The 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.


Federalist 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

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


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

Publius 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


Greetings from Mt. Vernon, Virginia!

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

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

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

In Federalist 51, Publius writes:

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

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

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

“Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?”

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

Stay cool!

Cathy Gillespie

Wednesday, July 21st, 2010