state—indispensable in a world full of such states—nonetheless provide `political space’ for local and regional self-government? Or must centralization in the national capital or in the capitals of the constituent states of the federation necessarily dry up the springs of citizenship—active participation by the body of citizens in their own communities?
To keep track of Publius’ argument, it’s useful to outline it. He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three. His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than 90% of his attention.
The qualifications of senators (#62, paragraph 2).
The appointment of senators by the state legislatures (#62, paragraph 3).
The equality of representation of the states in the Senate (#62, paragraphs 4-6).
The number of senators from each state and their term in office (#62, paragraphs 5-16; #63, entire); this topic divided into the “six inconveniences” American suffers in not having such a body.
The powers invested in the Senate (#64, #65, #66).
With this outline in hand, consider Federalist #62.
An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least. Because the senate exercises power over foreign policy—particularly, ratification of treaties and declaration of war—a senator should know more and exhibit greater “stability of character” than a House member. This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse. We might think the opposite, but of course we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.
To prevent such consolidation, the Framers had the senators appointed by the state legislatures. This assured the state governments a means of defending themselves from within the federal government itself. In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at risk of his re-election. The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of the legislatures. This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old `spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses. Eventually, the roads to re-election became: first, bringing home the bacon legally and, second, providing constituent services to voters needing a guide through the bureaucratic maze. This corrupted the intention of the Framers and led to civic indifference—`consumerism’ in politics instead of self-government.
An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate. Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states. But he also fits the Senate into his larger conception of the regime. As he has already explained, the new regime is an extended republic (Federalist 10); it controls the effects of faction by multiplying factions over a large territory. American is also a commercial republic, unlike the military republics of antiquity—most notably, Rome. With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.” Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws enacted by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.
Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate? Can republics think? Can they act faithfully, steadily? Can they be wise husbands, not silly gigolos?
The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures. Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies. Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens. “It will be of little avail to the people that the laws are made by men of their own choice if the laws by so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment. Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself. “Anything goes,” indeed.
If anything goes, then respect for the regime will go, too. Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.
Thursday, July 22nd, 2010
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.
Federalist No. 63 – Janine Turner
Federalist Paper 63, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 63, Federalist No. 63Howdy from Texas. I thank you for joining us today and I thank our friend, Professor Morrisey, for his wonderfully insightful essay.
Responsibility. Reasonable Responsibility. These were and are the qualities needed in the Senate. These were and are the qualities needed in the American public. We, the “genius of the people,” hold in our hands the direction of our country and we either fail, or do this well, depending on our level of responsibility.
Our representatives have responsibilities but so do we.
Educating ourselves on the Constitution and the engine of our government, seeking to understand the issues of the day and future, inspiring family, friends and children to be active patriots, being vocal and voting – these are the responsibilities of the people of a Republic.
I am encouraged because there appears to be an awakening and we, the citizens of America, are getting more involved in the affairs of our government – governing through our informed choices. This is rather vital as it is, “we the people,” who govern. The Congress is a reflection of our voice, our vote. We must take responsibility for it.
In America we are still are able to do just this – take responsibility for our government. We want to keep it that way.
Publius felt that it was important that the people’s passions were kept in check by the cool meditations of the Senate – a check. This was also a check against tyranny.
“Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny.”
James Madison talks about the vulnerabilities that Senates had faced throughout history – the vulnerability of being taken over by the people’s branch. One such example was from the British.
“The British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.”
James Madison, ever ready with an historical reference or two, mentioned past Republican examples: Sparta, Rome and Cathage.
“As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as 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, at the commencement of the second Punic War, lost almost the whole of its original portion.”
All I want to know is – what happened in 1913? How was the 17th Amendment allowed to happen?
James Madison seemed to believe that if an usurpation ever were to happen, it would be restored by the people.
“We are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, 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.”
James Madison is referring to the Senate becoming an aristocratic or independent body. Yet, is not the usurpation of the Senate by the 17th Amendment, (foregoing the states), not an equal violation of our founding father’s intended balance of powers? Is it not reminiscent of James Madison’s British, Sparta, Rome and Cathage examples?
Are we able to bring back the Constitution to its “primitive form and principles?”
Caution must be taken in regard to the new movement to do away with the Electoral College. There is a movement to do this through state legislatures. Only an informed and “responsible” people can prevent this from happening.
We must pay heed and take action so our posterity does not say, “What Happened in 2012 or 2014? How was the removal of the Electoral College allowed to happen?”
God Bless,
Janine Turner
Saturday, July 24th, 2010
Federalist No. 63 – Cathy Gillespie
Federalist Paper 63, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 62, Federalist No. 63, Federalist No. 63, Federalist No. 64, Federalist No. 65, Federalist No. 66Greetings from Mt. Vernon Virginia! Thank you Professor Morrisey for your enlightening essay on Federalist 63! The methodical nature in which Publius addresses every aspect of the Constitution, and the elements of the government of the United States never cease to amaze me. Federalist 62 explained how the Senate was to be organized: qualifications, appointment by state legislatures, equal representation among states, number of members and term, and the purpose of the Senate; Federalist 63 elaborates on the unique role of the Senate and its responsibility, while Federalist Nos. 64-66 explore its powers.
Federalist 63 emphasizes the role of Senators as Statesmen. By design, Senators were intended to be mature individuals who exercise responsibility, and give consideration to the long term impact of a “succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation.”
Some would argue there are fewer true Statesmen in the Senate today than we have seen in the past. Senators such as Henry Clay, Daniel Webster, and John Calhoun don’t seem to exist in the same way they once did. However, we recently lost such a statesman, Senator Robert Byrd of West Virginia. While some may question Senator Byrd’s support of prolific federal spending, he is the undisputed “Father of Constitution Day,” held each September 17!
Senator Byrd’s amendment to the Consolidated Appropriations Act of 2005 designated September 17, the anniversary of the 1787 signing of the Constitution, as Constitution Day. This bill was signed into law by President Bush on December 8, 2004 as Public Law 108-4-47. Thanks to Senator Byrd, on September 17 all educational institutions receiving federal funds are required to hold programs on the United States Constitution.
Janine and I have a goal to imbue Constitution Day into the cultural consciousness of our country! Constituting America is planning several events in Philadelphia this September 17, featuring our We The People 9.17 Contest for Kids Winners. If you will be in the Philadelphia area, please join us! Watch our website for more details.
Thank you, Senator Byrd, for your vision in establishing this important day of recognition for the United States Constitution in our country. Thank you for your service to our Nation. While I may not have always personally agreed with your votes and your interpretation of the Constitution, I will miss your Statesman-like grace and love for our founding document!
Below are Senator Byrd’s own words about Constitution Day:
CELEBRATING OUR CONSTITUTION
Our Constitution is the foundation of our freedoms. Just a few pages, written on parchment, established for all time the direction and structure of these United States. The first ten amendments, known as the Bill of Rights, guarantee our freedoms: freedom of speech; freedom of religion; the right to assemble; the right to petition the government; the right to bear arms; and the right to vote. Our liberties are protected by that Constitution, not only by the Bill of Rights, but also by the separation of powers and the checks and balances among the three equal branches of our government.
Each of us should give thanks that on September 17, 1787, our forefathers signed their names to the new Constitution and launched mankind’s most remarkable experiment in self-governance.
But a great Republic cannot sustain itself unless its citizens participate actively in their own government. To do that, I strongly believe, that our citizens must be familiar with the Constitution and the intent of the Framers who wrote it.
In December 2004, I helped to enact a federal law that designates September 17th of each year as Constitution and Citizenship Day. I did so because I care so deeply about this precious document.
Consequently, I invite all Americans to take the time on September 17th to read, analyze, and reflect on the Constitution. It is a learned and dynamic document. Brilliant in its brevity, it remains extraordinary in its wisdom. It is my hope that citizens of every State in the Union, including children, will be inspired to organize local celebrations on Constitution Day.
Let us spread the excitement of celebrating Constitution Day far and wide, through every hill and dale, across the Great Plains, through the Deep South, across the West, the Southwest, the Northeast, as well as up and down the Atlantic Seaboard, and especially in West Virginia. Let us all unite on September 17th to appreciate our magnificent Constitution.
Unless we understand our birthright and guard it vigorously, we risk losing the gift of the Framers. Our Constitution continues to inspire millions around the globe. It has survived the stresses and strains of more than 221 years of incredible challenge and change.
Our Constitution’s Framers were willing to risk everything they owned, even their own lives, to give us the great treasure that is our nation and our form of government. Each of us has an obligation to hand that treasure on to future generations intact and strong and secure.”
Friday, July 23rd, 2010
Federalist No. 63 – The Senate Continued, For the Independent Journal (Hamilton or Madison)
Federalist Paper 63, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 63, The Articles of Confederation, William Morrisey PhDFederalist 63: Responsibility and the Rule of Reason
A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government. In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations. He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.
Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states. Despite this, Publius argues, America has lacked “a due sense of national character” in the world. He means “character” in both senses: moral soundness, but also a well-defined identity. If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know what how to `play off him,’ so to speak. With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns. Such notable American statesmen as George Washington and Benjamin Franklin deliberately cultivated their public faces. In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.
A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could do—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character. He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.
The matter of character fits well with Publius’ final consideration: responsibility.
Although Publius did not invent this word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map. If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government. By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.
Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires. “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?” Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.” It is one thing to slow passions down; it is another to map out the right direction for the country.
Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis. In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.
To those who fear that the Senate will become an outright aristocracy, dominating the other branches, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely `trifecta.’ Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax. Even so, it remains quite far removed from a genuine hereditary aristocracy.
Friday, July 23rd, 2010
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.
Federalist No. 64 – Cathy Gillespie
Federalist Paper 64, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 64, Federalist No. 64Federalist No. 64 begins a discussion of the powers of the Senate, specifically the power to ratify treaties.
It is interesting that the Senate and the House each possess distinct powers, reflective of the founders’ view of each institution’s strengths. The U.S. House, closer to the people, controls the “purse,” while the U.S. Senate, designed to be the more stable and mature body, handles issues such as ratification of treaties, confirmation of certain executive branch officials and Supreme Court Justices, and serves as the court for impeachment trials.
The Senate’s power to ratify treaties the President makes is another example of the brilliant system of checks and balances designed by our founders. The founders had great confidence in the ability and character of the Senators that would serve, based on the qualifications they had to meet in order to be appointed, and based on the fact that they would be appointed by the State Legislatures.
Publius states:
“This mode (appointment of Senators) has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.”
I wonder how often Federalist No. 64 was quoted during the debates on the 17th Amendment almost 100 years ago.
Publius goes on to extol the level of qualifications a Senate candidate must meet in order to be appointed, “men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”
In this age of sound bites, with newspapers closing every day, there is less and less substantive reporting about candidates. It seems that in the modern age, it is easier than the Founding Fathers imagined for the people to be “deceived by those brilliant appearances of genius and patriotism, which like transient meteors, sometimes mislead as well as dazzle.”
This quote jumped out at me as well:
“In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.”
When the federal government makes policy that puts undue burdens on states, it is not “advancing the good of each of the parts or members which compose the whole.”
The Founders put every precaution and a carefully balanced structure in place to ensure members of the U.S. Senate were “men of talents and integrity.”
However, as is often repeated on these blog pages, and by Publius, the final check is “the genius of the people.”
Get to know your U.S. Senators. Which, if any, in your state are up for re-election? Research their voting record. Go to their August town hall meetings. Write them a letter. Find out if your Senator is a man, or a woman, “of talents and integrity.”
Knowledge is power!
Good night and God Bless!
Cathy Gillespie
Tuesday, July 27th, 2010
Federalist No. 64 – Janine Turner
Federalist Paper 64, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 64, Federalist No. 64Howdy from Texas.
Publius speaks in Federalist No. 64
“That the attention and votes will be directed to those men only who have become the most distinguished by their abilities and virtues.”
Virtue. Virtue is a very beautiful word. Virtue. It is a word used quite often in the Federalist and is obviously a word that carried with it tremendous power and necessity in both the course of human endeavors and the political sphere. Do we still revere it today?
Virtue: the quality of doing what is right and avoiding what is wrong. 2. Any admirable quality or attribute; “work of great merit” 3. A particular moral excellence.
An acronym of the word virtue lists what we should look for in our representatives and in our future candidates.
Verify
Identify
Responsibility
Trust
Understand
Engage
1.Verify our Representative’s and/or candidate’s claims.
2. Do we identify and agree with our Representative and/or candidate’s mission?
3. Does our Representative and/or candidate have a record of civic responsibility?
4. Do we trust that our Representative and/or candidate will uphold our Constitution?
5. Is our Representative and/or candidate’s mission thoroughly transparent and do we thoroughly understand his/her mission beyond the, as John Jay states in Federalist No. 64, “brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”
6. Do we feel that our Representative and/or candidate will engage in proper behavior and maintain a steady course to establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity?
Virtue in our leaders is most definitely a necessity that our present times warrant.
The preamble mentioned above is profoundly pertinent to our struggles today.
Establish Justice – a Republic promises this to what extent and at what price?
Ensure domestic tranquility – do not our borders need to be defended in a prudent, precise manner that prevents a spark from becoming a bonfire?
Provide for the common defense – the enemy is in the field – is due diligence being paid to this omnipresent fact?
Promote the general welfare – are not the definitions of this statement at a fevered pitch? Promote the general welfare to the point of a Republic’s and its people’s demise?
Secure the blessings of liberty to ourselves and our prosperity – Are our children guaranteed life, liberty and the pursuit of happiness? Will our Republic still stand for them?
“However useful jealousy may be in republics, yet when, like bile in the nature, it abounds too much in the body of politics, the eyes of both become very liable to be deceived, by the delusive appearances that the malady casts on surrounding objects.”
John Jay says it best. Relevant? I say, “yea.”
“They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious.”
Ominous, foreboding and motivating is John Jay’s wisdom.
Who will pay heed?
God Bless and I thank you for joining us and I thank Professor Morrisey for his true commitment and patriotism.
Janine Turner
Tuesday, July 27th, 2010
Federalist No. 64 – The Powers of the Senate, From the New York Packet (John Jay)
Federalist Paper 64, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, William Morrisey, Ph.D. 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Federalist No. 64, The Articles of Confederation, William Morrisey PhDPublius now begins his fifth and final topic respecting the Senate: its powers. In Federalist 64 he considers the power to ratify treaties.
Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress. Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”). State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government. One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.
Did it work? The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time. Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889. One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.
Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties. The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers. The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review. The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.
What is more, treaties are laws; still more than that, they are supreme laws of the land. This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.
The supremacy of treaty law made (and still makes) Americans nervous. Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.” Treaties are contracts between nations not under one another’s sovereignty. They are harder to enforce than ordinary laws. Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances. This does not mean that the United States cannot withdraw from a treaty—break the contract. But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force. The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.
Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.
But do they override existing constitutional law? This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war. Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.” Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law. If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states. The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.
Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states. The most `locally’-centered branch of the national government will hold the most `international’ power. Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.
Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments. This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s. Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles. It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.
Monday, July 26th, 2010
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College. His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.
Federalist No. 65 – Janine Turner
Federalist Paper 65, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 65, Federalist No. 65Howdy from Texas.
“Where is the standard of perfection to be found?”
Alexander Hamilton pragmatically points to the fact in his Federalist Paper No. 65, that no man, no country, no government, no Constitution is perfect.
“Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR?”
Is this premise not the kindling that lights the fire of faction and prejudice in not only our government but the people of our country?
Yes, James Madison wrote, “Liberty is to faction what air is to fire.” However, faction may be overzealously utilized to the point of destruction.
Alexander Hamilton states,
“Yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.”
Where are we in our country today? To determine that our country be perfect is to beset upon her an unattainable projector and thus a disillusionment. Are not our dogged factions a determination from one conceited party to derail the other conceited party? This conceit becomes a prejudice. Prejudice is the vice of evil. Evil seeks to destroy all good.
And America is good. America may not be perfect but she is good. America may not be without blemish but she is exceptional.
All parties should lay their swords upon the battlefield of propriety and pray for wisdom to unite. A unity based on the foundations of principles lain in our Constitution, principles that give free reign to faction but yield for reflection upon the broader purpose – A Republic that imbues her people with integrity, freedom to speak and seek, rise and fall, succeed and fail at one’s own determination. A call of the wild protected by civilized citation.
Diversity is to freedom what unity is to foundation.
Perfection renders failure. Virtue renders victory.
God Bless,
Janine Turner
Tuesday, July 27th, 2010
Federalist No. 65 – Cathy Gillespie
Federalist Paper 65, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 02 Clause 1-2, Article I Section 02 Clause 3, Article I Section 02 Clause 4, Article I Section 02 Clause 5 and Section 03 Clause 1, Article II Section 4, Federalist No. 43, Federalist No. 65, Federalist No. 65Federalist No. 65 defends the role of the Senate as the court of trial for impeachments. It is fascinating that this intuitively judicial function would be delegated to the legislative branch – another example of the intricate checks and balances built into the Constitution, perfectly calibrated to preserve our liberty!
In the impeachment process, there are “checks” even within this check, as the U.S. House “has the sole power of impeachment,” (Article I, Section 2, Clause 5 of the United States Constitution). In other words, the branch of the legislature closest to the people, the U.S. House, has the power to decide if there is sufficient cause to bring charges of impeachment. Our founders believed the people should decide (through their U.S. Representatives), if there is sufficient cause for trial to determine if “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4) have possibly taken place.
The power to convict rests with the Senate, however, as the founders believed the great responsibility of impeachment should be shared between the legislative bodies. The Senate was deemed the wiser, mature, and more stable body, capable of such consequential decisions.
“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 an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”
If the founders had made the impeachment process too easy, it could fall victim to the political whims of the day; too hard, and the people would not be able to remove those who violate the public trust. Much like the amendment process which seems to have found the perfect balance between “that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults,” (Federalist No. 43), the impeachment process is designed with the perfect equilibrium between too facile, and too complex. As Troy Kickler notes, of the seventeen Americans impeached since 1789, only seven have been convicted.
As we journey slowly through the Constitution, with the Federalist Papers as our guiding light, it is awe inspiring to uncover layer after layer of checks, balances, and built in safeguards for our liberty. And to think this beautiful, delicate governmental structure that so ably protects our freedom was designed and agreed upon in a little over three months, in a hot room in Philadelphia! George Washington called it “a little short of a miracle.” With over 200 years of hindsight, and in-depth study, it becomes more and more apparent that a true miracle occurred.
Good night and God Bless!
Cathy Gillespie
Tuesday, July 27th, 2010
Federalist No. 65 – The Powers of the Senate Continued, From the New York Packet (Hamilton)
Federalist Paper 65, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 64, Federalist No. 65, Federalist No. 66, Troy Kickler PhDAlexander Hamilton penned three essays (Federalist 64 – 66) explaining why the U.S. Constitution invested the U.S. Senate with certain powers. In The Federalist 65, he explains, in particular, the Senate’s role in the impeachment process, and why that body–and not the Supreme Court–had been given the authority to convict.
According to the Constitution, the House of Representatives impeaches a national, public official and the Senate hears the trial and issues a verdict. Since 1789, when the U.S. Constitution was ratified, seventeen Americans have been impeached. The list includes President Andrew Johnson and President William Clinton; however, it includes mainly judges at the U.S. District level. Among those accused of political misconduct, one resigned before his trial, seven have been convicted, and eight have been acquitted. Congress can only remove the convicted from their current political office. The court system will hear any other trials and issue punishment for possible criminal acts.
For the impeachment process, the Constitution requires 1) that Senators “be on Oath or Affirmation,” 2) that the Chief Justice preside over any presidential impeachments (the Vice-President presided over all others), and 3) that a conviction verdict have a minimum of 2/3 vote.
Since 1776, individual state constitutions had included an impeachment process for state officials, and Antifederalists in various states questioned whether state constitutions might be undermined. Among them was Luther Martin, who ironically later opposed Jeffersonian-Republicans by serving as Justice Samuel Chase’s legal defense during an 1805, national impeachment case. Other Antifederalists genuinely worried that outside political influence during the impeachment process might affect the Senators’ votes. In North Carolina, Joseph Taylor and Timothy Bloodworth worried that the House might one day impeach state officials. Edenton’s James Iredell, one of the first justices on the U.S. Supreme Court, dismissed this argument by pointing out that the constitutional language was clear: only national officials could be impeached by the House of Representatives and possibly convicted by the Senate.
Alexander Hamilton was fully aware of such arguments and put forth a cogent defense of the Senate’s impeachment power in Federalist 65.
One major question that Hamilton answered is why the Senate is given the power to try impeachment cases. Somewhat agreeing with Antifederalists, Hamilton admitted that partisanship or “political factions” could trump demonstrations of guilt and truth during impeachment trials. It was possible that reelection concerns and constituents would indeed play a larger role in the impeachment voting process than a genuine search for truth. But that’s why, Hamilton pointed out, the Senate–not the House of Representatives–was given the power.
Before the 17th Amendment’s passage in 1913, state legislatures elected national senators for their state, so Senators were not concerned with winning the popular vote. Senators were considered in Hamilton’s era, as legal scholar Michael J. Gerhardt writes, “better educated, more virtuous, and more high-minded . . . and thus uniquely able to decide responsibly the most difficult of political questions.” Elected by state legislative bodies, Senators were considered by Hamilton to be impartial and “sufficiently dignified” to perform the task. And to emphasize the seriousness of the impeachment and ensure a genuine search for truth, these virtuous men were required to take an oath or affirmation (affirmations were allowed so that Quakers, who were conscientiously scrupulous of taking oaths, might not be excluded).
Hamilton considered the Senate preferable to the Supreme Court, too. For one, impeachment was serious business: a conviction could doom an official’s honor. Such a decision, Hamilton reasoned, should not be left to a “small number of persons” but to serious deliberation among the most virtuous Americans. Moreover, the Court should not preside over two cases. After being stripped of emoluments, the convicted might face the same—yet now predisposed–judges in another trial. Judges inevitably influenced juries, the New York lawyer also stressed. Some Constitution critics had suggested uniting the Supreme Court and the Senate during impeachment trials; Hamilton argued that might still lead to an unfair, double prosecution.
The Senate is also preferable to charging people “wholly distinct from the other departments of government” to preside over impeachment trials, Hamilton writes. That option would increase government size and possibly require permanent positions; either way it would be too costly. It also would slow down the impeachment process and thereby give the guilty extra time to obfuscate the truth. Furthermore, Hamilton regretted to point out, a delay might give House members time to influence the decision.
Revealing the popularity and strength of Antifederalist arguments in certain states, Hamilton urged readers to consider the Constitution in its entirety and to avoid letting perfection be the enemy of the good. The Constitution should not be rejected strictly for a small number of problems, Hamilton argued: [Antifederalists] “ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.” The search for perfection in government, Hamilton warned in Federalist 65, can lead to anarchy.
Tuesday, July 27th, 2010
Troy Kickler, Ph.D., is Founding Director of the North Carolina History Project.
Federalist No. 66 – Cathy Gillespie
Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 66, Federalist No. 66In Federalist No. 66, Hamilton continues his defense of the Senate’s role as court of trial in the impeachment process. The anti-federalists believed this role concentrated too much power in the hands of the Senate. As we work our way through the Federalist Papers, it is fascinating to have the benefit of hindsight to explore how the structure built by the framers has played out.
In my personal journey through our 90 in 90, History Holds the Key to the Future, I have learned just how much I did not know!!
I have discovered the Senate.Gov website is a marvelous resource and repository of history. I consulted it for a list of Senate impeachment trials, and found this link:
http://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm#4
The above link contains an illuminating narrative of the Senate’s role in impeachment trials, and the major controversies that have arisen over the years, including the definition of “high crimes and misdemeanors.”
In 1960 U.S. Rep Gerald Ford famously stated, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
The link also contains the below listing of Senate Impeachment Trials. Since 1789, the Senate has conducted 19 impeachment proceedings, with an even split of 7 acquittals and 7 convictions. Three cases were dismissed.
Complete List of Senate Impeachment Trials
To date, the Senate has conducted formal impeachment proceedings 19 times, resulting in 7 acquittals, 7 convictions, and 3 dismissals.
William Blount, Senator
Date of Final Senate Action: January 11, 1799
Result: expelled, charges dismissed
_______________________________
John Pickering, Judge
Date of Final Senate Action: March 12, 1804
Result: guilty, removed from office
_______________________________
Samuel Chase, Justice
Date of Final Senate Action: March 1, 1805
Result: not guilty
_______________________________
James H. Peck, Judge
Date of Final Senate Action: January 31, 1831
Result: not guilty
_______________________________
West H. Humphreys, Judge
Date of Final Senate Action: June 26, 1862
Result: guilty
_______________________________
Andrew Johnson, President
Date of Final Senate Action: May 16/26, 1868
Result: not guilty
_______________________________
Mark H. Delahay, Judge
Date of Final Senate Action: no action
Result: resigned
_______________________________
William Belknap, Secretary of War
Date of Final Senate Action: August 1, 1876
Result: not guilty
_______________________________
Charles Swayne, Judge
Date of Final Senate Action: February 27, 1905
Result: not guilty
_______________________________
Robert Archbald, Judge
Date of Final Senate Action: January 13, 1913
Result: guilty, removed
_______________________________
George W. English, Judge
Date of Final Senate Action: December 13, 1926
Result: resigned, charges dismissed
_______________________________
Harold Louderback, Judge
Date of Final Senate Action: May 24, 1933
Result: not guilty
_______________________________
Halsted Ritter, Judge
Date of Final Senate Action: April 17, 1936
Result: guilty, removed from office
_______________________________
Harry E. Claiborne, Judge
Date of Final Senate Action: October 9, 1986
Result: guilty, removed from office
_______________________________
Alcee Hastings, Judge
Date of Final Senate Action: October 20, 1989
Result: guilty, removed from office
_______________________________
Walter Nixon, Judge
Date of Final Senate Action: November 3, 1989
Result: guilty, removed from office
_______________________________
William J. Clinton, President
Date of Final Senate Action: February 12, 1999
Result: not guilty
_______________________________
Samuel B. Kent, Judge
Date of Final Senate Action: July 22, 2009
Result: resigned, case dismissed
_______________________________
G. Thomas Porteous, Jr., Judge
Date of Final Senate Action: case pending
I hope you all are learning as much as I am about the history of our country, the founding principles upon which our country is based and how these principles were applied by the framers in creating the structure of our Republic, through the United States Constitution!!
Thank you for joining us!!
Good night and God Bless,
Cathy Gillespie
Wednesday, July 28th, 2010
Federalist No. 66 – Janine Turner
Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 66, Federalist No. 66Howdy from Texas.
To those of us who worry that the basic structure of checks and balances within our government have been tampered with, such as with the 17th amendment and may continue to be tampered with in the future, such as with the rumblings of the removal of the electoral college by circumventing the Constitution and doing it through the State Legislatures, I quote Abigail Adams, my favorite foremother in a letter that she wrote to her young son:
“These are the times in which a genius would wish to live. It is not in the still calm of life, or in the repose of a pacific station, that great characters are formed. The habits of a vigorous mind are formed in contending with difficulties. Great necessities call out great virtues. When a mind is raised, and animated by the scenes that engage the heart, then those qualities which would otherwise remain dormant, wake into life and form the character of the hero and the statesman.”
Inspire your children with this beautifully insightful passage about life, bravery, duty and patriotism. Share it with your friends and family.
I thank you for joining us. I thank Horace Cooper for his constant dedication and I thank Cathy Gillespie for being the best friend a person could ever dream of having and for being absolutely mesmerizingly devoted to Constituting America.
God Bless,
Janine Turner
Wednesday, July 28th, 2010
Federalist No. 66 – Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered, From the New York Packet (Hamilton)
Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 66, Horace CooperIn Federalist #66 Alexander Hamilton attempts to respond to objections about the new United States Senate acting as the Court in the event of impeachments of judges or executive branch officials.
The first complaint raised by critics of this set up was that “the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well established maxim which requires a separation between the different departments of power.” It is noteworthy that Hamilton eagerly accepts the notion that liberty is protected by dividing duties among several branches of government. In the case of the Senate acting as the impeachment court Hamilton suggests that this “partial intermixture of those departments for special purposes” is acceptable because of the benefits which accrue and because the Constitution doesn’t really mix these as much as critics charge.
Hamilton notes that the House and the Senate play unique roles that are essential — the House acts as the accuser and the Senate acts as the jury or judge. The House requires a simple majority for the accusation, but the Senate requires a concurrence of two-thirds ensuring that a too hasty or contrived accusation isn’t carried out. He next points out that in the State of New York the Senate is the impeachment court and the highest judicial authority for civil and criminal cases. If having the United States play a role as jurors in impeachment is unwarranted, how much more so is it true with the Constitution of New York?
The second issue raised is that having the Senate act as the Court “contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic.” Not only does the Senate in conjunction with the Executive have treaty-making power, critics charged that the impeachment role potentially made them the most influential division of government. Hamilton says that there is no objective measure of which part of the new government was the most influential. Instead Hamilton argues that we should recognize that the House of Representatives being the popularly elected branch is most likely to be the most powerful and influential branch of government. Hamilton explains that the House initiates impeachment (a strong power), and it is noteworthy that all revenue bills must originate in the House. The House also adjudicates disputes over the election of the Presidency. Weighed together the unique powers of the House demonstrate that there isn’t too much power being concentrated by the United States Senate.
The next objection was that the Senate would be ineffective in this role because “they would be too indulgent judges of the conduct of men, in whose official creation they had participated.” Here Hamilton explains that the criticism leveled against the Senate goes against the example in most of the state governments and almost all national governments that Hamilton has ever seen. All of them presume some role on the part of the parties that appointed individuals in policing those individuals’ misdeeds. Hamilton says that one byproduct of this dual function is that Senators may be more scrupulous about who they vote to confirm since they will ultimately be called to task in the removal of those individuals if they act corruptly. Additionally since they only vote to confirm and in fact the Constitution contemplates no role in the actual selection of the individuals ultimately nominated there is little reason to think that Senators would take casually their responsibilities to confirm or convict in an impeachment trial public officials.
The final complaint was that the Senate can’t objectively carryout this responsibility because “union with the Executive in the power of making treaties” may be the occasion for actual collaboration in misdeeds and corruption. Here Hamilton is responding to charges similar to those in objection number three. Instead of alleging lenience by the Senate, this objection is that perhaps the Senators would somehow be complicit in the misdeeds of the individual being impeached and therefore would fail to carryout their duties with regard to the impeached individual.
Hamilton argues that this complaint really is a complaint against the integrity of the President and the Senate generally. Whether they had impeachment power or not, their propensity for misdeeds would be distinct and separate from the issue of abusing the impeachment court process. There is no reason to think that their unique role as Senators would make them more likely to support corruption than would being a Member of the House of Representatives Hamilton explains. Nevertheless, Hamilton recognizes that even if individual members of the Senate were corrupt, the fact that they must all act in concert minimizes the likelihood that some corruption on the part of an executive branch official would be collaborated and harbored by two-thirds of Senators.
Finally, Hamilton closes with this prescient observation. Perhaps the greatest assurance that the Senators will carryout their responsibilities in impeachment impartially is that it would serve to “divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.” In other words, rather than suffer in the public’s eye, Senators will readily impeach corrupt officials.
Wednesday, July 28th, 2010
Horace Cooper is a writer and is the director of the Center for Law and Regulation at the Institute for Liberty
Federalist No. 67 – Janine Turner
Federalist Paper 67, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 67, Federalist No. 67Howdy from Texas! It is overpoweringly evident by reading Federalist Paper No. 67 that the volley of political spin has always existed. The ever so baneful attempts to manipulate words, laws and situations to best fit the perspective of the beholder, or party, was as evident then as it is now. The art of this twisting of truths in the political realm, where the sphere of influence is so broad and the outcome so tenuous, is dangerous because of its power to shape history.
The incomprehensible drone and tactics of trying to redefine facts is certainly tangible today. The best fortification against such an enterprising realm of humanity is knowledge. This is why my ever so favorite forefather, John Adams, stated, “Liberty cannot be sustained without a general knowledge among the people.”
This is why the education of our children is so important in the schools and in the home. What are our children learning in school? Do we agree with what is being taught? Knowledge is power. Are we discussing the foundation of our country with our children? They are never too young. Never. Keep a copy of the Constitution in your pocket, in your purse, on your kitchen table, on your phone. Pull it out; discuss the relevancy in regard to today’s events and news topics. Relish in the awe that such a document written over 200 years ago still holds within its words the guidance we need today.
Discuss how the rights that are embossed in the papers are ingrained in our American spirits.
Why? Because they were Providentially inspired. The United States Constitution was the springboard from which leapt the giant, transformational inspirations of justice, liberty and human dignity. We need it to preserve these God given attributes today. If we toss it aside like an old sock, then we toss aside our rights. With the Constitution’s demise we, as a country, as a free people, die.
Our United State’s Constitution is the world’s oldest Constitution still in use today – for good reason. Let’s keep it that way.
I thank you for joining us today and I thank Mr. Troy Kickler for his insightful essay!
God Bless,
Janine Turner
Thursday, July 29th, 2010
Federalist No. 67 – Cathy Gillespie
Federalist Paper 67, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article II Section 2, Federalist No. 16, Federalist No. 67, Federalist No. 67“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.”Article II, Section 2, Clause 3 of the United States Constitution.
Hello from Mt. Vernon Virginia! In Federalist No. 67, Publius vigorously defends the above sentence in the U.S. Constitution, and uses the anti-federalists’ arguments against it as an example of their distortion of the powers of the presidency.
It is appropriate I should be writing from Mt. Vernon, Virginia today, as President George Washington made the first use of the power of the recess appointment in 1789, to fill several federal district court judgeships. On July 1, 1795 President Washington made a recess appointment to appoint John Rutledge as Chief Justice of the United States Supreme Court, upon Chief Justice John Jay’s resignation to become Governor of New York. Within 15 days of Chief Justice Rutledge’s recess appointment, Rutledge made a controversial speech attacking the Jay Treaty, saying he would rather see President Washington die, than sign the treaty! Chief Justice Rutledge’s tirade led many to believe he was mentally ill or intoxicated when he made the speech. (for more on this story, see my source: http://www.senate.gov/reference/resources/pdf/RL31112.pdf, page 17).
Consequently, when Chief Justice Rutledge was nominated by President Washington for a full life term in December of 1795, Rutledge’s nomination was rejected by the Senate five days later by a vote of 10-14, making him the shortest serving Chief Justice in United States History!
From the moment of its inception, the United States Constitution went to work. The checks and balances and separation of powers delineated in this great document provided boundaries even on our first and revered President, George Washington. Imagine if the 24 hour news cycle had existed in President Washington’s time. The story of Chief Justice Rutledge would have been covered non-stop, and his speech would have certainly been all over You Tube! But despite the difference in technology, and the span of hundreds of years, our United States Constitution works much the same today as it worked at the time of its birth, like gears in a machine, steadily providing a check to one branch, and then another, with our liberty delicately balanced.
To the extent that one branch goes too far, and encroaches on another, or provides a check where none should be, it is not a failure of the machine, it is a failure of the energy behind the machine – “We the people.” Our knowledge is power, and our power translated to action is energy!
Thank you Troy Kickler for your brilliant essay, and your continued participation in our 90 in 90 History Holds the Key to the Future project.
And thank you to our fellow Patriots and “guardians of the Constitution,” (Federalist No. 16) for participating in our blog!
On to Federalist No. 68,
Cathy Gillespie
Thursday, July 29th, 2010
Federalist No. 67 – The Executive Department, From the New York Packet (Hamilton)
Federalist Paper 67, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Troy Kickler, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 03, Article II Section 2, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 67, Troy Kickler PhDAmong the 85 essays in The Federalist Papers, some of the most passionate language is in Federalist 67. A frustrated Alexander Hamilton admits that moderation in tone in writing #67 had been a difficult task. He denounces “writers against the Constitution” (now called Antifederalists) and accuses them of practicing “unwarrantable arts” that include disingenuousness regarding executive power and offering counterfeit information to prey on the American people and their fear of monarchy.
He specifically calls out Cato (probably former New York Governor George Clinton) and provides a lengthy, detailed explanation of the nomination and appointments and recess appointments clauses in Article 2, Section 2. In essence, Federalist 67 has two purposes: reprimand the critics of the Constitution and explain the constitutional limitations placed on executive power.
Hamilton writes with so much verve and occasional sting—and he admits as much in the last paragraph–that it is worth including a lengthy quote: “Calculating upon the aversion of the people to monarchy, they [Antifederalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as an embryo, but as the full-grown progeny. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York [here Hamilton seems to know Cato’s identity], have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.”
After rebuking Antifederals, Hamilton clarifies Article 2, Section 2 and hopes to prove that, without a doubt, State legislatures—not the President–fill Senate vacancies. Hamilton writes that only temporary appointments, including ambassadors and justices, would be made in special circumstances such as recess of the U.S. Senate. This clearly excluded, Hamilton writes, presidential appointments of U.S. Senators. He then refers back to Article 1, Section 3 which guaranteed States the authority to fill permanent vacancies in the Senate. (This was changed, however, with the passage of the 17th Amendment–popular election of Senators).
Hamilton rightly criticized Cato for misinterpreting Article 2, Section 2. Cato, however, included the recession appointment clause in his Letter #5 (Hamilton refers to this essay in Federalist 67) as a means to argue for annual Congressional elections. In it, Cato recalled similar ideas expressed by Algernon Sidney (1623-1683), author of Discourses Concerning Politics, and Charles de Secondat, Baron de Montesquieu (1689-1755), an Enlightenment thinker who articulated the separation of powers doctrine. Cato believed, in short, that annual elections eliminated a need for the recess appointment clause.
But back to Hamilton’s points. Article 2, Section 2 reveals the Framers’ fear of congressional despotism and serves as a check, alluded Supreme Court Justice Antonin Scalia in Freytag v. Commissioner (1991). This provision helped identify the source of temporary appointments of U.S. officers and avoided the possibility of legislative machinations. As James Wilson, a leading Pennsylvania Federalist, legal scholar, and one of the first U.S. Supreme Court justices writes, in Lectures on Law (1790-92): “The person who nominates or makes appointments to offices, should be known. . . No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.” Simply put, Article 2, Section 2 ensures that Americans know who is responsible for nominating appointments described within the provision.
It must be remembered that the President nominated, but Congress approved the nomination. Presidents have sometimes evaded this procedure, to be sure, by creating positions not listed in the provision. Grover Cleveland did so in 1893, when appointing James H. Blount to report on the Hawaiian Revolution. Hamilton argues in Federalist 67 that presidents do not confirm the officers listed in Article 2, Section 2. As James Iredell, a leading North Carolina Federalist reminded delegates at his state’s ratification convention, “The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.” History has provided examples of implementing this governmental check: approximately 20% of Supreme Court nominations have NOT been confirmed, to name only one example.
Although Hamilton uses an accusatory tone, all involved in the ratification debates were concerned with defending liberty. The debates prompted a more clear explanation of the Constitution’s checks and balances and limits on governmental power. We can be thankful for that.
Thursday, July 29th, 2010
Troy Kickler is Founding Director of the North Carolina History Project.
Federalist No. 68 & Federalist No. 69 – Janine Turner
Federalist Paper 68, Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 68, Federalist No. 68, Federalist No. 69, Federalist No. 69Howdy from Texas! As I read Federalist Papers No. 68 and 69 it becomes evident in a factual way how earnestly and tenaciously our founding. Constitutional forefathers strove to protect our liberties and our Republic. Once again, they based their decisions, not on rhetoric or reason but on the wisdom wrought by history.
In no circumstance was this more evident than in regard to the election of the President of the United States. In Federalist Paper No. 68, Alexander Hamilton, states this with precision and clarity.
“Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”
Could this be more relevant throughout our history and even today? We, and democracy, have been under continuous attack from varied countries for the past two centuries and we are under attack today. “The enemy is in the field,” whether it be via the insidious silencing by an overzealousness of “political correctness” or a literal attack on our soil.
America represents hope and hope is the envy of the enemy.
Our founding fathers wanted to protect our Republic from intrigue and corruption with the establishment of the electoral process. This provided a sort of perspective permeating through the passions of the people as well as a balance of power throughout the country. In times of peace and prosperity the perspective of an electorate seems redundant. Never have we seen, nor experienced the horrors that our forefathers endured that warranted and verified the need to establish such a window of wisdom laid in the hands of a few. Tyranny can easily slide in our backdoor while we slumber. Today, soldiers don’t beckon at our door to spend the night in our homes – this doesn’t mean it may not happen yet again.
Our only guarantee lies within the guarding and respecting and understanding the premise and principles upon which our Constitution was established.
We must never let ourselves be so far removed from the history or teaching of tyranny that we relinquish the reigns to the horse that pulls the cart. If we do this, our horse will pull our cart over a cliff into an oblivion of despair that will then be beyond our control.
“Liberty cannot be preserved without a general knowledge among the people.” John Adams.
Liberty cannot be sustained without a general knowledge of the United States Constitution.
The Electoral College is also important because it balances the power between the states. If we abolished the electoral process then the more populated states, such as California, Texas and New York would control the policies and direction of the country. One has to wonder about the “winner takes all” policy regarding the electorate that exists presently in all of the states except Maine and Nebraska. My understanding of “winner takes all” is that it undermines the electoral process. It also may falsely represent the political inclination of the states and eliminate electoral votes from certain regions that could, when added all together, actually determine an election. Is, “winner takes all” a violation of the United States Constitution? Does it circumvent the amendment process?
Federalist Paper No. 68 is enlightening and intriguing. Federalist Paper No. 69 is a smart, insightful comparison of our United States Constitution with the British rule of the king. Revealing are the nine points Alexander Hamilton makes by this exercise: Term limited, Impeachment possible, Checks by the legislative body, Power to command the military but not declare war or raise arms, Treaties made with concurrent power of the legislature, Appointment of officers with approval of the legislature, No power to convey privileges, Can prescribe no rules concerning commerce or coins, No particle of spiritual jurisdiction.
The comparison of the United States Constitutional restrictions to those of the British crown are awesome and revealing. Brilliant were the checks instilled upon the Executive branch of the United States’ government. This, of course, begs the question how have these limits prevailed today?
My curiosity is peeked by Alexander Hamilton’s statement about the President’s power of nomination being just that – a nomination – approved by the Senate – in ALL categories.
“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 President’s nominations of ambassadors, public ministers, judges, and in general all officers of the United States established by law and whose appointment are not otherwise provided for by the Constitution must be held to the scrutiny and “consent of the senate.”
How does the bloating of our modern day federal government, with unapproved and unchecked “bureaucrats and czars,” fair under this Constitutional scrutiny? These are the bleeds that rupture the heart of a Republic and threaten a seizure of the people.
Thoughts to ponder.
God Bless,
Janine Turner
Tuesday, August 3rd, 2010
Federalist No. 68 – Cathy Gillespie
Federalist Paper 68, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 68, Federalist No. 68Greetings from Long Beach Island, New Jersey! The Gillespies are on our family vacation, and it has been a little hard to keep up with the essays, but I am determined to catch up! In case you are wondering, the weather has been beautiful, the water warmer than usual, and we have been visiting with Ed’s extended family, his brothers and sisters and all the Greco cousins! There are at least 30 members of the Gillespie and Greco families here now, with the Moore cousins on the way, on Thursday!
The electoral college, the subject of Federalist No. 68, is one of the least understood components of the United States governmental structure. I recommend this website for anyone who wants to brush up on the subject: http://www.archives.gov/federal-register/electoral-college/
It is so important we all understand the electoral college and its importance to our republican form of government. There has a been a recent movement to abolish the electoral college. But another movement to persuade states to adopt proportional voting, instead of the traditional “winner-take-all” method, is also gaining momentum.
My daughter, Mollie Gillespie, writes about the advantage of states adopting a proportional system of allocating their electoral college votes on Juliette Turner’s new Kids’ Blog. Click on this link and scroll down for Mollie’s essay: https://constitutingamerica.org/juliette/?p=18
Check out Juliette’s Blog, and ask your kids to participate! Juliette is reading the Making of America, and writing about it. She is also encouraging kids to start Patriot’s Clubs!
Inspire our next generation to want to learn about the Constitution and our country’s founding principles! Forward out links to Juliette’s blog, and help your kids start Patriots’ clubs. Take the time to teach your kids about the electoral college! They find this subject fascinating, when it is explained to them. Use the website http://www.archives.gov/federal-register/electoral-college/ as a guide.
As we have said numerous times on these pages, knowledge is power! Let’s make sure our next generation is knowledgable, so they have the power to determine their future, and the future of our great country.
Good night and God Bless,
Cathy Gillespie
Sunday, August 1st, 2010
Federalist No. 68 – The Mode of Electing the President, From the New York Packet (Hamilton)
Federalist Paper 68, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XII, Constitutional Amendment XII, Federalist No. 39, Federalist No. 51, Federalist No. 64, Federalist No. 68, Federalist No. 69, Federalist No. 70, Federalist No. 71, Federalist No. 72, Joerg W. KnipprathFederalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?
The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).
The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.
The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.
As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.
That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.
The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”
Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.
There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.
Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.
Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.
Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.
At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.
Friday, July 30th, 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
Federalist No. 69 & Federalist No. 70 – Cathy Gillespie
Federalist Paper 69, Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 68, Federalist No. 69, Federalist No. 69, Federalist No. 70, Federalist No. 70, Federalist No. 71, Federalist No. 72, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77Greetings from Long Beach Island New Jersey! What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.
Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles. In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford. I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan. My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!
During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him. I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency. When you are President, you are always President, whether relaxing in a small group or at public events. President Bush respected the office, and lived every day in a way that could make our country proud.
Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ). The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.
In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties). This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.
Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.
The President’s power 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,”
has been expanded over the years by the President’s ability to create “Czar” positions. These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:
”The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”
Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html
Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar. This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.
In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals. The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability. As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives. Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.
The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments. And their grasp of human nature is equally as profound –
“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.”
“Men 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. But if they have been consulted, and have happened to disapprove, 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. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”
Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!
On to Federalist #71!
Good night and God Bless,
Cathy Gillespie
Tuesday, August 3rd, 2010
Federalist No. 68 & Federalist No. 69 – Janine Turner
Federalist Paper 68, Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 68, Federalist No. 68, Federalist No. 69, Federalist No. 69Howdy from Texas! As I read Federalist Papers No. 68 and 69 it becomes evident in a factual way how earnestly and tenaciously our founding Constitutional forefathers strove to protect our liberties and our Republic. Once again, they based their decisions, not on rhetoric or reason but on the wisdom wrought by history.
In no circumstance was this more evident than in regard to the election of the President of the United States. In Federalist Paper No. 68, Alexander Hamilton, states this with precision and clarity.
“Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”
Could this be more relevant throughout our history and even today? We, and democracy, have been under continuous attack from varied countries for the past two centuries and we are under attack today. “The enemy is in the field,” whether it be via the insidious silencing by an overzealousness of “political correctness” or a literal attack on our soil.
America represents hope and hope is the envy of the enemy.
Our founding fathers wanted to protect our Republic from intrigue and corruption with the establishment of the electoral process. This provided a sort of perspective permeating through the passions of the people as well as a balance of power throughout the country. In times of peace and prosperity the perspective of an electorate seems redundant. Never have we seen, nor experienced the horrors that our forefathers endured that warranted and verified the need to establish such a window of wisdom laid in the hands of a few. Tyranny can easily slide in our backdoor while we slumber. Today, soldiers don’t beckon at our door to spend the night in our homes – this doesn’t mean it may not happen yet again.
Our only guarantee lies within the guarding and respecting and understanding the premise and principles upon which our Constitution was established.
We must never let ourselves be so far removed from the history or teaching of tyranny that we relinquish the reigns to the horse that pulls the cart. If we do this, our horse will pull our cart over a cliff into an oblivion of despair that will then be beyond our control.
“Liberty cannot be preserved without a general knowledge among the people.” John Adams.
Liberty cannot be sustained without a general knowledge of the United States Constitution.
The Electoral College is also important because it balances the power between the states. If we abolished the electoral process then the more populated states, such as California, Texas and New York would control the policies and direction of the country. One has to wonder about the “winner takes all” policy regarding the electorate that exists presently in all of the states except Maine and Nebraska. My understanding of “winner takes all” is that it undermines the electoral process. It also may falsely represent the political inclination of the states and eliminate electoral votes from certain regions that could, when added all together, actually determine an election. Is, “winner takes all” a violation of the United States Constitution? Does it circumvent the amendment process?
Federalist Paper No. 68 is enlightening and intriguing. Federalist Paper No. 69 is a smart, insightful comparison of our United States Constitution with the British rule of the king. Revealing are the nine points Alexander Hamilton makes by this exercise: Term limited, Impeachment possible, Checks by the legislative body, Power to command the military but not declare war or raise arms, Treaties made with concurrent power of the legislature, Appointment of officers with approval of the legislature, No power to convey privileges, Can prescribe no rules concerning commerce or coins, No particle of spiritual jurisdiction.
The comparison of the United States Constitutional restrictions to those of the British crown are awesome and revealing. Brilliant were the checks instilled upon the Executive branch of the United States’ government. This, of course, begs the question how have these limits prevailed today?
My curiosity is peeked by Alexander Hamilton’s statement about the President’s power of nomination being just that – a nomination – approved by the Senate – in ALL categories.
“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 President’s nominations of ambassadors, public ministers, judges, and in general all officers of the United States established by law and whose appointment are not otherwise provided for by the Constitution must be held to the scrutiny and “consent of the senate.”
How does the bloating of our modern day federal government, with unapproved and unchecked “bureaucrats and czars,” fair under this Constitutional scrutiny? These are the bleeds that rupture the heart of a Republic and threaten a seizure of the people.
Thoughts to ponder.
God Bless,
Janine Turner
Tuesday, August 3rd, 2010
Federalist No. 69
Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Federalist No. 69, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77, Joerg W. KnipprathIn Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.
Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would find New York’s system more important than others’.
Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.
But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.
The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.
The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.
Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.
Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”
The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.
Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.
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
Federalist No. 70 – Janine Turner
Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 70, Federalist No. 70Tuesday, August 3rd, 2010
Howdy from really hot Texas! Federalist Paper No. 70 is a rich read. Within its pages lay a thought provoking instructive that once again finds its measures readily applicable to today.
Big government. This is a phrase that I had always heard, and new instinctively was a negative, but I never really understood its premise until I delved into the Federalist Papers. What a mint of invaluable information and directives are the essays of the Federalist. I do hope that our forum here, and time together as Americans, reading and blogging about the Federalist Papers have perhaps diffused the awareness of them amongst our great land.
Our founding fathers believed in a small federal government encumbered by checks and balances. Alexander Hamilton makes the case by quoting examples of how deceitful enterprises rise from an executive branch that is not singular. When accountability rests on the few instead of the singular, evasion becomes the norm.
“But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility…”
Alexander Hamilton further denotes:
“It often becomes impossible, amidst mutual accusations, to determine on whom the blame, or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is 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.”
This is one of the reasons why Americans throw up their hands in disgust and walk away from the duties beholden to a citizen of a Republic. Where does one begin to know the truth of an issue? Where does one begin to know who really is the culprit?
Yes, our Executive Branch is represented by a singular person, but the bureaucracy surrounding it, the lawyers, the administration instructing it, have become a huge machine. Transparency has become close to nil. The Executive Branch has become a branch governed by the“councils,” a process of which Alexander Hamilton both denounces and warns. This plurality of our modern day Executive Branch befuddles the citizens. How does one take action?
“The people remain altogether at a loss to determine by whose influence their interests have been committed to hands so manifestly improper.”
Alexander Hamilton states that it is plurality that most threatens a Republic and robs her citizens of, “the two greatest securities they can have for the faithful exercise of any delegated power.” These two securities of a Republic are: public opinion and discovery.
“The 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. The restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office, or to their actual punishment, in cases which admit of it.”
The office of President of the United States is a thankless job and certainly the President is still help accountable today for the state of the union. Yet, because the Executive Branch is so big and because laws are being made by bureaucrats behind the scenes, and not by the Legislative branch, enterprising schemes take place such in ways that render American citizens without the adequate resources to respond and take action.
As Alexander Hamilton astutely observes:
“An artful cabal in that council, would be able to distract and to enervate the whole system of administration.”
All of this intrigue begs the question: what are we, the genius of the people” to do? Where do we begin and how will we make a difference? Alexander Hamilton even asks the question:
“Who is there that will take the trouble, or incur the odium, of a strict scrutiny into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task..”
Our forefathers were most certainly examples of men who were zealous enough to undertake the unpromising task. They were willing to lose “their lives, their fortune and their sacred honor” to combat the intrigues and unscrupulous behavior of the British Empire. They fought to secure liberty and justice for all American citizens.
America today has within its bosom men and women who are willing to, “incur the odium,” in order to preserve our Republic and all for which she stands: honor, dignity, freedom. Obviously, our men and women of uniform have risked and lost their lives throughout our history to maintain our rights and continue to do so today.
However, these men and women also start with you, you who are reading the Federalist Papers, you who are writing on our blog, you the Professors and scholars who are dedicating your time to Constitute America, you who are willing to stand up, seek the truths and speak your opinions. You are, “the majesty of the people.” On you, our Republic rests.
America stands because of the diligence of your actions, because you are, “a citizen zealous enough to undertake the unpromising task.”
God Bless,
Janine Turner
August 3, 2010
Federalist No. 69 & Federalist No. 70 – Cathy Gillespie
Federalist Paper 69, Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 69, Federalist No. 69, Federalist No. 70, Federalist No. 70Greetings from Long Beach Island New Jersey! What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.
Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles. In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford. I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan. My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!
During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him. I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency. When you are President, you are always President, whether relaxing in a small group or at public events. President Bush respected the office, and lived every day in a way that could make our country proud.
Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ). The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.
In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties). This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.
Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.
The President’s power 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,”
has been expanded over the years by the President’s ability to create “Czar” positions. These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:
”The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”
Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html
Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar. This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.
In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals. The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability. As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives. Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.
The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments. And their grasp of human nature is equally as profound –
“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.”
“Men 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. But if they have been consulted, and have happened to disapprove, 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. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”
Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!
On to Federalist #71!
Good night and God Bless,
Cathy Gillespie
Tuesday, August 3rd, 2010
Federalist No. 70 – The Executive Department Further Considered, From the New York Packet (Hamilton)
Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 51, Federalist No. 70, Federalist No. 77, Joerg W. KnipprathFederalist 70 is the heart of Hamilton’s investigation of the nature of executive power. Publius returns to “energy,” a theme that he has addressed frequently in his essays as a necessary attribute of government generally, and the Union in particular. As executive power is the essence of government, energy is the essence of executive power. Energy in the executive produces vigor in the administration of law and expeditiousness in response to necessity. Too much energy, however, can threaten republican government and personal liberty. The secret is to find the constitutional version of Aristotle’s golden mean.
The Antifederalists had a lavish panorama of historical examples to illustrate the dangers of energetic executives. They proposed a multiple executive, instead, examples of which were spread throughout history, while others were close at hand in the states. Multiple executives are of several types. One, such as the consuls and tribunes of Rome or the kings of Sparta, are of equal dignity and can veto each other’s acts. Another, more favored by the states and based on the republican variant of the old British model, involves a governor-and-council structure.
There are others, not mentioned in Federalist 70. One is the modern British cabinet model, where ministers hold their portfolio independent of the “prime” minister through election by the party. Formally, they are the monarch’s ministers, but today this is a quaint fiction, as the monarch reigns as head of state, but does not rule. An American version of this can be found in the governments of many states, where various executive officials are elected independent of the governor. Those officials, like the California Attorney General, Secretary of State, and others, derive their powers directly from the state constitution and election by the people, not from appointment by the chief executive.
As anyone who has worked on a committee or sat in a meeting knows, the more people there are, the less of substance gets done, and the exponentially longer it takes to do so. Veterans of faculty meetings can bear particularly melancholy witness to those truths. Hamilton urges that multiplicity is welcome in the legislative department, where deliberation and the “wisdom of the multitude” are valuable to reach a “right” decision and to protect the rights of the minority. Indeed, haste in the passage of laws will result in badly-written legislation with unintended or—if the law is so long and complex that it has not even been read—unknown consequences, as well as in laws that may be against the people’s wishes.
In the executive, however, delays and indecision are damaging. As a member of General Washington’s staff, Hamilton personally must have been keenly aware of the incapacity of the Continental Congress and even the Board of War, its agency, to direct the war effort reliably and effectively. A multiple executive also courts the evils of faction, undermining stability. At the same time, a successful cabal among multiple executives can magnify their danger to liberty.
It is crucial, then, that the executive be unitary, to provide the requisite energy and vigor to accomplish the objectives of government expeditiously and without endangering the respect for law that haphazard and desultory administration brings. There are other benefits from a unitary executive, ones that, at the same time, provide the most effective protections of liberty. Those are transparency and accountability. It has been said that success has many parents, but failure is an orphan. Having a single decision-maker shines the light of responsibility on him: “The buck stops here.” The best protection against abuse by an overly-energetic executive is, predictably, the vigilance of the people expressed at the next election. But they cannot exercise that vigilance when multiple parties are pointing fingers at each other the way that members of Congress do when policies they have been championing become political liabilities. Nor can responsibility readily be gauged when politically tough issues are shunted onto appointed commissions, such as “deficit commissions,” whose “recommendations” are treated as binding.
Another limit on the executive comes through formal restraints. Some are institutional, such as fixed terms and removal through impeachment. Others are more in line with the “auxiliary precautions” Publius defends in Federalist 51 in connection with separation and balancing of powers. Examples are the qualified nature of the veto and the Senate’s role in approving treaties, in both of which the President is engaged in making law. With the exception of the appointment power, however, there are no formal limits on his explicit executive functions.
The objectives of executive government that Hamilton cites are instructive: Protecting against foreign attacks, securing liberty against domestic subversion, protecting property against riots and insurrection, and administering the law in an impartial and constant manner. In this classic political minimalism, one notes the absence of the trappings of the modern administrative Leviathan that has taken over functions best left to other institutions.
Despite the assertions in Federalist 70, the nature of the executive branch was ambiguous when the government convened. Hamilton, a fan of the British political system, contributed to that uncertainty. As Treasury Secretary, he envisioned the cabinet as an approximation of the British system, with the President as chief of state and as someone who presided over the administration of policies determined by rather willful cabinet officials exercising independent authority. Due to his close connection as Treasury Secretary to Congressional policy-making (and his long personal relationship with George Washington), Hamilton envisioned himself as the prime minister in this arrangement. There was some constitutional plausibility to this conception of a moderate multiple executive, as the Constitution provides that Congress can create a limited appointment power in “heads of departments” and sets up the Senate in some ways like the governor-and-council system. The Senate not only votes to approve appointments and treaties, it technically has an “advice and consent” role that could be read as requiring formal Senate participation before the president nominates an officer or makes a treaty.
Several developments arrested any significant movement in that direction. Textually, the Constitution vests the executive power entirely in the President, subject only to specified limitations, a point Hamilton himself urged further in his 1793 Pacificus essays during the debates over the Neutrality Proclamation. Politically, Hamilton left the Cabinet in 1795, reducing his influence, a trend that was accelerated when his patron, President Washington, left two years later. Even while Hamilton was in the Cabinet, Washington was not the type of person content to play a passive role. He favored a vigorous presidency, and it was clear that, while he listened carefully to his officials, he made the decisions. The Senate-as-council role was buried when Washington, after one soured attempt at consultation before treaty negotiations in 1789, refused to set foot in the building again. Washington’s presidency was intended to help define the ambiguous contours of the president’s powers, and he set the office firmly on the course of the unitary executive.
As a functional constitutional matter, the issue was settled over the course of the debate over the president’s power to fire executive officials at will. A presidential removal power is not specified in the Constitution, so it has to be implied from other powers. Though Hamilton wanted a strong executive, he appears to have favored the view that the president’s power to remove officials can only come from his power to appoint. As the latter requires Senatorial consent, so must the former, a position Hamilton endorses in Federalist 77. The reason for his support of what at first blush appears to be a dilution of executive unity is that he liked the British style of government. Presidents could come and go, but, if a new president could not unilaterally remove members of the Cabinet, those members gained political independence. Effectively, that made them the policy-makers and administrators as long as they maintained the confidence of the Senate. With that qualification, Hamilton favored a strong, independent executive branch.
The removal power occupied the first Congress’s attention. The matter was resolved by artful language in a statute that implied that the President had the inherent executive power to remove the secretary of state. While this was a victory for the unitary executive argument, there remained ambiguities. President Andrew Jackson won a clear political victory in favor of the unitary executive doctrine by removing the secretary of the treasury when the latter disobeyed a presidential order, even though Congress had given the secretary the discretion to act as he did. Analogous to Hamilton’s implied executive powers theory of the Pacificus letters, Jackson argued that the appointment and removal powers were both executive powers that, unless expressly limited by the Constitution, belonged to the President as head of the unitary executive branch.
As the removal controversy demonstrates, the unitary executive broadly implicates separation of powers that finds concrete expression in provisions of the Constitution. If those provisions are elastic, such as the executive power clause, the “take care” clause, or the commander-in-chief clause, the line between execution of policy and legislation of policy can become blurred. The need to find limits is matched by the difficulty of doing so. Much depends in specific cases on formal precedent (legislative, executive, and judicial) and customary constitutional practice shaped by broad popular acceptance. For example, the unitary executive theory underlies doctrines of executive immunity and executive privilege. Those concepts are not expressly addressed in the Constitution but are obviously connected to an energetic executive branch and the unitary executive that animates it. Though the Supreme Court did not address executive privilege until 1974, it arose early in the Washington administration, when the President set a precedent followed by almost all his successors. In implied powers cases, the need for action often determines the outcome, and foreign relations, military affairs, national security, and emergencies define their own scope of action.
Despite Jackson’s victory and a long history in support of the unitary executive, controversy still flares occasionally. A recent challenge to the unitary executive theory has involved presidential “signing statements.” These have long been used as expressions of reservation about the constitutionality of a proposed law. Critics argue that the president can veto the bill, if he believes it to be unconstitutional. If the Congress overrides the veto, is the president then bound to enforce the bill? He is obligated to take care that the laws be faithfully executed, but there is also the long tradition of executive discretion in the enforcement of laws. Moreover, if the law invades a presidential power or is otherwise unconstitutional, the president can refuse to enforce this statute.
Laws, however, are often many-layered creations. Why should the president have to veto the whole effort just to avoid enforcing one objectionable part? A signing statement can help. In fact, the signing statement puts everyone on notice about the president’s intentions. They are constitutional because the president as head of the executive branch is independently responsible under the Constitution for the actions of the whole branch in the enforcement of laws.
The unitary nature of the executive also has been challenged by some who cite to the existence of a vast array of “independent” administrative agencies as contrary evidence. Since the 1930s, the Supreme Court has upheld Congress’s power to limit the President’s removal power in regards to officers of independent agencies. Using the unitary executive theory, presidents since Franklin Roosevelt have formally rejected the assertion these agencies are beyond the President’s removal power. Such agencies are performing executive functions and are not otherwise recognized under the Constitution as a fourth branch of government. One may wonder, though, whether any dilution of the unitary executive paradigm is really the problem. The sheer growth of government (of which administrative agencies are the most significant part) is probably more responsible for the dearth of transparency and accountability citizens endure.
Critics of the administrative state see this exception from the application of the general rules for separation and balance of powers as more evidence that these agencies are unconstitutional. The still-growing reach of the regulatory state assures that the issue will not go away. As the matter involves fundamental and shifting boundaries between the legislative and executive domains, it is thoroughly political and admits of no definitive settlement. But the broad theory of the Constitution has been settled in favor of the unitary executive that Hamilton defends in Federalist 70 and his later writings.
Tuesday, August 3rd, 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
Federalist Papers No. 71 & Federalist No. 72 – Janine Turner
Federalist Paper 71, Federalist Paper 72, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 71, Federalist No. 71, Federalist No. 72, Federalist No. 72Howdy from, cooler because we had a mighty storm, Texas!
Federalist Papers No. 71 and 72 are fascinating as they represent Alexander Hamilton’s perspectives regarding the Constitutional lack of term limits for the office of the Presidency. Even with the lack of limits, it is amazing, upon reflection, that only one of our Presidents ever surpassed two terms and even then, it was due to the Great Depression and World War II. George Washington seems to have, once again, paved the way. By stepping down after two terms, he set the pace.
I don’t consider the readings of Federalist Papers No. 71 and 72 redundant, however. There are always pearls of wisdom within these hallowed pages. Federalist Paper No. 71 makes an interesting statement regarding maintaining the balance of the constitution.
“The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that 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 its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They 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.”
This is a thought-provoking paragraph especially when I size it up to the relevancy of today. Our forefathers were greatly concerned about the power of the legislature. Yet, it appears that the legislature, the people’s representative branch, is being diminished by a more powerful executive branch and competing with the judicial branch – a branch that is more and more regularly legislating from the bench instead of merely interpreting the law.
Thus, the question is: how is the “balance of the Constitution” faring?
There is another statement that I find intriguing in Federalist Paper No. 71. It is stimulating in its simplicity.
“What but that he might be unequal to the task which the constitution assigns him.”
This is the maxim for all representatives of all branches to remember. Their mission, their task, is to serve their terms in relation to what the constitution assigns them.
The Constitution is to be their conscience.
The Constitution is the conscience of America.
One of the most important elements of the Constitution is the balance of power. If a representative in any branch of the government, whether elected or administrative, is not abiding by this preeminent principle of the Constitution then that representative is disregarding the constitution for his/her own benefit – which would be for none other than that all encompassing vice – power.
As for Federalist Paper No. 72, Alexander Hamilton prophesies a modem of operandi that is ever present within every changing of the guard in our country and is not always to our best interest.
“To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert;”
Rare is the President who can say, “My predecessor did this very well, to him I give due credit and continue its course.”
Ego – the undoing of greatness.
To close, I underscore a statement of Alexander Hamilton’s, from Federalist Paper No. 72, that is both pertinent and amusing.
“Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?”
Hamilton had a sense of humor, yet this passage is painted with profundity. The peace of the community is best served when a former President leaves the country in the hands of the new one – for his legacy as President will be either be reduced or redeemed by history not by “wandering among the people like a discontented ghost.”
God Bless,
Janine Turner
Thursday, August 5th, 2010
Federalist No. 71 and Federalist No. 72 – Cathy Gillespie
Federalist Paper 71, Federalist Paper 72, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 15. Essays by Cathy Gillespie, Constitutional Amendment XXII, Constitutional Amendment XXII, Federalist No. 71, Federalist No. 71, Federalist No. 72, Federalist No. 72, Letter to John Jay by George WashingtonGreetings from Mt. Vernon, Virginia!
Once again, I write from ground that belonged to our first President of the United States, and once again, George Washington is a leader, by example, on the item under discussion!
Federalist Papers 71 and 72 deal with the President’s Term in Office, and the idea of Presidential Term Limits.
Through the four year Presidential term, the framers strike the perfect balance – enough time for a President to enact his priorities, yet not endanger the liberty of the people:
“As, on the one hand, 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; so, on the other, it is not enough to justify any alarm for the public liberty.”
The debate about Presidential term limits in Federalist No. 72 is a serious one, and one in which the brilliant amendment process ultimately prevailed. Hamilton argues that the imposition of term limits takes away the incentive for the President to do his or her best for the people:
“One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of OBTAINING, by MERITING, a continuance of them.”
For many years, tradition began by President Washington held that Presidents stepped down after two terms. Once this tradition was broken by President Franklin D. Roosevelt, momentum gathered to codify what had previously been informally honored.
Eight years is a very long time for an individual to be subject to the stresses and daily intensity of the office of President of the United States. Even though the world moved at a slower pace two centuries ago, the stress of the office was and still is, immense. We have all observed the photos of the youthful President on inauguration day, and eight years later, wondered at the grey hair and added lines on his face.
In the book, The Real George Washington, by Parry Allison Skousen (a present given to me by my friend and Constituting America Co-Chair Janine Turner), President Washington is quoted at the end of his eight years in a letter to John Jay:
“Indeed, the troubles and perplexities, ….added to the weight of years which have passed over me, have worn away my mind more than my body.”
An observer is quoted in the book as describing Washington after eight years in office this way, “The innumerable vexations he has met with….have very sensibly impaired the vigor of his constitution and given him an aged appearance.”
Since the ratification of the 22cnd amendment, Presidents Eisenhower, Nixon, Reagan, Clinton and George W. Bush were all elected for two terms, and limited by the 22cnd amendment from running for a third. The above description of President Washington after eight years in office could have easily applied to any of these Presidents. The office of the Presidency has a way of aging its occupant, and eight years is a sufficient time for any man or woman to bear the responsibility.
Hamilton had also worried that too many ex-Presidents would be a distraction to the country:
“Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?”
Contrary to Hamilton’s prediction, in modern times, our country and world have benefitted from the wisdom and stature of ex-Presidents. Former Presidents George H.W. Bush and Clinton headed a Tsunami Relief Fund, President Clinton champions many humanitarian efforts and charities, Former Presidents George W. Bush and Clinton head a Haiti Relief Fund, and Former President Jimmy Carter has greatly raised the profile and success of Habit for Humanity, among other causes.
However, no former President has conducted himself with more dignity, grace and class than Former President George W. Bush. Former President Bush, referenced almost daily by the current White House as the source of all the country’s problems, has quietly and respectfully stood by, and let our current President lead. He has refrained from criticism of any elected officials, all the while working steadily to develop the Bush Institute, the arm of his Presidential Library dedicated to the promotion of freedom throughout the world.
Term limits for Presidents have ensured that our country not fall into a “monarchy mentality,” and that at least every eight years, those at the highest levels of government leave to make way for new leaders to serve.
Despite Hamilton’s ominous warnings, term limits for Presidents finally came to the United States Constitution through the process set up by the framers for change: the amendment process. The founding fathers were brilliant men, whose insights continue to light our path today, but they knew they were not perfect, and could not always predict the future.
That is the beauty of our United States Constitution. When the people see a need for change, the demand is urgent enough, and felt commonly enough to bring about the 2/3’s for proposal and 3 /4’s necessary for ratification, there is a structure and process in place to legitimately and peacefully make a change. The 22cnd Amendment is one of those changes that has bettered our system of government.
Thursday, August 5th, 2010
Federalist No. 71 – The Duration in Office of the Executive, From the New York Packet (Hamilton)
Federalist Paper 71, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, Federalist No. 01, Federalist No. 71, Kyle Scott PhDFederalist #71 continues with a discussion of the President, particularly the length of the presidential term in office. Hamilton lays out the concerns over term length at the beginning: if the term is too long the President will not do what is best for the nation but what is best for himself, and if too short, the President will have no incentive to do the job well, but merely bide his time until the end of term, but he will also be susceptible to undue influence from the people and congress if his term is not long enough. What might be surprising to some readers is that the concern is over how long the term should be where the real discussion should be on term limits. With the ability of incumbents to entrench themselves in office, it might not matter if the term is 2 years or 8 years; if the President keeps getting reelected the term in office could go on indefinitely thus bringing about the first set of negative consequences established by Hamilton. Remember, it was not until 1951 with the ratification of the 22nd Amendment that the President was limited to two terms.
However narrow-sighted #71 might appear at first blush, we should always remember that Hamilton warned in #1 that in writing he will keep his motives within the “depository of his own breast,” which means we should always be on the lookout for multiple lessons. One lesson in particular I find fascinating in #71 is his criticism of democracy. #71 is not just about how long a President should serve before coming up for reelection, but rather the competing preferences of rule by the elite or rule by the people.
In the second paragraph Hamilton mocks those who suggest the President should be moved by popular opinion. “But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion.” The President should strive for the public good while keeping in mind that the public may not always know what is in its own good.
Hamilton would be abhorred by Bill Clinton’s “governing by the polls” in which he would pursue policies based on their popularity. Hamilton would also find it comical that we judge the quality of a sitting President by how well he does in public opinion polls. Presidents should be above such matters. Whether it is going to war in Iraq or looking to reform healthcare, Hamilton suggests that the President should not be influenced by popular opinion. While he was a member of parliament, Edmund Burke held a similar position when he said, “It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.
These he does not derive from your pleasure; nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”
The opinion of the people should not guide the elected President, thus, the President should have mechanisms in place to shield him from the public’s backlash, which is why the length of the term is so important to Hamilton. If the term is too short, the President would only do what was popular.
It was not just the people who the President should be insulated from, but congress as well. If he were in office for too short of a term, the President would fall to the whim of congress and thus violate the separation of powers model borrowed from Montesquieu. But, insulating the President from congress was another way of insulating the President from the undue influence—no matter how indirect—of the people.
We should not be shocked by what we read in #71, for it is well-established that Hamilton was in favor of a strong executive. But, Hamilton’s executive is not what the Constitution gave us, nor is Hamilton’s view the predominant view. Many of the Anti-Federalists, not to mention Madison and Jefferson, were in favor of a more populist position. #71, as much as any of the others, reinforces my claim that we cannot read the Federalist as authored by one Publius just as we cannot think of the founders as one group.
Hamilton recognized the capriciousness of the people. He recognized that the people could be petty and have a short-memory, thus something like presidential authority should be institutionally defined and insulated from popular influence. I do appreciate his suspicion of the popular opinion even if he did overestimate the wisdom of the President.
Wednesday, August 4th, 2010
Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.
Federalist No. 72 – The Same Subject Continued, and Re-Eligibility of the Executive Considered, From the New York Packet (Hamilton)
Federalist Paper 72, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kelly Shackelford 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XXII, Constitutional Amendment XXII, Federalist No. 71, Federalist No. 72, Kelly ShackelfordFederalist No. 71 and 72 deal with the Office of the Executive, specifically how long the President remains in office and his re-eligibility to continue to serve in the same capacity. While Federalist 71 takes an in-depth look at the four-year duration of the Presidential term, Federalist 72 addresses the question of a sitting President’s re-eligibility, or ability to be re-elected to subsequent terms.
In Federalist 72, Publius, in this case Alexander Hamilton, cites the two factors that the Framers of the Constitution believed should determine whether a President is eligible for re-election, and defends the Framers’ rejection of either temporary or perpetual term limits for a President.
According to Hamilton, the only two factors that should be weighed in considering the ability of a President to be re-elected are the quality of his performance as President and the approval of the voters. The four years of a President’s term should give the voters enough time to judge the abilities of a President, and the prospect of being re-elected should give the President the motivation to do a good job. In other words, Hamilton argued that the voters themselves should be the only judges of a President’s eligibility by refusing to re-elect him when his performance is no longer satisfactory.
In arguing that the voters should be the only limits on the extension of a man’s Presidency, Hamilton cites five disadvantages of excluding a sitting President from re-eligibility. The first disadvantage is that a President who is excluded from seeking office again is hampered not only in his ability to work but also in his desire to act in such a way that the voters would re-elect him given the opportunity, described by Publius as “dimunition of the inducements to good behavior.” The “lame-duck” President’s motivations to act uprightly and for the benefit of the people are severely diminished.
The second disadvantage of imposing term limits in the Executive that Hamilton pointed out in Federalist 72 is that a President with no chance of being re-elected may be tempted to usurp his office for personal gain, with an eye to the day when he will no longer serve as President. Worse, an ambitious man, forbidden to seek re-election, could resort to violence in an attempt to prolong his time in the Presidency.
Hamilton’s third and fourth disadvantages of term limits both relate to the experience that a person gains while serving as President. In short, good experience in serving as President is valuable and should not be lightly thrown aside. The good of the country demands that the people capitalize on the leadership of those who already have the experience gained from years of leading the nation. Additionally, during times of war or crisis, continuity of leadership in the Executive may be particularly important to the safety of the nation.
Finally, Hamilton’s fifth argument against term limits is that they create constitutionally-sanctioned instability. When a new President is elected, the change in administrations creates transitional instability as the new administration must gain the experience already possessed by the outgoing administration. Moreover, the new President, seeing his election as the people’s endorsement of his ideas over his predecessors, takes responsibility for nominating many of those in charge of day-to-day operations, naturally generating instability during the transition of leadership. Consequently, Hamilton argued that one key factor in the stability of our government is the length of time that the President serves; instead of being viewed as a threat to liberty, a voter-approved extension of a President’s service is a benefit because of the increased experience of the administration.
While arguing against term limits, Hamilton points out two possible advantages to having Presidential term limits: “greater independence in the magistrate” (executive office) and “greater security to the people.” The greater independence of the executive office turns out to be easily manipulated, as a President, excluded from re-eligibility, could choose to relinquish the office to a hand-picked successor, effectively remaining a powerful voice in the administration. Additionally, a President who anticipates leaving his office of President may be less interested in fighting over important issues and making political enemies than preserving friendships and allies.
As to the people’s security, while Hamilton recognizes that the influence of a overly-charismatic President can be lessened by term limits, Hamilton points out that forcing a truly good leader out of office may be regarded as a hindrance to security and a “danger to liberty.” Taken to an extreme, it could even cause the people to reject the Constitution in favor of the leader, removing all constitutional protections granted to the people.
Since George Washington, the first President under the Constitution, stepped down after two terms in office, Americans have commonly accepted two terms as a sufficient amount of time in office for any President. Only a few Presidents have sought a third term, and only one has been successful: Franklin D. Roosevelt, our thirty-second President. Serving throughout the Great Depression and most of World War II, President Roosevelt was elected four times to the office of the President, but passed away in 1945, months after beginning his fourth term. His Presidency was unique in that the people sought the continuity of his leadership through two disasters, and supported him as President for what would have totaled sixteen years.
Following President Roosevelt’s four terms in office, the American people decided that the advantages of term limits in limiting the power of any one President outweighs the five disadvantages that Alexander Hamilton laid out in Federalist 72. In 1947, Congress passed the Twenty-second Amendment to the U.S. Constitution, limiting a President to two terms in office. The Amendment was ratified in 1951, and only two states, Oklahoma and Massachusetts, opposed the Amendment.
Today, very little debate exists over the Twenty-second Amendment and executive term limits, though various members of Congress occasionally propose legislation to repeal the Amendment. Even now, two hundred years after President Washington stepped down after his second term, Americans generally accept the two-term limit as an adequate amount of time for a President to serve.
Thursday, August 5th, 2010
Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress. Jennifer Grisham is director of media at Liberty Institute. The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case. For more, visit www.Libertyinstitute.org
Federalist No. 73 – Cathy Gillespie
Federalist Paper 73, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I Section 07 Clause 1, Article I Section 07 Clause 2, Article I Section 07 Clause 3, Article II, Federalist No. 73, Federalist No. 73Federalist No. 73 begins the examination of the powers of the Presidency, with a discussion of the President’s role in the legislative process, specifically, the veto. In writing about the veto power, Publius travels back to Article I of the United States Constitution, the section of the Constitution dedicated to the legislative branch. Nowhere in Article II, the section of the Constitution dedicated to the Executive branch, is the veto power mentioned.
“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. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”–Article I, Section 7, Clause 2 of the United States Constitution
“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.”–Article I, Section 7, Clause 3 of the United States Constitution
Article II, the portion of the Constitution describing the executive branch function, states the President’s obligation to provide the Congress information through the State of the Union, recommend proposals for their consideration, convene both Houses in extraordinary circumstances, or adjourn both Houses in the case of disagreement between them with respect to the time of adjournment:
“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper….”–Article II, Section 3
The Presidential veto is one of the most important checks and balances in our system of government. By requiring 2/3’s vote in both Houses to override a presidential veto, the Constitution ensures that controversial bills must have overwhelming support of the people, through their representatives in Congress, to become law.
It is interesting that the President’s important power of the veto, never mentioned by the name “veto” in the United States Constitution, is located in Article I, the article describing powers of the legislative branch. The President, as head of the executive branch, has the power to execute, or carry out the laws of the United States, through the various Departments and agencies. But through Article I, Section 7, Clauses 2 and 3, he also has the power to enact legislation in two ways:
1. Sign the bill OR
2. Refuse to sign or return the bill within 10 days (not counting Sundays), when the Congress is in session.
The President has the power to disapprove legislation in two ways:
1. Return the bill “with objections,” (his veto) OR
2. Fail to return or sign the bill within the ten day window during which an Adjournment occurs (known as a pocket veto).
The legislative process and veto power of the President was so important to the framers that they devoted unusual specificity to this subject, detailing the number of days the President has to make his decision to sign, return, or not act, even exempting Sundays in the 10 day period!!! The 2/3’s required to override the presidential veto is also a well thought out measure addressed in Federalist No. 73:
“It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority.”
Professor Rowley brings up the issue of the line item veto, within the context of the “qualified veto.” I have been a supporter of the line item veto for many years, ever since President Reagan called for this power in his State of the Union in 1986:
“And tonight, I ask you to give me what 43 Governors have — give me a line-item veto this year. (Applause.) Give me the authority to veto waste, and I’ll take the responsibility, I’ll make the cuts, I’ll take the heat.”
President Clinton finally received the power of the line item veto, but the Supreme Court has since ruled it unconstitutional. It seems that the only way for the president to have the power of the line item veto would be with a constitutional amendment. And given the forethought the framers put into devising the structure of the veto, as well as the specificity they devoted describing the process, a constitutional amendment would be the most appropriate way to grant the president this power.
Governors across America have found the line-item veto to be an invaluable tool in cutting spending. And with the Congress’s propensity to pass 3,500 page pork-laden bills, I believe the line item veto would be a useful tool for the president to have. I respect Professor Rowley’s arguments against it, however, and am thankful for this forum in which we can discuss policy options in a civil and respectful manner. Thank you also to Professor Rowley for your ongoing blog comments, and your reminder of the inspiration of George Washington, his crossing of the Delaware, and his appeal to the spirit of Americans!
Thank you to all of you for your well thought out blog comments! Each of you sheds a little more light on the issues at hand with the insights you share!
Good night and God Bless,
Cathy Gillespie
Friday, August 6th, 2010
Federalist No. 73 – Janine Turner
Federalist Paper 73, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 73, Federalist No. 73Howdy from Texas! Are we not the luckiest people in the world to have these precious Federalist Papers archived and at our disposal? Is it not remarkable that our founding fathers wrote 85 essays for print in their local newspapers explaining the Constitution? Are we not so very fortunate to have this guidebook to the United States Constitution? Is it not worth recognizing that our founding father’s believed in the genius of the people and viewed them with the respect that prompted them to write these papers?
Is it not worth mentioning that the people wanted to know about it, read about it and demanded it?
Why do many of our representatives not want to coherently lay out the laws for us today? Is it that they do not believe in the genius of the people? Is it that they do not care to be truly open and forthright due to intrigue and manipulative measures? Is it because they do not read the laws and thus do not have the wherewithal to write about them? Or is it that they would rather spin the web by witnessing with words?
The written word is not permeable. The written word requires time and thought and tenacity and truth. The written word does not lie.
Speaking of the written word, today’s reading of Alexander Hamilton’s Federalist Paper No. 73 exhibits our founding father’s savvy. What our founding fathers truly understood, in an astonishing way, was human nature. They studied the temptations that befell the psyche of men and recognized the vulnerabilities that weaken even the best-intentioned individual.
Alexander Hamilton gives a mesmerizing breakdown in regard to a scenario where a President may be wary do the right thing in certain circumstances because he fears the perception of it. Having thought of this potentiality the founders of the Constitution gives the President a way to both make the right choice and save face.
“A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual.”
Brilliant.
Alexander Hamilton also sums up the rationale for the Constitution’s checks and balances, the cement of its foundation, in one concise, astute and profound paragraph.
“When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.”
This is the crux of the creed.
Man is subjected to the pull of evil vices – power, greed, shortsightedness, impatience, imprudence.
The Constitution is the conscience of America, Americans and its leaders.
The Constitution is the governor upon the men who govern.
God Bless,
Janine Turner
Friday, August 6th, 2010
Federalist No. 73 – The Provision for the Support of the Executive, and the Veto Power, From the New York Packet (Hamilton)
Charles K. Rowley, Ph.D., Federalist Paper 73, Federalist Paper Forum 2010 Essay Project 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 07 Clause 1, Article I Section 07 Clause 2, Article I Section 07 Clause 3, Article II Section 1 Clause 1, Article II Section 1 Clause 2, Article II Section 1 Clause 3, Article II Section 1 Clause 4, Article II Section 1 Clause 5, Article II Section 1 Clause 6, Article II Section 1 Clause 7, Article II Section 1 Clause 8, Charles K. Rowley PhD, Federalist No. 73Federalist # 73 continues with a discussion of the President, dealing particularly with the independence of the executive branch of government and the relevance of the veto power. As readers will know, Hamilton, more than any other Founding Father, believes in the importance of centralized authority within the federal system, even to the extent of flirting with monarchy. Although he is writing as PUBLIUS, and reflects to a certain degree, the views of his colleagues, John Jay and James Madison, let me forewarn readers of concerns that most particularly should exercise our minds when reviewing the powers of any centralized presidential authority.
“In constraining any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no better end in all his actions, than private interest” (David Hume, 1752). “It is better to keep the wolf out the fold, than to trust to drawing his teeth and claws after he shall have entered” (Thomas Jefferson 1782). “The very principle of constitutional government requires it to be assumed that political power will be abused to promote the particular purposes of the holder; not because it always is so, but because such is the natural tendency of things, to guard against which is the especial use of free institutions” (John Stuart Mill 1861). So we have been warned!
Now let us review Hamilton’s reasoning in Federalist # 73 in the light of subsequent experience. As to the issue of support, I have no problem. Hamilton correctly defends Article II, Section 1, clause 7 of the proposed constitution confirming that the President’s compensation for his services shall neither be increased nor diminished during the period for which he has been elected, and shall constitute his sole emolument from the United States or any individual state. This protection and constraint is essential to avoid excessive pressure being placed on the President by Congress to pursue goals that others are determined to achieve. What could not be foreseen, in the late eighteenth-century, is the degree to which the promise of high post-presidential monetary returns may influence the behavior in office of any sitting president. Presidential libraries, for example, play a significant role in determining the evaluated legacy of any president. Such libraries are exorbitantly expensive to establish and to maintain. And no United States president, in recent times, has died in relative poverty – this in sharp contrast to many prime ministers in parliamentary systems of government.
Hamilton’s discussion of Article 1, Section 7 of the proposed constitution is much more interesting. For here Hamilton balances the strengths and weaknesses of the proposed qualified negative (or veto) power of the President with respect to acts or resolutions of the two houses of the legislature. In defending this power, Hamilton walks a tight-rope between his belief in strong central authority and his recognition that all political power must be checked and balanced if a republic is long to survive.
In rejecting outright any notion that the president should serve devoid of veto power, Hamilton displays – not without considerable justice in the light of subsequent events – his grave misgivings about the potential for bad behavior of any legislative branch of government. Instinctively, he recognizes that a largely self-serving legislature would succumb to the temptation to impose its will upon a defenseless president in the absence of presidential armor. The question, for Hamilton, is only whether that armor should be absolute or qualified.
At this point, in my judgment, Hamilton blinks when confronting the likely true nature of a president’s political role. Surely he acknowledges some force in the argument that it is ‘not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this perception should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.’ However, he dismisses this concern on the ground that the more significant danger emanates from the predatory ambitions of the legislature. At the time, the Founders had in mind the name of George Washington, as their most preferred first president. And few would deny that George Washington was a man of wisdom, impeccable personal integrity, and high honor. But would one feel as comfortable in making those suppositions about a Ulysses S. Grant, an Andrew Jackson, a Franklin Roosevelt, or a Richard Nixon? I do not think so.
In any event, thankfully, Hamilton comes down in favor of a qualified-over an absolute-veto, albeit by faulty analysis, and almost certainly because he is writing as PUBLIUS and not as Hamilton. Hamilton’s concern is not at all over the prospect that an absolute-veto power would be sorely abused – which surely would have proved to be the case – but rather that such a power might be under-utilized by presidents whose scruples might hold them back from exercising powers of such a magnitude. History advises us that homo politicus pervades the executive branch of government just as much as he pervades the legislative branch. Presidents would have deployed absolute-veto power quite unscrupulously, as if to the manner born.
The central issue in Federalist # 73 thus centers on the degree to which the veto power is to be qualified. Hamilton defends the requirement of a two-third majority in each house of the legislature to override a presidential veto and to pass a vetoed-bill into law. This super-majority, of course, is arbitrary, but, in principle can be justified.
In viewing the legislative process from an economic perspective, it is useful to reflect upon two expected costs of any kind of collective choice. On the one side, are aggregated expected external costs that collective actions may impose on individual electors. Expected external costs decline as the requisite vote super-majority increases. On the other side, are the expected costs of reaching legislative decisions. These costs increase as the requisite vote-majority increases. A rational vote-mechanism will try to minimize the joint expected external and decision-making costs. Evidently, as the salience of an issue rises, so the super-majority vote-requirement should increase. If, in general, presidents contemplate the veto more with respect to major than to minor bills, then the qualified majority rule is economically justified, because expected external costs are higher in such a situation.
The debate over Hamilton’s defense of the qualified-negative naturally focused on analogies with the British monarchy, with many commentators noting that the unjustifiable rights and privileges of the British monarch should vehemently be denied to any United States president. For the most part, Hamilton claimed that the veto power was defensive in nature, allowing the president to defend the People against excessive legislative zeal, not to allow the president to impose his own will on the People. Such arguments prevailed in the ratification process.
With hindsight, however, Hamilton was wrong in this assessment. The qualified-veto power has provided presidents with considerable opportunities to exercise a third-chamber role in the legislature. The knowledge, ex ante, that a president will veto an unacceptable bill, forces the legislature to logroll with the president when formulating major bills, in order to anticipate and to frustrate the application of a veto. Increasingly, unscrupulous presidents have taken advantage of this recognition to shift from defense into aggression in the legislative process not always, by any means, to the advantage of the People.
As the regulatory authority of the executive branch increased – most notably since the Civil War – so the legislative powers of the presidency have advanced, to the extent that, arguably, they now exceed those enjoyed by any British monarch even at the peak of the Divine Right principle. Health care reform, fiscal stimulus, cap and trade, card-check, and immigration policies have been driven and fashioned, since January 2009, much less by the Democrat-controlled Congress, than by the administration of President Obama. These policy initiatives, in many respects, may turn out to be inimical to the underlying interests of the People.
Predictably, public officials imbued with power constantly ask for more. That is the true nature of homo politicus. Instinctively, therefore, the People – who by nature cherish their lives, liberties and properties – should recoil instinctively from any attempt to extend such power. The line-item veto is just such an example.
The line-item veto, or partial veto, is the power of an executive authority to nullify or cancel specific provisions of a bill – usually a budget appropriations bill – without vetoing the entire legislative package. Such line-item vetoes are usually qualified by legislative override provisions. In 1986, President Ronald Reagan, in his State of the Union Address, asked the Congress for such an authority: “Give me the authority to veto waste, and I’ll take the responsibility, I’ll make the cuts, I’ll take the heat.” The Congress refused this overture, not least because the Democrat-majority in the House of Representatives sensibly anticipated that much more than waste would be vetoed by this president on the social side of the budget.
In 1995, President Bill Clinton repeated this request in his State of the Union address. An unwise Congress granted his request in the Line Item Veto Act of 1996. President Clinton deployed this power 82 times in 11 budget bills, until the United States Supreme Court correctly determined, in 1998, that unilateral amendment or repeal of only parts of a statute violate the Presentment Clause of the Constitution. Ambitious presidents ceaselessly search for such additional authority. President George W. Bush once again requested a line-item veto power in 2006, this time setting out a complex process designed to avoid the Supreme Court ruling. Fortunately, the loss of any Republican-majority in Congress intervened to deny him this dangerous privilege.
The executive branch currently enjoys excessive power in the United States political process, threatening the replacement of the separation of powers by the imposition of an Imperial Presidency. The People will be wise indeed to constrain, rather than to extend, the powers of the executive branch – not least by revisiting the expansive interpretations of the General Welfare and the Commerce clauses by the Supreme Court – if our precious constitutional republic is long to survive repeated attempts to subvert its original design.
Friday, August 6th, 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 co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute (#). He blog s- at #.
Federalist No. 74 – Janine Turner
Federalist Paper 74, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 74, Federalist No. 74Howdy from Texas. I thank you for joining us! I have been absolutely swamped prepping pre-production for Constituting America’s RV road trip across the country!! Our winners are going to revealed throughout the next few weeks as we travel to the winners home states and film them for our documentary! Our first winner is revealed today.
He is Jacob Wood from California. He won Best Song High School. Jacob is very talented. Our judge, John Rich, chose his entry as the winner. Jacob is a talented songwriter, musician and has a wonderful voice!! Please check his out his song on our site and if all goes according to my mission, you will soon hear his song on the radio!!
Thus, with all the prep for our cross-country tour, I have been unable to keep up with our Federalist Paper’s daily read. Today, however, as I am on the plane to California, I am attempting to catch up on my reading and blogging.
Federalist Paper No. 74, by Alexander Hamilton, once again resonates the importance of being most vigilantly informed about the candidates we choose as President. Yes, we have a masterful system of checks and balances, but there are powers inherent in the office of Presidency and to those we must take note.
Knowledge is power. As I continue to read these papers. I am continually impressed by the fact that we must know our Constitution and understand the distinct powers that are given to our representatives. This is the only want that they may be kept in check and the majesty of the people protected.
The power of pardoning is one to be taken seriously. Thus, knowing the deeply rooted intentions of our President is essential, as he has the power to pardon anyone. We are so far removed from tyranny, and intrigue from foreign countries, that we grow lazy regarding the potential far-reaching and destructive powers a pardon may present.
Yes, at times, solitary wisdom may prevail over a mob of passions. Yet, power in one is always dangerous. Our Constitution goes to great lengths to prohibit powers from being invested in either one or the few. However, in the instance of pardoning, the power is solely in the President.
History of our country has proven that this power has been treated with respect and dignity most of the time. However, there have been times when people who are most undeserving of a pardon have been pardoned. Up to now, they may have been benign in regard to how they affect our Republic but they may not always be.
We must thoroughly vet our candidates. Some day, a Presidential pardon may override the genius of the people and our Republic may be jeopardized.
God Bless,
Janine Turner
Sunday, August 15th, 2010
Federalist No. 74 – The Command of the Military and Naval Forces, and the Pardoning Power of the Executive, from the New York Packet (Hamilton)
Allison Hayward, Federalist Paper 74, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Allison Hayward, Federalist No. 74Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification. Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32). At this point, only six states had ratified the document.
So we can forgive Hamilton for sounding just a tad defensive in this essay.
As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view. He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch. Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable. There’s a tension between these two tasks that is evident from Hamilton’s first sentence:
“THE President of the United States is to 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.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”
But is the power as commander-in-chief really “so evident in itself?” The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive. Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.
In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.” To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass. What powers should the President have in these limited engagements — today? Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act? When the President and Congress disagree, who decides which side wins? Do we really want the Supreme Court involved?
Hamilton also raises and defends the Presidential power of the pardon. Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so. In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:
“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong. I was reminded of this when looking over the ratification timeline in preparing this blog. I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.
To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish. But at the founding, tensions between states were no laughing matter. The legacy of violence and mistrust was real. In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”
The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them. President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.
Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich. Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers. Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.
But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.
Monday, August 9th, 2010
Allison Hayward is the Vice President of Policy at the Center for Competitive Politics
Federalist No. 75 – Janine Turner
Federalist Paper 75, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 75, Federalist No. 75Howdy from the Constituting America RV! We are on the road from California to Arizona!! We filmed Jacob Wood and he is a truly special young man. Check out his music on our site and our behind the scene footage and photos.
I am determined to catch up on the Federalist Papers as I have yet to fall behind until I was in pre-production for our Cross Country RV Road Trip!!
Alexander Hamilton and our Constitutional forefathers had such a remarkable insight into the human psyche and even better, a realization as to how important a role it played into the art of politics. Inalienable rights, they taught us, are given by God, not government and the powers of government are being delegated to men, who are not angels. They understood the fallibilities and temptations of men and these weaknesses were the driving force in their insistence on separation of powers.
Hence, the Constitutional designations regarding the negotiating of treaties.
Alexander Hamilton states in Federalist Paper No. 75,
“But that a man raised from the station of private citizen, to the rank of chief magistrate, possessed of but a moderate or slender fortune, and looking forward to a period not very remote, when he may probably be obliged to return the station from which he was taken, might sometimes be under temptations to sacrifice duty to interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state for the acquisition of wealth.”
Checks and balances. Temptations never die, whatever the age. We fool ourselves if we think our representatives are immune to them. Human nature is eternally flawed and even though we are not under the rule of a monarchy our Republic is still, and always will be at risk.
Alexander Hamilton states it best,
“The history of human conduct does not warrant the exalted opinion of human virtue, which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would the president of the United States”
God Bless,
Janine Turner
Sunday, August 15th, 2010
Federalist No. 75 – The Treaty Making Power of the Executive, For the Independent Journal (Hamilton)
Federalist Paper 75, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Nathaniel Stewart 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 2, Federalist No. 75, Nathaniel StewartIn Federalist #75, Alexander Hamilton explains and defends the power of the President to make treaties with foreign nations “by and with the Advice and Consent of the Senate.” The treaty-making power granted in Article II section 2 involves, as Hamilton observes, another example of an “intermixture of powers,” a power shared by the President and the smaller house of Congress.
Hamilton acknowledges four arguments levied against this particular arrangement and addresses them each in turn. First, there are those who would vest the power in the President alone. Second, there are some who called for the power to reside only in the Senate. Still others called for the House of Representatives to hold a share of the treaty power. And finally, having answered these objections, Hamilton explains why treaties may be approved by only “two-thirds of the Senators present,” rather than two-thirds of the whole body.
Hamilton begins with the initial explanation that the power to make treaties does not readily fit within either the legislative or administrative functions of government. Here, Hamilton reminds his audience of the precise functions of these two branches of government, and distills them neatly: “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”
But the power to negotiate a treaty, Hamilton argues, does not involve enacting a new law or enforcing an old one. Treaties are not laws, they are contracts. They enjoy “the force of law” derived from “the obligation of good faith,” but they are not laws as between a sovereign and its subject, or rules which must be obeyed. Rather, a treaty is a contract between two sovereigns, and thus, the treaty-making power is a distinct and peculiar function, neither purely legislative nor wholly administrative. This provides the foundation for Hamilton’s contention that the treaty power be shared between the branches, rather than vested in only one.
Turning then to the contention that the President alone should wield this power, Hamilton repeats the common refrain that history proves power to be all too tempting for men to resist. The hereditary monarch, he notes, has too much at stake – given the length of his lifelong reign – to risk being corrupted by a foreign nation. But such is not the case with a man elected for a mere four years; a man who may have risen to the rank of President from a more modest station, and for whom a foreign allegiance might then prove quite valuable when his term of office has expired. To entrust this great authority in such an elected official would be “utterly unsafe and improper,” lest he be “tempted to betray the interests of the state to the acquisition of wealth.”
But this does not mean that the power should rest with only the Senate, for this would deprive the President of too much authority in foreign relations and negotiations. The President is to enjoy “the confidence and respect” of other nations, and the Senate, as a legislative body, is unlikely to command such foreign confidence. Thus, the country would lose the benefit of the President’s unique position among the nations were he to be excluded from the treaty process. For Hamilton it is then clear that the “greater prospect of security” for the country lies in the joint sharing of the treaty-making power.
Despite the prudence of this “intermixture” between the Senate and the President, Hamilton resists the call to include the House of Representatives in the treaty power. Treaties, he argues, require a set of qualities which cannot be expected from such a large and “fluctuating” body of representatives. Treaties require “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy, and dispatch.” The design of the House of Representatives is not conducive to these qualities and would only muddy the waters at potentially critical and inopportune moments of decision. While we might wonder today whether even the Senate possesses the requisite “uniform sensibility” that Hamilton envisioned, one would be hard pressed to quibble with his foresight in resisting the call to extend the treaty-power to the ever-ephemeral House of Representatives.
Finally, the author takes up the challenge that treaties ought to be ratified by two-thirds of the whole Senate, rather than merely “two-thirds of those present.” Anytime a super-majority, like two-thirds, is required for an approval, the matter is increasingly beholden to the will of a select minority, rather than that of the majority. Hamilton rightly recognized that the treaty-making power would be no exception. Requiring two-thirds majority of the entire body to affirm a treaty risked the possibility that a minority of Senators could defeat the measure simply by not appearing to vote on it. On the other hand, such gamesmanship would be discouraged and unrewarded by allowing the treaty to pass with the support of only a super-majority of those present.
The treaty-making power is a shared power. Not a legislative function, nor an executive’s role, a treaty represents a bond between two sovereign powers, likely the culmination of a negotiation, a settling of terms. It is for this reason that Presidents must enjoy enough power to broker the terms of the agreement, while a discrete and noble body of another branch ensures that such power is only invoked in the best interests of the nation and its security.
Tuesday, August 10th, 2010
Nathaniel Stewart is an attorney in Washington, DC, and a fellow at the Ashbrook Center for Public Affairs
Federalist No. 76 – Janine Turner
Federalist Paper 76, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 76, Federalist No. 76Howdy from Arizona! We just pulled into a bus stop to get gas and our Constituting America RV Bus caught a lot of people’s attention! They love the Constitution in Arizona.
Federalist Paper No. 76 enthralls me. Once again the relevancy is amazing! Who says the Constitution is not relevant today or the Federalist Papers are antiquated?
I dare say, they have not read them or they would never dream of uttering such words!
In relation to the appointment of officers the wisdom of Alexander Hamilton is timely.
“Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties.”
Relevant? I say, yes! The following phrase is fascinating.
“In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station.”
Alexander Hamilton’s political savvy is revealed in the following phrase.
“In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain.”
This phrase of Alexander Hamilton is revealing and relevant.
“And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.”
Rare are the men who put country before self-interests.
God Bless,
Janine Turner
Sunday, August 15th, 2010
Federalist No. 76 – Cathy Gillespie
Federalist Paper 76, Federalist Paper Forum 2010 Essays by Cathy Gillespie, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 66, Federalist No. 76, Federalist No. 76Federalist No. 76 examines the appointing power of the Executive Branch. One of our blog commenters, Jimmy Green, summed up this paper well today:
“To keep the Executive somewhat honest the legislative branch must consent on appointments.”
This same subject was discussed in Federalist 66, in the context of powers of the Senate:
“It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They 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 him; 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 any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.”
Publius is saying that the Senate’s role in the Presidential appointment process is to decide if the President’s nominee is fit for the position nominated, on a merit basis, i.e. is the person qualified to serve in the position for which he or she is nominated?
How is this relevant today? With our newest Supreme Court Justice Elena Kagan’s confirmation in the news, it’s easy to answer that question!
Historically, there have been two views regarding the role of the Senate in the Presidential nomination process of Supreme Court Justices. The two quotes below are excellent examples of each view:
Senator Orrin Hatch stated in 1993:
“If a nominee is experienced in the law, highly intelligent, of good character and temperament, and — most important — gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government, the mere fact that I might have selected a different nominee will not lead me to oppose the President’s nominee.”
Senator Barak Obama stated in 2006:
“There’s been a lot of discussion in the country about how the Senate should approach the confirmation process. There’s some who believe that the President, having won the election, should have complete authority to appoint the nominee, and that the Senate should only examine whether or not the Justice is intellectually capable and is nice to his wife, or she is nice to her husband. That, once you get beyond issues of intellect and personal character, then there shouldn’t be further question as to whether the Judge should be confirmed. I disagree with the view. I believe that the Constitution calls for the Senate to advise and consent, that, meaningful advice and consent includes an examination of a judge’s philosophy, ideology, and record.”
Which of the above views have prevailed over the past few years? Examining the partisan breakdown of recent Supreme Court nominations provides at least a partial answer to that question.
President Clinton’s Supreme Court nominee, Ruth Bader Ginsburg, was confirmed in 1993 by a vote of 96-3, supported by 41 of 44 Senate Republicans, 93%.
President Clinton’s Supreme Court nominee, Stephen Breyer, was confirmed in 1994 by a vote of 87-9, supported by 33 of 42 Senate Republicans, 78%.
President Bush’s Supreme Court nominee, John Roberts, was confirmed in 2005 by a vote of 78-22, supported by 22 out of 44 Democrats, 50%.
President Bush’s Supreme Court nominee, Samuel Alito, was confirmed in 2006 by a vote or 58-42, supported by 4 out of 44 Democrats, 9%. One Senate Republican voted against Alito.
Were Justice Roberts and Justice Alito less qualified than Justice Breyer and Justice Ginsberg, or was an ideological standard applied by the Senators who chose to vote against Justice Roberts’ and Alito’s nominations?
President Obama’s Supreme Court nominee, Sonia Sotomayor, was confirmed in 2009 by a vote of 68-31, supported by 9 out of 40 Republicans, 22%.
Last week President Obama’s Supreme Court nominee, Elena Kagain, was confirmed by a vote of 63-37, supported by 5 out of 41 Republicans, 12%. One Democrat voted against Kagan.
This Senate.gov weblink: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm provides an interesting look at our country’s history of Supreme Court nominations. Scrolling through these votes, a more partisan voting trend has emerged in very recent years. While Judge Bork was an anomaly, three Justices in the Reagan years were confirmed unanimously: Scalia, O’Connor and Kennedy, with Kennedy being the last Justice to be confirmed unanimously, in 1987. The attitude of the Senate regarding their role in the appointments process seems to have shifted into partisanship over the last 20+years.
What is the Senate’s proper role in the Presidential Appointment process?
Publius answers that question this way:
“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”
Partisanship in the nomination process is difficult to dial back once allowed to seep in. Is it in our Nation’s best interest for the Senate to adopt the attitude articulated by Senator Hatch in 1993 or the views articulated by President Obama in 2006?
I believe the founders intended the Senate to advise and consent based on their assessment of a nominee’s qualifications more than ideology. However, unless both parties can show evidence of dropping the partisan, ideological criteria for evaluating the President’s nominees – any President’s nominees – it is certainly not in the interest of one party to evaluate nominees based on qualifications while the other party uses an ideological measuring stick.
“We the people,” must educate ourselves regarding our founders’ intentions, formulate our opinion, and make our voice heard through our vote. As Janine Turner, my good friend and Constituting America founder and co-chair likes to say, “Your vote is your voice.” Use it!
Good night and God Bless,
Cathy Gillespie
Wednesday, August 11th, 2010
Federalist No. 76 – The Appointing Power of the Executive, From the New York Packet (Hamilton)
Federalist Paper 76, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Gary McCaleb 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 76, Gary McCalebAs a constitutional attorney asked to chat a bit about Federalist No. 76, I certainly did not expect to use knowledge gained as a U.S. Navy sailor in the 1970s from a book published in 1890 about history from the 1660s to help me explain a constitutional commentary drafted in 1788—but I will.
Federalist No. 76 recognizes that every government needs a stable of civil servants, who in turn must be secured for service with reasonable dispatch and with some assurance of quality. The paper plays off a consistent theme of our founding era—to balance each grant of authority (and concomitant power) with some restraint on the authority.
In a nutshell, Hamilton takes the familiar balancing of powers among the executive, judicial, and legislative branches down a notch as he considers how to expeditiously staff the government with high quality persons, while restraining the appointment power lest it be used by the President to untoward ends.
Hamilton broadly considers the benefits and risks of vesting the appointment power in a single person; or in a larger group of representatives, or in some mix of the two. The idea of a purely democratic appointment system he rejected out of hand—the distances and slow communications of the time precluded that option. And while there is great efficiency in granting one person the power to appoint, that vests too great a power to shape the government in the image of one man.
The Constitution, Hamilton notes, splits the difference—the President has complete discretion to nominate, subject only to the “advice and consent” of the Senate. This secures the efficiency of centralizing these key selections, while providing a modicum of restraint via the Senate’s review.
As Hamilton predicted—and subsequent practice confirms—the Senate seldom shoots down a Presidential nominee, for many reasons: Most nominations are simply uncontroversial, so review is superfluous. And often, nominees intended to advance an agenda don’t always do so once in office; uncertainty about future performance complicates the review. Worse, for the controversial nominations, the Senate cannot be sure that refusing consent won’t lead to an even less palatable nominee the next time around.
Thus, Hamilton must answer the question: “To what purpose then require the co-operation of the Senate?” His answer: “[T]hat the necessity of their concurrence would have a powerful, though, in general, a silent operation.” In short, Hamilton sees the potential for Senatorial brouhaha, or even denial of consent, as a political risk that by its very presence tempers the discretion of the Chief Executive.
What Hamilton propounds in political terms sounds like a peaceful application of classic concept of naval warfare—an idea called the “fleet in being.”
That concept was popularized in a seminal work on global military strategy, Alfred Thayer Mahan’s The Influence of Sea Power upon History, 1660-1783, published in 1890. In assessing how sea power impacted the matters of man, Mahan found that political and military decisions could be profoundly impacted by the mere presence of a small but competent naval force.
The classic example arose in World War I, when the small German High Sea Fleet did little but sit in port—yet the constant threat that it may sally forth and salvo forced the British to commit significant combat resources to contain the German fleet in its harbor. As warfare modernized and combined arms became the norm, the “fleet in being” was renamed “force in being,” and the principle applied more widely.
Thus, the mere fact that the Senate must review the nominations serves as some check to the President’s fearsomely strong nomination power—even if the votes against the President “never leave port,” so to speak.
Senate review means that with each nomination that proves dubious, contentious, or both, the President must spend his political capital. When the highest profile nominations come, he must weigh the risk of pushing his agenda with the risk of having his ambitions die in the fire of a dissenting Senate, or expending the last of his capital in the fight. Given the politicization and profile of the most important nominations (so much so that a new verb—“borking”—came into the American lexicon), the wise President will pull back from fringe politics.
The balance is imperfect, but that was likely intentional—to grant greater review power would have frustrated every administration’s efforts to staff the government. While this undoubtedly permits a degree of undue partisanship in the process, the ultimate impact is mitigated by the higher level separation of powers. In sum, the system performed very much as predicted, which affirms the wisdom of our Founders in drafting the Constitution.
Wednesday, August 11th, 2010
Federalist No. 77 – Janine Turner
Federalist Paper 77, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 77, Federalist No. 77Howdy from Arizona! As I read Alexander Hamilton’s Federalist Paper No. 77, I have such an appreciation and gratitude for our founding fathers and revolutionary heroes, great and small. They fought for our independence and dignity of soul. Their bravery was no less when they had the fortitude to gather at the Constitutional Convention and construct a document that furthered the principals of the Declaration of Independence. The following paragraph by Alexander Hamilton in Federalist Paper No. 77 reveals the genius of their collective vision.
“Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”
Our founding fathers fiercely desired our President and our representatives to be held accountable and that they represent the people with the solemnity and dignity that the office deserves.
God Bless,
Janine Turner
Monday, August 16th, 2010
Federalist No. 77- Cathy Gillespie
Federalist Paper 77, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article II Section 3, Federalist No. 77, Federalist No. 77Greetings from Arizona! What a beautiful state and friendly people. We stopped to get gas, and several people wanted to know more about Constituting America – we ended up having fascinating conversations with them, about the importance of the Constitution, and their love for our country.
I haven’t blogged since I arrived in California on Friday, so I would like to take a moment to catch you up on our Constituting America We The People 9.17 Road Trip!
We spent Friday with Jacob Wood. If you haven’t listened to Jacob’s prize winning song, “What the Constitution Means to Me,” please go to www.constitutingamerica.org and listen!
Jacob is an outstanding young man! We filmed him all day in preparation for a music video we will release in the next few weeks. We loved getting to know Jacob! We also got to speak with his Pastor, and his parents who shared with us some wonderful stories about him. Look for our Behind the Scenes Video in the coming weeks to learn more about Jacob!
Saturday we prepared for our departure, and today we took off from Los Angeles, headed to Arizona!
As we drove along looking the impressive desert vistas, I read Federalist Paper No. 77, only interrupted by Janine reminding me to look out the window and take in the views!
Federalist No. 77, The Appointing Power Continued and Other Powers of the Executive Considered, continues to explore the President’s power to nominate, and how the Senate’s role affects the balance of power between the White House and the legislative branch. Hamilton even takes time to explore the ramifications if the U.S. House shared in the Advice and Consent role. Near the end of the essay, the remaining powers of the President outlined in Article II, Section 3 of the Constitution are quickly mentioned:
“The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.”
The requirement in the Constitution that the President deliver a State of the Union address to Congress:
“He shall from time to time give to the Congress Information of the State of the Union,”
is one of the few specific requirements of the President in the Constitution. Most of the powers given to the President may be utilized at his discretion, but the State of the Union is required. I am surprised Publius did not spend more time on Article II, Section 3. I find the State of the Union requirement of the President fascinating, as a validation of the President’s unique bird’s eye view of the country, and as a confirmation of the importance the framers placed on the legislative branch of government, by requiring a report be made to them.
Dr. Matthew Spalding, in the Heritage Guide to the Constitution, gives an interesting history of State of the Union speeches, on page 217. Presidents Washington and Adams delivered their State of the Union speeches orally, as was the expectation by the framers. Thomas Jefferson, however, broke with tradition and delivered his State of the Union speech in written form, read aloud by the clerks in Congress. Jefferson felt an in person delivery was “too pompous.” President Wilson was the first after John Adams to deliver his State of the Union orally, and every President since President Franklin D. Roosevelt has followed that tradition. President Coolidge’s State of the Union address was the first broadcast by radio in 1923, and Harry Truman’s 1947 State of the Union address was the first broadcast by television.
I have had the privilege of attending several State of the Union Speeches, including one by President Reagan, one by President Clinton, one by President George H.W. Bush, and one by President George W. Bush. All I witnessed were an impressive display of the three branches of government, personified by the individuals filling the U.S. House Chamber:
The members of Congress: U.S. House of Representative Members and U.S. Senators, fill the Chamber. The Speaker of the House is seated behind the President, as is the Vice President, who serves as the President pro tempore of the Senate. The Supreme Court Justices line the front row.
One of the more famous State of the Union speeches occurred when President Obama rebuked the Supreme Court for their Citizens United vs. Federal Election Commission decision:
“with all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’d urge Democrats and Republicans to pass a bill that corrects some of these problems.”
Many have debated if it was appropriate for President Obama to criticize the Judiciary Branch so strongly in such a forum, with the Justices seated directly in front of him. The appropriateness of Justice Alito’s reaction, of mouthing “not true,” has also been debated and discussed. I believe that when attacked, a person has a right to defend himself. Justice Alito was perfectly within his bounds mouthing “not true.” It is unfortunate it was necessary.
Just as President Obama should not have attacked the Supreme Court in his 2010 State of the Union, Representative Joe Wilson should not have shouted out “You lie!” in President Obama’s first State of the Union in 2009. When decorum is breached in the State of the Union, or anywhere, sadly standards degenerate on all sides.
The intricate layers of checks and balances in the United States Constitution is amazing. They are buried in the nooks and crannies of the Constitution, and the State of the Union requirement is an example of this. The simple requirement of a State of the Union speech puts yet another check and balance into play, and give and take between the branches goes on!
Looking forward to Federalist No. 78, the Judiciary Department! AND looking forward to telling you about the next We the People 9.17 winner we are unveiling tomorrow in Arizona!!
Good night and God Bless,
Cathy Gillespie
Thursday, August 12th, 2010
Federalist No. 77 – The Appointing Power Continued and Other Powers of the Executive Considered, From the New York Packet (Hamilton)
Federalist Paper 77, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Steven H. Aden 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 77, Federalist No. 78, Steven H. AdenFederalist 77 “complete[s] a survey of the structure and powers of the executive department,” which, Hamilton urged, “combines, as far as republican principles will admit, all the requisites to energy” the Federal Executive would require to fulfill the duties of his office. Anticipating the skepticism of his audience, the pre-eminent Federalist added one “remaining inquiry”: “Does it also combine the prerequisites to safety, in a republican sense – a due dependence on the people, a due responsibility?” Not to worry, Hamilton soothed: “In the only instances in which the abuse of the executive authority was materially to be feared [i.e., appointments], the Chief Magistrate of the United States [i.e., the President] would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”
Hamilton’s rhetorical caution with his Empire State audience may have stemmed from the depth of contention the issue of appointments had engendered in the Constitutional Convention. The final compromise settled on language that reflected the desire to maintain a strong separation between the powers of the Executive and Legislative branches.
The late Justice Byron White, writing in Buckley v. Valeo (1976), in which the Supreme Court held that Congress had violated the Appointments Clause by constituting the Federal Election Commission with a majority of commissioners appointed by Congress instead of the President, explained the importance of the clause to the Federal system and ultimately the approval of the Federal Constitution:
The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.
The Convention proposed, in alternative versions, that both Houses of Congress should appoint judicial officers, then that the Senate should do so. Judicial and Executive officers were finally lumped together under the Appointments Clause, with the presumption being that the Judiciary being (in Hamilton’s phrase) “the least dangerous branch (Federalist 78),” Congress’ oversight of the President’s power of appointing federal judges would suffice for checks and balances over that branch.
Time and experience have revealed both the wisdom of the balance the Framers struck by the Appointments Clause and their myopic failure to foresee the real dangers posed by a life-tenured federal judiciary. As to the latter, check Judge Vaughn Walker’s opinion in the Proposition 8 case last week, cavalierly tossing aside millennia of moral teaching on marriage as “irrational” and “discriminatory.” As to the former, Executive nominations have rarely been voted down, perhaps demonstrating the “steady administration” inherent in a system in which “the circumstances attending an appointment…would naturally become matters of notoriety,” as Hamilton put it in Federalist 77. One truly “notorious” exception was that of Senator John Tower, a powerhouse of American politics who was denied an appointment as Secretary of Defense 1989 due to a confluence of political and personal factors that seemed to bear out the wisdom of conferring the power of “salutary restraint” on Congress over presidential nominations. The Left thought he had too many ties to defense contractors, and the Right condemned his extramarital infidelities, heavy drinking, and pro-abortion views. Presuming a relative equipoise of power in the Senate (absent today), when both sides of the aisle have reasons to deny an appointment, it suggests that – as “Publius” predicted – the Executive is obliged to nominate moderate candidates to guide federal policy and programs, keeping the ship of state (in theory) more or less on course.
As to the hysterical political theater the Supreme Court confirmation process has become, that of course began with the nomination of eminent jurist Robert Bork to the Supreme Court in 1987, whom Senate partisans voted down in part because of his perceived role in arrogating too much authority to the Executive Branch. That story begins much earlier, but I will tell it as a kind of morality play whose lesson is that in the pas-de-trois dance for power between the three “co-equal” branches, “what goes around comes around,” and the consequences for overreaching may be severe.
Among President Richard Nixon’s manifold abuses of power, none inflamed his political enemies more than the “Saturday Night Massacre” of October 1973. Nixon had appointed a Special Prosecutor for the Watergate Scandal, Archibald Cox, as a result of a promise his Attorney General, Elliot Richardson, had made to the Senate Judiciary Committee. When Cox subpoenaed Nixon’s Oval Office tapes, Nixon ordered Richardson to fire him. After all, Nixon reasoned, Cox was an “inferior officer,” whose tenure was at the pleasure of the Administration. Richardson refused to fire Cox, though, and resigned in protest. Nixon then ordered the Deputy Attorney General to fire Cox, and he likewise refused and resigned. Nixon turned to next-in-line Robert Bork, then Solicitor General. Bork was of the opinion that as a creature of the Executive, the special prosecutor was an “inferior officer” who served at Nixon’s pleasure, and he accordingly fired him. In the brouhaha that ensued, Congress re-asserted its power over the Executive Branch by passing the Independent Counsel Act, restricting the authority of the Executive over congressionally authorized investigations.
On October 23, 1987, the Senate rejected Judge Bork’s confirmation after a heated public debate over his political positions. Among the chief objections was that by backing Nixon’s authority, Bork had shown himself, in the words of the New York Times, “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.” A decade later, Independent Counsel Ken Starr’s investigations into President Clinton’s improprieties led in turn to the Supreme Court’s unanimous decision in Paula Jones v. William Clinton that the separation of powers doctrine did not absolve a sitting President from having to respond to charges of sexual harassment by a low-level state employee. Jones v. Clinton may have marked the low ebb of Presidential power (though it was perhaps also the high water mark for the rule of law). Over two decades and both Republican and Democratic administrations, the Legislative and Judicial branches had taken advantage of the character flaws of Chief Executives to substantially reduce the President’s authority. Conversely, the power of the unaccountable Supreme Court and the uncontrollable Congress appears to be on the rise. One hopes that the American people will soon find ways to exert a “salutary restraint” on these branches as well, and begin to return constitutional authority to the People, with whom it truly resides.
Thursday, August 12th, 2010
Steven H. Aden is senior legal counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.
Federalist No. 78 & Federalist No. 79 – Janine Turner
Federalist Paper 78, Federalist Paper 79, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment II, Constitutional Amendment II, Federalist No. 78, Federalist No. 78, Federalist No. 79, Federalist No. 79Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.
Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.
As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.
One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.
Alexander Hamilton explains the dangers:
“The judiciary is beyond comparison the weakest of the three departments of power [1]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
2. We Americans have every thing to fear from the Supreme Court’s union with the other two branches of government. Publius wrote the warning in this Federalist Paper 78.
“And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
Publius further implores the warning:
“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”
“The manifest tenor of the constitution.”
We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.
And we will make sure that our government does so too.
Our power is in our knowledge, our voice and our vote.
Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,
“Manifest tenor of the constitution.”
God Bless,
Janine Turner
Monday, August 16th, 2010
Federalist No. 78 – The Judiciary Department, From McLEAN’S Edition, New York (Hamilton)
Brian Faughnan, Federalist Paper 78, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Brian Faughnan, Federalist No. 78In Federalist No. 78, Alexander Hamilton explores the proper role of the American judiciary, as laid out in the proposed Constitution. At the time, it was widely recognized that a major defect in the Articles of Confederation was the lack of a federal judiciary. And as Hamilton points out, the only real dispute is about the “manner of constituting” this proposed judiciary and “to its extent.”
Hamilton then lays out a recipe for an independent judiciary to which we should all pay particular attention today. In light of recent Supreme Court nominations, as well as the different states’ battles over methods of judicial selection, it is critical to understand the key elements our Founders considered necessary for creating and maintaining a judiciary that respects its independent, yet limited, role.
Hamilton supports the lifetime appointment of federal judges, subject, of course, to “good behavior,” because he understands that a properly-functioning and independent judiciary “will always be the least dangerous to the political rights of the Constitution.” To Hamilton, lifetime appointment was a critical component of an independent federal judiciary:
Alexander Hamilton, in Federalist No. 78, argued that a judiciary appointed for life constituted the citadel of the public justice and public security because to subject the judiciary to periodic appointments or elections might lead judges to decide cases to curry popular favor, instead of objectively applying the law.
John L. Dodd et al., The Case for Judicial Appointments, The Federalist Society, Judicial Appointments White Paper Task Force (2003), available at http://www.fed-soc.org/publications/pubid.89/pub_detail.asp.
Placing even more faith in the restraint of an independent judiciary, Hamilton also writes that “the judiciary is beyond comparison the weakest of the three departments of power.” To support this, he points out that judges can’t control spending or decisions relating to war; these are better left to the Executive. He also highlights that judges can’t direct “the strength or…wealth of the society,” another example of why the judiciary couldn’t possibly be “dangerous.” One key part of Hamilton’s analysis is that, while courts have a duty to declare unconstitutional pieces of legislation void, their power is never to be interpreted as great than that of the legislature.
So, if judges are supposed to be so innocuous, what accounts for the long-standing debate about judicial activism?
The reason for this is fairly complex, but it can be boiled down to one particularly important observation. As Attorney General Ed Meese recognized, “the Constitution enabled the government to control the governed, but also obliged it to control itself.” Meese recognized that the judiciary’s departure from interpreting the original intent of the Constitution has fundamentally disabled that branch from controlling itself. In Meese’s words, “A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.” In other words, original intent leads to controlled judges.
The American Left has almost uniformly adopted Justice Powell’s view that “the judiciary may be the most important instrument for social, economic and political change.” To them, the judiciary’s “independence” hinges on creating affirmative rights when it sees fit, rather than defending those negative liberties that our Constitution recognizes. No longer do we follow Hamilton’s model of a constrained, independent judiciary. Instead, we see a judiciary that bows to the goals of special interested groups and creates its own rules of the game. For liberals, the Constitution is no longer a rigid boundary around a judge’s decision-making; it is merely a tool that can be warped and bended to reach a desired social, economic, or political goal.
It was this departure from Hamilton’s recipe that left Americans with the legacy of a radical out-of-control judiciary. The branch that should be the weakest of the three now too often attempts to overpower the political branches whenever it wants to do so.
The good news is that Hamilton and his fellow Federalist Paper authors, James Madison and John Jay, left us with a guide for having a judiciary that is, truly, the “least dangerous branch.” The answer is self-constrained judges with respect for the parameters of the Constitution.
Friday, August 13th, 2010
Brian Faughnan is the Managing Editor of LibertyCentral.org
Federalist Paper No. 78 & 79 – Janine Turner
Federalist Paper 78, Federalist Paper 79, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment II, Constitutional Amendment II, Federalist No. 78, Federalist No. 78, Federalist No. 79, Federalist No. 79Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.
Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.
As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.
One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.
Alexander Hamilton explains the dangers:
“The judiciary is beyond comparison the weakest of the three departments of power [1]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
2. We Americans have every thing to fear from the Supreme Court’s union with the other two branches of government. Publius wrote the warning in this Federalist Paper 78.
“And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
Publius further implores the warning:
“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”
“The manifest tenor of the constitution.”
We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.
And we will make sure that our government does so too.
Our power is in our knowledge, our voice and our vote.
Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,
“Manifest tenor of the constitution.”
God Bless,
Janine Turner
Monday, August 16th, 2010
Federalist No. 79 – The Judiciary Department Continued, From McLEAN’S Edition, New York (Hamilton)
Federalist Paper 79, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kevin Theriot 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 78, Federalist No. 79, Kevin TheriotA crucial aspect of our republican form of government is an independent judicial branch that cannot be cowed by either of the two other branches. Lifetime tenure – addressed in Federalist #78 – prohibits the president from revoking a judicial appointment should he later come to regret it. And a set salary, which cannot be diminished, keeps the legislature from starving a judge off the bench. This is the topic of Federalist #79.
For the most part, this Paper is relatively straightforward and unremarkable. The subject matter is not particularly complicated. If judges are to be as unbiased as possible, they cannot be tempted to adjust their decisions to conform with the views of the current majority in Congress – lest they have their salary cut.
But at least one remarkable aspect of #79 is the evidence it provides of the foresight of the Founding Fathers. In explaining why the amount of judicial compensation is left to the discretion of Congress, Hamilton notes that the value of money changes over time, and “[w]hat might be extravagant to-day, might in half a century become penurious and inadequate.” Quite an obvious consideration, but it demonstrates that the authors of the Constitution knew the policies they were establishing had ramifications for years to come and acted accordingly.
This important principle was reiterated about 30 years later by Justice Marshall in M’Culloch v. State of Maryland, 17 U.S. 316 (1819), which determined that Congress has the right to charter a national bank, even though the power to do so is not specifically enumerated in the Constitution. Justice Marshall reasoned that, so long as it is not prohibited by the Constitution, Congress has the discretion to use such means as needed to further the powers they do have, such as collecting taxes and regulating commerce.
This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
Id. at 41 (emphasis added).
Perhaps this willingness to think in terms of decades, centuries, and ages, instead of just the next year or two, is why our form of government has survived relatively unchanged for over 200 years. The Founders’ foresight is in marked contrast to recent acts of our legislature that are more concerned about appeasing the current constituency rather than doing what’s best for the nation. Our leaders would do well to heed the Founders’ example and do what is right – long term, as well as short term – instead of what is expedient.
Monday, August 16th, 2010
Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.
Federalist No. 80 – Janine Turner
Federalist Paper 80, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 80, Federalist No. 80Howdy from Nebraska! We have been traveling across America in our Constituting America RV, filming our winners! We have filmed Jacob Wood in California, (check out his new video on the website – it is produced by Constituting America and directed by me and edited by me and my daughter, Juliette!) Next, we traveled to Arizona where we filmed Jorey Cohen (check out the photos on the website – scroll down). We then traveled to Colorado and filmed Joseph Valencia and onward to the bottom of the Rockies, the great Continental Divide, to film Halley Moak! Check out our website for updates.
We are trying to keep the site up to date as we travel in the RV – as much as the phone service and electrical outlets will allow. The electrical outlets keep popping! It is rather crazy to be on this tiny RV with six people traveling thousands of miles across the country – literally all across the country – up, down, everywhere. However, when times are exhausting, the absolutely darling children who are our winners light up the whole process.
I pray to God to guide us, as we are servants of His and of America. This is how I feel. This is my purpose – to be of service. As I travel across our great country I am reminded how beautiful it is and I love America and Americans. We are blessed!
Regarding Federalist Paper No. 80. – all can says is “wow!” I wish I had all of the time in the world to study it but I am filming, directing, editing and traveling so I am a wee bit busy. As I read the paper I realize how huge our country has become since its inception and how large our government has become. I have to question whether it is still the “weakest” branch of the government. When Juliette, Cathy and I visited the Supreme Court recently, the guide talked about how John Jay left his position as Supreme Court Chief Justice, to become governor of New York.
Today, we consider this decision with incredulous wonder. Why would he leave the Supreme Court to become governor of New York? It is because at that time, the office of governor was more powerful than that of a Supreme Court Justice – and this was the intention of the Constitution.
In modern times, the office of Supreme Court Justice is considered one of the highest in the land and one of awe.
The only way this misplacement of powers may be revisited is by becoming aware of the true intention of the court. Knowledge is power.
In Federalist Paper No. 80, Alexander Hamilton writes of the importance of the uniformity of reason within a nation, hence, the importance of the Constitution. A nation must have a reference point, a synchronicity of laws. Without this, there is no center, no focus. It is on this very point that I believe the writing of our United States Constitution was just as monumental of a miracle as our victory in the Revolutionary war. Unity is important in all endeavors but most importantly in worthy endeavors.
In Federalist Paper No. 80, Alexander Hamilton expresses his opinion:
“The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.
Alexander Hamilton thoughts and words in his fourth point of Federalist Paper No. 80 is mesmerizing:
“The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.”
Two phrases stand out in this phrase,
“The peace of the WHOLE ought not to be left at the disposal of a PART.”
And
“And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.”
With the difficult times that we are facing as a nation, a focus upon the true intentions of our founding principles is paramount.
Understanding the intrinsic values of our foundation as a country will be the only thing that will sustain us in times of attack, whether external or internal, physically or culturally.
I thank you for joining us. Please read the Constitution with your children, family and friends and for that matter, anyone you encounter.
God bless,
Janine Turner
Sunday, August 22nd, 2010
Federalist No. 80 – The Powers of the Judiciary, From McLean’s Edition, New York (Hamilton)
Federalist Paper 80, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, Federalist No. 80, Horace CooperFederalist Paper 80 was printed in the Independent Journal in New York on June 21, 1788. Hamilton sets out to outline the jurisdiction of the Federal judiciary as outlined in the new Constitution. He explains that federal jurisdiction involves “all cases in law and equity arising under the 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 and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.”
In his view in order to best evaluate the “the proper extent of the federal judicature” it is necessary to understand the appropriate role of federal judges. Hamilton outlines five instances which constitute “appropriate” areas of responsibility for federal judges: first, litigation that arise as a result of conflict over the laws passed by Congress or the United States Constitution, second litigation resulting from disputes with the President and his administration while carrying out Congressional statutes, third any disputes in which the United States government is a party, fourth disputes between states and/or foreign nationals, fifth litigation involving the high seas which are of maritime origin, and lastly any disputes which state judges might be thought to be partial or biased.
Hamilton rightly observes that a key ingredient in the operation of a federal system is a judicial system with the authority to oversee disputes arising from the federal power. He cites the obvious example of 13 different courts assessing the same set of facts and reaching different outcomes as a key reason that the states should not have this power. Hamilton calls such an outcome a “hydra in government, from which nothing but contradiction and confusion can proceed.”
One area that Hamilton mentions that should receive further explanation for federal jurisdiction are instances involving disputes between two states, between one state and citizens of another and between citizens of different states. Suggesting that there are disputes that lead to war and insurrection, Hamilton cites the Imperial Chamber the High Court in Germany created in the latter part of the 15th century by the Holy Roman Empire for the “vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire.” It is perhaps a curious choice as an example by Hamilton because the Imperial Chamber was notoriously slow in carrying out its deliberations. Lawsuits involving territories often took more than 100 years before rulings were issued. In fact, when the Court was finally dissolved in 1806 there were cases pending that were over 300 years in age. Compared to the Imperial Chamber, the American judicial system travels at the speed of light.
This seemingly simple exposition of the appropriate jurisdiction masks a sophisticated understanding that exists in the United States — we are a system of dual jurisdictions. Thus there are significant areas of litigation that — not only would Hamilton not have mentioned — is primarily left to state courts to address.
One of the earliest examples of the dispute between Federal and state authority arose in 1818 in a case called United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818). The case involved a federal prosecution of a murder that took place on board a military combat ship the Independence that was anchored in the Boston harbor in Massachusetts. In this case, the defense successfully argued that this case should not be tried in Federal Court under admiralty law because the ship was docked in the state of Massachusetts. In its ruling for the defense the Supreme Court explained, “The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction… It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory; or, which is essentially the same, of general jurisdiction.” The Supreme Court notably upheld the very distinctions that Hamilton outlined in Federalist #80.
Tuesday, August 17th, 2010
Federalist No. 81 – Janine Turner
Federalist Paper 81, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 14. Essays by Janine Turner, Federalist No. 81, Federalist No. 81Howdy from Wisconsin! We filmed beautiful Evita Duffy, our Best Artwork winner, in Wisconsin yesterday and now we are traveling, in our Constituting America RV, to Illinois to film our Best Essay winner! Wow. Lost of miles on the road!! We get many honks from drivers as they pass us on the road – fellow Constitutionalists! Our transportation, FYI, is provided by Voyager Executive Sedan, (www.takeavoyage.com).
Please check out the striking photos, photographed by the awesomely talented Doug DeMark, on our website, check out our videos, the winners works, and be sure to watch our New Music Video of Jacob Wood.
These efforts would not be possible without all of you who have been our patriotic donors.
Federalist Paper No. 81: Alexander Hamilton was a force with which to be reckoned. On his contributions – his drive, determination and brilliant foresight – rests our Constitution and its manifestation. He knew we would need a national constitution even during the Revolutionary war. He had an uncanny way of seeing the big picture. His visionary mind, coupled with the other brilliance of our forefathers, built America.
How is our vision today? Myopia is the mire of a Republic and its democratic faculties. How do the actions we take today, both as citizens and in our government, affect the future of our country? Sacrifice is the one word that best describes our revolutionary forefathers, foremothers, and colonial citizens.
Today, we must also sacrifice, in order to preserve our great country and we must also have vision. Crucial are the efforts and decisions we make as the genius of the people, the roots of the government.
As I travel America the beautiful, and see all of the small rural towns, I realize, that we should
Monday, August 23rd, 2010
Federalist No. 81 – The Judiciary Continued, and the Distribution of the Judicial Authority, From McLean’s Edition, New York
Federalist Paper 81, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Jeffrey Reed 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment XIV, Constitutional Amendment XIV, Federalist No. 81, Jeffrey ReedIt’s easy to think that the Federalist Papers, written 222 years ago, are dusty, outdated ramblings of men in wigs. The truth is, its issues still arise today. In his fourth of five essays on the judiciary, Hamilton addressed concerns that the proposed Supreme Court might become the supreme branch of government because it had the power to interpret laws passed by Congress in any way it thought proper. Opponents feared that the court’s decisions would not be subject to revision by Congress.
Hamilton pointed out that nothing in the Constitution empowered the federal courts to “construe the laws according to the Constitution.” He said that “the general theory of a limited Constitution” meant the courts must overturn a law if it violated the Constitution. Hamilton called it a “phantom” to expect that the Supreme Court would become the supreme power. True, the Court may get it wrong from time to time, but it could never rise to an alarming level of judicial activism. And, anyway, the legislative branch could overrule an objectionable court decision through subsequent legislative acts.
Unfortunately, history has proved Hamilton at least partially wrong. The Supreme Court has done quite a bit more than strike down unconstitutional laws or misinterpret others. Take segregated schools, as an example. In Brown v. Board of Education (1954), the Supreme Court held that separate but equal public schools violated the Fourteenth Amendment Equal Protection Clause. No one but a racist would argue that Brown’s public policy outcome was not the right one. Students should not be assigned to a school because of race. The question, however, is whether the Supreme Court’s decision was a proper exercise of its powers, or a case of judges making law.
Authors Woods and Gutzman in Who Killed the Constitution?, point out that Justices Frankfurter and Jackson conceded that they could not find anything in the original purpose of the Fourteenth Amendment that warranted the Court’s decision in Brown. Jackson said that the Court should just admit that it was “declaring new law for a new day.” At least according to these jurists, Brown was definitely not a case of simply declaring a law unconstitutional.
In Brown II (1955), the Court decided how to solve the problem of segregated schools declared unconstitutional in the first Brown case. The Court ruled that segregated state schools should be ended “with all deliberate speed.” But how?
North Carolina’s answer was to make school assignments based on residence, not race. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court held that racially identifiable schools could not exist. Students must be bussed according to race to achieve integration in the schools. In other words, if a school was clearly black, white children would be bussed to that school to balance the racial inequity, even if the school’s neighborhood was identifiably black.
Unfortunately, the Swann court ignored the plain language of the 1964 Civil Rights Act, where Congress defined “desegregation” as “the assignment of students to public schools…without regard to their race [and] shall not mean the assignment of students to public schools in order to overcome racial imbalance.” [Italics mine]
To be clear, integrated schools are desirable. But was it within the Supreme Court’s constitutional power to achieve that end through racially-based bussing? If Hamilton was right, and we need not fear the Court construing laws according to its own whim, then the Court acted unconstitutionally. Congress clearly acted to prevent bussing according to race when it passed the Civil Rights Act. Hamilton warned us that Congress could always overcome an objectionable court opinion by passing laws. But that’s exactly what Congress seemed to be doing. The Court ignored Congress’ definition of desegregation, preferring instead its own definition.
Isn’t this much ado about nothing? After all, the Court arguably accomplished the right result, only faster than Congress could do. It does matter. The issue goes to the heart of our republican form of government. The United States is not an oligarchy, where power is vested in a small group—in this case, the United States Supreme Court. Such forms of government are dangerous and have resulted in disastrous consequences. In fact, author George Orwell warned of such danger in his novel 1984. No, the United States is a republic, where officials are representatives of the people, who must govern according to the limits of the Constitution. That includes the United States Supreme Court.
Wednesday, August 18th, 2010
Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.
Federalist No. 82 & Federalist No. 83 – Janine Turner
Federalist Paper 82, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 14. Essays by Janine Turner, Federalist No. 82, Federalist No. 82, Federalist No. 83, Federalist No. 83“By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.”
Alexander Hamilton Federalist Paper No. 83
Howdy from North Carolina! We just finished filming our We the People 9.17 Contest winner, Katie Strawinski, who won the Best Short Film Category. We filmed her at her school in Georgia and watched her in action as she filmed her football game as the school’s official video photographer. Be sure to check out her short film on our site. She is very talented. Her work was selected by Michael Flaherty, President of Walden Media.
Even though we are officially finished with our “90 in 90,” I realized that I had not written an essay for Federalist Papers No. 82 & 83 because we have been wildly preoccupied on this road trip across America. Thus, I am writing about them today as we journey through North Carolina.
As I read these particular papers, I think about our nation’s youth. Our judicial system is a wonder. It is very easy to take things for granted, such as trial by jury, and forget the many reasons that why this system of government is vitally important – one of the reasons being a fortification against tyranny.
Alexander Hamilton says it best:
“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and 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 an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.”
Our Constitution and our legal system are designed to keep those in power in check.
“Willful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, or which the persons who commit them may be indicted and punished according to the circumstances of the case. The strongest argument in its favor is, that it is a security against corruption.”
Alexander Hamilton comments on the necessity of a Constitution, which is a boundary for all potential miscreants of power.
“It may be added that these encroachments have generally originated with the men who endeavor 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.”
Another statement of Alexander Hamilton’s from Federalist Paper No. 83 reveals our forefather’s intention to honor each state’s uniqueness and their desire to remain sovereign.
“It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference.”
Only by knowledge of such wisdoms such as these may we have the power to preserve our liberties – awareness, acceptance, action.
God Bless,
Janine Turner
Saturday, August 28, 2010
Federalist No. 82 –The Judiciary Continued, From McLEAN’s Edition, New York (Hamilton)
Federalist Paper 82, Federalist Paper Forum 2010 Essay Project, Robert Lowry Clinton, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Article I Section 09, Article I Section 10 Clause 1, Article I Section 10 Clause 2, Article I Section 10 Clause 3, Article II Section 2, Article II Section 3, Article III Section 2 Clause 1, Article III Section 2 Clause 2, Article III Section 2 Clause 3, Article IV, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 82, Robert Lowry Clinton PhDIn Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.
The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.
After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.
The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.
Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.
This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”
When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.
In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.
The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.
Wednesday, August 18th, 2010
Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.
Federalist No. 83 – The Judiciary Continued in Relation to Trial by Jury, From McLEAN’S Edition, New York (Hamilton)
Federalist Paper 83, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kelly Shackelford 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 2, Constitutional Amendment VII, Constitutional Amendment VII, Federalist No. 83, Kelly Shackelford, The Articles of ConfederationFederalist 83, written by Alexander Hamilton and published in July of 1788, singles out opposition to the new Constitution due to the lack of a clause requiring jury trials in civil cases. At the time, some opponents claimed that the Constitution’s notable silence on the issue meant that the use of a jury was abolished in civil cases, while extreme opponents argued that trial by jury in criminal cases was prohibited, which is quickly corrected in Federalist 83. In this Paper, Hamilton shows the difficulty of inserting a phrase affirming juries in civil cases into the Constitution and that a jury is not beneficial in every situation.
From the beginning, the Constitution mandated jury trials in criminal cases (Article II, Section 2: “The trial of all Crimes… shall be by Jury…”), though it was silent on civil cases. There was no significant opposition to this, as it was commonly agreed that juries in criminal cases provided, at the very least, an important “safeguard to liberty,” since they protect citizens against arbitrary rulings and “judicial despotism.”
However, opponents of the Constitution used old legal maxims in an attempt to prove that the Constitution’s silence implied prohibition of juries in civil cases. One phrase that Hamilton mentions is: “’The expression of one thing is the exclusion of another.’” Hamilton pointed out that the phrase was taken out of context and that applying it to this particular situation forgets the common sense our judicial system was built upon. This common sense, as understood in the legal system, would say that giving a constitutional mandate for a jury trial in criminal proceedings does not deprive the people (or the legislative power) of the ability to call for a jury in civil cases.
Following Hamilton’s refutation of the assertion that the Constitution abolishes jury trials in civil cases, he shifts to his main arguments. The most important point Hamilton makes about the non-necessity of a clause regarding trial by jury in civil cases is that the Constitution does not alter the way states use the institution of the jury. Even today, each state has its own court system, and different courts to deal with certain kinds of issues (for example, the state of Texas has two Supreme Courts – one for civil cases and one for criminal, while other states just have one Supreme Court). While some of the states’ court systems bore similarities, they were all distinctly different. Until the Constitution, each state had run independently and developed systems of state government. This was important because prior to the ratification of the Constitution, the U.S. was governed by the Articles of Confederation which gave the federal government almost no authority except in issues of foreign relations and war. While the need for a stronger federal government was apparent, tensions arose over the tradeoff between decreased states rights’ and increased federal powers.
Even so, two states offered propositions affirming jury trials in civil cases for addition to the Constitution. The first proposition, brought by Pennsylvania, reads: “’Trial by jury shall be as heretofore.’” However, before the Constitution, the federal government had no judicial power, so to say that the institution of trial by jury should remain as it was previously meant precisely nothing.
The proposition from the Massachusetts convention says, “’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.’” According to Hamilton, this suggestion infers that among civil cases only those dealing with common law merit a jury trial. Hamilton notes that if that was not Massachusetts’ intention and the convention believes there to be other cases which call for a jury but chose not to incorporate, then it proves his point on the difficulty of addressing the issue in the Constitution.
Propositions like these demonstrated the difficulty of inserting into the Constitution a clause providing for jury trials in civil proceedings that would have broad approval. Since each state had its own legal system, states would be forced to change in order to comply with the Constitution or, put simply, confusion would erupt. If a clause was added, it would probably codify the court system of one state, while many of the other states would have to change their systems extensively to be in compliance, which would surely inspire “jealousy and disgust.”
Hamilton, though, does not merely encourage opponents to support the Constitution as is because it is so difficult to insert a jury clause on civil cases; he argues that a jury isn’t always needed, and is sometimes even detrimental. In some cases, intricate knowledge of the law is required to make a good decision, such as those that call into question foreign relations and equity, or fairness in the law. Ultimately, juries cannot be expected to have an in-depth understanding of complex areas of the law and apply it correctly. And since juries consist of citizens who lose time from their jobs, they also cannot be expected to sit on a jury for an extended period of time. While juries are crucial in criminal cases, Hamilton finds that in civil cases their only benefit comes in “circumstances foreign to the preservation of liberty.”
All citizens now have the right to a jury trial, though they can waive the jury. Some civil cases never have a jury trial, because juries are only needed in cases where the facts are in dispute. The Seventh Amendment to the Constitution affirms citizens’ right to a jury trial in cases of common law, which modified and clarified the existing system.
Today, we can look back to our founding documents, such as the Constitution, and see how the Framers diligently strove to preserve the liberty that a jury trial system provides. Only a handful of countries guarantee their citizens the right to a jury in all cases, including civil proceedings. The rest prefer that only judges make decisions, which lends itself to elitism and, as Hamilton noted, to corruption. The American system put forth in the Constitution truly seeks to protect everyday citizens and keeps the power in the hands of the people, which is yet another reason this country is so free.
Friday, August 20th, 2010
Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress. Jennifer Grisham is director of media at Liberty Institute. The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case. For more, visit www.LibertyInstitute.org.
Federalist No. 84 – Janine Turner
Federalist Paper 84, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 84, Federalist No. 84Howdy from Indiana! We filmed Spencer Kolsak yesterday in Illinois. He is absolutely darling, very bright and we thoroughly enjoyed meeting him and his family. We filmed in front of the oldest log cabin in Illinois, which we thought was very fitting for Illinois, since it is the home of President Abraham Lincoln. Our footage is BEAUTIFUL from all over the country. Our documentaries are going to be awesome in its message, its diversity and its photography. Juliette and I are going to edit the documentaries. It is going to be a huge job but most worthwhile!
We are now on our way to Alabama with a stop through Nashville.
I just read Federalist Paper No. 84. I can’t believe we are on Federalist Paper No. 84!!!! What a journey this has been – amazing, inspiring, educational, and passionately patriotic!
In Federalist Paper No. 84, Alexander Hamilton wraps up the last remaining details regarding the Constitution.
They may be last but they are by no means the least, as a matter of fact, Alexander Hamilton expresses what he believes to be the most important elements.
Alexander Hamilton states in Federalist Paper No. 84:
“The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains.”
When one denounces the Constitution as irrelevant or antiquated, they need only look at Federalist Paper No. 84 and these three basics of Republicanism.
Habeas Corpus: the civil right to obtain a writ of habeas corpus as protection against illegal imprisonment.
A violation of this basic right is a major tactic of a dictator, a principle of tyranny. The dictator imprisons anyone he wishes for any reason and in this way he stifles opposition, maintains control and dwarfs inspiration, creativity and advancement of mankind. Fear is the great silencer of life and intimidator of spirit.
The subsequent preserver of freedom is the prohibition of ex-post facto laws. The prohibition of ex-post facto laws is a vital principle of liberty. It protects Americans from the threat of reprisal of punishment. Dictators use this to perpetually punish or create ways to twist the laws and entrap a citizen in the mire of concentrated confinement.
Nobility, which is the secret wish of any man due to the weakness of human nature which falls prey to the call of power, would then and certainly now, murder liberty and the Republican form of government, if he could do so.
We are so used to our protection from these threats that we know not of the dire straits we would have to contend with if we did not have them. Does this make it not relevant to today? No. It actually makes it very relevant to today, as it protects us against the potential usurper of our liberties. How easily we forget. Yet, we need only look to the recent horrors of Communism, Hitler or modern day dictators, for example, to see the consequences of the violation of these, our brilliant Constitutional, rights.
Knowledge is power. These words from our Constitution and the Federalist Papers call to us. They preserve and protect us. We need only pay heed. Are Americans listening?
Spread the word. America as we know it, depends upon it.
God Bless,
Janine Turner
Monday, August 23, 2010
Federalist No. 84 – Certain General and Miscellaneous Objections to the Constitution Considered and Answered, From McLean’s Edition, New York (Hamilton)
Federalist Paper 84, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Matthew Spalding, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 84, Matthew Spalding PhDToday, many speak of the Bill of Rights as if it is the whole Constitution, but that is not correct. The first ten amendments to the Constitution have taken on a very different meaning than what was envisioned. In fact, the Constitutional Convention considered and unanimously rejected a motion to draw up such a bill of rights for the constitution its delegates were framing.
In Federalist 84, Alexander Hamilton answers the objection that the proposed Constitution did not include a Bill of Rights. But in this penultimate essay, we learn a key principle of the Constitution and realize why the framers’ intentions and the original meaning of the Bill of Rights is perfectly consistent with the Constitution as a document that limits government in order to secure the rights proclaimed in the Declaration of Independence.
Hamilton begins by pointing out that the Constitution itself contained several related provisions protecting rights, such as the clauses against ex post facto laws, religious tests, and the impairment of contracts. In creating a limited government by which rights were to be secured and the people free to govern themselves, the Constitution, as Hamilton insisted, is itself a bill of rights.
The more important reason for not including a bill of rights at the national level of government had to do with the difference between the state and federal constitutions. Since states had broader reserved powers, bills of rights in state constitutions made sense: They were necessary to guard individual rights against very powerful state governments. But the federal government only possessed those limited powers that were delegated to it in the Constitution. As such, the federal government did not possess the power to address basic individual rights, so there was no need for a federal bill of rights—indeed, one might be dangerous. Such a bill of rights, Hamilton argued, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
Put another way, why state in a bill of rights that Congress shall make no law abridging free speech if Congress in the Constitution has no power to do so in the first place? And does a bill of rights that forbids the federal government from acting in certain areas imply that the government has the power to act in other areas? If that were the case, as Madison earlier warned, then the government was “no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”
Nevertheless, the lack of a bill of rights similar to those found in most state constitutions became an important rallying cry for the Anti- Federalists during the ratification debate, compelling the advocates of the Constitution to agree to add one in the first session of Congress. So Madison, who along with Hamilton had opposed a bill of rights, drafted the language himself to make sure these early amendments did not impair the Constitution’s original design.
The twofold theory of the Constitution can be seen especially in the Ninth and Tenth Amendments: The purpose of the Constitution is to protect rights that stem not from the government but from the people themselves, and the powers of the national government are limited to those delegated to it by the people in the Constitution. They also address the confusion that might arise in misreading the other amendments to imply unlimited federal powers (Hamilton and Madison’s chief concern). While the Ninth Amendment notes that the listing of rights in the Constitution does not deny or disparage others retained by the people, the Tenth Amendment states explicitly that all government powers except for those specific powers that are granted by the Constitution to the federal government belong to the states or the people.
The original purpose of the Bill of Rights—stated by both the Federalists and the Anti-Federalists—was to limit the federal government. Today, the Bill of Rights mainly serves to secure rights against the state governments—the exact reverse of the role these amendments were intended to play in our constitutional system.
The Bill of Rights is indeed a distinctive and impressive mark of our liberty. Unlike the citizens of many other countries, Americans are protected from their government in the exercise of fundamental equal rights. But there should be no mistake that it is first and foremost the constitutional structure of limited government—the great theme of The Federalist and the point of Federalist 84—that secures our unalienable rights and the blessings of liberty.
Matthew Spalding is the Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.
Federalist No. 82 & Federalist No. 83 – Janine Turner
Federalist Paper 82, Federalist Paper 83, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 82, Federalist No. 82, Federalist No. 83, Federalist No. 83“By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.”
Alexander Hamilton Federalist Paper No. 83
Howdy from North Carolina! We just finished filming our We the People 9.17 Contest winner, Katie Strawinski, who won the Best Short Film Category. We filmed her at her school in Georgia and watched her in action as she filmed her football game as the school’s official video photographer. Be sure to check out her short film on our site. She is very talented. Her work was selected by Michael Flaherty, President of Walden Media.
Even though we are officially finished with our “90 in 90,” I realized that I had not written an essay for Federalist Papers No. 82 & 83 because we have been wildly preoccupied on this road trip across America. Thus, I am writing about them today as we journey through North Carolina.
As I read these particular papers, I think about our nation’s youth. Our judicial system is a wonder. It is very easy to take things for granted, such as trial by jury, and forget the many reasons that why this system of government is vitally important – one of the reasons being a fortification against tyranny.
Alexander Hamilton says it best:
“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and 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 an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.”
Our Constitution and our legal system are designed to keep those in power in check.
“Willful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, or which the persons who commit them may be indicted and punished according to the circumstances of the case. The strongest argument in its favor is, that it is a security against corruption.”
Alexander Hamilton comments on the necessity of a Constitution, which is a boundary for all potential miscreants of power.
“It may be added that these encroachments have generally originated with the men who endeavor 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.”
Another statement of Alexander Hamilton’s from Federalist Paper No. 83 reveals our forefather’s intention to honor each state’s uniqueness and their desire to remain sovereign.
“It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference.”
Only by knowledge of such wisdoms such as these may we have the power to preserve our liberties – awareness, acceptance, action.
God Bless,
Janine Turner
Saturday, August 28, 2010
Federalist No. 85 – Janine Turner
Federalist Paper 85, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 14. Essays by Janine Turner, Federalist No. 85, Federalist No. 85Federalist Paper No. 85! We did it!! Alexander Hamilton’s words express our endeavor best:
“Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted.”
What a journey we have been on for the past four months!
I have learned so much from not only our United States Constitution and the Federalist Papers, but from our gracious and talented scholars, Cathy Gillespie, and YOU, our loyal bloggers.
Wisdom beyond words prevails from the Federalist Papers and their warnings beckon our most urgent involvement. A rekindled knowledge of Publius’ belief in the “genius of the people” reminds us of the necessity of our voice, our actions and our constant seeking of the truth.
Alexander Hamilton says it best:
“The unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men.”
It is our duty to get involved in the preservation of our Republic. Times heed not the lazy participant, leaving America to the few. Patriots must prohibit the silent slippery slope that always precedes tyranny.
The Federalist Papers, the issues they faced and the duties required of the people of the 18th century are as pertinent today as they were then. Alexander Hamilton states:
“This is a duty from which nothing can give him a dispensation. This is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act.”
At this potential crucial turning of our country and with the need to prevent such a turning, we must join in unity as our Revolutionary forefathers and Constitutional forefathers did. A country divided – falls. We must always remember that we are all Americans. A people who share one of the greatest countries on earth founded on Godly principles and a goodness of spirit that birthed a “majesty of the people.” Thus, we must be true to our principles, yet never wedge such a divide as to crater our country.
Alexander Hamilton, once again, brilliantly states the mission for his constituents and for his posterity:
“Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation.”
I love America. I love her goodness, even her failures – for it is through her failures that we have continued to grow and mature into the thoughtful, conscientious, and consistently creative people that we are. It is our United States Constitution that has given us the platform to both preserve and amend our laws of government. It is through our tribulations that we have triumphed. It is because of God and subsequently the “genius of the people,” that we have defined our own destiny.
As we walk through these challenges times, let us not forget the onslaught of troubles our ancestors both experienced and tackled. They excelled through storms, famine, persecution, indecision and war. At these times they called upon a higher power and He led them to a new level of human dignity and spiritual enlightenment.
We, too, are capable of these things. We need only our faith in God, our fellow citizens and knowledge of the United States Constitution to rise above the mire of mediocrity that we find ourselves today. By a willingness and a desire to preserve our country, our beautiful land and liberty, for ourselves and our prosperity, we will soar on eagles’ wings. We are no less the heroes our forefathers were. We need only to hear the call and heed its needs.
Knowledge is to power what actions are to results. We are the people. We are the roots that feed the branches of government. The tree will not survive without us. May we keep our rights alive. Our Constitution and our Bill of Rights are more relevant today than ever. They protect us from the tyranny that at any time may overtake us and succeed. The enemy is in the field and they may not use the traditional tactics. Sly are their methods of operation.
Let us put the lanterns in the North Church. Let us be the “alarm,” the Paul Revere, that sounds the warning: One if by laziness, Two if by ignorance. We must know our rights; our children must know their rights. Spread the word. We are borne of true grit and determination. In our genes lies the innate knowing of righteousness. We were founded on such callings, from the Mayflower to Bunker Hill to Independence Hall, from the Civil War to World War II to 9/11. Let us never forget. Let us always be grateful for the men and women who have sacrificed to keep our flame of independence alive and let us carry that torch today.
“The unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men.”
God Bless and I thank you for joining us on this remarkable journey, our “90 in 90 – History Holds the Key to the Future.”
Janine Turner
Tuesday, August 24, 2010
Federalist No. 85 – Some Final Thoughts, From McLean’s Edition, New York (Hamilton)
Charles K. Rowley, Ph.D., Federalist Paper 85, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Charles K. Rowley PhD, Declaration of Independence, Declaration of Independence, Federalist No. 85In writing about Federalist No. 85 – the final paper in a lengthy series of defenses of the proposed Constitution for the United States of America – it is entirely appropriate that I have just returned from a several day visit to Colonial Williamsburg. For that historic site epitomizes better perhaps than any other location in America – even perhaps than Philadelphia – the Spirit of Revolution and Reform that swept through the 13 colonies immediately prior to July 4, 1776, and that governed the constitutional discourse, both immediately following victory over the British Empire, and in the wake of the evident failure of those Articles of Confederation that had led the former colonies on their first nervous lap on the road to a full Union.
To hear once again those now-treasured words of Patrick Henry, Thomas Jefferson, and George Washington, in the very location where they were heard for the very first time, within the context of torn loyalties and divided families, is to recognize that a rare constitutional moment occurred during those immediate pre-revolution years between the passage of the Stamp Act and the military engagements to the North at Lexington and Concord. To watch as dedicated 21st century young American visitors reenact key events, eagerly volunteering to serve in General Washington’s miniscule, rag-tag army, in the face of almost certain death and, as bravely defiant Williamsburg citizens, jeering at the Traitor, Benedict Arnold, following his military investment of the capital city of independent Virginia, is to feel pride, even as an Englishman, in the Spirit that will take George Washington’s army to its key victory over the British army of General Cornwallis at Yorktown, on October 19, 1781, and that eventually will make the United States exceptional in the eyes of the world.
So now it is May 28, 1788, almost 12 years since the Declaration of Independence, and 7 years since Yorktown. Alexander Hamilton, on this, day accepts the honor, and the enormous responsibility, of firing up that Constitutional Spirit in one concluding paper, in what has proved to be a lengthy, and occasionally rancorous, debate between the Federalists and the Anti-Federalists that he had formally initiated in Federalist No. 1, almost one full-year earlier, on October 27, 1787. Evidently, this is a moment that demands statesmanship of the highest order.
Will Alexander Hamilton fulfill that awesome destiny that he has shouldered so willingly? His task is delicately balanced between firing up the spirit of his readers by soaring rhetoric, while yet holding their feet to the glowing embers of political reality that evidently confront the emerging nation. For, this is not a fairy-tale, where everyone may expect to live happily ever after. On the other side of the fateful constitutional decision, there will be losers as well as winners, though not every one will yet know on which side of that divide he will eventually fall, or for how long he will so remain.
Hamilton rises brilliantly to his task, blending persuasive rhetoric with common-sense realism in a masterly contribution full of insights for those who would lead their state governments to a final judgment, yet written with a clarity that would be greatly appreciated by the People. His opening words focus succinctly on the two remaining issues under serious contention:
“According to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion, two points, ‘the analogy of the proposed government to your own state constitution,’ and ‘the additional security, which its adoption will afford to republican government, to liberty and to property.”
Even these issues, Hamilton recognizes, have been fully anticipated and discussed in the progress of the debate. He dispenses with these remaining concerns in two paragraphs that you can quickly embrace and which I shall here bypass.
The remainder of Federalist No. 85 focuses attention on what I shall call the ‘constitutional spirit’ that ought to govern the People and their state representatives in deciding whether or not to endorse the draft constitution. At a time well before the emergence of public choice, and extrapolating from a history of failed constitutions, Hamilton asks each individual to appeal to his better angels in approaching the constitutional decision, to raise himself above the level of politics as it is, to a meta-level of rules that will delineate the very nature of the politics that must play out within its limitations:
“Let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it, and whether or not it has been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty, from which nothing can give him a dispensation. ‘Tis one that he is called upon, nay constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country or to his posterity, an improper election of the part he is to act.”
These are powerful words of persuasion. But Hamilton does not rely on rhetoric alone. He knows instinctively, well before a relevant public choice literature has emerged, that individuals require little prodding so to behave. If the constitution is adopted, together with the amendment process that it prescribes, it will be of long duration, it will survive, indeed, well beyond the life-span of any individual. Even though each individual may be well aware of where he stands at this time, what he expects to lose and to gain by his actions, he cannot foresee the future. He cannot know what will transpire for his offspring, and for their offspring, into an indefinite future. As such, the edge of narrow self-interest is naturally blunted, and a nudge rather than a shove is all that is required for man to rely upon his better angels in the constitutional moment that he immediately confronts.
So what now is left? The proposed constitution, as Hamilton well understands, is a compromise carefully constructed by a dedicated convention at Philadelphia. It will not be perceived as perfect, perhaps, by any man, surely not by many. The urge to make perfect in a naturally imperfect world must be contained, because unattainable perfection must always prove to be the deadly enemy of the feasible best. Hamilton addresses this issue transparently and to powerful effect, distinguishing between the writing of an entirely new proposed constitution and the amending of a constitution that has been agreed-upon. Writing again well in advance of public choice insights, Hamilton seizes on the essence of this difference:
“We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact; and hence also an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act.”Hamilton does not have to remind his readers of the great fortune of the convention in Philadelphia in meeting in a building carefully protected from all external interference – the streets themselves were covered with straw to deaden the sound of passers-by – in meeting under the magisterial leadership of George Washington, in meeting under the brilliant intellectual guidance of James Madison, the Father of the Constitution, with the energetic presence of the First American, Benjamin Franklin. Such favorable circumstances surely would not be replicated in any second attempt. In their absence, chaos might well be expected to ensue.
So, Hamilton reminds his readers of how much simpler the Article V amendment process is designed to be, focusing as he anticipates, on one issue at a time, with qualified majority, rather than unanimity, its prescribed mechanism, and with the convention route available to bypass any danger of Congressional resistance to state initiatives. Hamilton is aware that 7 out of the 13 states are already committed to the great enterprise. His final paper is a brilliant and ultimately successful exercise to bag the remaining 6. The threat of anarchy, should the venture fail, proves to be sufficient to mollify dissent and to complete the Union.
Because this is the final Federalist Paper, and I have the advantage over Alexander Hamilton of being able to look back on the constitutional achievement of the Founders, let me close with some brief thoughts on what has transpired over the two centuries and more of its existence.
The Constitution itself is a triumph, a remarkable document forged by brilliant political philosophers. Foremost among the Founders was James Madison, who, prior to the Philadelphia convention, studied what was wrong with republics, old ones and new ones, how they failed and why they were failing. He studied what was wrong, and why they failed, so that he could create a republic that would not fail. For the most part, he was successful. The parchment of the constitution is as good as it could be.
It is now badly tattered, not because the Founders failed, but because their successors too often have twisted its meaning. The Founders for the most part were devout Christians who understood that man’s creation operated under Divine guidance. The United States prospered and grew in freedom under Divine Providence. It has fallen on darker days as secular notions of Manifest Destiny have replaced those of the Divine.
The United States prospered and grew in freedom when the checks and balances of the Constitution each played their designated role in preserving a strictly limited government of enumerated powers, and when states rights were honored according to the Constitution. It has fallen on darker days as Congress has relinquished many of its powers to create an Imperial Presidency; and has stretched across the constitutional divide to seize powers that do not exist; and as the Congress and the Presidency, acting in concert, have crushed states’ independence.
The United States prospered and grew in freedom when the Judiciary honored the words of the Constitution and construed the words of the parchment in accordance with original intent. It has fallen on darker days since the Judiciary has rendered the words of the parchment meaningless in an attempt to pursue social and economic agendas never contemplated for the federal government by the Founders.
That is why this project on Constituting America is so important at this time of grave uncertainty for the future of this nation. It is for the youth of America to reaffirm the Spirit of America that has been so sadly disregarded by its elders, and to return the United States to the Divine Providence that is the life-spring of its People’s greatest achievements.
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 co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute (www.thelockeinstitute.org). He blogs at www.charlesrowley.wordpress.com.
The Amendments to the United States Constitution
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Michael Krauss 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment XIV, Constitutional Amendment XIV, Michael KraussThe very first part of the First Amendment to our Constitution reads as follows: “Congress shall make no law respecting an establishment of religion…” What does this text (commonly known as the Establishment Clause) mean? Does it mean the same thing today as it did when it was enacted? Today’s post will focus on this topic.
The first ten Amendments to the United States Constitution were adopted because many of the Founders feared that the new federal government they were setting up would become tyrannical. Other Founders did not share that fear, because the federal government was to have only enumerated powers and not general powers to do anything it deemed to be in the general welfare. [Today many in Congress seem to believe that the federal government has just this plenary power – perhaps this is a tribute to the prescience of the “anti-Federalists” who insisted on inserting these amendments.] As regards the establishment clause, it is clear that at the very least it was meant to prevent the federal government from creating a new Church, on the model of the Church of England – let’s call it the “Church of the United States.” The fear was that this church would be “established” and funded with taxpayer dollars throughout the land. The creation of a compulsory, or even a subsidized, American church was precisely the kind of British model that the founders all wished to avoid, and so James Madison (who was one of those who felt there was no real risk of federal expansion anyway) was quite content to accede to the requests of his more nervous colleagues and write this prohibition into the Constitution. No federal church was established, of course, but the same people who adopted the Establishment Clause also created a national day of prayer, named Chaplains for the military academies and allocated moneys for the evangelization of Indian tribes. A few (notably Thomas Jefferson) wrote that government should be totally divorced from any religious actions, but even Jefferson as President allocated money to pay for priests and churches on Indian reservations, if the Indians so requested. Again, support for religion in general, without preference for any specific sect, was the order of the day.
But if an established federal church was to be prohibited by the clause, it is clear that established state churches were not to be touched (one early version of the clause also affected the states, but it was quickly abandoned). All the New England states (from Connecticut north), and all the Southern States (from Maryland south) had established churches at the time the First Amendment was adopted – different Protestant denominations in each state. Jews and Catholics suffered under various legal disabilities in different states until all were removed in the mid-nineteenth century. The states were quite clearly to be free to continue in this path – recall that the Clause states only that “CONGRESS shall make no laws…” After the Civil War, other amendments were adopted to ensure that the new American citizens (the freed slaves and their descendants) would have full citizenship rights in every state, and one of these Amendments, the Fourteenth Amendment (about which someone else will be blogging) was interpreted by the Supreme Court as incorporating most (likely all) of the limitations of the first ten Amendments against all the states. As the “incorporation” doctrine became entrenched, the case law concerning the Establishment Clause increased.
This case law slowly veered Establishment Clause jurisprudence away from non-preferentialism and toward antipathy to religion. In the 1879 Reynolds case (in which a Mormon unsuccessfully claimed a religious right to practice polygamy), the Supreme Court opined (though it did not have to decide this question to resolve the case at hand) that Jefferson’s declared view (that the federal government should not even acknowledge religious activity) was the authoritative meaning of the Establishment Clause. American legal history was replete with examples to the contrary (not only most Founders’ declarations, the national prayer day, the chaplaincies and the Indian missions, but also the declaration of Christmas as a national holiday and the mentions of God on our money and on our Supreme Court building). In 1947, the Everson case allowed states to pay for school busses for all students (even those who frequented religious schools) but signaled that governments’ recognition of citizens’ religious choices could go little further. Since then cases have denied the right of public school boards to have ecumenical invocations before solemn events. Last week a federal judge struck down National Prayer Day – though this had been an institution since the time of the Founding!
In God We Trust is a maxim many of us hold dear. Most of our Presidents finish their speeches by asking God to bless our people. Our Supreme Court itself is adorned with multiple sculptures depicting the Ten Commandments, and the Justices begin each and every session with the intonement, “”God save the United States and this honorable court.” Will these reminders of the ultimate authority of the values upon which America was built be one day banned? The answer to these questions and more ultimately will be resolved by the Supreme Court’s interpretation of the U.S. Constitution and the Bill of Rights.
April 27, 2010
Michael Krauss
Professor of Law
George Mason University School of Law
Arlington, Virginia 22201
Classweb.gmu.edu/mkrauss/
The Amendments to the United States Constitution – Janine Turner
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment I, Constitutional Amendment I, The Amendments to the United States ConstitutionHowdy from Texas. Day 5 of the Constitution! As my daughter, Juliette said, “Technically it’s day 6 but the first day was like a “xii” in a book.” I thank you for joining us today. I am having a WONDERFUL time and I am just rather thrilled to have this opportunity to study the United States Constitution with “y’all” – as we say in Texas. I hope you are reading the daily readings with your children and/or loved one! Please tell your children about our, “We the People 9.17 Contest.” Scholarships, prizes, travel!!!
I want to thank Michael Krauss for his superb essay today on the Constitutional Amendments! I am glad Michael focused on the First Amendment because I am absolutely intrigued with it and I believe it is incredibly relevant today.
I have been writing on the First Amendment quite a bit lately. As I explained in my daily video podcast today, (I do one every day), I have always thought of the First Amendment as “freedom of speech.” Of course, this is one of our most treasured rights. However, I am also starting to recognize the First Amendment as, “freedom of religion.” The beginning of the First Amendment is well known and has been parlayed into the (misconstrued) American mantra of “separation of church and state.” It is as follows, “Congress shall make no law respecting an establishment of religion..” However, the six words that follow are rarely discussed and little known,
“or prohibiting the free exercise thereof..”
“Or prohibiting the free exercise thereof..” Amazing. With these six words, the First Amendment states that it is our right as Americans to express our religion. Both of these statements stemmed from the religious persecution in Europe. Our European ancestors were forced to abide by a mandated religion and were not allowed to freely express their personal religious beliefs.
Thus, this amendment is brilliant and paid for by the blood, sweat and tears of our ancestors. No law may stipulate that an American citizen must follow a certain religion. Great. But also, no American may be denied his/her right to exercise his/her religion – anywhere. The First Amendment does not state, “You may express your religion – but only in certain places.”
I believe that these six words, “or prohibit the free exercise thereof” need to be promulgated across America. They need to become the new American mantra. Our forefathers did not deny God, the Divine Providence, or our Creator a place in government then – nor should He be denied that place now.
Blessings,
Janine Turner
4.27.10
Posted in Constitutional Essays by Janine, The Amendments to the United States Constitution | 16 Comments »
16 Responses to “April 27, 2010 – The Amendments to the United States Constitution – Janine Turner”
Very interesting perspective…I never thought about the phrase “or prohibiting the free exercise thereof” in this manner until now. You are dead on Janine in your analysis of this Amendment. Let us all remember separation of church and state does not mean “Freedom from Religion”. I no longer will feel as if I have to hide my faith!
I am surprised the preamble to the Bill of Rights did not get the attention it deserves because the first paragraph discloses the intent of the Amendments.
It states the sole purpose of the Amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended.
Based on the wording of the preamble, the Amendments, when adopted, placed constitutional prohibitions on the powers of the federal government to prevent that government from “misconstruing or abusing its powers” concerning the rights of the people. Thus, a document that restrains the powers of the federal government cannot be the source of the individual rights of the American people.
The Amendments would be easier to understand if they had been titled the Bill of Prohibitions or Bill of Restraints. In the case of individual rights, the Amendments enumerate rights that exist independent of the Constitution and deny the federal government the general authority to legislate or encroach upon those rights. The Amendments are simply an extension of the system of limited government in an enumerated form.
Unfortunately, the preamble to the Bill of Rights remains one of most overlooked provisions of the Constitution.
I Have the two volume set of the “The Debates on the Constitution” from the Classics of Liberty Library. They are arranged in chronological order and contain both the Federalist and Anti-Federalist papers. I have read most of them. They are a difficult read. Actually, the Anti-federalists were the primary reason the Bill of Rights were presented and subsequently ratified. The Constitution would not have been successfully ratified without the support of the Anti-federalists. They understood that there was a need to clarify aspects of the constitution to prevent misinterpretation and subsequent abuse. The preamble to the bill of rights verifies this purpose.
With regard to the 1st Amendment and its religious clause; I agree that the purpose was to prevent Government from interfering with the peoples’ Right to worship or not worship as they chose. The first part of the clause. (in part) “Congress shall make no law respecting an establishment of religion,” should be considered very carefully. This was the basis Jefferson’s “wall of separation between church and state.” statement to the Danbury Baptist Association. Considering that ‘morality’ is an establishment of religion; could it not be construed that the clause may be understood to also mean no law establishing morality or immorality shall be established?
I have heard the argument that ‘murder’ and other injurious actions are immoral. I agree but there is also the fact that they are also harmful and obviously exhibit perceptible harm. However, there are many actions that are considered immoral but do not inflict perceptible harm. Therefore, these actions should not and do not constitute criminal behavior. Immorality is an individual’s personal perspective and is not subject to state intervention. Actions that inflict perceptible harm or injury upon another human being or their property is a criminal act! Prostitution is immoral. However, it is also a contract between two consenting adults. In the event no physical involuntary harm comes to either party; no crime has occurred. The same goes for recreational drug use. If no harm results then no crime has occurred. However, if an individual inflicts harm due to their impaired state it is imperative that they are punished for that crime regardless or their impairment.
By taking away our “RIGHT” to choose an action based on morality or immorality is an infringement upon our unalienable rights.
as a nontheist, i am of course interested in the right to freedom from religion. i believe that the Ninth Amendment implicitly gives me the right to be free of religion. the unenumerated rights are i think the most important phrase in the entire Bill of Rights. if we paid more attention to the Ninth Amendment, we wouldn’t need several of the lateramendments — slaves would be free, all men and women would have the right to vote, prohibition would never have happened, e.g.
the Bill protects individual citizens from the tyranny of the federal government. it is a list of “they shalt nots” — not “thou shalt nots.” as such, the Ninth Amendment is probably the most important of them all. and notice that it is placed — deliberately, i believe — ahead of the Tenth Amendment’s guarantee of states’ rights vs. federal rights. placement matters. the rights of the individual trump the rights of the state or of the federal government.
and, in the light of the Ninth Amendment, i plead with you to keep god out of government, including out of theConstitution and Bill of Rights. i do not have a favorable opinion of any gods, including the judeo-christian one so often quoted. we are not a nation “under god” as long as i — and the 12-14% of my fellow americans share that opinion. how can we be indivisible if there are those of us who are not “under god”? the Ninth Amendment gives us the right to be free of god and religion. i am not godless — i am god-free. and i have that right, thanks to the unenumerated rights of the Ninth Amendment.
Hollis: I’m sorry, but you do not have a right to be free “from” religion. The Constitution is very explicit in stating that. You have a right to expect your federal government not to establish a preferred national religion, under the original meaning of the Establishment Clause, but even at the time, several of the original 13 stated did have an established state religion. The argument that religion and government were to be kept apart was aimed only at the federal government, not the state governments.
The restrictions on government inherent in the Establishment Clause were not technically made applicable to thestates until the 14th Amendment was ratified in 1868, and it was not until 1947 that the Supreme Court began interpreting the Establishment Clause as applicable to state laws regarding religion. As for the current trend of trying to remove all reference to religion in the public sphere, that didn’t start until well into the 1980s.
And those efforts are incorrect, and are caused largely by misreadings of the First Amendment.
The United States is not an atheist nation, nor is it a Christian nation, nor an Islamic nation. It is a nation of ALL religions, a place of religious pluralism where the Free Exercise Clause demands of every citizen tolerance of the peaceable exercise of religion by every other citizen, regardless of the form or beliefs involved. While it is true that you can be “god-free” in your own life, your preference for living without reference to or involvement with God does not impose upon anyone else a burden to hide their faith or protect you from exposure to their expressions of religion. To argue that the Establishment Clause gives you the power of the dissenter’s veto, allowing you to suppress the free expression of religion by others defies the purpose of the Free Exercise Clause, which expressly protects the right to place one’s religion on display in the public square.
The stricture of the Establishment Clause is limited to government agents, who, according to the Supreme Court case “Lemon v. Kurtzman” are required to maintain strict religious NEUTRALITY, not religious hostility. Indeed, the Free Exercise clause places an affirmative duty on all levels of government to defend the exercise of religion against suppression by anyone, including government.
Thus, the requirement of the Constitution is that we must all tolerate the peaceable acts of others, and may not misuse the law to suppress the expression of religion by others, who have an individual right to use and enjoy their public lands and property, within reasonable limits, while doing so.
While you do indeed have a right to be an atheist, you do not have a right to use that atheism to suppress the religious beliefs or practices of others.
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An excellent example of this constitutional requirement for tolerance by all is Devil’s Tower, Wyoming. Several Indian tribes venerate and worship this geological formation, which they call Bear Butte, as a place of religious power, and have done so for many hundreds, if not thousands of years.
But Devil’s Tower is a national monument and therefore belongs to all the people of the United States, who have an equal right to use and enjoy it in a reasonable and peaceable manner according to their own desires, consistent with the laws intended to conserve the area.
The feature is a popular spot for rock climbing, and many hundreds of climbers scale the butte every year. Indians object to this activity because they consider the butte to be sacred, and this is particularly true in June, when the tribes hold religious observances around the butte.
This is a classic example of the collision of secular activities and religious activities in the public sphere. Many atheists feel that religious observances should not be allowed, since approving them and issuing permits constitutes “establishing” religion by lending government support to religious activities on public lands. But this is not the case, as the Supreme Court lays out in “Lemon v. Kurtzman” where it set forth a three-pronged test to determine whether a particular government act violates the Establishment Clause.
The test consists of three questions:
First, the government’s action must have a legitimate secular purpose.
Second, the government’s action must neither advance nor inhibit religion.
Third, the government’s action must not “excessively entangle” the government in religion.
If any one or more of the prongs is violated, the government’s action violates the Establishment Clause.
So, may the government prohibit the free exercise of religion by the Indian tribes in venerating and worshiping Bear Butte at particular times by denying them a permit? No, because that would violate the second prong of the test by inhibiting their right to free exercise of religion.
Can the government issue them a permit for such activity? Yes, it can, because issuing a permit for a religious meeting is a ministerial duty that has a secular purpose of protecting the resource which neither advances nor inhibits religion, since permits are required for all group activities at the monument.
Can government prohibit climbers from climbing on Devil’s Tower to protect the sacredness of the butte, either generally or during the June religious observances by Indians? No, because that would advance the religious rights of the Indian tribes over the secular rights of the climbers to use and enjoy their public lands, which violates the second prong of the test.
Thus, while the Indian tribes must be permitted to worship, they must tolerate the climbers, and likewise the climbers must tolerate the religious expression of the Indians, even though both activities make use of the same public land.
With what I just read when I went to school we said “The Pledge of Allegiance”, now due to “other” religious beliefs forced upon us, it has been taken out of our public schools. I am sorry but I get confused, whose country is this?
Hollis….just as placement is important, so too is wording. It is Freedom “OF” Religion….not “FROM” Religion.
Hollis,
I hate to burst your bubble, but there is no such thing as non-religion. That position is absurd on its face. Your unstated (and apparently unrealized) religion is secular humanism. Please hear me out. I agree that we would retain much more liberty if we actually adhered to the expressed-powers Constitutional structure as intended. However, your foundation for these statements is incoherent without understanding the Source of law.
God cannot be kept out of government as you suggest. If you believe, as you say, that the 9th amendment or any of the amendments “gives” you any rights, then the Constitution (i.e. the men who wrote it) becomes the lawgiver, and therefore is your god. So then, if man is the ultimate arbiter and authority of his rights, then man has become his own god. This is an inherently humanistic religious notion. On the contrary, the Constitution does not create rights. It simply guarantees rights that were correctly understood at the founding the united States by setting the scope and limitations of the federal government. Where do rights come from in the first place? The founders believed they come from the Lawgiver, who is God. They believed “that all men…are endowed by their Creator with certain inalienable rights…”
While I would agree that one cannot be coerced to worship God in any other way than according to the dictates of his own conscience, the Bill of Rights specifically guarantees freedom OF religion. It was John Adams who said, “Ourconstitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.” This was not a minority view or understanding, but can be found throughout the statements of the founders in general.
Also, you can’t keep God out of the founding documents because He is explicitly included. Besides the fact that unanimous consent is given “in the Year of our Lord [1787]“, the Constitution points directly to the charter of the nation, namely the Declaration of Independence. Therefore, you can’t somehow leave out the critical import of the Declaration, which specifically refers to God as man’s Creator, appeals to the Supreme Judge of the world, and relies upon the protection of Divine Providence. Both documents are full of principles and precepts taken straight from the pages of Holy Scripture. This was not a mistake or simply the politically expedient road based on the times in which the founders lived. It was based on firm, deeply held religious convictions about the nature of God and mankind.
If we are not “under God”, then it is only because we have left our national religious moorings. I would suggest that our only alternative is to return to that same commitment to Almighty God that was the firm reliance of our founders, or else we are doomed to the driving winds and tossing waves of the open sea. Without an unchanging Lawgiver, rights are simply what someone else decides is acceptable for you, AKA tyranny.
Seth, I agree with your arguments, with the exception of one point (respectfully). This nation was specifically founded as a Christian nation and none other. “The Lord” specifically refers to the God of the Bible, and the founding fathers knew this. It was not that they thought non-religion was in any way acceptable. Rather, they understood the distinction between Church and State and their respective jurisdictions. Corporeal matters (man’s duty to man) was the jurisdiction of state government, and spiritual matters (man’s duty to God) was the jurisdiction of church government. Each sphere of government was directly accountable to God and did not have authority over the other.
Therefore, the plain statement was made in the first amendment that the federal government could in no way force man toward his religious duty to God. Not that man was absolved from that duty, but that the State had no jurisdiction there because that was a matter of the heart. The Church, however, did have that jurisdiction. And thus many presidents and other political leaders publicly called the people to repentance for their sins and pleaded for God’s grace upon the nation. They did not privatize their religion, but demonstrated it openly in their governance. They invoked the name of Almighty God, rightly understanding the Source and sustaining Power of law and judgment.
The prevailing notion today that we are pluralistic is incorrect. Neither does majority opinion on the matter make it correct. Perhaps we have turned into a pluralistic society over time, but that is only due to a lack of understanding and application of our national birthright. The entire root and foundation of the united States of America is Almighty God, the Creator of heavens and earth, not deism or a mystical feeling of some god-like entity out there somewhere, or anything else. I think it is impossible to find such notions in the writings of the founders. Instead we find prayer and supplication to God, and a clear recognition of His supervision all throughout.
As you do not have the right to you use your expression of religion to suppress beliefs or practices of others; which religious zealots do all the time.
The genius of the Founders is in their deep philosophical and political thinking and debate about the fundamental principles of government and society, and their discovery of principles of liberty and constrained government that resulted in the creation of the most successful political and social model in the history of the world. We don’t see that kind of careful political thinking on original principles much today, and that’s why, at least for me, the Founding Fathers are revered, not as supremely intelligent, but as unusually skilled in deep political and ethical thinking, far beyond most of what we see today. They were not more intelligent, they were simply more wise and careful thinkers.
For those who do not believe in deity, who are non-theistic in their beliefs, I believe that there is an objective, scientific and philosophical basis for what the Founders attributed to deity. For non-theists, the practical effect of referring to a Creator, and the assertion that our rights are granted by God, not man, is to ensure that the rights that we enjoy are not derived from the ever-changing political philosophies of man, but are an inherent part of our nature as living beings and thinking humans. It is the inherent nature of our rights that makes them unalienable, and non-theists must have an objective, intellectual basis for finding those rights to be inherent if we are to avoid having our rights characterized as state-granted and subject to the whims and caprices of the public will.
The Founders took as a principle that a Creator exists, and they wisely decided that because subjective rights, those that are subject to the whims and caprices of the ruling class, were not effective in protecting individuals against the tyranny of despots and their fellow men. So, they moved rights beyond the power of either man or government to grant or deny, into the philosophical realm of “natural rights” precisely in order to prevent what they rightly saw as the dangers of despotism and majoritarian tyranny that inevitably occurs when one man, or one group of men, are permitted to determine what rights another man, or group of men, may enjoy.
The Founders resorted to deity and religion because such beliefs were ubiquitous in their time and they did not see any need for any other rational basis for such rights. But it is true today that there are many Americans who are not theistic by nature, and it is likewise true that they ought to enjoy the same rights as any other person, and that therefore we should seek an objective, rational basis for our unalienable rights.
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In the context of Creator versus Nature, whether a Creator exists or not is not terribly relevant to the philosophical construct of natural rights. Rights, in that non-theistic sense, accrue simply by virtue of our existence as human beings and the necessities of nature for social constructs to regulate behavior in communities. Rights are clearly a product of our intellect, but this does not mean that their origin cannot be derived from observations of our natural world and natural behavior. Natural rights are founded in natural principles, which is what gives them their intellectual strength when applied to human behavior outside the theistic realm.
For that reason I have for some time been trying to construct a logical and rational argument that derives our inherent rights as a function of natural processes, which I see as a companion to theistic belief, not in opposition to it. I call these derivations the Organic Rights, which are derived from organic laws of nature and natural behavior.
Every organism needs life, autonomy, the resources to survive, and the ability to reproduce in order to exist both as an individual and as a species. The Organic Rights are expressions of these fundamental organic needs as applied to human society, and it is my claim that human society cannot survive unless it respects those fundamental organic needs of all human beings any more than a species itself cannot survive if it does not fulfill the underlying organic needs. Thus, I express those fundamental organic needs as the Organic Rights, because without societal recognition and protection of those rights, individuals cannot survive and society cannot exist.
Every organism on earth seeks to preserve it’s own life. This instinct is seen everywhere in the natural world as a function of evolution. Every individual organism seeks autonomous life in that it will defend itself and its life when attacked by another organism. Therefore, the First Organic Law is that all living creatures pursue autonomous survival and will engage in self-defense to prolong life. From the First Organic Law I derive the following Organic Rights:
The First Organic Right is the right to life, for without the right to life, there is no purpose for any philosophical construct, and death is the result.
The Second Organic Right, the right to individual liberty, emerges because all living creatures strive for organic autonomy and individual liberty.
The Third Organic Right is the right to self-defense, because all living creatures naturally defend their lives when attacked, to one degree or another.
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Next, we observe in nature that all living creatures will seek to find and obtain that which is necessary for their survival. Fundamentally this is energy, which comes in many forms. In addition, higher creatures will seek out shelter against the elements as well, as a part of the necessities of survival. From this natural behavior I derive the Second Organic Law; all creatures seek to obtain and secure to their own use the resources necessary for survival.
From this Second Organic Law I derive the Fourth Organic Right; the right to seek out, obtain and reserve to one’s exclusive use the resources necessary for survival, which is more simply stated as the right to the exclusive ownership and use of private property.
The Third Organic Law is that all creatures seek to reproduce and pass on their genetic material as a function of evolution.
From this I derive the Fifth Organic Right, which is the right to reproduce, more complexly stated as the right to form a relationship with a mate, engage in reproductive behavior, create a family and raise one’s children to adulthood.
Thus, I derive natural rights directly from natural behavior, without resort to deity or a Creator, but rather simply by reference to our nature as living beings. Those rights are inherent, and superior, and unalienable, and not derived from any social construct of mankind because they are necessary components of our very existence and being, without which no man, and no living creature, can survive and flourish.
This places at least these five Organic Rights above any inferior human social construct, and therefore places them beyond the power of others to disparage or deny as a matter of general social policy. Society may not morally deprive an individual of his Organic Rights absent some misbehavior on the part of the individual that makes it necessary to do so.
This construct does not disparage the concept of a Creator, or of God, but rather it simply describes the basis of superior unalienable rights from a non-theistic direction, for the benefit of those who choose to exercise their religious freedom non-theistically. It also serves to resolve the objections of non-theists to idea that our rights are divinely inspired, but without disparaging the beliefs of those who adhere to the firmly religious historical context of the Founders.
Jeremy writes: “Seth, I agree with your arguments, with the exception of one point (respectfully). This nation was specifically founded as a Christian nation and none other.”
Jeremy, I’m afraid I must disagree. Thomas Jefferson explicitly debunked this assertion in saying, “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting “Jesus Christ,” so that it would read “A departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.”
There existed at the time of the Constitutional Convention the adherents of many different religions within the bounds of the nation, and it was the express desire of the Founders to extend to each and every person the right to worship as their conscience called them to do so, subject only to such worship being peaceable and tolerant of the like right of others to worship differently.
This is what I mean when I say this is a religiously pluralistic society. Of course the predominant religion of the nation was Christianity, but within that context there were endless denominations and congregations who had differences in their beliefs and practices. That this nation was founded BY Christians (predominantly) does not mean that it was founded exclusively FOR Christians, much less that our system of law and government is intended to favor Christianity over any other religion. The First Amendment makes that perfectly clear.
You are correct in saying that religion and government have their separate spheres and each citizen has a duty to each distinct from his or her duty to the other, but the Founders were perfectly clear that while they personally attributed the opportunity to found a new nation, based on new principles, to the grace of God and his divine inspiration (and I will not dispute this point), and they expressed this gratitude and opportunity firmly to God, they were determined not to recreate precisely the sort of theocratic tyranny they had just expended the precious blood and treasure of the inhabitants of America to escape.
So, it is true enough to say that the Founders themselves worked to create the Constitution based in part upon their beliefs and obedience to God, who they believed had called them to this task, but it is not true to say that the nation, and the Constitution that flowed from that inspiration, be it divine or worldly, makes the nation an exclusively “Christian Nation.” The express declarations of the Constitution and the many statements of the Founders themselves belie this construction.
Certainly Christianity is the predominant religion, but in our Constitution, it takes its place in equality beside all other peaceable religious beliefs.
@Seth Richardson
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it was the express desire of the Founders to extend to each and every person the right to worship as their conscience called them to do so, subject only to such worship being peaceable and tolerant of the like right of others to worship differently.
This is what I mean when I say this is a religiously pluralistic society.
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An absolute pluralism is an impossibility with religion when it comes down to the governance of behavior that theConstitution does not touch. That is the civil moral code of law. You cannot have pluralism when it comes to religion in moral law. An example is that the Christian says murder is wrong; but the Islam says, honor killing is right. There is no plural moral ground to meet there. The Constitution only addresses what are temporal affairs to which air affairs that are not moral in nature. What the Constitution did establish was a trans-denominational public square where: 1) The right of conscience is the most sacred of property; and 2) because of the Christian belief system that one must live by faith and not be coerced into what is against there conscience. This in turn is where we have the freedom of worship, prayer and liturgical rites. An Mohammedan, Hindoo or Infidel is welcome and free to do as they please here as long as they abide by the moral civil code of the Judeo-Christian ethic. That is where the Lemon test goes wrong and freedom of religion is abused. When it comes to the question of worship and such, then it is liberty; but when it comes to matters of behavior, then it is touching morals and no longer is liberty. Breaching morals is called license; but many today confuse license for liberty to which they say, “Don’t force your religion on me” when what they actually are saying “Don’t force your morals on me…it burns my conscience.”
The 1st Amendment never advocated license in any received sense and jurisprudence dictates that one must consult what is the probable view of the legislator who passed the law over that of any court opinion that follows thereafter. A court ruling is an opinion and not law: that is why it is a called an “opinion”. The Capital building being federal property was used for Sunday church services in the House of Representatives up to about the times of the Civil War, and Thomas Jefferson advocated the establishment of the nation’s first trans-denominational university, attended services in the capitol frequently, and his abridged Bible on the morals of Jesus Christ sent to the Indian tribes on federal lands. Such persisted up to about 1900 where federal funds was used to support Catholic missionaries to the Indian Tribes. In addition, that same Congress that passed the First Amendment is the same Congress that passed the Northwest Ordinance saying: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
The Amendments to the United States Constitution – Cathy Gillespie
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 15. Essays by Cathy Gillespie, Constitutional Amendment XI, Constitutional Amendment XI, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Constitutional Amendment XVI, Constitutional Amendment XVI, Constitutional Amendment XVII, Constitutional Amendment XVII, Constitutional Amendment XvIX, Constitutional Amendment XvIX, Constitutional Amendment XXVII, Constitutional Amendment XXVII, Dred Scott Decision, The Amendments to the United States ConstitutionGreat discussion today – loved seeing some new names blogging! Remember to invite your friends to join the conversation – and share this with your children! Encourage them to enter our We The People 9.17 Contest – sign up online ASAP – entries due July 4! Tell high school students we especially need short films, PSA’s and we are asking middle schoolers and high schoolers to compose cool songs! Students can enter in teams of two for the songs, short films and PSA’s. Sign up today!
Tackling the Bill of Rights, and the Amendments in one day was a big job! As I read through the Amendments, I wondered about the efforts and battles that must have gone into the passage of each. Reading through the Amendments is like a quick reading of the history of our country. The Amendments reflect the times and current events in the eras in which they were passed. We can be proud as Americans that MOST of the Amendments reflect the founding fathers’ principles. (see today’s and yesterday’s blog for lively discussion on some such as the 16th and 17th which many feel do not!)
All of the Amendments have fascinating stories that accompany their passage. We all know of the stories and have seen photos of the women’s suffrage movement, for example. That battle spanned 50 years before Congress approved the 19th Amendment in 1919 and 3/4 of the States ratified it in 1920. But there is an interesting back story to the passage of the 19th Amendment that I love. In August of 1920 Tennessee was the final state needed to achieve ratification of the 19th Amendment. The vote in the Tennessee Legislature came down to a young State Representative, Harry Burn, who represented a district bitterly divided on the issue, and who was facing re-election that fall. Representative Burn had voted previously with the Anti-Amendment forces. The vote was tied 48-48, and Harry was expected to vote with those opposing the Amendment again. But Harry carried a letter from his mother in his breast pocket, admonishing him “Don’t forget to be a good boy,” and vote for the Amendment. Harry surprised everyone by voting yes, and thus on August 18, 1920 Tennessee became the 36th State to ratify the 19th Amendment, and one young 24 year old man empowered millions of women in our country with his brave vote.
Earlier today Rich asked an interesting question about how the 17th Amendment came to be passed, so I pulled two books off my shelf that I recommend to anyone who is interested in the stories and history of the Amendments, the Bill of Rights, and the Constitution:
Seth Lipsky’s The Citizen’s Constitution: An Annotated Guide (2009) and the Heritage Foundation’s Guide to the Constitution, edited by Ed Meese, Mathew Spalding and David Forte (2005).
Upon reading about the 17th Amendment’s history in both of the above sources, I found it was passed in reaction to many State legislatures which were deadlocked on the issue of choosing a U.S. Senator, thus leaving their states without representation in the U.S. Senate. The 17th Amendment was passed in the name of enhancing Democracy, yet many feel it has been detrimental to protecting States’ rights, expanding the federal government’s reach.
To me, the most important Amendments to our Constitution were the 13th, 14th and 15th Amendments, which abolished slavery, established citizenship for former slaves, and prohibited restrictions on the right to vote based on color, race or previous condition of servitude. President Lincoln received pressure from those who thought the 13th Amendment should be ratified only by the Northern States, in order to get it done quickly. But Lincoln favored 3/4 ratification of the 13th Amendment by all the States, so the Amendment’s legitimacy could not be challenged. He also believed the ratification process in the Southern States was important to Reconstruction and healing. Regarding the 14th Amendment, Seth Lipsky writes, “Were the Amendments musical compositions, the fourteenth would be the grand symphony in four movements, full of exciting themes, varied movements, and clashing symbols….” Indeed the 14th did much more than overturn the Dred Scott decision and extend citizenship to former slaves, it contains the State Action, Privileges or Immunities, Due Process and Equal Protection Clauses, as well as Section Two, Apportionment of Representatives. The 15th Amendment, the last of the Amendments dealing with Reconstruction, prohibited voting discrimination for former slaves, and any voting discrimination based on race and color. These three Amendments set the stage for the healing of our country.
It is another testament to the beauty of our Constitution that the Amendments read like a short hand version of the history of the United States. It is all there, from the the 11th Amendment stemming from States being held accountable for their Revolutionary War Debts, to the 27th Amendment restricting congressional pay raises from taking effect until after an election. Interestingly the 27th Amendment was first proposed in 1789 and finally ratifed in 1992!
What will our next Amendment be? Let us pray it will reflect the founding fathers’ principles as so many of our great Amendments have. The only thing that is certain, though is that fascinating stories and struggles will accompany its passage, and it will add to the historical narrative of our country which is embodied in the United States Constitution.
April 27, 2010
Posted in Constitutional Essays by Cathy, The Amendments to the United States Constitution | 7 Comments »
7 Responses to “April 27, 2010 – the Amendments to the United States Constitution – Cathy Gillespie”
We were trying to place the amendments in the context of history by guessing what was going on at the time they were enacted without peeking at the date. Amazingly, we were pretty close.
I want to thank bothCathy and Janine for their blogs on the amendments today. As I have never studied theConstitution, Bill of Rights and the amendments in great detail before ; I must admit it can be very challenging to understand; but your blogs as well as the essays of the guest bloggers have made some things much clearer. Thank you again. I look forward to continuing this great study
I have been trying to get an answer to this question for about a month. In regards to illegal aliens, George Wills wrote an article stating that our policy of granting citizenship to children born in this country to illegal aliens is a misapplication of the 14th Amendment. That it does not apply to illegal immigrants, because at the time it was written, there were no restrictions on immigration.
As far as I know, we are the only country that has this policy. Right now (to quote George) the best thing a poor person of any country can do for their children is to have them here. I think that changing our policy in regards to children of illegals would go a long way to stop the flood. Any comments?
My understanding of the whys and wherefores of the 14th was to clarify the citizenship status of the newly emancipated slaves after the Civil War and its intention was never for transient immigrants who wish to anchor themselves here with all the privileges but not necessarily the duties.
I realize that to keep with the 90 day format, it was necessary to have all the amendments be covered in one day, but it sure would be nice to look at each in a little more depth. Maybe when the 90 day challenge is over, we could revisit them one at a time on the blog.
With regard to the 14th Amendment. Those who would reinvent the Constitution as a document of positive rights versus a document of negative rights have sought to contort the “privileges and immunities” clause to meet their ends.
Basically, the Constitution is written as a set of guarantees limiting what government actually has the power to do and in fact, limiting what it can do to it’s citizenry. There is a movement under way to redefine government in terms of what it must do for its people.
The Slaughter supreme court decisions (right after the Civil War) have defined this narrowly to apply to the states, guaranteeing that the federal government supersedes state governments only in the realm of guaranteed protections specified by the Bill of Rights.
The folks who promulgate the concept of the Constitution as a “living” document want to overturn this precedent so that more “rights” can be forced down over the objections of the states. These new “rights” would be things like – housing, guaranteed employment, health care, and guaranteed access to the political process. By defining them as obligations or entitlements, the government would have to take steps to ensure that they are fulfilled. This would necessarily entail funding and enforcement.
The movement doing this is called the Constitution 2020 movement.
Hillsdale College recently produced a paper documenting their efforts. I’ve written a synopsis at whatwhouldthefoundersthink.com, where I’ve included links to this paper as well links to some of this groups writings.
Greetings and Salutations,
I wish to address certain issues. The 17th Amendment and the 2020 Movement.
Cathy pointed out that some have argued that the 17th Amendment hurt States rights, and it did. In passing that amendment, State Governments no longer have true representation in Washington. As a result, the Federal government has infringed upon States issues by mandating how the States spends its tax revenues and what laws to pass lest the Federal government would suspend funding as a form of punishment over the states. This practice works to diminish the role and need for State Governments at all. This has been the plan by progressives since 1913. More over, by stripping the State Governments of authority, the Public role in governance and more over the publics ability to self govern is also eroded.
As for the Constitution 2020 movement; this effort to impose ‘new rights’ is not to say our rights have been lost or confused but to say that the US Government is the sole granter of “Rights.” This is a secular push toward a more socialized society where in the Government defines and prescribes where you live, how you live, and whether or not you live.
Housing is a replaceable commodity, (Just ask any tornado.) Employment is a personal choice and on occasion deniable due to the lack of employers. Ultimately, the “Right to Employment” is to destroy the Entrepreneurial Spirit of America. Health Care is a personal responsibility. The effort hear is ultimately establish euthanasia as a legal recourse. Then there is guaranteed access to political process, which is an intent to eradicate responsibility. Today, under the law, criminal conduct suspends your rights to vote or participate in the political process such as serving as a representative in congress. (either house) The idea the progressives have here is Americans should be free from responsibility and consequences for their actions. This is intended to bring more freedom but will actually encourage chaos. As a result, the very idea actually produces the opposite affect as the public cannot be trusted to conduct themselves responsibly, so totalitarian rules must be imposed. The two step process bring greater freedom from responsibility and consequences is to eliminate freedom altogether.
The left will argue to the contrary but the truth is; the absence of responsibility produces chaos and public endangerment.
Socialism has failed time and again. It will always fail because it dehumanizes the people into little more than cattle to be processed.
Articles IV – VII of the U.S. Constitution
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Article III, Article IV, Article V, Article VI, Article VII, Joerg W. Knipprath, The Articles of ConfederationArticles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.
When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.” They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.
Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.
One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.
The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.
Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.
Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.
There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.
If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.
Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.
Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.
Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.
The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.
The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.
The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.
A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.
In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.
Monday, April 26th, 2010
Professor Joerg W. Knipprath
http://www.swlaw.edu/faculty/faculty_listing/facultybio/114010
Southwestern Law School
Los Angeles, California
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. He has also spoken on business law and contemporary constitutional issues before professional and community forums.
Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »
47 Responses to “April 26, 2010 – Articles IV – VII of the U.S. Constitution – Guest Blogger: Joerg Knipprath, Professor ofLaw at Southwestern Law School”
Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.
The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?
Do states have the right to secede from the Union?
The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.
I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.
Thanks for clarifying and bringing it all into current events.
@Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]
I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.
However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.
It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.
Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.
This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.
Shannon C. wrote, “Do states have the right to secede from the Union?”
Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.
Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.
Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.
There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”
The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .
By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:
http://avalon.law.yale.edu/19th_century/jack01.asp
Jackson could run on; here’s the most apposite passage:
But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.
State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: 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 only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.
Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
1. Impose lifetime term limits of 12 years on Congress
2. Impose a requirement for a Balanced Budget
3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.
Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.
There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?
I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.
Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.
This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.
This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.
First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.
Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).
Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”
Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.
Lillian Harvey , I live in Georgia. My desires would be the following Amendments:
1. Balanced Budget
2. Term Limits-one term each, as I am so anti Congress:)
3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!
I feel the relevant portion is as follows; 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; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.
@Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).
@Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.
@Joerg Knipprath — the best blog yet (in my humble opinion).
-Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
-Balanced budget – except in times of national emergency (disaster or war)
-Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
-VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
-limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
-reiterate oath – support and defend the constitution – not interpret the constitution.
Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.
Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.
Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.
Great site!!!
Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?
Hello Shannon C. from a fellow Georgian!
Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.
I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.
Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.
The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.
Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).
In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.
“Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?
I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.
In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.
@Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.
Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.
States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.
Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…
Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.
hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?
Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.
Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”
My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.
Any thoughts?
Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?
There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.
Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.
ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!
Hi Georgians and others… Virginian here
). These are my thoughts on the Constitutional Convention.
First fix some problematic fixes: Repeal the 16th and 17th Amendments.
-Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
-Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
-I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.
From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?
Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.
@WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.
The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”
Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.
@Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.
As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.
Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.
Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.
So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.
I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
Special thanks to Janine & Cathy
In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.
Robert,
Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.
“Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”
It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.
Articles IV-VII – Janine Turner
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Article IV, Article V, Article VI, Article VII, Articles IV-VII, Constitutional Amendment I, Constitutional Amendment IHowdy from Texas. What another great day of national conversation about our United States Constitution. I thank you for joining us and I hope you read Articles IV-VII with your children and/or friend or loved one!!
Don’t forget to tell your children or children you know about our We the People 9.17 Contest! Entries due July 4th. Scholarships, travel, prizes!!
I thank Joerg Knipprath for his most detailed description of Articles IV-VII. What a blessing it is to have so many wonderful Constitutional Scholars grace us with their dedication and knowledge.
What I found fascinating about today’s reading has not actually been mentioned. It is in Articles VI and VII. In Article VI it states:
“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.”
First of all it states that EVERY government officer is bound by oath or affirmation to “support” the Constitution. Another intriguing aspect is the part about how “no religious test shall ever be required as a Qualification to any Office or public trust under the United States.” This seems logical due to the fact that not only was the religious persecution from overseas still fresh in their minds, but also because free enterprise does not grow when stifled by laws of religion.
However, Article VII states:
‘..done in Convention by the Unanimous Consent of the states present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eight seven…’
It is very obvious with the usage of the words, “Year of our Lord,” that our forefathers were not afraid to mention
God in their thesis, documents and/or governmental realm. They were brilliant men and they knew that every word of the Constitution would be analyzed in the future, down to the last comma. They also wrote the Constitution to be an everlasting document that was to be eternally preserved, protected and defended.
Thus, no love, or lack, of God could prohibit one from serving in government but that did not mean one was prohibited from referencing his or her God in governmental affairs. There appears to be no mention of separation of church and state.
This is reiterated in a slightly different way in the first amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof…”
But we will discuss this one tomorrow.
I am also intrigued about how much our forefathers were concerned about treason.
Did anyone watch the History Channel’s, “America: The Story of Us” last night?” It was wonderful. The recounting of the revolutionary era reminds one that our forefathers were most sensitive to the tyrannical aspects of government intruding into citizens’ lives and as they recounted our “revolutionary” war tactics it reminds one that if we had, “played by the rules,” then we would have never won the war.
Thoughts to ponder…
More tomorrow. Blessings,
Janine Turner
April 26, 2010
Posted in Articles IV – VII of the United States Constitution, Constitutional Essays by Janine | Edit | 8 Comments »
8 Responses to “April 26, 2010 – Articles IV-VII – Janine Turner”
I have often wondered why the ‘separation of church and state’ has been such a huge issue in these modern times. It wasn’t until the 60′s I think that it became an issue. I remember when Kennedy was running half the country thought he would just be a papal puppet and were highly suspicious of his Catholicism though they had nothing against a good old christian. A sign of the times perhaps.
The First Amendment and the Fourteenth Amendment are two very important Amendments and two of my favorite. The First Amendment provides the most fundamental freedom to speak! It allows the people to assemble, practice their own religion and for freedom of the press to conduct their business. Recognition of this freedom curtails the power of the government. The founding fathers’ insight by this amendment was to limit the power of the government over the people.
The Fourteenth Amendment affords the people and the states valuable protections. It is the vehicle by which many statutes and laws are filed against the Federal government. If you will, it is the engine that maintains the system of checks and balances.
Looking forward to the Federalists papers.
Janine,
I didn’t know where to leave you a note, so I’ll just do it here. Love your new website, and I appreciate what you and your partners are doing here!! Keep it up, and I’ll help spread the word.
A key point to consider that may help explain our present situation:
Prior to 1912 the members of the U. S. Senate were not elected by popular vote but were appointed by their respective state legislatures (Article 1, Section 3). Under the original draft of our constitution the U.S. Senate represented the interests of the divers states and their respective state governments. The U. S. House of Representatives represents the people. Can you imagine any U.S. Senator who was appointed to his/her seat by the legislature back home ever voting for anything harmful to the local state government? In the absence of the 17th amendment would the health care bill have ever seen the light of day in the Senate? Obviously not. However, thanks to the 17th Amendment, the U.S. Senate was transformed into a “Super House of Representatives,” with the same concerns about winning reelection by popular vote. The interests of the individual states are no longer of importance to members of the U.S. Senate and we have all suffered as a result.
Whoa, hold on here. I do not think there was any reference to God intended by placing Year of our Lord after a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.
Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.
I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.
I agree with Cliff’s comment regarding the 17th Amendment. I would like to know how and why it was created, for what intended purpose, and who sponsored it.
Back to Debbie B. Letting the founders speak for themselves on the issue of their intent, from your last sentence.
“We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”…John Adams
“It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians: not on religions, but on the gospel of Jesus Christ! For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”….Patrick Henry (He does not exclude other beliefs but does emphasize our foundation is Christian)
“Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers”…John Jay (First Chief Justice of the United States Supreme Court )
There are literally hundreds of other quotes to choose from that strongly confirm our founders intent to be motivated and directed by God’s Word through the Bible.
Last I encourage anyone who reads this to read the stinging rebuke delivered by Ben Franklin on June 28th 1787 during the Constitutional Convention’s first days after little progress had been made writing the Constitution. It is on page 108 of the book “The Myth of Separation” by David Barton 1992. Read the follow two pages to find out the incredible turn of events that followed. If only it could be reprinted on the front pages of our nations newspapers. What a change we might see in how we go about governing.
The quotes above are from the same book. He’s written several other since on this subject.
As a side on “Year of our Lord” can you imagine the phrase being used today by our watered down courts, government, or our media! It might remind of of where we came from, as a nation.
Today, our guest Constitutional Scholar of the day, Mr. Troy Kickler’s, insightful essay states, “Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”
I find this quote intriguing, especially the section ”..duty would bind the representatives to the Constitution and public opinion.” This singular line encapsulates wisdom and inspires reflection.
The first reflection is upon the word, “duty.” Duty seems to be a word that is lost in our American culture today. As the decades descend from World War II, the sense of duty to ones country appears to be diminishing. I looked up the word, “duty,” and found the following definition: ”a social force that binds you to a course of action demanded by that force. ” The definition was followed by a quote by John D. Rockefeller, Jr., ”every right implies a responsibility; every opportunity an obligation, every position, a duty.” Today the focus of America’s representatives as well as many Americans and the American culture seem to be one of self-interest. With the blessing of the Providential rights that are secured for us in our Constitution lay a responsibility. One of those responsibilities is to know, respect and understand the United States Constitution, as well as to encourage others to do so. The same should apply to the American Culture. How far we have drifted from the days when patriotism and love of country were, as President Ronald Reagan said, “in the air.” Is our country perfect? No. But as the Former Senator Patrick Moynihan said, “show me a better one.” We, as patriots who love our country and appreciate the founding principles upon which she was founded, need to rise to counter the palpable negativity that permeates our air today. One has to question whether our Congressional representatives are bound to their duty of their country and constituents, or to themselves.
The second reflection is upon the statement that duty would bind representatives to the “Constitution.” “..bind one to the Constitution.” The more I read the United States Constitution and the Federalist Papers, the more I realize how much we have strayed from the Constitution in cultural thought, personal awareness, legislative acts and supreme court rulings. This slow usurpation is due to a lack of knowledge and by a lack of pressure applied on our representatives to uphold the Constitution’s principles. As a Republic we rule through our representatives, thus, our vote is our voice. The checks and balances of our government begin with us. Thus, I suppose, there is a responsibility that we, as patriots, must own – if our representatives have grown callous and irreverent regarding the Constitution, it is because we have allowed it by our lack of diligence and duty to hold them accountable. How well do they know the United States Constitution? How do they intend to abide by its stipulations? These should be the questions of paramount importance.
The third reflection is upon the two words, “public opinion.” “Duty would bind the representatives to the Constitution and public opinion.” Public opinion seems to be virtually ignored by our representatives today. As mentioned in Federalist Paper No. 22 and in previous papers, Publius had a respect for the “genius of the people.” The American people have a genetic disposition and inherent ability to seek the truth and know the truth and American patriots rise to the challenge of duty. ”The experience of history” has proven this to be a tried and true trait of Americans. All of the attempts by the current branches of government to “reason” their way around the Constitution and govern a Republic without respecting the Constitution, and the history of the American spirit, will do so in vain. Duty to preserve our great country, founding principles, bill of rights and free enterprise will be the Paul Revere ”call to action” of our day.
God Bless,
Janine Turner
May 28, 2010
Articles IV – VII – Cathy Gillespie
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 2. The Constitution, 15. Essays by Cathy Gillespie, Article IV, Article V, Article VI, Article VII, Articles IV-VIIThank you for reading and blogging with us today in our 90 in 90 = History Holds the Key to the Future Program! Tomorrow is Day 5, and will be our last day on the United States Constitution before we embark upon the Federalist Papers. Please join us in blogging on the Amendments tomorrow. If you have been quietly reading along, we want to hear from you! And please continue to forward our website www.constitutingamerica.org to your friends, and post on Facebook, Tweet, mention on LinkedIn – help us spread the word!
A big thank you also to Professor Knipprath for your insightful comments on Articles IV – VII. I hate to admit that I am one of those people you speak of in your first sentence, for whom Articles IV – VII were terra incognita! Yet, these are some of the most important Articles in the Constitution: the amendment process arguably one of the most important of all.
With a 2/3 vote required in both houses of Congress, or 2/3 of state legislatures required to call for a constitional convention to propose an amendment, and then 3/4 of the State Legislatures required to ratify, or 3/4 of the states ratify in conventions, I marvel that the Constitution has been successfully amended as many times as it has. Our founders brilliantly put mechanisms in place to ensure that the Constitution be difficult, but not impossible to amend.
I noticed in the blog comments today many ideas as to what our next Constitutional amendments should be. These efforts may take many years. Various members of Congress have been working for decades to pass a Balanced Budget Amendment , for example. But thanks to the founders’ wisdom and vision, when the next Constitutional Amendment is passed, we will be assured it has been thoroughly vetted, rigorously debated, and that a super majority of the Congress and States (and therefore a majority of Americans), will agree it is necessary.
Thank you again for your participation, and contributions to our understanding of the United States Constitution. Keep spreading the word!!
See you in the morning!
Cathy Gillespie
Tuesday, April 27th, 2010
Posted in Articles IV – VII of the United States Constitution, Constitutional Essays by Cathy | Edit | 2 Comments »
2 Responses to “April 26, 2010 – Articles IV – VII – Cathy Gillespie”
First thank you for mentioning God and how important He was and is to our country and how important He was to our founding fathers. I had a question on the election of Senators. Why was this changed and what implications did or does it have on how our government runs today? I saw where either you or Janine mentioned this last week and how health care might have been different if we were still electing them the original way.
Thanks
Rich
Hi Richard – I recommend two excellent books that provide background on the U.S. Constitution and and the Amendments:
Seth Lipsky’s THE CITIZENS CONSTITUTION: AN ANNOTATED GUIDE, 2009 and the HERITAGE GUIDE TO THE CONSTITUTION edited by Ed Meese, Mathew Spalding and David Forte.
In brief, Amendment XVII was approved by Congress on May 12, 1912 and ratified by the required 3/4′s of the State Legislatures in less than 11 months. Most of the votes in the State Legislatures were overwhelmingly in favor of ratification, 52 of the 72 state legislative chambers voted unanimously in favor and in all of the 36 ratiflying States’ legislatures, votes against ratification totalled only 191 – 152 of these votes came from the lower chambers of Vermont and Connecticut. It is interesting it took the U.S. Congress so long to approve this Constitutional amendment, which had been considered in one form another since 1826. In 1912, Senators were already being picked by direct election in 29 of the 48 States. States moved to direct election of Senators through a process of non-binding primary elections by the people, whereby state legislators promised to vote for the candidate the people selected by direct election. State laws were even enacted that required State legislative candidates to sign pledges to vote for the Senate candidate the people selected in their “non binding” eection. (Heritage Guide the Constitution, page 413 – 414).
Electing U.S. Senators by the State Legislatures had become problematic over the years because many State Legislatures were deadlocked and couldn’t agree on a candidate, thus leaving some states without representation in U.S. Senate, often for more than a year. Corruption and Reconstruction politics contributed to these deadlocks. The Indiana Senate seat, for example, stayed empty for two years due to tension between the northern and southern regions of the state.
The argument for direct election of U.S. Senators was to make Congress more “democratic,” but this change also stripped away an important protection built into the Constitution by the framers to protect States’ rights. Because the health care bill puts new burdens on states, the argument could be made that had U.S. Senators still been elected by State Legislatures, they would have been more oriented towards protecting the interests of their State’s government.
Interestingly, Georgia Democrat Zell Miller called for the repeal of the 17th Amendment in 2004 before his retirement, saying “federalism has become to this generation of leaders some vague philosophy of the past that is dead, dead, dead. Reformers of the early 1900′s killed it dead and cremated the body when they allowed for the direct election of the U.S. Senators.” (The Citizen’s Constitution, an Annotated Guide, Page 66).
Cathy Gillespie
Article III U.S. Constitution – Janine Turner
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 2. The Constitution, 14. Essays by Janine Turner, Article I, Article II, Article III, Article IIIHowdy from Texas. I thank you for joining us on our day 3 of the “90 in 90 = 180 History Holds the Key to the Future.” Juliette read Article III to me in the car today and I found it to be just fascinating how it all fits together like pieces of a puzzle. I hope you are reading the Constitution with your children and/or family or friend and spreading the word about our contest for kids the “We the People 9.17 Contest.” Entries are due July 4th!
It is exciting that you are participating in our national conversational blog/reading. The blog entries are stimulating and though provoking and I thank you for your time and dedication. I also thank Lawrence Spiwak for his perceptive and provoking essay!
I am in awe in regard to how the checks and balances continue to unfold. The Republic of the United States continues to offer the people their voice through their elected representatives even with the Supreme Court Justices. The people in essence nominate and confirm through the President and Senate that we elect. Check. The people may impeach a Supreme Court Justice through the President and Senate whom we elect. Check.
Thus, the relevancy today is to be very careful whom we elect and to know our representative’s thoughts and opinions about the Constitution. The Supreme Court’s job is to uphold the Constitution yet we know in modern society there are differing views about the relevancy of the Constitution and it is continuously under attack, even if subtly.
The other aspect of today’s relevancy that fascinates me is in regard to the Constitution’s diligence in making sure that tyranny could not raise it’s ugly head. The checks and balances came full circle today in reading Article III and in reading Lawrence Spiwak’s essay. Once again it is the mastery of the checks and balances that motivate marvel.
The Legislative Branch legislates potential laws of the land, written indirectly through the people who elected the representatives. Check. The President executes the bill by signing it, fulfilled by the people who elected him. Check. And the Supreme Court, who is indirectly chosen by the people through their elected President and Senate, evaluates the law to make sure it does not violate the Constitution and/or the rights of the citizens or states. Check. The Legislative bill is empowered or disempowered by the President who may execute it or veto it. Check by President. Yet, Congress may override the President by voting the bill into fruition by 2/3 of the vote. Check by Congress. The Supreme Court may hold the new law to the light of Constitution and may either render it valid or invalid. Check by the Supreme Court.
And all the while, the people are ruling through their representative Republic. The people, by voting, have the ultimate check. Vetting and voting seem to be the pivotal words gleaned from Article I, II and III. We need to check out our candidates thoroughly. Mysteries do not serve the process well. But, men are not angels and thus, we have the Constitution to keep us honest.
Brilliant.
See you tomorrow!!!! Articles 4-7.
Have a great night. Check!
Janine Turner
April 23, 2010
P.S. I hope this makes sense. I am exhausted and can barely hold my eyes open!
Posted in Article III of the United States Constitution, Constitutional Essays by Janine | Edit | 12 Comments »
12 Responses to “April 23, 2010 – Article III U.S. Constitution – Janine Turner”
The theory behind checks and balances was established so that not one agency could rule like a dictator. When that came to pass the most logical angecy to stop unwantent power grabs was the Supreme Court. Today we need that august body more then ever to help us as they did when laws were being unconsttutional. This will promote not only a balance but will put the office of the President under strict checks. When he realizes his error he will have to back down once and for all.
“What is human?” GOD’s answer…
Keven J. Hasson, President of the Becket Fund, recently stated, “…the American and Soviet systems…offered differing visions of freedom and human nature.” The missing element in every human ‘solution’ is an accurate definition of the creature.
In the Bible, God’s Word has accurately defined the human being as ‘the earth creature endowed with the ability to choose.’ His natural Rights, therefore, are merely an extension and application of natural human endowments, which all humans – everywhere in the world – possess. Even as goldfish, canaries, and puppy dogs require an environment based on their natural features, so humans require external freedom to fulfill their natural internal abilities of choice, selection, election, and consent. Uniquely, America was founded on this definitive paradigm in human nature. All nations should reject foundational human opinion that teaches otherwise.
Further, God’s gift of criteria for choosing between alternatives supplies us with superior standards for successful visionary choice-making. Humans cannot invent (or replace) criteria greater than self, ACLU to the contrary.
Defining ‘human’ accurately is the first step in establishing accurate and successful environments, institutions, and creative relationships for earth’s Choicemaker. Middle East governments, and all leaders, would do well to pay attention: nature and nature’s Creator speak with an authoritative voice. Psalms 25:12 119:30, 173 Joel 3:14 Selah
No one is smarter than their criteria.
Jim Baxter Sgt. USMC WWII & Korean War semper fidelis http://www.choicemaker.net/
I have never seen such an accurate and succinct definition of human, Jim. Fair winds and following seas.
Reading done through Article III. It’s great to have lesson plan and a course to follow. Keeps me going. Thanks to Cathy for being so kind as to write us! Carry on!
The purpose of the Supreme Court is to rule on laws based on the Constitution. However, recently it has been viewed as “interpreting the Constitution”. The Constitution is not a living, breathing document as many us of were tought in school, rather it is writen in ink on parchment. Our founders were smart enough to know that some changes were in evitable and thus they left a way to change it thru the ammendment process. Unfortunately, the 17th ammendment altered the checks and balances system that the founders left for us because the ultimate check on the federal government was the States. The only way to restore the full compliment of checks and balances is to repeal the 17th ammendment. That way the States would have a voice before these unfunded mandates were ever passed into law.
P.S. Well said Jim
I want to call people’s attention to the following web site:
http://www.usconstitution.net/const.html#Article1
Although the Constitution you have on linked to your site is good, I feel this other site is easier. With one click you can get a definition of an unfamiliar word, and there are also links to explanatory notes.
Not only reading through the Constitution and the essay are valuable in and of themselves, the comments following by readers shed additional light on the reading. I am so excited to be part of this project, and have spread the word. Next fall I am privileged to teach the Constitution to homeschooled high schoolers, the fourth time in about 10 years. Knowing a short history of what precipitated the writing and thought that caused the Constitution to be written the way it is sets the stage. Not particularly what led up to the Constitution, but way back, back to the events surrounding the Magna Carta, the printing press, the Reformation, the ancient philosophers’ impact on the education of the principal players/writers of the Constitution all produced our document. The time was ripe for a Madison, a Hamilton, a Jay, etc. to put it all together.
Hello to all.I was wondering if there is anyone who would like to opine on the current actions by the AZ.Gov? My take is ,although it seems to be powers given to Congress, I am sympathic to the State acting in it’s own behalf as a result of Congress failing to act at all and for such a long time.What is a state to do (any State) when there is such a gigantic failure of the Legislature to act.Everyone is afraid to be politically incorrect or acting out side the law and possibily stepping on the toes of someones civil rights etc. The inaction of the Feds is at the root of the festering problem and I believe it has to do with seeking and securing a voting block,not enforcing a rule of law .When the motive for action or inaction is not inspired by the rule of law but rather the self interest of Politicians a lobsided foundation results and sets all citizens up for irrational outcomes.
It is the right thing. It is about time. The State has the duty to do all that it can before it kicks the ball upstairs. But it will be an interesting squabble to watch.
What Arizona did is legal. The states still have the right to govern their police as they see fit to protect their citizens living in the state. Thats why the President said that they are going to keep an eye on Arizona.
Check out the last video, number six.
http://www.thefoxnation.com/judge-andrew-napolitano/2010/01/11/judge-andrew-napolitanos-constitution-and-freedom-part-1
The Supremacy Clause of Article IV declares that the “Constitution…shall be the supreme Law of the Land.” This declaration demonstrates that there is a hierarchical organization of the federal government as it relates to the states. Also known as ‘Preemption’. Under preemption if there is a conflict between this hierarchical relationship, federal law wins. The Supreme Court has interpreted Article IV as limiting the ability of states to discriminate upon ‘out-of’staters’. This is also known as the Privileges and Immunities clause. Article VI reiterates the Supremacy clause.
Article V of the Constitution prescribes ways to alter the Constitution as is evidenced in your blog. Article VII as we shall see was the Constitutional Convention’s mandate to change the ‘Articles of Confederation’ and thus ‘ the Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States”. So the relevant meaning of all Articles of the Constitution have remained virtually unchanged since its inception. We may quarrel over its interpretation but we must not question the divine wisdom of its underlying principles! The founding fathers’ thoughts created this ‘Document’ for the people then and now!
More and more evidence of the checks and balances system seem to emerge with each Article and Section!
According to Section III of Article III, the Supreme Court shall determine if a person shall be convicted of treason, while Congress “shall have power to declare the punishment.”
Isn’t it a marvel how the founding fathers allowed the three branches of government to function with balance and fairness?
Article III of the U.S. Constitution – Cathy Gillespie
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 15. Essays by Cathy Gillespie, Article I, Article II, Article III, Article III, Federalist No. 78What an exciting first week we have had! Articles I, II, and III of the United States Constitution, with some outstanding guest bloggers: David Bobb, Andrew Langer and Lawrence Spiwak.
A big thank you today to Lawrence Spiwak for his thoughts on Article III. Mr. Spiwak clearly explained the delicate system of checks and balances working in concert with a strong and independent judiciary. I loved Mr. Spiwak’s point that the best mechanism for change in the judicial branch is to let the electoral process play out. That is the best mechanism for change in any branch of the government, but it first requires informed, educated, engaged, and enthusiastic citizens, citizens who know the United States Constituion and our country’s founding principles!
When reading Article III, I was struck by its brevity, as compared with Articles I and II, and how much latitude Congress was given in establishing the Court system – another example of checks and balances at work.
I was also very interested in the Alexander Hamilton quote Bill posted from Federalist 78, so I looked it up and thought it worth posting in its entirety:
“Whoever attentively considers the different departments of power must perceive, that in a government which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. 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 are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
“Neither Force nor Will, but merely judgement.” I had never thought of the differing powers of the three branches in those terms before, but it is true – the executive and legislative branch have many more enforcement mechanisms and sheer power and will at their disposal, than the judicial branch.
Thank you for joining us this week as we explored the three branches of government in Articles I, II, and III of the Constitution. The Assignment for the weekend is to read Articles IV, V, VI, and VII and be ready to blog on them, on Monday! Tuesday we will blog on the Amendments, and Wednesday we will blog on the the first Federalist Paper.
Have a Blessed weekend!
See you on Monday!!
Cathy Gillespie
April 23, 2010
3 Responses to “April 23, 2010 – Article III of the U.S. Constitution – Cathy Gillespie”
The Founding principles of our Constitution clearly state that
the powers of government are permanently in the mind and
hand of The People of the United States of America. Thus,
every elected person is a temporary steward of their office
and obligated to serve The American People while in office.
Such elected officials need to be reminded that they do not
own the office. WE, The American People, are the owners and
may give orders to the elected & appointed stewards of the office.
I have yet to hear this important point-of-failure on the part of
those who seek to ‘change’ our way of life to an historically
failure-oriented system of non-representation of stewardshp
to The People. Why?
Begging compromise won’t work with the ignorant! Freedom is
the proper enlargement – not fewer choices for the choicemaker!
semper fidelis
Jim Baxter
Sgt. USMC
WWII & Korean War
pointman/follower of The Lion of Judah
+ + +
Clearly our Founding Fathers constructed our Republic on Biblical Principles and like anything else our morality MUST have a “Standard of Measure”, because God’s Word never changes and is always JUST. If we depend on what man’s values are we will always fall short of Justice and the Scales will no longer be balanced. Observing how politicians try to “fundamentally” change our society and inplement their idea of “values” is it any wonder why our country is so divided? Consider what would happen if we changed the “Standards of Measure” for other things, (Science, Mathematics, Music, etc.) The Bible says that the “devil is the author of confusion…..” All this does is separate and divide. However I see many coming back to their conservative principles and I’m thrilled.
In 1787, the year the constitution was written, Congress passed the Northwest Ordinance. It states that formal education is to include religion, a “fundamental system of beliefs concerning man’s origin and relationship to the cosmic universe as well as his relationship with his fellowmen.”
In his farwell address Washington stated, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensible supports . . . And let us with caution indulge the supposition that morality can be maintained w/o religion.”
Jefferson wrote a bill for establishing elementary schools in Virginia. It includes the following statement, “No religious reading, instruction, or exercise shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination.” He must have assumed religion would be taught.
Franklin outlined five fundamentals in all “sound” religion: one God, the Creator of the universe; said God should be worshipped; the most fundamental good we can do for him is to be good to others; and the soul of man is immortal and will be treated with justice in the afterlife in regards to his conduct here.
Samuel Adams called the above the Religion of America and equated it with the religion of all mankind.
These tenets run thru the founder’s writings, and they thought they were so important in “providing good government and the happiness of mankind” that they wanted them taught in school.
It is obvious from the founder’s own words that they viewed separation of church and state very differently than it is seen today.
Above facts come from The 5000 Year Leap
Article III of the U.S. Constitution
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Lawrence J. Spiwak 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article III, Lawrence J. SpiwakArticle III of the Constitution provides the parameters for the third and coequal branch of the federal government: the Federal Judiciary. Today’s posting will focus on the importance of judicial independence as contemplated by the framers.
In Article III Section 1, the Constitution sets up the Supreme Court and “inferior” courts (i.e. Federal district courts and federal appeals courts), and provides that federal judges shall “hold their offices for good behavior” (i.e., life terms). Article III Section 2 then defines what type of disputes fall within the Federal Judiciary’s jurisdiction. (Article III Section 3 also sets forth the specific provisions for trying a case of treason, but discussion of this specialized topic is better left to a dedicated post.)
The Founding Fathers understood that a strong and independent judiciary was an integral part of the brilliant system of “checks and balances” they developed: the Legislative Branch would pass a bill; the Executive Branch (i.e., the President) would sign the bill into law, and then the Judicial Branch would evaluate whether the law passed Constitutional muster. If the courts found that a particular piece of legislation failed this test, then the Legislative Branch remains free to take another bite at the apple, and so the virtuous cycle of our Constitutional Democracy continues.
Perhaps one of the most often asked questions by non-lawyers about the Judicial Branch is why are members of the Federal Judiciary appointed for life (the aforementioned “good behavior” language mentioned above), while members of Legislative and Executive Branches have Constitutionally defined terms of office? The answer is straightforward: the Founding Fathers clearly understood that the judiciary must be impartial, dispassionate and, most importantly, free from political pressures that face the Executive and Legislative Branches. By not having to constantly fear political reprisal, judges may administer the law fairly without regard to public reaction.
But what if a member of the Judiciary is guilty of malfeasance? Certainly, for conduct unbecoming the office (malpractice, corruption, etc.), the Constitution provides for an impeachment process.
But what if you just don’t like a judge’s approach to a case? Stated another way, you are convinced that the judge has engaged in some sort of “judicial activism” whereby the judge has “made” law rather than “interpreted” the law. Is this ground for impeachment? While technically the Constitution’s definition of impeachable offenses might be considered broad enough to cover “egregious“ judicial activism on the part of a judge, a more considered view is that the elected branches exercise restraint in their use of this tool perhaps for no other reason than that “judicial activism” often lies in the eyes of the beholder. (See, for example, President Obama’s recent public chastisement of the Supreme Court for its Opinion in Citizen’s United before the full Congress at this year’s State of the Union Address.)
Instead, the appropriate mechanism for change in the Judicial Branch is to let the electoral process play out (which, by definition, reflects the will of the people) and allow these elected officials to appoint and confirm new judges as vacancies open. As former Chief Justice William Rehnquist recognized before he died:
In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials. It is not a perfect system—vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated. But for over 200 years it has served our democracy well and ensured a commitment to the rule of law.
In sum, although our legal system may not be perfect, our Founding Fathers set forth a legal framework that remarkably still holds up nearly 225 years later. To this end, I leave you with a small prayer by Chief Justice Rehnquist:
Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.
Wise words indeed.
Friday, April 23rd, 2010
Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.
40 Responses to “April 23, 2010 – Article III of the U.S. Constitution – Guest Blogger: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies”
Judicial activism is a scourge on our country. In no way did the Founding Fathers provide for or envision a scenario where the Judiciary would make law. That is clearly within the realm of the legislative branch, to be aided by and enforced by the executive branch, and interpreted by the judicial branch.
Those of us who hold this view are seen as Constitutional “purists”, with the word “purist” being a pejorative term. The implication is that we are stuck in 1787 and can’t quite adapt our views to the realities of the Modern Era. But since when is someone who loves and values the Constitution a regressive, backward-looking idealist?
Though we have not read or studied yet the Amendments, the Founders allowed for–through an extremely rigorous process–the Constitution to be changed so that it would NOT become a tired and irrelevant document in the coming centuries. The mechanism, therefore, is already there to keep the Constitution relevant and fresh. The mechanism is the drafting of an amendment, which must be passed by super-majorities in Congress and then by three-quarters of the states.
The mechanism is NOT for judges to make law from the bench.
I see two degrees of judicial activism.
One that tends to make new law from the bench. The resulting case law can be consistent with proper court function when it corrects vague statutes or reconciles law to the constitution. Or it can simply presume to take over the function of the legislative branch, not good.
The most worrisome activism is when the court so severely overreaches that it effectively amends the constitution, circumventing the correct process for such change.
I wish just once that something dealing with the legal system would be written in common English not legalese. Even the Constitution sends me to the dictionary to try and understand what in God’s name are they talking about.
As I read Article III, images of the Supreme Court being reprimanded by our President during the State of the Union Address kept being played over in my mind. I am still embarrassed for our country every time I think about it. As I understand it, the Judicial Branch is an equal part of the U.S. Government, and should not be beholden to the other 2 branches; the Legislative and the Executive. At the State of the Union, the Supreme Court judges were guests, and should not have been held up for ridicule.
In his book, ‘The 5000 Year Leap’, Cleon Skousen gives a great illustration of the Balance of Power using a Three-Headed Eagle. In his explanation, Mr. Skousen labels the third head as judiciary which was assigned the task of acting as a guardian of the Constitution and the interpretation of its principles as it was originally designed.
That is why I am troubled when I hear our President say he wants to find judges that will take in account certain rights of special interest groups and interpret the law that takes in account the struggle of the individual. For example, in his comments to find a replacement for Judge Stevens he said he will choose a nominee who pays heed to the rights of women and the privacy of their bodies. Yet he said he won’t enforce any abortion rights “litmus tests.”
Obama said it is “very important to me” that his court choice take women’s rights into account in interpreting the Constitution, his most expansive comments yet about how a woman’s right to choose will factor into his decision.
The President’s last judicial pick of Judge Sotomayor was filled with controversy when she was noted of stating at a panel discussion at Duke University in 2005, where she told students that the federal Court of Appeals is where “policy is made.”
“I know that this is on tape,” she then immediately said. “I should never say that. Because we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.
I guess with everything, if you have a complete majority in two of the branches of government, the safeguards for the Balance of Power get distorted.
I agree with the idea that it is OK to amend the Constitution to better be able to get judges out who make law. How about giving them a 10 year term? Stagger it for a certain number of years where a President could only make one appointment per term assuming he or she served two terms?
Just as they did with the original Senate where they did a lottery to stagger it where both Senators from a state would not be up for reelection at the same time, make it where down the road a new nominee comes up every 10 years.
@Susan Craig – don’t feel like the long ranger. The problem is not legalese – rather it’s “olde” English. My husband and I are both attorneys and, in reading the last paragraph of Article III last night, we were slightly bewildered. Extrapolating from the “olde” language, we came to the conclusion that the words simply mean that the family of the treasonous person won’t be stoned or cast out into the wilderness, etc. Treason is linked only to the person committing the treason.
@Thomas – since you insist on bringing PTA rules into the discussion, I have e-mailed our Florida Republican senator (Lemieux) and provided him with my insight as to why the recess appointment of Craig Becker was outside Constitutional parameters. Am I now free to challenge the rest of you to do the same in your respective states?
@Donna – I took my complaint about the recess appointment of Craig Becker, along with several other issues, to my representative at his townhall meeting. I have expressed my concern about these appointments to my Senators as well in person, and in phone calls. I guess when you are in the minority, it is easy to have your objections overridden.
Shannon, I don’t think term limits for SCOTUS would work, however, a review/oversight (a confirmation light) every 15 years from confirmation answering to usurpation of legislative prerogative might constrain the inclinations to legislate from the bench. I think this could be done in committee with up or down acceptance on the legislative floor.
Thank you Donna, for your explanation.
If you haven’t listened to Judge Napolitano’s 5 Part Series of the Constitution and Freedom, you can access the link here: http://www.thefoxnation.com/judge-andrew-napolitano/2010/01/11/judge-andrew-napolitanos-constitution-and-freedom-part-1
On the fifth video on this link, Judge Napolitano explains the Supreme Court and the Federal Court System in America. It’s brief, but very informative. It compliments Mr. Spiwak’s Blog very nicely.
A fine couple of examples of the USSC exhibiting the separation of powers is in the cases of Hamdan v. Rumsfeld and United States v. Nixon. In both cases the Court reined in the Executive branch.
I don’t remember what I was reading but one of the founding fathers made the statement SCOTUS are to serve a term and then go back home and live among their people.
That way they remain government of the people of the people. Maybe it was Thomas Paine?
@DonnaHardemon- After reading that section and a bit of Googling, my husband and I came to the same conclusion. We believe it was due to the English Common Law in which a person convicted of treason forfeited their property to the crown.
The Judicial Branch is equal to the other two branches of government. My concern is why does the Supreme Court give deference to Congress when ruling whether legislation is constitutional or unconstitutional? The court is to be objective upholding the Constitution, not giving deference to the Legislative or Executive Branches.
Also, our court system may be a great system, however, through history they have been very “schizophrenic” in considering legislation such as slavery and segregation. They did rule correctly in regard to President Jackson forcing Native Americans to reservations, however, Jackson thumbed his nose at the Judiciary.
The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.
@Chuck Plano, Tx: Your statement is only one side of the argument. Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it. I’ll leave my statement at that, and let the smarter and more informed than I work it out.
This subject is more thoroughly explored by Alexander Hamilton in Federalist No. 78, the first of six essays by Hamilton on this issue. Stick around till then, and we can discuss it further.
Thanks for the additional research Susan – makes perfect sense.
Matt – how do you know it’s the end of the term of Congress? In re-reading the section, it makes sense since Session is the term used and the previous paragraph refers to Senate authorization. I tried to do some case law research and didn’t come up with anything. So, when is the end of the next Senate session – next time they go on a break – like July 4th or does the “Session” literally start once a year? What does that mean for Craig Becker? Is he supposed to be out? Will he be out? Will the Senate be given the chance to confirm somebody else? Even if the answer to all those questions is supposed to be “yes” what are the chances of it actually happening?
I realize that all of these conversations are most likely being archived somewhere, but is someone making a hard copy of any of this? This could potentially be history in the making. We wouldn’t have many of the great resources that we do today to look back upon if someone didn’t write it all down and keep copies.
While the founders may never have imagined the world we live in today since it has changes in so many ways, they clearly understood human nature, which has changed very little in the last several hundred years. The constitution is just fine the way it was written and amended. If you want to change it follow the rules and make an amendment.
The founding fathers said that the judges of the supreme court are apointed for life. Unless of course he/she resigns or commits treason. I like this because onces he/she is in, it’s for good. That means to me that if the judges in the supreme court do something that the president or someone in the government doesn’t like, it’s not like they can fire them.
Wonderful discussion going on here! I am learning so much just reading your ideas and insights. This whole question of judicial activism has concerned me for some time. In considering Associate Justice Sotomayor’s comment during her confirmation hearings, “…we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.”, I can see where things get messy. A judge with a certain mind set is weighing politics, community issues, previous cases and the rights of the accused in a decision. One can only hope that common sense and right action are in integrity in these instances. Politics and resulting “activism” can insinuate into those decisions very easily. So, although I understand what she is saying, it is not a great comfort to me.
Is this where the case law becomes the standard by which future cases are judged, at the appeals level? AJ Sotomayor also said often that she would have to review past case law in her rulings. I am only using her statements during the confirmation because they are fresh, not as a criticism of her per se. Still, is it the Supreme Court’s mandate to hold those case decisions against the original intent of the Constitution to assure that these “precedents” don’t get too far off the track? Thoughts?
It would be very beneficial if we could have someone discuss if, and when, circumstances would allow State Courts to refuse to enforce U.S. Supreme Court opinions. It is my understanding that the “Supremacy Clause” only results when the law passed by Congress is Constitutional. The reference to the Supreme Court’s decision regarding the Indians in Georgia being correct and that President Jackson elected to disregard that opinion indicates to me that the three divisions of the Federal government are EQUAL and should not be able to overrule each other when each are acting within the power granted by the Constitution. Since the Federal government derived it’s power from the States and the States derived it’s power from the governed (people), how is it possible for the Federal government to pass legislation that it doesn’t have the authority to pass. My understanding of our Republican form of government is that the Federal government was not to interfere with the States and the States were not to interfere with the local governments. All problems were to be resolved at the lowest level of government possible. Only when the lower level required the assistance of the higher level and requested help were they to become involved in solving the problems.
Lillian. When my children were young, I was explaining to them why precedent alone (which is all I learned in law school) was insufficient. I gave them the example of a household where junk food is not allowed. Mommy gives in the first week and says – just sodas on the weekend. The kids push her into every day – since the precedent has been established. Then it’s pushed to allowing candy – but only after dinner. Well, lunch is a meal too so why not after lunch? Now that we have cokes and candy allowed, what’s wrong with McDonalds? It’s not nearly as bad as candy and we’ve already established that precedent. At some point Mommy needs to step back and say – “Remember the original rule, guys? We’re going back to that.” Yes, there will be screaming and yelling, but the original rule was a good one. I was gratified years later when my son was working on his legal badge in Boy Scouts and used this example to explain the judicial case law system to his fellow Scouts. It’s never too early to educate the kids. (The Progressives already know this so it’s time the strict Constructionists got the same message.) Good blogging girl.
Contrary to Mr. Spiwak’s post, Article III section 1 does not infer a lifetime appointment for federal judges. The duration of their appointment is limited to good behavior.
Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.
James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.
Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.
John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.
The judiciary is not ment to be independent or co-equal branch of government.
Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.
Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is – as it has been called by its enemies – mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.
Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.
The sword in the above text refers to the executive branch, and the purse refers to the legislative branch.
Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.
The Supreme Court can only give opinion(that is why in all of their decision say” it is the opinion of this court) and have no ability to enforce their decision other than what the executive branch supplies.
Great discussion!!!I have taken to reading the comments before I start writing,because I find it all so informative and thought provoking, thanks all.
The conition of man was clearly taken into account when our founders hammered out our Constitution.I only wish that our Representatives (all branches) would work as hard as they did.
I have a nagging reaction everytime there is need to appoint a new Supreme Court Justice, the conversations always without fail talks about the balance, Liberal /Conservative. This bothers me a lot, it surely seems to imply that there are at least two interpertations of our Constitution !!The casual way this is collasped into the various particulars that are considered seems to in some way pave the path for the things that bother me about some of the deciions the Court makes. (Emenant Domain to name one).
The party that is in the majority can stop the appointment because the cadidate is not enough this way or that way idelogically speaking…. is that the way we keep the promises of our Constitution? Perhaps I am a hick but I am most interested in their character, their academic, qualifications and their experience that has made them stand out as special and good.
One more comment, I was oh so embarassed of our President when he rallied his cronies to clap over the heads Justices during the last State of the Union. He was devisive through out the whole address . Casting himself and the Dems as THE ones. There were three equal branches presedent but he cut the Justices, the Republicans out.Shame on him.
Thank you Donna for explaining the last paragraph of Article III.
I would submit that our problem is the Senate does not “advise and consent” they merely vote for thier party ideology which is clearly not “advise and consent” What we need to do is have a block of Senators that have sworn to uphold thier oath in a contract with the Nation/people that they will not consent to approve any Federal Judge, at any level, that does not uphold the constitution as written. Any judge with documented activist views based on thier teachings, writings, speeches or involvement in legal cases will not be consented to. This group of senators can cut across party lines but are people with proven honesty and integrity with a track record of “non-flip-flopping”.
Presently Senators bring up just such documentation of activism and the nominee softens thier prior tone or trys to explain away thier true intentions or words based by saying they also agrued the other side. They do this even though no Senator or citizen believes them and knows exactly what they will do. In my humble opinion there is no other side to the constitution. If the law needs to be changed the Legislature can amend using the constitutional process. Judicial activism has eliminated Christian values from our educational system and our public squares (clearly never the intent of the religious founders) which has hurt our culture in both government and the private sector. In additon, small human infants are legally murdered by thier own mothers (many who are scared, confused and under pressure from abortion activists) These are just two examples of activism in the last century. Now we may have forced government healthcare and a double taxation situation with a new Value added tax. Not to mention the existing double taxation on wages and then on investments made after taxes are already paid on the principal. No one has allowed these thing to occur but our elected officials. About 535 elected congressional members voluntarily choose to erode our constutional rights for what? Power? Money? A liberty and freedom restricting socialist form of goverment? It seems to me to be treason to do such a thing but sadly the founders never envisioned the moral breakdown of our society to this extent or they would have allowed for the people to impeach via a majority ballot vote instead of congress. I know we can turn this around if we have a firm strong backbone and dedicated sites like this one to educate our citizens and future citizens to take back our liberties.
Hi all!
Donna, the example you used to clarify the dangers of relying on precedents over first principles is wonderful. It has really made me uneasy to hear some of the decisions that have been made based on case precedent rather than constitutional understanding. Thank you!
Bill, the words “good behavior” got my attention when I read them as well. If applied by today’s definition, President Obama could have fired the Justices who ruled “badly” right in the middle of the State of the Union address. Frankly, it made me a bit nervous to think this after reading your blog.
Thanks for all of these great blogs. Really, really wonderful.
@Bill: Brilliant argument. Bravo.
Lynne N,
I agree with what you said about being bothered by the way Supreme Court Justices are selected. It’s sad that congressmen can’t agree if a judge has ruled in the past according to the constitution. Before the presidential election Obama said he would choose justices that used empathy to interpret the law. That sent up red flags at the time! Eminent domain rulings have been especially troubling in recent years, as you said.
I see two things that keep legislation from the bench going. One is the somewhat twisted interpretation of certain passages in the Constitution, particularly the Commerce Clause. The second is the dependence on Legal Precedent (a concept from Common Law), rather than Original Intention of the Founders.
Maybe what we need is an amendment, not to change what the Constitution says, but to make a little less ambiguous a few key passages. And I would like it also to put Original Intention above Legal Precedent.
Part of this problem is exacerbated by the fact that sometime (I think in the 20th century) Law schools stopped teaching Constitutional Law and switched to Case Law. Now I think it is a rare law school that places an emphasis on Constitutional law.
@Richard, regarding your question about (what amounted to) term limits, I suspect from your description that you read The Virginia Declaration of Rights, an important predecessor to the federal Constitution, in which the following appears:
Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.
You may notice that the judiciary is explicitly excluded from the requirement.
I also note the use of the precatory “should” in the cited section. Was it poor drafting, or intentional? The author (George Mason) seemed to have a tendency to write in that manner.
Inasmuch as some of the Constitution’s language was borrowed from The Virginia Declaration (some of it verbatim), it is required reading:
http://www.archives.gov/exhibits/charters/virginia_declaration_of_rights.html
Don Barton is right on target. Jefferson wanted us to be ‘bound by the chains of the constitution’… There is a mechanism to change the constitution as Don Barton said so succinctly. To treat the constitution as a “living document” as some would have you believe it is…is to have no constitution at all. What you wind up with are politicians making rules as they go…a rule of man instead of the rule of law. Do not allow anyone to tell you the constitution is a LIVING DOCUMENT…if followed and adhered to it works just fine. It just doesnt suit the politicians mad dash to get all their bills through. I personally think that congress writes too many bills anyway. Which means they spend way to much. They should rather be more concerned with the perfection of a their bills, quality not quantity.
One of the things that sparked the Revolution was that the King of England determined that the Magna Carta and the other documents governing England could mean whatever he wanted them to at the time (aka a living document).
Your contributors are so knowledgeable — thanks for having them. I have been so curious about the origins of the judiciary and its independence. I now far better understand.
It’s interesting to me that most of the comments focus on the role of the judiciary branch of government. What about treason? Have we commited treason against ourselves by giving to governments or organizations that use those resources to harm us? Are we giving, or have we given too generously as to commit treason against ourselves?
Chuck Plano, Tx says:
“The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.”
Actually Marshall made a good case for judicial review as a general principle in Marbury, though in the same opinion it seems he misapplied it to the exceptions clause so as to avoid a confrontation with the sitting President.
Article II of the U.S. Constitution – Janine Turner
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 2. The Constitution, 14. Essays by Janine Turner, Article II, Article II, Article IIIHowdy from Texas! Thanks for joining todays reading of Article II of the U.S. Constitution! I read it with my daughter in the car today.. well, she read it to me because I was driving! Isn’t it all fascinating? I LOVE studying the brilliance of our forefathers. I bet they are rather pleased that we are taking an interest and instilling a passion in our children and/or loved ones regarding the Constitution. Please remember to read it to your kids or share it with a friend or loved one! Perhaps your child or a child you know will want to enter our “We the People 9.17 Contest.” Entries are due July 4th, 2010.
I want to thank Andrew Langer for his wonderful blog today! I learned so much. It is awesome to have such Constitutional knowledge shared with us, isn’t it?
I was intrigued with Article II Section I, “I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability preserve, protect and defend the Constitution of the United States.” What first struck me is that it states, “preserve, protect and defend the Constitution of the United States.” It doesn’t state, “change, disregard, or go-around” the Constitution of the United States.
I was also most intrigued with the fact that it does not state, “I will preserve, protect and defend the PEOPLE of the United States.” As I pondered upon this I came to the realization that if we have no basis, no thesis, no principle, no foundation for our country, if we have no government of checks and balances, a government that is accountable to the people, then how can the government help the people. Without the Constitution, without a roadmap, we have cannot preserve, protect and defend the people of the United States. Thus, if we lose the Constitution, we lose our country, we lose the people.
I conclude with my final observation about Article II, which is that if the President is to, “preserve, protect and defend the Constitution of the United States” then I should, “preserve, protect and defend the Constitution of the United States.” I must hold it dear and near to my heart. I must read it, absorb it, understand it, treasure it, value it, live it. And most importantly, because we are a Republic, because we are a people who rule through our elected officials, then it is my duty to thoroughly “vet” the candidate for whom I am voting. I must make sure that the candidate, with all his/her heart and all his/her might, in all sincerity will, “preserve, protect and defend the Constitution of the United States.”
So, goodnight. I am looking forward to tomorrow! Article III. Check out my behind the scenes video pod casts. They are on our Facebook. They are also going to be on our website soon.
God Bless,
Janine Turner
April 22, 2010
Posted in Article II of the United States Constitution, Constitutional Essays by Janine | Edit | 3 Comments »
Article II of the U.S. Constitution – Cathy Gillespie
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 2. The Constitution, 15. Essays by Cathy Gillespie, Article II, Article IIA big thank you to Andrew Langer for his thoughtful post today!
As I read Article II, I am struck by the incredible wisdom and foresight of the founders. While the electoral college is true to the Republic form of government they envisioned, it is more necessary today than ever. With massive population centers concentrated in a few large states, if it were not for the electoral college, states such as New Mexico, or New Hampshire, would simply be “fly over” territory in today’s Presidential campaigns. The electoral college system ensures that individuals running for President in our country visit many diverse areas and states, and that a wider group of American citizens have an opportunity to affect the Presidential campaigns, and election outcome.
Section 2 is timely as well, as we may soon be seeing more Supreme Court nominations. It is interesting to note the punctuation in this phrase: “he shall nominate, and by and with the advice and consent of the Senate shall appoint….” It is soley the President’s prerogative who he nominates, but the Senate is empowered to give “advice and consent,” on the actual appointment. “Advice and consent” of the Senate for the President’s Supreme Court nominees is a rare convergence of the three branches of government, and differing philosophies have prevailed over the years as to what standards the Senate should utilize in determining their “advice and consent.” Should the Senate evaluate the President’s Supreme Court nominees on their judicial experience, intellect and temperment alone, or should the nominee’s ideology and judicial point of view be taken into account? The Constitution provides no definition of what criteria the Senate should utilize in their “advice and consent” duty, and different standards have been applied over the years. It does seem that in recent confirmation battles, ideology has been a more predominant factor in the process.
As we watch the next Supreme Court nominee’s confirmation, whenever it occurs, we should remember that we are watching our founders’ vision in action.
Thank you to everyone who has shared such thoughtful and insightful comments. Please spread the word about “90 in 90″ through Facebook, Twitter, and email! We want to grow our national conversational blog!
See you tomorrow for Article 3!!
Blessings!
Cathy Gillespie
Posted in Article II of the United States Constitution, Constitutional Essays by Cathy | Edit | 1 Comment »
Article II of the U.S. Constitution
Andrew Langer, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Andrew Langer, Article I, Article IIWhile much attention has been focused on Congress and Article One’s legislative powers, the Constitution provides for three branches of government and Article Two of the U.S. Constitution outlines powers for the executive branch i.e., the office of the President and those who serve under him. In addition to enumerations of the powers to nominate appointees (with the advice and consent of Congress), the power to make treaties (which have to be ratified by the Senate), and his executive or enforcement authority Article 2 also discusses the wholly unique system of electing a president, known as the electoral college.
In this particular post, we will focus on two aspects of Article Two: the enforcement of laws passed by Congress, as well as the issue of the Electoral College.
As is clear through the structure of the Constitution itself, power flows from the people to the government via the legal structure called the Constitution. In its opening statement, Article 2 reaffirms this concept, making it clear that power “vests” in an “executive” branch of government—meaning that it administers, oversees, and “executes” what is the legislative “will” of the people.
Because the system is one of checks, balances, and diffusion of power (the founders were skeptical of concentrated government power), powers enumerated to the federal executive are undercut by powers enumerated to Congress under Article 1 (and vice-versa). The President is Commander-in-Chief of the military under Article 1, but it is only Congress that can declare war. On the other hand, while Congress passes laws, Article Two vests with the Executive Branch the requirement that those laws are “faithfully executed”. In the modern executive branch many of these tasks are carried out under what is called “administrative law” via the federal regulatory state.
Issues have arisen when the agencies carrying out the execution of Congressional laws appear to exceed their statutory mandate and often challenges arise charging that an agency has effectively undermined Congress’ power to make the law. While there may be an inevitable tension between the executive and the legislative branch in terms of the scope of their power, Article Two contemplates that the Executive branch engage in enforcement and execution of laws with little to no lawmaking like behavior occurring.
Critics charge that as Congress grows more unwilling to take proper care in writing laws that are clear and limited in scope, they have invited the Executive Branch to assume far more authority in the interpretation and execution of those laws leading to a greatly convoluted regulatory state. However as the writers of the Constitution make clear the powers of the executive are to be checked by those of the other two branches such that a significant deviation from the Constitution could be subject to challenge in Court or by Congress through its powers to tax and appropriate etc.
Now let us turn to the electoral college.
When envisioning the Republic, the founders recognized that competing interests would require that the demands of a majority group be weighed against the impact of those demands against the rights of minority groups (political or otherwise). Thus, we are not a pure democracy, but a representative republic—and, the American Electoral College was born out of those notion.
One of the challenges to the Republic, the founders knew, would be the inherent conflict between the interests of rural Americans and those who lived in cities. Different things are important to people living in farming communities than to those who live within urban centers—there are different public policy priorities, at the very least, and possibly different sets of values and societal mores. But in a pure democracy, regions with the highest populations would drive the public policy agenda, potentially sacrificing the interests of those in rural or desolate regions on the altar of the regions with the most people.
The founders didn’t want the selection of the President to be by “urban center fiat”, so they devised a mechanism to level the playing field. It is akin to how the World Series is played: it isn’t decided in one single game, or which team scored the most runs in a series of different games. It is broken down into a “best of seven” contest, leveling the playing field by allowing each time numerous chances to score incremental victories.
As initially envisioned, each state gets a number of votes equal to the sum of the number of House members plus the number of Senators. That way, even the states with the smallest population have a minimum of three votes, and are thus equalized. Moreover, when combined, the electoral votes of these smaller or less populous states could challenge or overcome the electoral votes of larger and more populated ones. Thus, the common interests of more rural states could be effectively aggregated, and their rights protected.
Unlike many other systems which rely on simple majorities our system ensures that the President actually presides over “united” states and has a built in constituency that is broad and enduring. The end result is the President of our nation ultimately chosen by the electoral college far more broadly represents the interests of the nation as a whole.
April 22, 2010
Posted in Article II of the United States Constitution, Constitutional Scholar Essays | Edit | 73 Comments »
Article I of the U.S. Constitution
David J. Bobb, Ph.D., Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article I, Constitutional Amendment VII, Constitutional Amendment VII, David J. Bobb PhD, Declaration of Independence, Declaration of Independence, The Articles of Confederation“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”
This complaint, however current it might sound, was lodged not against any occupant of the White House. Rather, American revolutionaries made this claim against King George III in the Declaration of Independence.
Imbued with the “Spirit of ’76,” and given voice by a young Thomas Jefferson, early Americans also indicted the British King in the Declaration “for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”
The Crown had assumed all legislative, executive, and judicial powers, the colonists claimed. Thus they declared that the “prince” (King George III) had become a “tyrant.” And a tyrant “is unfit to be the ruler of a free people.”
To understand Article I of the Constitution—and the entirety of the “supreme law of the land”—you have to understand the argument of the Declaration of Independence. The Declaration indicts the King for aggrandizing his power at the expense of the people. It also acts as a blueprint for limited government by making the bold claim that our rights come not from any government but instead from the Creator.
The Constitution, then, gives structure to our liberties—and to limited government. Article I of the Constitution is the foundation of this structure. Made up of ten sections, Article I is the longest of the Constitution’s seven articles. Its length should not confuse us, however, for its meaning is clear if we read it carefully.
Article I, Section 1 says that the law-making authority in the national government resides in Congress. Not in the Crown, and not directly with the people. We the people should not vote directly on every issue, the Founding Fathers held. That strictly democratic form of government can too easily lead to tyranny. Instead, we the people will elect representatives. This is republican rule, and conduces more to liberty than any other form of government.
The national legislature is bicameral, with a House of Representatives elected directly by the people, and a Senate originally composed of members elected by the state legislatures. The Seventeenth Amendment, adopted as part of Progressive reforms in the early 20th century, required direct election of senators, a significant departure from the Founders’ Constitution. Each state, the original Constitution specified, gets two senators (this is the only part of the Constitution today that cannot be amended).
Article I, Section 8 gives an enumeration, or list, of the powers of Congress. When compared to the anemic Articles of Confederation, which even denied Congress the power to tax, the enumerated powers were quite expansive. Compared to the scope and scale of congressional authority today, the enumerated powers seem quaint, kind of like a powdered wig or tri-cornered hat.
“That’s all we get to do? That’s it?” One can almost hear the response of many members of Congress today if they were to read Article I, Section 8 of the Constitution. Asked to cite the constitutional justification for the recent health care bill, for example, one member of Congress said he doesn’t “worry about the Constitution on this.” Another member, the chairman of the House Judiciary Committee, claimed that the legislation was authorized by the “good and welfare clause” (he was probably thinking of the General Welfare Clause of Article I, Section 8, Clause 1) Still others have cited the Interstate Commerce Clause (I.8.3), while a number have cited the Necessary and Proper Clause (I.8.18).
I hope that we can discuss and debate the constitutional status of the health care law as part of this blog. Whether you’re a Republican or Democrat, for or against the law, it seems that we should all agree that for a bill to legitimately become law it has to be grounded in the Constitution. Otherwise Article I doesn’t mean what it says, and the foundation of our liberties is left shaky and unsure.
It’s lately been said that politicians should prepare for elections by abiding by one simple rule, “It’s the economy, stupid.” The economy is important, to be sure, but I hope that in our national debate, today we can remember most of all that “It’s the Constitution.” We’d be stupid not to.
Wednesday, April 21st, 2010
Posted in Article I of the United States Constitution, Constitutional Scholar Essays | Edit | 138 Comments »
140 Responses to “April 21, 2010 – Article I of the U.S. Constitution – Guest Blogger: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College”
This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits. Our Founding Fathers never intended to have this extreme level of “vote buying” by taxpayers funds. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1000.00 or some similar amount. Niether would be unconstitutional.
This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits while a few pay the majority and are constantly asked for more. It is a path to economic destruction. I have visited several socialist and communist nations in my travels and Americans have no idea of the human suffering, death, and poverty of a controlling communist or socialist goverment that always limits the individual freedoms we take for granted. Our Founding Fathers never intended for our “tax system” to have this extreme level of “vote buying” by taxpayers funds or social engineering. Envy is one of the biblical seven sins for a good reason. We have lost our national moral compass as we pit hatred (class envy) against hard work and success. Some citizens with a lacking moral compass want to covet what thier neighbor has. The Founding Fathers wanted to remove the chains of government on the individual and let them strive for thier own happiness and dreams. Progressives were certainly instumental in removing the biblical moral teaching from our schools. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1,000.00 or some similar low amount. Niether would be unconstitutional.
The constitution also grants power to the federal government to provide for the common defense. If we have to disband the armed forces every two years we would soon be overtaken by our enimies and if Officers we appointed by the states there would be no uniformity within the military. We would have lost WWII if we had to disband after two years, ditto for the Civil War, Revolutionary War, WWI, Korean War. We gain peace through military strength by constantly training, testing, and improving weapons systems so our enimies understand the high price they would pay for trying to dominate or rule our citizens.
On heathcare, I beleive it violates all aspects of “the Right to Life, Liberty and the Pursuit of Happiness” as unelected goverment workers will decide who and what type of care an idividual may have. (Surgery or pain pills). A citizen can no longer pursue thier individual health choices. Government can directly limit thier life and happiness. I hope this can be repealed as it will cause severe pain to citizens to watch loved ones be denied the proper healthcare because the govenment has to ration care as in all other nations that have moved to socialized government healthcare.
I look forward to tomorrows comments….
Article 1, Section 7: the process for passing legislation states “..the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”
When House Minority Leader Boehner called for the vote of each individual to be recorded at least one week before the Healthcare vote was taken in the House, and also that night on the floor of the House again, why did the “Speaker” ignore the request or call it “out of order”? It seems to me that it is out of order for the people being represented not to know exactly who voted Yes to this bill. We know all the Republicans voted no, but not which Democrats voted yes or no. It seems to me that this tactic makes things very slippery and murky for those being represented.
Raymond mentioned needing an amendment to force government to be open. It appears the mechanism for transparency in the votes already in place for 220 years isn’t honored and We the People are left guessing. Someone above mentioned that the devil is in the details. I think God is in the details and this is another one of them for us to look at carefully.
Maggie,
Question: If “all Duties, Imposts and Excises shall be uniform throughout the United States;”
how can there constitutionally be different income tax brackets? Doesn’t seem very uniform.
This deals with indirect taxes, not income taxes. The indirect taxes must be the same from state to state. In 1913, the Sixteenth Amendment was passed allowing income taxes.
I wanted to add one thought to my earlier comment on taxes. Actually the Constitution specifically said there will be no tax on individuals (Income Tax), but the progressives worked around this by adding the XVI amendment which will come later in our readings. This Amendment was originally passed to fund WWII and who was going to vote against funds to fight Germany and Japan’s agressive war of world dominance. It was to be repealed after the War but amazingly was not and has been modified to mirror class envy and morphed into a progressive tax on those who work hard and are successful. It will be interesting to hear the history from those who know on this matter as the current administration has openly confirmed the goal of redistribution of individual wealth by the government to whim they choose. It is similar to the british crown taxing colonist hard work to support the royal elitists power and position.
@Richard – I’m not sure where you got your information. The income tax was proposed in 1909 and ratified in 1913. That was before WWI, and years before WWII.
Actually, I meant to say the 16th Amendment, not “income tax.” There were income taxes before the 16th Amendment.
Well-framed question, Debbie Beardsley, to which I say amen! What your blog entry asks is precisely what I would like to know. And in a related sense, Party aparatus in the Houses seem to be causing we the people who are supposed to be represented to feel as though we are being completely ignored! How can this be. How can Representatives be made to represent when they do not even listen? Being only 1/300 millionth of the population and with powerful moneyed interests, how do we know OUR STAND is represented for sure? We suspect, it is NOT. That begs the questions, WHAT DO WE DO ABOUT THAT?
Anna Marie says:
April 22, 2010 at 12:56 am
“… in the end we will become a stronger nation, a nation UNDER GOD!!!”
——–
Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
I have to disagree with some of what R. B. McGinnis said in relation to the economy. The power to tax, though no direct, capitated or income tax, tariffs, regulation of interstate commerce were not designed to regulate the economy but to pay for the functions of government enumerated in the Constitution. How else were they to pay the debt, their own salaries and the salaries of the militia? Was the intent to fund the limited operations of government laid out in the constitution or was the goal to regulate the economy?
Another item relates to the quote relating to the KATZENBACH v. McCLUNG, 379 U.S. 294 (1964) case. The court ruling said “Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce….” Note the term rational basis. It was not decided on a constitutional basis but on what they could rationally support. The court has continued to swing on the issue of what is allowed under the commerce clause. Cases have been decided that operating a steamship on a river within one state is interstate commerce and subject to regulation. Minimum wage, child labor, and agricultural relief laws were all found to be items that the U.S. government had no right to regulate under the commerce clause. Mining, liquor, oil and electrical production were all deemed to be outside the commerce clause while meat production and wheat were found to be within (production of wheat for one’s own consumption could be subject to national quotas because that could impact national wheat prices). After, Gibson v. United States, 166 U.S. 269 (1897) the court rarely ruled on the commerce clause. During the New Deal the court changed the focus of how the court viewed commerce and what was to be regulated. A central issue was whether the courts or the legislature should decide what commerce is and the courts began deferring to congress saying that determining whether legislation impacted commerce was a legislative function. At question was whether it was more appropriate to address the issue through the courts or the ballot box and they basically fell on the side of the ballot box, thereby abdicating their responsibility to be a check and balance over congress. Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.
I agree with the decisions of the court in the cases of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Daniel v. Paul. 395 U.S. 298 (1969) but not based on the commerce clause. For that, I go back to the preamble and rely on establish Justice. Slavery, the treatment of Native Americans, and Asians Americans during World War II and
Debbie, there is no prohibition on the President proposing legislation to Congress or lobbying for specific items. the Constitution prohibits the President from passing legislation or acting as a judge over it other than by veto. The problem arises when one party holds the presidency and both houses of congress by a super-majority. In that case the president can propose legislation and have limited resistance.
How are the classes for Senators determined? Is it by State? My State has 1 class I Senator and 1 Class 2 Senator. Does that ever change? Am I correct in assuming the class only has to do with making sure only 1/3 is up for re-election at a time? They all serve 6 years regardless of class right?
I must confess that I’m going to have to reread after I finish this 90/180. I’ve read the Amendments, but this is the first time I’ve read the Articles of the Constitution. Apparently I’m not the only one having a little trouble with the double negatives. I’ve been telling everyone I know about this, hopefully they will be able to go back on this Web site to the days they haven’t read to catch up. I love the dialogue and the experts input on the Constitution. I have just recently purchased “Original Intent” by David Barton I haven’t read it yet I’m trying to keep up with all the reading recommendations. I do know that “America’s God and Country” by William Federer is a must have, I love this book. It is an Encyclopedia of Quotations from our Founding Fathers and others. There is no question what the intent of the Constitution was and that it we were designed to be a Christian Nation.
One last comment on commerce, in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), the U.S. Supreme Court held that marijuana gone at home for personal use was subject to the Commerce Clause. Justice Thomas dissented saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”
The question was raised as to whether the health care reform bill, as a bill requiring appropriations (whether that makes it a “bill for raising revenue” notwithstanding), did not have to originate in the House.
The question may be mooted by the fact that it did originate in the House, having been introduced as H.R.3590 on 9/17/2009 by Rep. Rangel – even though it eventually became known as “the Senate Bill.”
But there is an interesting Constitutional question here: the original contents of H.R.3590 were completely replaced by amendment in the Senate. So, did the bill “originate in the House?”
Thomas,
It just seems to me that by the President strong arming members of Congress or bribing them to vote the way he wants he is in effect legislating. Isn’t Congress supposed to represent the people and not the President?? Once it is submitted to him he can then decide to sign it or veto it but until it gets to him he should keep his hands off.
I have seen a few comments on the 17th Amendment, and thought I might expand on it here, as well as give a couple of reasons why I believe it should be repealed. We will get into the Amendments when we read them on Monday, April 26, but I wanted to include this here, as it pertains directly to Article 1, Section 3, Clause 1.
James Madison explained States representation in the Federal Government as such:
“Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”
At the time the Constitution was written, U.S. Representatives were to represent the people and were to be elected by the general population of a state by popular vote.
U.S. Senators were to represent the States and were to be elected by the State Legislatures. From Wiki: “It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly.”
The 17th Amendment took away the States representation by requiring that U.S. Senators be elected by the general population of a state, effectively reducing them from an equal partner with the Federal Government to, at best, another Representative, and at worst just another lobbyist, vulnerable to special interests influence, which has resulted with the loss of State Sovereignty and States’ Rights.
There were two main reasons the 17th Amendment was adopted in 1913; One was the deadlock of State Legislatures when electing U.S. Senators. The other was the corruption of the State Legislators.
One possible protection from dead-locked State Legislatures is the provision that if a State Legislature does not fill a vacancy or elect a U.S. Senator within say, 30 days for example, the Governor shall appoint the U.S. Senator.
Our protection from corrupt State Legislatures are open caucuses, campaign disclosure statements, term limits, and the fact that we now have highly visible public information, freely accessible with the World Wide Web.
Thanks for letting me expand on this subject. Tell me what you think, and keep up the great discussion!
@Gitel, a minor correction: there were indeed income taxes prior to the XVIth Amendment, from 1862-72, and again in 1894-95, when taxes based on income derived from property (interest, dividends, rents) were ruled unconstitutional by the Supreme Court in Pollock v. Farmer’s Loan & Trust (by a 5-4 vote!).
It seems to me so far, that the Congress was to hold a few specific roles and jurisdictions, and the people, then the states everything else. Things are turning upside down. I think we should repeal the 17th amendment, return the selection of Senators to the states, and expand the 22nd Amendment, to include restricting terms of the members of Congress. The wisdom of that provision is shown in the career politicians that now dominate Congress, with power empires, and inflated influence. This would also attract talented people who have successful careers in other areas to serve. I also believe that in returning power to the states and local jurisdictions, it would be easier to weed out the potentially corrupt.
I have a question, if the Healthcare Bill coerces a citizen to buy insurance under penalty of fines, and enforced by the IRS, doesn’t that make the insurance payment a form of taxation, even though the money goes to a 3rd party, the insurance company?
I’m new at blogging and if my protocols and forms are incorrect, please excuse me:
I realize I’m a bit late to this reading but have to ask:
@Thomas Soyars said: “Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.”
This is the scariest comment I’ve ever heard and I wonder: has there been much further testing of this ruling and how entrenched in precedent is it? I mean “a truism”?! How much clearer does it need to be that this amendment was MEANT to be a restriction of federal power.
@Philip Thorrez: Welcome to the discussion – better late than never. Your “protocols and forms” are just fine. Leaving comments in a public forum such as this is just like any other public interaction; be polite and civil, and you’re way ahead of the game.
As to your question, might I suggest taking a look at West’s Encyclopedia of American Law for a comprehensive overview of the Supreme Court’s various interpretations of the 10th Amendment through history.
It’s really pretty stunning to realize just how often the 10th Amendment, something Thomas Jefferson once described as “the foundation of the Constitution,” has been virtually ignored or trivialized.
I truly hope the upcoming challenges to the President’s health care reform law will once again put some more authority back into the 10th Amendment. I’ll probably be disappointed, but one can ‘hope,’ right?
Will says “Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.”
You missed ths: “In the Year of our Lord one thousand seven hundred and eighty seven..”
Interesting fact I thought to share:
According to Article I Section III, the Vice President, President of the Senate, can vote on any piece of legislation whenever the members of the Senate are “equally divided.” So whenever the vote is split 50-50, the Vice President can essentially decide the fate of the bill.
[…] April 21, 2010 – Article I of the U.S. Constitution – Guest Blogger: David Bobb, Director and Le… […]
A very intriguing paragraph I discovered in the first article is the last paragraph in Section 9.
It says ;
“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”
What I find so interesting about the subject is the fact that America already declared itself independent from Monarchal England, however the founding fathers make sure that we as a country do not associate ourselves at all with any Monarchy, and if someone does, than the United States shall not recognize it at all, and they will not accept any “present … of any kind whatever, from any King, Prince, or foreign State”, thus putting the icing on the cake, so to speak, of total detachment from any kind of English Monarchal society.
I would like to understand the electoral college better from Article 1, section 2.
I realize we are now beyond that, but it is not clear to me if we directly elect our representatives as I thought we did, or if electors are doing the electing .
If anybody has insights and links, please reply.
Thanks.
Kristine
I figured it out. Article 1, Section. 2 first paragraph meaning of Electors refers to a state’s voters and not electors in the electoral college for the presidential elections. That is what I thought; however, for a while there I thought I might have been wrong all my voting life. I’m relieved to have this cleared up and it was good to re-read Articles 1 and 2.
Kristine-hope this helps.
What are the constitutional provisions for the electoral system?
The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States. Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804. Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.
Do the American people vote directly for a President and Vice President when they cast their ballot?
No. When the American people cast their vote in a presidential election they are actually voting for individual within their State called an “elector.”
Who are the electors?
The electors are representatives just like the members of Congress. Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years. They are entrusted with the responsibility of voting for the President and Vice President of the United States.
How are the electors chosen?
The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors. State election laws generally entrust that duty to the various political parties because each party has a slate of electors pledged to their candidates. Thus, if a State has five political parties qualified for the ballot, it will have five separate blocks of electors―one block for each political party.
How are the electors in each State chosen to vote?
The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State. For example. If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors are elected to vote for the State of California. In Maine and Nebraska, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district. This allows for a split slate of electors to be chosen in those two States.
In the event of a tie in a State’s popular vote, the laws of that State would determine the procedure for breaking the tie. If there was still a tie after a re-count, there would probably be a run-off election to determine the winner.
Thomas, Philip & Spider, well said! I appreciate the real push back to what you’ve all implied is the trivializaion of the 10th Amendment. Almost half of the States are involved at this time, 42%. In an earlier post, I was reacting to these readings by thinking a Constitutional Convention was needed to solve some of the problems. Now, I feel that some amendments may need to be repealed and others have their language clarified to reflect life today, like the recess appointments clause. But even allowing a small opportunity for any group to do away with this incredible document is inconceivable to me. No convention for sure. But calls for Constititutional language that fortifies Amendments like the 10th, oh yes! I love that our clarifications and corrections are recorded into the document as amendments. As humans, we make mistakes, learn and grow. This amazing document records our growth as a free society, correction & forgiveness of mistakes included. The Federal gov’t has taken powers from the States never intended for it. No matter how long it takes, we can’t give up the fight to re-fortify the 10th Amendment. Enough is enough.
I love the phrase, think globally and act locally. It is a modern day sound bite for James Madison’s eloquent explanation of where power really resides in a free society. A state or community problem may become part of the national narrative, but the way to resolve it works best as locally as possible. Let each community see the problem through its own special lens, apply meaningful solutions and the people are served well. If a national element is needed, add an amendment to the Constitution. It takes time to do that and, if the locality can’t resolve the problem themselves, the final amendment will help the process along.
Taylor, I feel your post underscores the “kick in the gut” reaction most people have when they see any of our Presidents bowing to kings or foreign rulers. They represent the United States of America – We the People. We the People do not bow to kings. We do not serve their will. Americans shake hands in greeting. If these kings do not want to shake hands, fine. But no bowing in our name, thank you very much.
Allison, great question! If a bill must be passed by 2/3 of the Senate, how is a tie ever significant? The bill passes or it doesn’t. Too simple?
Philip Thorrez-the reason the 10th Amendment is a truism can be found in the words of James Wilson.
In October of 1787, in a speech at Independence Hall, Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution. He also explained the system of limited government that would be established if the document was ratified:
“It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.
This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”
Wilson, who had unsuccessfully advocated a strong national form of government in the Federal Convention, clearly understood the system of limited government that would be established by the proposed constitution. Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights.
Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.
The Amendment is a re-statement and affirmation of the principles of limited government and enumerated powers. They exist independent of the 10th Amendment.
@Lillian – Here’s an historical note that you may find interesting, since you mentioned shaking hands. After having been inaugurated as president, Washington refused to shake hands, thinking it beneath the dignity of the office.
Also, for a bill to finally pass the Senate does not require a 2/3 vote – the procedural step that requires a 2/3 vote is to end debate on a motion (called “cloture”, a feature of the rules of the Senate, which you now know are left up to the Senate by the Constitution), which is a necessary step that precedes an actual vote on whether the motion shall be adopted or rejected.
Yesterday, for example, in a vote to end debate on a motion to allow a financial reform bill to proceed to the floor (which is itself a required procedural step) the yeas came up short of the 60 votes required by the rules… so technically, I guess you could say that the debate on that motion will go on until the end of the current session, at which point, the motion vanishes, having never been directly voted upon.
As mentioned, the only relation of Congressional rules to the Constitution is that it explicitly leaves them up to the each House. But I rather doubt that any of the participants at the Philadelphia Convention would have aniticpated a rule effectively requiring a supermajority in the Senate.
@Lillian – I neglected to mention Washington’s preferred mode of greeting, given that he did not shake hands.
He bowed.
Re: Anthoney Viola – I do not think there was any reference to God intended by placing Year of our Lord before a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.
Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.
I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.
‘…the 10th Amendment is a truism…’
‘Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.’
Similarly it could be argued that Congress would have no authority to legislate against freedom of speech and so on had the first amendment not been ratified, but I don’t think I’d call it a truism; and if Justice Marshall’s observation that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect” is accurate, I think we may rest assured that the framers of the tenth amendment considered it as necessary as the other “declaratory and restrictive clauses” in the Bill of Rights.
Art 1, S 10: No state shall, without the consent of Congress, … or engage in War, unless actually invaded …
This was a point I had missed.
First, it seems a state may engage in war with the consent of Congress.
Second, it seems a state may engage in war without the consent of Congress once it has actually been invaded.
Seem to be relevant points in the current contest of opinions over Arizona’s late legislative actions. Arizona is currently under invasion by illegal aliens.
Can anyone explain article 1 sec 9 para 4
“No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration herein before directed to be taken.”
Yes they did not want to tax incomes (head tax).
So,was this section repealed by the 16th amendment?
Will says:
April 22, 2010 at 1:59 pm
Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
————
True; but a strict constructionist must be thorough and construct from all the organic documents declared by the First Congress in the midst of passing the Bill of Rights.
They are:
1) The Unanimous Declaration (of Independence)
2) US Articles of Confederation
3) The Northwest Ordinance
4) US Constitution
Such can be found reproduced here and is at the very beginning of the US Code 1.
http://uscode.house.gov/download/pls/organiclaws.txt
The very first congress instituted the Organic Laws declaration as a reference of the founding documents of the US as a collection foundational proofs of where rights, laws, and governance comes from. The US Constitution alone does not stand alone and provide enough information to describe what the legal basis of the document stands on. Legal basis did not just appear out of thin air but is predicated on legal terms and underpinnings found in the Constitution that correlate to the English Common Law and the history of constitution writing.
Inspection of the Organic Laws finds the following words concerning religion and morality:
Year of our Lord (Constitution, Articles, Ordinance)
Divine Providence (Declaration)
Creator (Declaration)
Nature’s God (Declaration)
Appealing to the Supreme Judge of the world (Declaration)
the Great Governor of the world (Articles)
Religion (Bill of Rights, Articles, Ordinance)
Establishment of Religion (Bill of Rights) [aka: state run church]
Morality (Ordinance)
Mode of worship (Ordinance)
Religious sentiments (Ordinance)
Blessings of Liberty (Constitution) [blessings: lit. “anoint with blood”]
Good Behavior (Constitution, Ordinance) [syn. “morality”]
Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]
Remember also, that some states would not ratify the Constitution without assurances of a bill or rights, which includes free exercise of religion. If you strictly construct just from the text of the Constitution alone without the amendments, you can rest assure that the Constitution would not have been ratified and be moot. The Bill of Rights had to be pushed for ratification quickly to head of a call for another constitutional convention that would have rewritten the constitution. Had that movement been successful, then it may have happened that the original would have been another anal to the Organic Laws and we have a different constitution today.
So for a strict constructionist to stop right at the Constitution and observe Jesus and God is not mentioned, and to possibly excuse Lord as being a cultural custom, and not consult supporting text, is akin to taking out an insurance policy and saying that any riders, insurance laws, and governing policies have no place in insurance governance and insurance claims.
@yguy — James Madison, and other Federalists, contended that the Constitution did not need a bill of rights because it was strictly a positive law document: what the federal government can do. He contended that introducing a negative law document such as a bill or rights: what the federal government cannot do, would wiggle leave room for creative inventions of new powers of government by implication and completely bypass the amendment process.
@al williams says: so,was this section repealed by the 16th amendment?
–Capitation tax is a head tax…not exactly an income tax. Such was more akin to a poll tax or census tax. A direct tax essentially was any tax on property like real estate or durable goods; hence the federal government does not do property taxes; but such was not entirely prohibited. If the federal made a capitation or direct tax scheme that was proportional to actual populations in a state, then the federal could lay such a tax and it would be regardless of a person’s level of income. When the income tax amendment came along, it removed the census proportion requirement on that form of tax as it would be construed as a direct tax on property being income considered as a form of your property or estate. For perspective: an indirect tax would be akin to a sales tax as a tax on commerce.
Article I of the U.S. Constitution – Janine Turner
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Article I, Article I, Article I Section 08, Constitutional Amendment XXVI, Constitutional Amendment XXVIIHowdy from Texas! What a great first day of blogging. How exciting to be having a national conversation about the reading of the U.S. Constitution. Don’t forget to read it with your kids at the dinner table, in the car, before bedtime! Perhaps they will then want to enter our, “We the People 9.17 Contest” for kids.
I want to thank David Bobb for being our first Guest Blogger. We have the link to his site at the Kirby Center on our site and they offer a fabulous five hour seminar about the Constitution that is broken down into 45 minute segments.
I get such a thrill when I read the Constitution. Our forefathers had such vision and such wisdom! The Preamble is masterful and within it lies thoughts to ponder. Some relevant phrases today are: “promote the general welfare.” It does not say “specific welfare of every individual.” We are given liberty to pursue our welfare as we wish.
This leads to the second relevant phrase: “secure the Blessings of Liberty to ourselves and our Posterity.” Well, let’s see.. the word Blessings is in there. Blessings are not from “government” but from God. We then have the word, “Liberty.” How does one define Liberty? I looked up the word, “Liberty.” Here are two of the definitions: “immunity from arbitrary exercise of authority: political independence.” Another definition is: “freedom of choice”; “liberty of opinion”; “liberty of worship..” If we are to take an inventory of our immunity form arbitrary exercise of authority and/or political independence today, then I think it is safe to say that these liberties are being infringed upon. How about freedom of opinion? It would certainly appear that the negative labeling of the Tea Party is an attempt to stifle freedom of opinion. How about freedom of worship? What about the child in Massachusetts who was taken out of class and sent to the psychiatrist because the child drew a picture of the cross of Jesus? Thus, in the Preamble, alone, I see many aspects that are both relevant and endangered.
Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XVII Amendment in 1913 – during the Progressive era. This was not our forefather’s intention. One has to ask would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜
The other clause that captured my attention was in Article 1 Section 8 Clause 8: “to 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.” I think that this security of ownership gave people the desire and passion to spread their wings and fly. This clause gave Americans the burst of inventions and creativity that made America great. Promoting progress and giving the Inventors exclusive rights – in other words- giving the people their Liberty and keeping government out of their affairs – led to the fulfillment of human genius. Big government, the kind we face today, stifles the spirit of democratic ingenuity and deflates desire.
The list goes on and the study is broad. Yet, I am so grateful to have this opportunity to be reading, blogging, thinking about the U.S. Constitution with you all. I thank you for your participation. I look forward to hearing from you tomorrow and spread the word!
Blessings,
Janine Turner
April 21, 2010
Posted in Article I of the United States Constitution, Constitutional Essays by Janine | Edit | 10 Comments »
10 Responses to “April 21, 2010 Article I of the U.S. Constitution – Janine Turner”
Last year I bought and began reading “The Words We Live By – Your Annotated Guide to the Constitution” by Linda R. Monk.
One of the passages I highlighted was a quote by Judge Learned Hand during WWII that emphasizes that the constitution depends on the citizens for its support:
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”
Miss Turner, thank you for the opportunity to allow us citizens to learn and hopefully support our Constitution and the documents that are the foundation of this great nation.
Good of you to point out in your blog the distinction of who elects members of each house (originally): state legistlators to elect Senators and the people to elect Representatives . I read but did not register the import of the words written.
It is certainly interesting to see how a given passage (of any kind, I suppose) can be read so differently by different people. For example, Article I, section 8, paragraph 8 is usually read to empower the federal government to award copyrights and patents – both of which are an intrusion of the government into what would otherwise be an unregulated marketplace for intellectual property. That hardly can be said to constitute “keeping the government out of [the people’s] affairs.” On the contrary, like all the grants of power in the Constitution, it is a grant of power to the government to establish and enforce laws intended to produce a civil society that promotes “life, liberty, and the pursuit of happiness”, or if you prefer, the “general welfare”, better than one that lacks such laws, or such a government.
Shame on all of us for neglecting our citizenship responsibilities to the United States Constitution. We have, over the past 100 years or so, been willing to allow our so called elected leaders to deviate from the true meaning of Liberty and Freedom! We could of course, claim we were busy making a living, busy with our own lives. Yes, fiddling while “Rome” burned or the “Titanic” sank etc.
The media of the day, News Papers previously, TV comentators later and those same so called elected governement officails were and still do believe that the “common citizens” are not intelligent enough to govern ourselves. Now, the internet has opened up the shared discovery of this responsibility at the speed of light.
We Trusted for too long our responsibilities to others. This program of self study of the constitution demonstrates the importance and true nature of the US citizens. Congratulations for a great spark of ingenuity, may it flame across America and the world.
Thank you!
It was originally thought that the Senators would be the advocates for the State the represented as a whole while the Representative proposed to be the populist advocates.
the 16th amendment my not have been ratified properly ???? this needs more investagtion
The Constitution must be understood as a catalyst to the events that preceded it! The Constitution is the Symbol of the United States- a sacred symbol. It is a symbol for liberty and justice. It is our attempt to limit its ability to be victimized; to protect itself from itself. The power behind the Constitution is that it limits government and protects our most sacred rights! Article I creates legislative power and vests it in Congress. It creates national government and separates power. It accomplishes this by dividing power between the federal and state governments. This is Federalism in its most fundamental state. The Constitution may only be amended and not changed by statute. This important to understand because it conveys the history of this very instrument and how it was created in the first place. It was the founding father’s insight that was desired to be governed under it. Article I specifically drafted by the forefathers to create ’specific’ powers of Congress. Not powers of ’statute’ which could be altered by a tyrannical government. We need to keep the separation of powers- and the Constitution is the instrument that has stood the test of time and kept our most cherished values. We should continue to be suspicious by powers or persons that doubt the power of the Constitution. There is reason why those in power are required to take an oath to uphold the Constitution and that is primarily to limit any change by the ‘political’ majority. That is to keep a system of checks and more checks. Article I is the system of checks and balances that accomplishes that. So, furthermore, Article one is relevant today as it was 200 years ago to Keep the Power balanced! So the final issue is how the Constitution goes about keeping the balance. This ‘balance’ manifest itself through ‘interpretation’ of the very instrument-the Constitution.
Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XII Amendment in 1913 – during the Progressive era. This was not our forefather’s intention. One has to ask would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜
Ms Turner, With all due respect you may wish to review the historical context in which the XII amendment was adopted. Contrary to the opinions of Glenn Beck and other revisionist historians the early 1900s under the leadership of Presidents Roosevelt and Taft was an extremely necessary readjustment the American society. As a result of excesses of the robber barons in creating the cartels and trusts the interests of the ordinary citizens of the United States were protected from rapacious greed by the adoption of laws such as the food and drugs legislation providing for food inspection and safe medicine. All you have to do is read the “Jungle” to see the excesses of meat packing industry in the way immigrant labor was treated and the tainted meat that was being sold to the public. The creation of the Interstate Commerce Commission protected the interests of American framers from the exorbitant freight rates charged by the railroad cartels.
I would also suggest that you make self of aware of the history of Montana, my state, regarding the election of William A. Clark as one of the first Senators of Montana. He essentially bought the Montana Legislature to secure his election. He bribed each legislator on the average of $12,000 per vote. The election was so fraudulent that the Senate refused to seat him. I will be happy to provide you with several historical references to this event. But, this blatant act of fraud was the major impedance for the adoption of 12th amendment.
Janine, I heard you and about this on Bill Bennett Monday morning, and I’m so glad I did. My eight-year-old wrote down on his to-do for today to “Read Constitution first seven articles” which I printed for him. We will be discussing each Article each night at the dinner table so the whole family can benefit.
God bless you.
“The Preamble is masterful and within it lies thoughts to ponder.”
I’d go a lot farther than that. I’d say the Preamble is to the rest of the Constitution what the Two Great Commandments are to Mosaic law, which is to say any act or law which is a hindrance to the objectives in the Preamble is unconstitutional.
I think a good example of this is Lincoln’s suspension of the Great Writ during the civil war, an act thought by many to be unconstitutional, but evidently deemed necessary by Lincoln to preserve the Union. Assuming he was correct, one only need look at Zimbabwe to reasonably surmise that the consequences of his failure in that regard would have been grim at best and horrific at worst.
Article I of the U.S. Constitution – Cathy Gillespie
Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 2. The Constitution, 15. Essays by Cathy Gillespie, Article I, Article IWhat a fantastic conversation we have going on the first day of the 90 in 90 Blog! It is fascinating to scroll through the comments, and see how knowledgable you all are!
We have received several emails from teachers who are assigning participation in the reading and blogging as either course requirements or extra credit! We welcome students, children, parents, and families. And we remind all young people grades K-12 to enter our We The People 9.17 contest! We need your entertaining short films, PSA’s, cool songs, thoughtful essays, and younger kids, we look forward to your poems and holiday cards!
Thank you especially for making the effort to answer each other’s questions! Many of you have made suggestions for improving the Constituting America website and blog. We take your ideas seriously, and appreciate you taking the time to share them.
It is late, and I have been driving all day on a quick trip up north and back, but I wanted to share a few thoughts before we turn our attention to Article II in the morning!
It is no accident that the United States Constitution begins with the words, “We the People.” It is also no accident that Article I sets out the structure and legislative powers of the U.S. Congress. The U.S. Congress, and especially the U.S. House, are the governmental bodies closest to the American people. By beginning with the words “We the People,” and placing the Congress in Article I, our United States Constitution leads with the most important element of our government – us, the people.
I worked as a staff person in Congress for many years, and my former boss, Congressman Joe Barton, was fond of pointing out that the U.S. House of Representatives is the body of government closest to the people. While Elections every two years may cause Members of Congress and their staffs to feel they are perpetually engaged in a never-ending campaign, the two year term of office keeps U.S. House members accountable to the people who elect them. And if they stray too far from the will of their constituents, the voters have a frequent opportunity to express their displeasure. It is the beauty of the system described in Article I that allows the people a mechanism to express their approval or disapproval in a timely way. The system only works, though, when “we the people” are educated, engaged, and motivated to exercise our rights, especially our right to vote.
I am looking forward to our journey through the U.S. Constitution and the Federalist Papers together! I am already learning a great deal from the blogs posted over the past two days. Please spread the word on Facebook, Twitter, and forward our website link via email. We want to create as large a national dialogue as possible about our founding principles! Thank you again for your participation. See you tomorrow!
Blessings,
Cathy Gillespie
April 21, 2010
Posted in Article I of the United States Constitution, Constitutional Essays by Cathy | Edit | 5 Comments
5 Responses to “April 21, 2010 Article I of the U.S. Constitution – Cathy Gillespie”
I’m really impressed by how many people are really interested in learning about our Constitution. In some ways I think the Health Care Bill was a good thing. It finally woke people up to what has been going on in the US for many years.
Maybe now that people realize the problems with the elected officials, they won’t be so quick to vote for “the lesser of two evils” and realize there are other people out there who want to uphold the Constitution. Maybe now they will look a little closer at the candidates, and their records, before voting.
I am, at long last, hearing what many of us have been saying for decades. The Constitution has been trampled on, and this has been done because most people didn’t care enough to learn the Constitution and pay enough attention to what their government was doing.
We can only hope that it isn’t too late.
Cathy, I could not agree more with you paragraph 6. What are your thoughts on term limits?
Raising the question on the need of term limits gives rise to other questions that need to be answered. There is an organization GOOOH which has a plan to replace all 435 US House Members with ordinary citizen legislators who have been chosen by citizens from their own Congressional District. The Candidate thus chosen signs a contract with the congressional district citizens to email no more than two terms (may be expanded to three terms – under discussion). In addition, the candidate will not raise any money (funding for the campaign will be by the members of GOOOH), will not have any Party pressure, and will not beholden to Lobbyists.
Over the years, we have fallen into the trap of re-electing 95 percent of incumbents to office of the House. It is time we have other choices for our vote. The day of career politicians must come to an end.
The Constitution has been effectively removed from our government. it remains only in the hearts and minds of those Americans who cherrish what this country once stood for. I have friends and family who proudly served this nation in the armed forces. They fought, bled and died to protect this nation and the Constitution that they swore an oath to. It is now time for the citizens of this nation to put up or shut up. If we do not stop complaining and move to action then the greatest nation the world has ever seen will cease to exist in our lifetime. We expect our soldiers to fight and die for all the freedoms most of us take for granted. We also expect them to refuse to obey illegal orders. The current administration has passed and will pass, more legislation that is in direct contradiction to the United States Constitution. These laws, will in effect, issue orders to be followed by the citizens. Now it is time for We The People to do that which we expect from our soldiers. Refuse to comply. The states need to assert their Tenth Amendment power by passing Enumerated Powers legislation. As more states take a stand and limmit federal power within their borders, we will get the changes we seek in Washington D.C. As long as we continue to fight this battle on the terms that have been laid down by Washington, they have the advantage and victory will remain beyond our reach. The time has come for the American civilian population to prove that we deserve all the sacrifices we have expected and accepted from those who have served throughout our history. Are we willing to get off the bus and actually take a stand, or will we just hold signs until it is all gone?
Term limits seem the antidote to anaccumulation of improper power.Power has the ability to corrupt and these life time Senators and Conressmen are a blith on “we the people”.Their arrogance is alarming and indicates the dangers we have fallen into while we were sleep walking. This health care Bill has set off many many alarm clocks. Thank heavens.