Guest Essayist: Marc Lampkin, partner at Quinn Gillespie and graduate of Boston College Law School

In 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


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