James Madison - The Federalist No. 39

James Madison - The Federalist No. 39 - FEDERALISM 3.1...

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Unformatted text preview: FEDERALISM 3.1 JAMES MADISON The Federalist, No. 39 James Madison portrays the American government as having a dual nature. He uses the terminology of national versus federal to describe the underlying ten- sions in the constitutional design. Some institutional features (national) repre— sent the entire people, while others (federal) represent the states. The last paper having concluded the observations which were meant to intro— duce 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 fun- damental 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 parti- cle of the supreme authority is derived from the people, has passed almost From James Madison, The Federalist, No. 39 (1788). 78 . JAMES MADISON universally under the denomination of a republic. The sam: titie }has been bestowed on Venice, where absolute power over the great he y o. t e people is exercised, in the most absolute manner, by a small body of hei editary 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 aristoc- racy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as diSSImil‘ar 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 oppres- sions 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 SUFFI- CIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appoint- ments 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 t0 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 ten- ure of good behavior. On comparing the Constituti dard here fixed, we perceive at abl on Planned by the convention with the stan- The Federalist, No. 89 I 79 States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican stan— dard, 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, how- ever, 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 objec- tion is founded, it will be necessary to a just estimate of its force, first, to ascer- tain 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 Constitu- tion 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 i | l 80 I JAMES MADISON 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 under- stood 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 con- sideration, 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, dif- fering 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 sidered 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 estab- lIshed, be a FEDERAL, and not a NATIONAL constitution. The Federal/st, No. 39 I 81 federacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitu- tion by this criterion, it falls under the NATIONAL, not the FEDERAL charac- ter; 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 suprem- acy, 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 juris- dictions, 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 Constitu- tion; 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 estab— lished 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 posi- tion 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 82 I JAMES MADISON 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 amajority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from PUBLIUS 3.2 WILLIAM H. RIKER From Federalism: Origin, Operation, Significance In this selection from his classic book on federalism, Riker offers a largely nega- tive view of American federalism. While the benefits of federalism can be identi- fied in theory, the costs have been steep in actual practice." through the 19605 the protection of privileged, wealthy minorities by state governments resulted in the oppression of poor, previously enslaved minorities. IS THE FEDERAL BARGAIN WORTH KEEPING? Up to this point this interpretation of federalism has been as simply descrip— tive as I have been able to keep it. The questions of whether or not federalism is superior to its contemporary alternative, unitary government, or its previ- ous alternative, imperialism; of whether or not federalism makes for good government or the good life; of whether or not federalism is an effective instrument of political integration—all these I have tried to keep out of the discussion in order to concentrate on the descriptive questions: What occa- sions federalism and what maintains it? But most of the interest in federalism, both academic and popular, is about the further question: Is federalism worth keeping? And so in this final chap- ter we shall consider this moral question, not attempting to answer it but rather attempting to indicate some of the considerations that may properly enter into the answer, Please note that I put the question "Is federalism worth keeping?” not “Is federalism worth Starting?” If the argument has any validity at all, the latter question is trivial. In the drive for territorial expansion at the breakup of Empire, one either needs to use the federal device to expand or one does not. Normative conSiderations presumably do not enter into calculation, once the decision to expand has been made. (Of course, that decision is itself normative; but, once it is made, the decision on the procedure of expansion is purely tech- nical. Since the normative question is usually settled by unconscious consen- sus, the salient question at the beginning of federalisms is typically the technical one.) But even if the original question of adopting federalism is purely technical, From William H, Riker, Federalism: Origin, Operation, Significance (Boston: Little, Brown, 1964). 83 ...
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