Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Federalist 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

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