The only way for the United States to wrestle the reins of power from the general government is a renaissance of State powers as codified by the Tenth Amendment to the Constitution. Only then will we have true government by the “consent of the governed.”
The Articles of ConfederationBrion McClanahan, Ph.D., Daily Essay 2013 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article III, Brion McClanahan PhD, Constitutional Amendment X, Constitutional Amendment X, Declaration of Independence, The Articles of Confederation, The Constitution of the United States of America
If Jay Leno were to conduct a “Man on the Street” segment and ask random Americans to name the first constitution for the United States, the answers would probably range from, “The Declaration of Independence,” to “the Preamble,” to “Who cares?” The answer, of course, is The Articles of Confederation and Perpetual Union. American ignorance of the Articles is problematic for several reasons, not the least of which being a lack of understanding about the fundamental structure of the American general government. The Articles of Confederation is, in fact, the most maligned and misunderstood document in American political history. It is the bedrock of the United States Constitution which replaced it, and the Founders’ conception of Union and the appropriate powers of government can be found in its Thirteen Articles. Read more
Amendment X: Modern Issues of States’ RightsAnalyzing the Amendments in 90 Days 2012 Project, Brion McClanahan, Ph.D., Constitution Amendment X 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I Section 08, Bill of Rights, Brion McClanahan PhD, Constitutional Amendment X, Constitutional Amendment X, The Constitution of the United States of America
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.
Modern Issues Of States’ Rights
Ninety percent, if not more, of what the central government does today is unconstitutional. All of the following legislation violates the Tenth Amendment: national healthcare, welfare, all federal education programs, federal highway construction and funding, the National Defense Authorization Act, gun control, the Federal Reserve System, etc., and these are just some of the large issues. An itemized list based on a modern federal budget would be too substantial to publish in a book length project, let alone a short essay. Proponents of the Tenth Amendment in the founding generation viewed it as a necessary check on the power of the general government and in particular the famous “sweeping” or “elastic” clauses of the Constitution, i.e., the “general welfare clause,” the “supremacy clause,” the “necessary and proper clause,” and now the infamous “commerce clause.” The Tenth Amendment was designed to keep domestic issues under the purview of the States and leave matters of commerce (meaning interstate and international trade) and defense in the hands of the general authority. In essence, every time the central government abuses its Constitutional authority it is violating the Tenth Amendment. But for the sake of argument, the most important and egregious violations of the Tenth Amendment today are as follows:
“Obamacare”: Regardless of what the Supreme Court decides in June, the “Affordable Care Act” is a gross violation of the Tenth Amendment to the Constitution. In fact, the States would do well to individually strike it down by invoking the Tenth Amendment, as Thomas Jefferson and James Madison did with the Virginia and Kentucky Resolutions of 1798 in response to the blatantly unconstitutional Sedition Act. As per Article 1, Section 8, regulating healthcare is not one of the delegated powers of the general government, and the commerce clause does not apply in this case because the general government cannot regulate the commercial exchange of individuals nor can it mandate that individuals engage in a commercial activity. Proponents of the Constitution continually argued in 1787 and 1788 that if the Constitution was mute on an issue, then the general government did not have the said power. The States, however, can, and thus if the States want to address healthcare, and the respective State constitution allows it, they are free to do so.
The National Defense Authorization Act for 2012: While this piece of legislation has support among Republicans, it unconstitutionally enlarges the powers of the executive branch and has the potential to place all American citizens under martial law, thus unconstitutionally suspending the civil court system in the United States. The general government cannot constitutionally interfere with the State judicial systems nor can it constitutionally give the executive branch the power to suspend habeas corpus. Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time. The Supreme Court even struck down his heavy handed tactics and later negated congressional attempts to supersede State courts with military tribunals during the Reconstruction era. Congress has forgotten or neglected to remember those decisions.
The Federal Reserve: The FED is at the heart of the current economic meltdown, and central banking has long been a contentious issue in American politics. During the Philadelphia Convention in 1787, the Pennsylvania delegation suggested giving the power for chartering a bank to the Congress but were soundly defeated. No matter. In 1791, Alexander Hamilton made a central bank “constitutional” by stretching the “necessary and proper clause” of the Constitution, something he said would never happen when arguing for ratification in the Federalist essays. The Bank of the United States failed re-charter in 1811 but was replaced with another in 1816, with James Madison’s support. His reason was dubious. Time and circumstances, he said, had made the Bank constitutional. Central banking supporters never looked back. Of course, Andrew Jackson destroyed this Second Bank of the United States, but the legislative precedent had been set. When the “Creature of Jekyll Island,” also known as the Federal Reserve System, appeared in 1913, thanks to Hamilton, Madison, and John Marshall who ruled the Bank was constitutional in the infamous 1819 McCulloch v. Maryland decision, no one questioned its constitutionality. But, if Americans followed the Constitution as ratified and amended by the Tenth Amendment, the Federal Reserve would fail the constitutional sniff test. Chartering a bank or a central banking system is not a delegated power of the general government.
All Social Welfare Legislation Including Education and Entitlement Spending: In the 1942 Supreme Court decision Wickard v. Filburn, the Court found that anything that might be considered “interstate commerce” fell under the authority of federal regulation, including economic activity such as growing your own food on your own land. In essence, the “commerce clause” has become the “Hey, you-can-do-whatever-you-feel-like Clause,” as federal judge Alex Kozinski pointed out in 2005. All federal social welfare spending falls either under the so called “commerce clause” or the “general welfare clause,” and according to the founding generation both were restricted by the Tenth Amendment. None of this legislation can be found in the enumerated powers of Article 1, Section 8 unless they are “stretched,” something opponents of the Constitution feared would happen. That was the driving force behind a “States’ Rights” amendment in the Bill of Rights to begin with. If the States had a backbone (and were not slopping at the federal trough) they would interpose their control over such issues, invoke the Tenth Amendment, and strike them from the books.
In 1788, Tench Coxe of Pennsylvania, an ardent supporter of the Constitution and member of the Continental Congress, wrote that,
[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices, building light houses, public wharves, county [jails], markets, or other public buildings…nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.
And later he said, “In short besides the particulars enumerated, every thing of a domestic nature must or can be done by them [the States].” Translation, the general government in Washington D.C. cannot constitutionally do most of what it does today. To proponents of a Bill of Rights, the Tenth Amendment was there to legally ensure Coxe was correct. The Tenth Amendment is more than a protection of “States’ Rights,” it is a check on a tyrannical and unconstitutional abuse of authority by the central government.
Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).
April 16, 2012
Amendment IXAnalyzing the Amendments in 90 Days 2012 Project, Brion McClanahan, Ph.D., Constitution Amendment vIX 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Brion McClanahan PhD, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Federalist No. 84, The Constitution of the United States of America
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In the waning days of the Philadelphia Convention in 1787, George Mason of Virginia, Elbridge Gerry of Massachusetts and Luther Martin of Maryland began pressing for the addition of a comprehensive bill of rights to the final draft of the Constitution. Roger Sherman of Connecticut immediately rejected their plea. A bill of rights, he said, was unnecessary because “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient….” Sherman, a man who Thomas Jefferson regarded as one of the finest statesmen of the founding generation, reasoned that because the Constitution was mute on civil liberties and because it was a document with delegated and enumerated powers for the general purposes of the Union—the States United—the general government could no more legislate on matters of trial by jury than it could on the minutia of state law. Gerry’s proposal to form a committee to draft of a bill of rights was unanimously defeated (votes were by State), and as a result Mason said he would rather cut off his right hand than sign the document. This exchange began the process for codifying the language of the Ninth Amendment.
During the ratifying process in the State conventions, several leading proponents of the document made arguments against a bill of rights that mirrored those Sherman gave in the Philadelphia Convention. James Wilson of Pennsylvania, perhaps the most ardent nationalist among the founding generation, said in the Pennsylvania Ratifying Convention that “A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”
Alexander Hamilton of New York, the most famous nationalist of the founding period, echoed Wilson in Federalist No. 84. Adding a bill of rights, he said, “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?” Both Hamilton and Wilson contended that a bill of rights would destroy liberty rather than protect it by allowing scheming men to enlarge the power of the central authority. In short, if a particular liberty was not protected by the list of rights, they believed it could be assumed that the government had the power to abridge that liberty. And, since all powers delegated to the general government were enumerated in the Constitution, they wondered why open that Pandora’s Box?
Thus, the modern Ninth Amendment was born. As proposals for a bill of rights flooded into James Madison’s hands in the months after the Constitution was ratified, he quickly realized that individuals needed assurances that their liberties would not be circumscribed by the Constitution nor would they be left to flutter in the wind should ambitious men usurp power from the States or the people. The Tenth Amendment protects the States and most importantly the federal compact among the States. The Ninth does the same for the people individually by implicitly recognizing the validity—and to the founding generation supremacy—of the several State declaration of rights. It is an enhancer. The original preamble to the Bill of Rights expressly stated that they were “restricting clauses” on the general government only. The Ninth Amendment ensured that the powers of the general government as operating on individuals would be further checked by the States. State declaration of rights often tended to be more detailed and comprehensive and therefore served as a more effective shield for the people.
Madison said in 1789 that Hamilton’s argument against the Bill of Rights was “one of the most plausible…I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.” He was referring to the Ninth Amendment. Of course, the powers of the general government in the modern era have spiraled out of control and today the two most ignored Amendments in the Bill of Rights are the Ninth and Tenth, arguably the most important Amendments to the founding generation. The States have always stood at the vanguard of individual liberty. American citizens should remember that their first line of defense against both the State and Federal government rests in their separate State bill of rights. The founding generation believed that those declared rights coupled with the Ninth Amendment would prevent the modern leviathan in Washington D.C. We need to protect their legacy.
Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).
April 11, 2012
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. 34
By 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. 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. 50
The 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. 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. 58
James 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.