DP Tool Club 19/CD_ASCQ_19_010295.iso/vrac/com_gnd.zip/THEORY.DP

Common Ground | 1994-10-20 | 327KB | 3,650 lines

'CGDC
Times
UltraShadow
The Political Theory
of the Framers
CasqueOpenFace
Barry Krusch
Machine
DRAFT EDITION
Internet Press
*  Knowledge at the blink of an eye
Bookman
^+Electronic Copyright
 1994 by Barry Krusch
This document
)HBmay be (re-transmitted) by (any person, group, or organization) to
^.(any other person, group, or organization) in
"(DP ELECTRONIC form only) via (any
^+electronic mode or media, including modem,
storage on a BBS server, CD-ROM
^Ddistribution, DAT, Syquest, E-Mail, LocalTalk, Ethernet, FTP, ISDN,
floppy disc, or
Iother electronic mode of transmission) without (financial compensation to
^.Internet Press), provided that (no characters
#are added, substituted, rearranged,
^-omitted or otherwise altered, other than for
&exclusively personal use) and (that no
^:hard copies are made, other than for exclusively personal
use, or to give to a friend,
Mfor non-profit educational purposes). This right does not extend to documents
^0saved in a format other than DP ELECTRONIC form.
NOTE TO USER: The purpose of
6retaining copyright is to insure the textual integrity
of the following document.
Avant Garde
LAST UPDATED:  October 20, 1994
7The latest version of this document may be obtained at
ftp.netcom.com
/pub/krusch
Times
Delphian
ABOUT THIS DOCUMENT
Caslon 540 Roman
l+This article is a much extended version of
a three-page section in my
H(book THE 21ST CENTURY CONSTITUTION.  It
was trimmed for
reasons of space.
)s8This article is, in essence, a synopsis of the arguments
made in
The Federalist
 for
2the Constitution, the political classic written in
defense of the Constitution.
Because
The Federalist
 is difficult to read, and
HFfairly long, I digested its arguments into a more understandable form.
6About 80% of the way through writing this, I realized
that the section
Ftoo lengthy, so I wasn
t going to be able to include it in the book. I
HDstopped working on it.  In particular, some of the formatting, such
as bold and
italic, is not
)HCwhat it should be. Consequently, this article is currently in draft
form, in a pre-edited
2state.  One day when I have more time, I
ll do the
H"necessary polishing, etc.  In the
+meantime, I think it may be useful for many
H#people, so I
m making it available.
Times
Caslon 540 Roman
l@The Defective Articles of Confederation (our first Constitution)
 The Framers of our Constitution
6were faced with a decaying nation.  They realized that
their problems resulted from a
$defective constitutional structure,
a system so radically
H2vicious and unsound, as to admit not of amendment
but by an entire change in its
H!leading features and characters.
)They were also aware of the significance
of this problem.
As Hamilton stated,
4crisis at which we are arrived may with propriety be
regarded as the era in
)~:which that decision is to be made; and a wrong election of
H1the part we shall act may, in this view, deserve
to be considered as the general
misfortune of mankind.
The Framers knew
)\1that their constitution had to be re-written, but
H#they also knew that the short-term
=interests of those in power would interfere with the national
H    interest:
Happy will it
)F>be if our choice should be directed by a judicious estimate of
l?our true interests, unperplexed and unbiased by considerations
connected
);>with the public good.  But this is a thing more ardently to be
l0wished than seriously to be expected.  The plan
offered to our deliberations
l:affects too many particular interests, innovates upon too
many local
institutions, not to
)a=involve in its discussion a variety of objects foreign to its
lCmerits, and of views, passions, and prejudices little favorable to
discovery of truth.
The other authors of
Federalist
)64tried to impress upon the people of the magnitude of
HOthe decision they were about to make, and to strictly scrutinize the claims of
the special interests
HUwho wished to obstruct change, and the arguments of those who favored change. As Jay
stated,
WHEN the people of America reflect that they are now
called upon to decide a
question,
)9Ewhich, in its consequences, must prove one of the most important that
H>ever engaged their attention, the propriety of their taking a
very comprehensive,
H8as well as a very serious, view of it, will be evident.
0So serious were the problems that the a Federal
"Convention was called to amend the
HHArticles of Confederation. The convention opened on May 29, 1787 with a
speech by Governor
H[Randolph of Virginia, which articulated the problems with the Articles. According to notes
taken
McHenry,
)>-He observed that the confederation fulfilled
 of the objects for
which it was framed.
41st. It does not provide against foreign invasions.
 2dly.  It does not
Hbsecure harmony to the States.  3d.  It is incapable of producing certain blessings to the States.
 4. it
cannot defend itself
)eIagainst encroachments.  5th.  It is not superior to State constitutions.
 Federalist
22, Hamilton
Federalist 1
 Federalist 1
 Federalist 2
" Records of the Federal Convention
, Farrand (RFC) V. 1, p. 24
Times
HDRandolph then specified the problems with the existing constitution:
Caslon 540 Roman
11st It does not provide against foreign invasion.
@If a State acts against a foreign power contrary to the laws of
nations or
violates a treaty, it cannot
1punish that State, or compel its obedience to the
treaty.
  It can only leave the
(offending State to the operations of the
l6offended power.  It therefore cannot prevent a war. .
. . A State may
encroach on
)C<foreign possessions in its neighbourhood and Congress cannot
prevent it. . . . None of
)w5the judges in the several States under the obligation
l2of an oath to support the confederation, in which
view this writing will be
l,made to yield to State constitutions. . . .
Imbecility of
the Confederation
equally conspicuous
)m6when called upon to support a war. . . . The States in
l.arrears to the federal treasury . . . Nothing
!short of a regular military force
l will answer the end of war, and
(this only to be created and supported by
money.
,2. It does not secure harmony to the States.
It cannot
)3Bpreserve the particular States against seditions within themselves
l*or combinations against each other. . . .
No provision to prevent
the States
breaking out into war. . . .
*3. Incapable to produce certain blessings.
DThe benefits of which we are singly incapable cannot be produced by
union.
)    B. . . Under this head may be considered the establishment of great
l;national works
  the improvement of inland navigation
 agriculture
l8manufactures
  a freer intercourse among the citizens.
14. It cannot defend itself against encroachments.
(. . . In every State assembly there has
been a party opposed to federal
l5measures.  The States have been therefore delinquent.
  To
What expedient
l4can congress resort, to compel delinquent States to
do what is right.  If
force, this force must be
0drawn from the States, and the States may or may
not furnish it.
#5. Inferior to State constitutions.
:State constitutions formed at an early period of the war,
and by persons
lDelected by the people for that purpose. . . . The confederation was
formed
l.long after this, and had its ratification not
 by any special appointment  from
Times
Caslon 540 Roman
l,the people, but from the several assemblies.
  No
judge will say that the
l3confederation is paramount to a State constitution.
Here Randolph sounded the main
/themes.  The Articles of Confederation did not
unite
H#states.  Consequently, America was
:subject to attack from foreign powers.  Because the States
HEwere not obliged to contribute to the National Government, and there
was no way to force them to
H-pay, some States decided not to contribute.
0And, because there was no national power, it was
difficult,
)-Rif not impossible, to accomplish those goals only a national government would make
possible.
Randolph then went on to say,
Thus we see that the confederation is
incompetent to any
 object for which it
was instituted.
The framers of it were
wise
Iand great men; but . . . [n]one of those vices that have since discovered
themselves were apprehended.
7Here Randolph asserted the obvious.  It was impossible
H^expect men to be able to predict the future; thus, it was impossible for a Constitution to be
good for
H0all time, because times change. And considering
J*the historical circumstances, the existing
Constitution was
necessarily
 flawed.  Why?  Because
)y+the States were formed out of colonies, and
HYeach State had its own separate form of government. Thus, the politicians in every state
HUjealous of their power, and were not liable to give it up.  Thus, a Constitution had
to give power to
the States
)?Smore power than they were due, as it turned out.  Randolph recognized this:
. . .
H perhaps nothing better could be
=obtained from the jealousy of the states with regard to their
sovereignty.
>Due to this historical background, Hamilton, Madison, and Jay
had to write
Federalist
, and demonstrate to the
)tA people that they were living under a defective political system.
The Federalist
Q attempted to enumerate these defects, of which Randolph had given only a partial
listing.  For example,
)u5legislation by 13 different States was unnecessarily
duplicative
, and
unnecessarily
)C    expensive
l3[T]he sessions of the State legislatures have been
protracted greatly beyond
what was necessary for
/the execution of the mere local business of the
States.  More than
)c7half their time has been frequently employed in matters
l$which related to the United States.
  Now the members who compose the
legislatures of the
)d2several States amount to two thousand and upwards,
l3which number has hitherto performed what under the
new system will be
done in the first
)U;instance by sixty-five person . . .  The Congress under the
l proposed government will do all
!the business of the United States
themselves, without
)w/the intervention of the State legislatures, who
l(thenceforth will have only to attend to
&the affairs of their particular State,
and will not have
)`8to sit in any proportion as long as they have heretofore
done.
#  RFC V. 1, May 29, 1991., p. 24-26
!RFC V. 1, May 29, 1991., p. 24-26
  RFC v. 1, pp. 18-19
Federalist
84, Hamilton
Times
CThe Articles had produced division; the Articles were inefficient;
and the Articles produced
economic stagnation:
Caslon 540 Roman
A[T]here are material imperfections in our national system, and .
something is
)F9necessary to be done to rescue us from impending anarchy.
l+The facts that support this opinion are no
longer objects of speculation.
lBThey have forced themselves upon the sensibility of the people at
large,
and have at length extorted
-from those, whose mistaken policy has had the
l!principal share in precipitating
(the extremity at which we are arrived, a
l-reluctant confession of the reality of those
defects in the scheme of our
l5federal government, which have been long pointed out
and regretted by the
l'intelligent friends of the Union. . . .
We may indeed
)X1with propriety be said to have reached almost the
lDlast stage of national humiliation. . . . These are the subjects of
constant and
lDunblushing violation.  Do we owe debts to foreigners and to our own
citizens
contracted in a time of
)}4imminent peril for the preservation of our political
existence?
):> These remain without any proper or satisfactory provision for
l-their discharge. . . . The price of improved
!land in most parts of the country
l;is much lower than can be accounted for by the quantity of
waste land at
market, and can
)X:only be fully explained by that want of private and public
l8confidence, which are so alarmingly prevalent among all
ranks, and which
lChave a direct tendency to depreciate property of every kind . . . .
Hamilton began by
)]Cfocusing on the economic problems with the country.  These resulted
HJfrom a set of inadequate laws passed because the laws were not passed for
people
, but for
states
l"The great and radical vice in the
*construction of the existing Confederation
is in the principle of
)j&LEGISLATION for STATES or GOVERNMENTS,
l-in their CORPORATE or COLLECTIVE CAPACITIES,
and as
lBcontradistinguished from the INDIVIDUALS of which they consist. .
. . the
l United States has an indefinite
+discretion to make requisitions for men and
money;
))Dbut they have no authority to raise either, by regulations extending
to the individual citizens
-of America.  The consequence of this is, that
though
),>in theory their resolutions concerning those objects are laws,
lFconstitutionally binding on the members of the Union, yet in practice
l    are mere
)2>recommendations which the States observe or disregard at their
option. . . .
#The measures of the Union have not
been executed; the
delinquencies of
)Y=the States have . . . arrested all the wheels of the national
Federalist
Times
Caslon 540 Roman
government,
)E:and brought them to an awful stand.  Congress at this time
scarcely possess the means
/of keeping up the forms of administration, till
l)the States can have time to agree upon a
#more substantial substitute for the
present
),<shadow of a federal government.  Things did not come to this
l9desperate extremity at once.  The causes which have been
    specified
l?produced at first only unequal and disproportionate degrees of
compliance
with the requisitions of the
/Union.  The greater deficiencies of some States
l7furnished the pretext of example and the temptation of
interest to the
complying, or to
)Y6the least delinquent States.  Why should we do more in
l/proportion than those who are embarked with us
in the same political
voyage?  Why should we consent
)to bear more than our proper share of the
common
)0=burden?  These were suggestions which human selfishness could
not withstand, and which even
&speculative men, who looked forward to
l;remote consequences, could not, without hesitation, combat.
Due to their focus on their
>short-term self-interest, some states did not pay the national
HOgovernment what they owed.  And, because State A was delinquent, State B said,
Why should
H*we cooperate?
  The Framers realized that
.it was useless to ask States to make voluntary
H4contributions to the national welfare.  They had to
    compelled
)0" to make contributions.  Without a
H/penalty for disobedience, laws were for naught:
.Government implies the power of making laws.
It is essential to the idea of
l,a law, that it be attended with a sanction;
 or, in other words, a penalty or
l4punishment for disobedience. If there be no penalty
annexed to
lCdisobedience, the resolutions or commands which pretend to be laws
will, in
l;fact, amount to nothing more than advice or recommendation.
l< But there was no sanction in the Articles of Confederation:
The United States,
)h4as now composed, [has] no powers to exact obedience,
Hpunish disobedience to the resolutions, either by pecuniary mulcts, by a
l3suspension of divestiture of privileges, or by any
other constitutional mode. .
. . the United States afford
+the extraordinary spectacle of a government
destitute
)59even of the shadow of constitutional power to enforce the
execution of its own laws.
/In a grouping of confederated states, where no
$formal constitutional sanctions were
H#provided, punishments would not be
civil
, but
military
Federalist
Federalist
Federalist
Times
Caslon 540 Roman
In an association where the
/general authority is confined to the collective
l8bodies of the communities that compose it, every breach
of the laws must
l/involve a state of war; and military execution
must become the only
l,instrument of civil obedience. Such a state
of things can certainly not
l:deserve the name of government, nor would any prudent man
    choose to
commit his happiness to it.
OIn a grouping of confederated states, the members would do what they wanted to
There would be no uniform
Fstandard that all would be required to comply with; rather, each State
would set its own standards:
The rulers of the respective
+members, whether they have a constitutional
l)right to do it or not, will undertake to
&judge of the propriety of the measures
l/themselves.  They will consider the conformity
of the thing proposed or
l    required
)/@to their immediate interests or aims; the momentary conveniences
or inconveniences
)a<that would attend its adoption.  All this will be done . . .
l@without that knowledge of national circumstances and reasons of
state,
l6which is essential to a right judgment, and with that
strong predilection in
lFfavor of local objects, which can hardly fail to mislead the decision.
PBut obviously, the same people who benefited from the problem would be the same
people
H%to oppose a solution for the problem:
It is a singular instance of
0the capriciousness of the human mind, that after
l3all the admonitions we have had from experience on
this head, there should
still be found men
)a8who object to the new Constitution, for deviating from a
l8principle which has been found the bane of the old, and
which is in itself
l7evidently incompatible with the idea of GOVERNMENT. . .
    [F]acts,
)-7too stubborn to be resisted, have produced a species of
l6general assent to the abstract proposition that there
exist material defects in
our national system
)e(; but the usefulness of the concession,
on the part of the
l7old adversaries of federal measures, is destroyed by a
strenuous opposition
lCto a remedy, upon the only principles that can give it a chance of
success.
l,While they admit that the government of the
United States is destitute of
l(energy, they contend against conferring
upon it those powers which are
requisite to supply that
energy.
)*+ They seem still to aim at things repugnant
l*and irreconcilable; at an augmentation of
federal authority, without a
l5diminution of State authority; at sovereignty in the
Union, and complete
Federalist
Federalist
Times
Caslon 540 Roman
independence in the members.
  They still, in fine, seem
to cherish with
blind devotion the political
monster of an
imperium in imperio
This renders
l(a full display of the principal defects
"of the Confederation necessary, in
order to show that
 the evils we experience do
not proceed from minute or
lGpartial imperfections, but from fundamental errors in the structure of
lEbuilding, which cannot be amended otherwise than by an alteration in
l0first principles and main pillars of the fabric.
OTo maintain this attitude against substantive change in the face of reason was
to court
H    disaster:
2This is the melancholy situation to which we have
been brought by those
l)very maxims and councils which would now
deter us from adopting the
l:proposed Constitution; and which, not content with having
conducted us to
l2the brink of a precipice, seem resolved to plunge
us into the abyss that
awaits us
)7:below.  Here, my countrymen, impelled by every motive that
lCought to influence an enlightened people, let us make a firm stand
for our
safety, our tranquillity,
)x6our dignity, our reputation.  Let us at last break the
fatal charm which has
)z2too long seduced us from the paths of felicity and
prosperity.
,After presenting a important doctor/patient
+analogy,
[t]o form a safe and satisfactory
judgment of the
)MPproper remedy, it is absolutely necessary that we should be well acquainted with
)extent and the malignity of the disease,
1 Hamilton went on to note other problems with the
H    Articles:
 A circumstance which crowns the
(defects of the Confederation remains yet
l*to be mentioned,--the want of a judiciary
"power. To produce uniformity . . .
[laws] ought
)K3to be submitted, in the last resort, to one SUPREME
l-TRIBUNAL. . . . To avoid the confusion which
would unavoidably result
l!from the contradictory decisions
(of a number of independent judicatories,
all nations
)8?have found it necessary to establish one court paramount to the
rest, possessing a general
-superintendence, and authorized to settle and
l;declare in the last resort a uniform rule of civil justice.
This is the more necessary
'where the frame of the government is so
l compounded that the laws of the
(whole are in danger of being contravened
l$by the laws of the parts. . . . The
(treaties of the United States, under the
l$present Constitution, are liable to
%the infractions of thirteen different
Federalist
Federalist
Federalist
Times
Caslon 540 Roman
lBlegislatures, and as many different courts of final jurisdiction,
acting under
l5the authority of those legislatures.  The faith, the
reputation, the peace of
the whole Union, are thus
/continually at the mercy of the prejudices, the
lFpassions, and the interests of every member of which it is composed.
Is it
l)possible that foreign nations can either
respect or confide in such a
l/government?  Is it possible that the people of
America will longer consent to
l2trust their honor, their happiness, their safety,
on so precarious a
foundation?
Thus, a Supreme Court would
8be necessary to bring order to the determinations of the
H1Nation, by binding the States with its decisions.
:But how could a government so defective be adopted in the
!first place?  The Articles, after
HQall, were not adopted hastily.  They were first proposed in 1777, but did not go
into effect until
H91781, when Maryland became the last state to ratify them.
& The Articles were not ratified by the
people,
but by the
states
B.  One of the reasons the Articles were so inadequate is that the
people who
HVwere bound by them were not consulted.  Minority rule produced the Articles, but only
Majority
H-rule could produce an effective Constitution:
:It has not a little contributed to the infirmities of the
existing federal system,
that it never had
)a3a ratification by the PEOPLE.  Resting on no better
foundation than the consent of
-the several legislatures, it has been exposed
lKto frequent and intricate questions concerning the validity of its powers,
has, in some
)F=instances, given birth to the enormous doctrine of a right of
l%legislative repeal. . . . The fabric
'of American empire ought to rest on the
l7solid basis of THE CONSENT OF THE PEOPLE.  The streams
l3national power ought to flow immediately from that
pure, original fountain
of all legitimate authority.
>To solve the problems, the people were to ratify a government
which would give the
government the powers it
needed:
. . .
+government ought to be clothed with all the
H5powers requisite to complete execution of its trust.
 Without a strong
national
H5government, there was little point in having a Union:
<Is there not a manifest inconsistency in devolving upon the
federal
government the care
)w0of the general defence, and leaving in the State
l?governments the effective powers by which it is to be provided
for?  Is not a
l0want of co-operation the infallible consequence
of such a system?  And will
Federalist
The Anti-Federalist Papers,
 p. 357.
Federalist
Federalist
Times
Caslon 540 Roman
l"not weakness, disorder, and undue
distribution of the burdens and
l>calamities of war, an unnecessary and intolerable increase of
expense, be its
l.natural and inevitable concomitants? . . . it
is both unwise and dangerous to
l+deny the federal government and unconfined
authority, as to all those
l3objects which are intrusted to its management.  It
will indeed deserve the
lMmost vigilant and careful attention of the people to see that it be modelled
such a manner as
)f6to admit of its being safely vested with the requisite
powers.  If
)I2any plan which has been, or may be, offered to our
lEconsideration, should not, upon a dispassionate inspection, be found
answer this description, it
(ought to be rejected.  A government, the
lBconstitution of which renders it unfit to be trusted with all the
powers which
l'a free people ought to delegate to any
"government, would be an unsafe and
l.improper depositary of the NATIONAL INTERESTS.
l= The New Constitution to Cure the Prisoners
s Dilemma Disease
While their arguments for
)|)unity made eminent sense, the authors of
The Federalist
 had to
HVcounter an argument made by many: true, the Articles of Confederation were imperfect,
but it
H6would be impossible to create any government that can
M+control one nation of the size and scope of
HWthe United States.  The only answer, as these individuals saw it, was to divide up the
United States
into three or four
)SMseparate Nations, each distinct and supreme within its own sphere.  Though on
HXlooking back we can see that this would have been a disaster (considering the Civil War
as just one
H2example of what might have happened), certain men
I+of the time were not similarly enlightened.
HXBut Jay, Hamilton, and Madison were intuitively and empirically aware of the Prisoner
Dilemma.
[was truly naive to think that separating the states would preserve harmony
  in fact, the
contrary was true:
EThe history of Great Britain is the one with which we are in general
the best
acquainted, and
)Z8it gives us many useful lessons.  We may profit by their
experience without paying the
,price which it cost them.  Although it seems
l:obvious to common sense that the people of such an island
should be but
one nation, yet
)P<we find that they were for ages divided into three, and that
l-those three were almost constantly embroiled
in quarrels and wars with one
l.another.  Notwithstanding their true interest
with respect to the continental
lInations was really the same, yet by the arts and policy and practices of
those
nations, their mutual
)r4jealousies were perpetually kept inflamed, and for a
lElong series of years they were far more inconvenient and troublesome
l3they were useful and assisting to each other. . . .
Should the people
)e/of America divide themselves into three or four
l    nations,
)->would not the same thing happen?  Would not similar jealousies
arise, and be
)H<in like manner cherished?  Instead of their being "joined in
Federalist
23, Hamilton
Times
Caslon 540 Roman
l*affection" and free from all apprehension
"of different "interests," envy and
l9jealousy would soon extinguish confidence and affection,
and the partial
l@interests of each confederacy, instead of the general interests
of all America,
l    would be
)5@the only objects of their policy and pursuits.  Hence, like most
other bordering nations,
0they would always be either involved in disputes
l6and war, or live in the constant apprehension of them.
l  Hamilton echoed Jay
s insights:
[If the] States
)N<should either be wholly disunited, or only united in partial
confederacies,
)P6the subdivisions into which they might be thrown would
have
Cfrequent and violent contests with each other. To presume a want of
motives for
)<>such contests as an argument against their existence, would be
l2to forget that men are ambitious, vindictive, and
rapacious.  To look for a
l,continuation of harmony between a number of
independent, unconnected
sovereignties
)F;in the same neighborhood, would be to disregard the uniform
l&course of human events, and to set at
#defiance the accumulated experience
of ages.
1There were many pretexts for states to subdivide
%and disagree, and a disunited America
would be prey to them all:
The causes
)B-of hostility among nations are innumerable.
There are some
l which have a general and almost
&constant operation upon the collective
bodies of
)2"society.  Of this description are
the love of power
or the desire of
preeminence and dominion--the
,jealousy of power, or the desire of equality
and safety. . . .
8There are others which have a more circumscribed though
l;equally operative influence within their spheres. Such are
the rivalships and
l:competitions of commerce between commercial nations. . . .
And there are others,
)t,not less numerous than either of the former,
l$which take their origin entirely in
private passion
s; in
the attachments,
l=enmities, interests, hopes, and fears of leading individuals
in the
communities of which they are
members.
Men of this class, whether the
favorites of a king or
)q2of a people, have in too many instances abused the
l(confidence they possessed; and assuming
the pretext of some public
motive, have
)G?not scrupled to sacrifice the national tranquillity to personal
l%advantage or personal gratification.
Federalist
5, Jay
Federalist
6, Hamilton
Federalist
6, Hamilton
Times
    And with
)1Mdivision into separate entities would come the inevitable concomitant of such
divisions, WAR:
Caslon 540 Roman
IT IS sometimes asked, with
+an air of seeming triumph, what inducements
l-could the States have, if disunited, to make
war upon each other?  It would
l8be a full answer to this question to say--precisely the
same inducements
l5which have, at different times, deluged in blood all
the nations in the world.
But, unfortunately for us,
1the questions admits of a more particular answer.
l'There are causes of differences within
#our immediate contemplation, of the
l"tendency of which, even under the
(restraints of a federal constitution, we
l6have had sufficient experience to enable us to form a
judgment of what
l3might be expected if those restraints were removed.
"The unowned territory in the West
6would provide a prize that divided nations would fight
over:
?In the wide field of Western territory, therefore, we perceive
an ample
theatre for
)=:hostile pretensions, without any umpire or common judge to
lCinterpose between the contending parties.  To reason from the past
to the
future, we
)<9shall have good ground to apprehend, that the sword would
lCsometimes be appealed to as the arbiter of their differences. . . .
5The circumstances of the dispute between Connecticut
l7Pennsylvania, respecting the land at Wyoming, admonish
us not to be
lBsanguine in expecting an easy accommodation of such differences.
articles of confederation
/obliged the parties to submit the matter to the
l7decision of a federal court.  The submission was made,
and the court
decided in
):?favor of Pennsylvania.  But Connecticut gave strong indications
of dissatisfaction
)Z:with that determination; nor did she appear to be entirely
resigned to
)B:it, till, by negotiation and management, something like an
l"equivalent was found for the loss
'she supposed herself to have sustained.
Nothing
)1<here said is intended to convey the slightest censure on the
conduct of that State.
)t! She no doubt sincerely believed
herself to have been
injured by
):@the decision; and States, like individuals, acquiesce with great
l3reluctance in determinations to their disadvantage.
CAnd, of course, the competitive nature of trade and business would
very quickly turn
HVbrother against brother, as each divided entity sought to increase its profits at the
expense of the
other:
Federalist
7, Hamilton
Federalist
7, Hamilton
Times
Caslon 540 Roman
The competitions of commerce
#would be another fruitful source of
contention.
:The States less favorably circumstanced would be desirous
l8escaping from the disadvantages of local situation, and
of sharing in the
l/advantages of their more fortunate neighbors.
Each State, or separate
confederacy, would
)i8pursue a system of commercial policy peculiar to itself.
l3This would occasion distinctions, preferences, and
exclusions, which would
beget discontent. . . .
#[P]articular States might endeavor
to secure exclusive benefits to
their own
)6Acitizens.  The infractions of these regulations, on one side, the
efforts to prevent and repel
+them, on the other, would naturally lead to
l*outrages, and these to reprisals and wars.
/The opportunities which some States would have
of rendering
l'others tributary to them by commercial
 regulations would be impatiently
l&submitted to by the tributary States.
#The relative situation of New York,
Connecticut,
)G:and New Jersey, would afford an example of this kind.  New
l:York, from the necessities of revenue, must lay duties on
her importations.
l@A great part of these duties must be paid by the inhabitants of
the two other
l,States in the capacity of consumers of what
we import.  New York would
neither be willing nor able to
.forego this advantage.  Her citizens would not
l4consent that a duty paid by them should be remitted
in favor of the citizens
of her neighbors; nor would it
&be practicable, if there were not this
impediment in the way,
0to distinguish the customers in our own markets.
Would Connecticut
)j2and New Jersey long submit to be taxed by New York
for her exclusive benefit?
=And while all would desire to benefit from union, the States
would, like the animals in the
H=fable, seek to consume the harvest without pulling their own
h&weight.  Financial defections of State
HTA, which may have resulted from necessity, would provide a perfect excuse for State
B to likewise
defect:
#[D]elinquencies in payments on the
'part of some of the States would result
l+from a diversity of other causes--the real
deficiency of resources; the
l9mismanagement of their finances; accidental disorders in
the management
l+of the government; and, in addition to the
rest, the reluctance with which
l!men commonly part with money for
purposes that have outlived the
l>exigencies which produced them, and interfere with the supply
l7immediate wants.  Delinquencies, from whatever causes,
would be
l=productive of complaints, recriminations, and quarrels. . . .
*There is, perhaps, nothing more likely to
disturb the tranquillity of
l)nations than their being bound to mutual
contributions for any common
Federalist
7, Hamilton
Times
Caslon 540 Roman
l<object that does not yield an equal and coincident benefit.
 For it is an
l?observation, as true as it is trite, that there is nothing men
differ so readily
about as the payment of money.
IThusly formed, America would divide itself, and thus conquer itself, and
be a perfect prey
for America
s European enemies:
*America, if not connected at all, or only
%by the feeble tie of a simple league,
l3offensive and defensive, would by the operation of
such jarring alliances, be
l8gradually entangled in all the pernicious labyrinths of
European politics and
wars; and by
)H;the destructive contentions of the parts into which she was
divided, would be likely to
/become a prey to the artifices and machinations
l+of powers equally the enemies of them all.
Divide et impera
 [Divide and
lICommand] must be the motto of every nation that either hates or fears us.
CSome contemporaries of the Framers acknowledged that these effects
were possible, but
said
Ythat with the rise of commerce and trade between states, people would become more unified
H%through their business dealings, and
<the effect would be obliterated.  Hamilton saw this argument
as wholly
visionary
B[N]otwithstanding the concurring testimony of experience, in this
particular,
there are still to be found
.visionary or designing men, who stand ready to
l0advocate the paradox of perpetual peace between
the States, though
dismembered and
)a8alienated from each other.  The genius of republics (say
lFthey) is pacific; the spirit of commerce has a tendency to soften the
manners
l of men, and to extinguish those
&inflammable humors which have so often
l?kindled into wars. Commercial republics, like ours, will never
be disposed to
l-waste themselves in ruinous contentions with
each other.  They will be
governed by mutual
)k9interest, and will cultivate a spirit of mutual amity and
concord.
1Is it not . . . the true interest of all nations
to cultivate the same
lDbenevolent and philosophic spirit?  If this be their true interest,
have they in
l/fact pursued it?  Has it not, on the contrary,
invariably been found that
momentary passions, and
+immediate interests, have a more active and
l%imperious control over human conduct
than general or remote
l.considerations of policy, utility, or justice?
IThe Framers knew that there was no evidence to support this view; it was
nothing more
Federalist
7, Hamilton
Federalist
7, Hamilton
Federalist
6, Hamilton
Times
H^than a form of
wishful thinking.
  This argument had been made before, and was found wanting:
Caslon 540 Roman
4[W]e were told that breaches, by the States, of the
regulations of the federal
l0authority were not to be expected; that a sense
of common interest would
l+preside over the conduct of the respective
members, and would beget a full
lGcompliance with all the constitutional requisitions of the Union. [But]
 . . .
shall
>have received further lessons from that best oracle of wisdom,
experience.
)A' It at all times betrayed an ignorance
of the true springs by
l0which human conduct is actuated, and belied the
original inducements to
l!the establishment of civil power.
8Why has government been instituted at all?  Because the
passions of
l    men will
)7:not conform to the dictates of reason and justice, without
l2constraint.  Has it been found that bodies of men
act with more rectitude or
l-greater disinterestedness than individuals?
The contrary of this has been
l2inferred by all accurate observers of the conduct
of mankind; and the
l+inference is founded upon obvious reasons.
Regard to reputation has a less
active influence, when the
/infamy of a bad action is to be divided among a
l'number, than when it is to fall singly
(upon one.  A spirit of faction, which is
l-apt to mingle it poison in the deliberations
 of all bodies of men, will often
hurry
)"<the persons of whom they are composed into improprieties and
l;excesses, for which they would blush in a private capacity.
IThe fact that the responsibility for an action would be divided up among
many members
H@increased the probability that any one individual would defect,
y and, since there were compelling
HXshort-term reasons for defection, it was not surprising that the States began to defect:
"From this spirit it happens, that
'in every political association which is
l(formed upon the principle of uniting in
a common interest a number of
l!lesser sovereignties, there will
,be found a kind of eccentric tendency in the
l/subordinate or inferior orbs, by the operation
of which there will be a
lKperpetual effort in each to fly off from the common center.  This tendency
l'not difficult to be accounted for.  It
$has its origin in the love of power.
l.Power controlled or abridged is almost always
the rival and enemy of that
l    power by
)5Awhich it is controlled or abridged.  This simple proposition will
l5teach us, how little reason there is to expect, that
the persons intrusted with
the administration of the
2affairs of the particular members of a confederacy
will at all times be
)`6ready, with perfect good-humor, and an unbiased regard
to the
)%Apublic weal, to execute the resolutions or decrees of the general
lGauthority.  The reverse of this results from the constitution of human
nature.
. . .
Each State, yielding to the
)persuasive voice of immediate interest or
Federalist
15, Hamilton
Times
Caslon 540 Roman
l>convenience, has successively withdrawn its support, till the
    frail and
tottering edifice seems
-ready to fall upon our heads, and to crush us
beneath its ruins.
The Framers
knew that the
 primary
))5  Prisoner
s Dilemma effects preventing the formation
H+of a strong national government would lead
 secondary
Prisoner
s Dilemma effects, the
HKconsequences of a lack of strong national government.    Such a government
would be wracked by
H)internal conflict.  As Madison stated,
-. . . a weak government, when not at war, is
H&agitated by internal dissensions . . .
  This situation
was sure to endure where it was
impossible
)N8to unite the public councils in reforming the known, the
H<acknowledged, the fatal evils of the existing constitution.
And the
consequences
would be tragic indeed:
Let us
)-4pause, my fellow-citizens, for one moment, over this
H/melancholy and monitory lesson of history; and
b with the tear that drops for the
calamities brought on
6mankind by their adverse opinions and selfish passions
. . .
+One of the measurements of the adequacy or
+inadequacy of the government that was to be
formed was, indeed,
)hMthis ability or inability of the government to put the national interest over
special, local interests:
Every one knows that
 a great proportion of the
errors committed by the
State
Flegislatures proceeds from the disposition of the members to sacrifice
l>the comprehensive and permanent interest of the State, to the
particular
and separate views
)f2of the counties or districts in which they reside.
  And if
lHthey do not sufficiently enlarge their policy to embrace the collective
welfare
lFof their particular State, how can it be imagined that they will make
l7aggregate prosperity of the Union, and the dignity and
respectability of its
l?government, the objects of their affections and consultations?
 For the same
lFreason that the members of the State legislatures will be unlikely to
attach
themselves sufficiently to
national objects,
the members of the federal
lJlegislature will be likely to attach themselves too much to local objects.
l@States will be to the latter what counties and towns are to the
former.
l-Measures will too often be decided according
to their probable effect, not
l*on the national prosperity and happiness,
!but on the prejudices, interests,
lJand pursuits of the governments and people of the individual States. . . .
What
) ?is the spirit that has in general characterized the proceedings
of Congress?
)S A perusal of their journals, as
well as the candid
l=acknowledgments of such as have had a seat in that assembly,
will inform
Federalist
15, Hamilton
Federalist
18, Madison
Federalist
20, Madison
Federalist
20, Madison
Times
Caslon 540 Roman
us, that the
 members have but too
#frequently displayed the character,
l8rather of partisans of their respective States, than of
impartial guardians of a
common interest
; that where on one occasion
improper sacrifices have been
l;made of local considerations, to the aggrandizement of the
federal
government,
 the great interests of the
"nation have suffered on a hundred,
from
Gan undue attention to the local prejudices, interests, and views of the
particular States.
 The Benefits of Union
/The Framers believed, along with Hamilton that
[a] nation, without a national
H)government, is . . . an awful spectacle.
)    5Madison believed that
 . . . the vigor of government
H is essential to the security of
liberty . . .
4  To the Framers, the union would have very palpable
H    benefits:
H[foreign nations] see that our national government is efficient and well
l-administered, our trade prudently regulated,
our militia properly organized
l7and disciplined, our resources and finances discreetly
managed, our credit
re-established, our
)e5people free, contented, and united, they will be much
lFmore disposed to cultivate our friendship than provoke our resentment.
lDPerhaps the primary benefit of Union in the eyes of the Framers was
    financial
l.[T]he adventurous spirit, which distinguishes
the commercial character of
America, has already excited
,uneasy sensations in several of the maritime
powers of Europe.
They seem to
)W be apprehensive of our too great
l=interference in that carrying trade, which is the support of
their navigation
l"and the foundation of their naval
#strength.  Those of them which have
colonies in America
)t/look forward to what this country is capable of
l5becoming, with painful solicitude.  They foresee the
dangers that may
threaten their
)J9American dominions from the neighborhood of States, which
lFhave all the dispositions, and would possess all the means, requisite
to the
creation of a powerful
    marine.
)5'Impressions of this kind will naturally
l9indicate the policy of fostering divisions among us, and
of depriving us, as
far as possible, of
)`(an ACTIVE COMMERCE in our own bottoms.
lBwould answer the threefold purpose of preventing our interference
in their
Federalist
46, Madison
Federalist
85, Hamilton
Federalist
39, Madison
Federalist
4, Jay
Times
Caslon 540 Roman
navigation, of monopolizing
-the profits of our trade, and of clipping the
l<wings by which we might soar to a dangerous greatness. . . .
5If we continue united, we may counteract a policy so
unfriendly to
l%our prosperity in a variety of ways.
* By prohibitory regulations, extending, at
lFthe same time, throughout the States, we may oblige foreign countries
to bid
l6against each other, for the privileges of our markets.
7For the Framers, superior national power would lead to
    superior
bargaining power
international markets:
Suppose, for instance,
*we had a government in America, capable of
l6excluding Great Britain (with whom we have at present
no treaty of
commerce) from all our
){3ports; what would be the probable operation of this
l"step upon her politics?  Would it
,not enable us to negotiate, with the fairest
l    prospect
)2>of success, for commercial privileges of the most valuable and
l1extensive kind, in the dominions of that kingdom?
@mature consideration of the objects suggested by these questions
will justify a belief that
)v( the real disadvantages to Britain from
such a state of
things, conspiring with
)|3the prepossessions of a great part of the nation in
favor
Bof the America trade, and with the importunities of the West India
l$islands, would produce a relaxation
'in her present system, and would let us
l$into the enjoyment of privileges in
 the markets of those islands and
lKelsewhere, from which our trade would derive the most substantial benefits.
;A further resource for influencing the conduct of European
nations
lEtowards us, in this respect, would arise from the establishment of a
federal
navy.  There can
be no doubt that
)^%the continuance of the Union under an
l6efficient government, would put it in our power, at a
period not very distant,
l7to create a navy which, if it could not vie with those
of the great maritime
l:powers, would at least be of respectable weight if thrown
into the scale of
l!either of two contending parties.
  This would be
more peculiarly the case in
l#relation to operations in the West
Indies.
 A few ships of the line, sent
l+opportunely to the reinforcement of either
"side, would often be sufficient to
l,decide the fate of a campaign, on the event
of which interests of the
l(greatest magnitude were suspended. . . .
;[A] situation so favorable would enable us to bargain with
great
lIadvantage for commercial privileges.  A price would be set not only upon
l>friendship, but upon our neutrality. By a steady adherence to
the Union, we
l?may hope, erelong, to become the arbiter of Europe in America,
    and to be
l(able to incline the balance of European
 competitions in this part of the
l"world as our interest may dictate.
Federalist
11, Hamilton
Federalist
11, Hamilton
Times
lI Without this increased power, we could fall prey to European
jealousy
Caslon 540 Roman
IUnder a vigorous national government, the natural strength and resources
<country, directed to a common interest, would baffle all the
combinations of European
0jealousy to restrain our growth.  This situation
l6would even take away the motive to such combinations,
by inducing an
impracticability of success.
"But in a state of disunion, these
"combinations might exist and might
operate
with success.
)G3  It would be in the power of the maritime nations,
l=availing themselves of our universal impotence, to prescribe
the conditions
Hour political existence; and as they have a common interest in being our
lJcarriers, and still more in preventing our becoming theirs, they would in
l3probability combine to embarrass our navigation in
such a manner as would
in effect destroy
)]+it, and confine us to a PASSIVE COMMERCE.
should
)'Bthen be compelled to content ourselves with the first price of our
commodities, and to
)l7see the profits of our trade snatched from us to enrich
l#our enemies and persecutors.  That
&unequalled spirit of enterprise, which
signalizes the genius of the
,American merchants and navigators, and which
lLis in itself in inexhaustible mine of national wealth, would be stifled and
and poverty
)A;and disgrace would overspread a country which, with wisdom,
l8might make herself the admiration and envy of the world.
The speculative trader will  .
'. . will acknowledge that the aggregate
balance of the commerce of the
'United States would bid fair to be much
l)more favorable than that of the thirteen
$States without union or with partial
unions.
A unity
))?of commercial, as well as political, interests, can only result
from a unity of government.
NThis new role for America in international markets would supplant the role of
    Europe as
HUthe leader in the world economy, and lead to the establishment of an American empire:
FThe world may politically, as well as geographically, be divided into
l"parts, each having a distinct set
-of interests.  Unhappily for the other three,
Europe, by her arms and by her
,negotiations, by force and by fraud, has, in
l)different degrees, extended her dominion
!over them all.  Africa, Asia, and
America, have successively
,felt her domination. The superiority she has
long
Bmaintained has tempted her to plume herself as the Mistress of the
l+World, and to consider the rest of mankind
 as created for her benefit.  Men
admired
)/Aas profound philosophers have, in direct terms, attributed to her
Federalist
11, Hamilton
Times
Caslon 540 Roman
l=inhabitants a physical superiority and have gravely asserted
that all animals,
l/and with them the human species, degenerate in
America--that even dogs
l=cease to bark after having breathed awhile in our atmosphere.
<Facts have too long supported these arrogant pretensions of
Europeans.  It belongs to
0us to vindicate the honor of the human race, and
lEto teach that assuming brother, moderation.  Union will enable us to
do it.
l(Disunion will add another victim to his
#triumphs.  Let Americans disdain to
Fthe instruments of European greatness!  Let the thirteen States, bound
l&together in a strict and indissoluble
#Union, concur in erecting one great
l    American
)9=system, superior to the control of all transatlantic force or
influence,
)7?and able to dictate the terms of the connection between the old
and the new world!
<To the Framers, these and other compelling advantages would
be sacrificed by avoiding
H2Union, avoiding a strong National Government, and
Q'continuing to maintain the power of the
States:
The adversaries to the plan of
-the convention, instead of considering in the
first
Dplace what degree of power was absolutely necessary for the purposes
@the federal government, have exhausted themselves in a secondary
lGinquiry into the possible consequences of the proposed degree of power
l)the governments of the particular States.
 But if the Union, as
has been
shown, be essential
)h8to the security of the people of America against foreign
l5danger; if it be essential to their security against
contentions and wars
lEamong the different States; if it be essential to guard them against
those
violent
)&Dand oppressive factions which embitter the blessings of liberty, and
l,against those military establishments which
must gradually poison its very
lAfountain; if, in a word, the Union be essential to the happiness
of the people
lAof America, is it not preposterous, to urge as an objection to a
government,
l1without which the objects of the Union cannot be
attained, that such a
government may derogate from
(the importance of the governments of the
individual States?
5If this were to be the case, the American Revolution
#of 1776 would have been for naught,
and the interests of
people
* would be subservient to the interests of
governments:
Was, then,
)I2the American Revolution effected, was the American
l.Confederacy formed, was the precious blood of
thousands spilt, and the
lChard-earned substance of millions lavished, not that the people of
America
Federalist
11, Hamilton
Federalist
45, Madison
Times
Caslon 540 Roman
should enjoy
)I:peace, liberty, and safety, but that the government of the
lCindividual States, that particular municipal establishments, might
enjoy a
l(certain extent of power, and be arrayed
%with certain dignities and attributes
of sovereignty?
 We have heard of the impious
doctrine in the Old World,
that the people were
)n6made for kings, not kings for the people.  Is the same
doctrine to
)C7be revived in the New, in another shape--that the solid
happiness of the
)e4people is to be sacrificed to the views of political
institutions
)=Cof a different form?  Is it too early for politicians to presume on
our forgetting that
 the public good,
)Z)the real welfare of the great body of the
l1people, is the supreme object to be pursued; and
that no form of
l-government whatever has any other value than
as it may be fitted for the
l1attainment of this object.  Were the plan of the
convention adverse to the
l5public happiness, my voice would be, Reject the plan.
&The framers recognized that there was
-a greater danger
resulting from a government
HCwhich does not possess regular powers commensurate to its objects,
  than from a
HUgovernment:
Energy in government is essential to that security against external and
internal
danger, and to that
)[Nprompt and salutary execution of the laws which enter into the very definition
of good government.
"   One of the drawbacks of strong
 governments, of course, was that
HNwherever strong governments were to be found, people had to agree to be abide
by the rules of the
government; and this
)iHmeant agreeing to forego certain
natural rights,
 by exchanging some of
H^rights for a set of powers which could not be acquired other than by foregoing those rights.
Jay stated,
Nothing is more certain
#than the indispensable necessity of
H8government, and it is equally undeniable, that whenever
and however it is
H/instituted, the people must cede to it some of
L&their natural rights, in order to vest
it with requisite powers.
l%But this raised a problem.  A strong
0national government may have been necessary, but
H under the existing, essentially
unitary
)!4  form of government under the Articles, it was too
    dangerous
HCto give such extensive powers.  A different form of government had
to be found, which if also
HDflawed, could be amended to correct their mistakes and misjudgments:
[T]he existing
)M<Confederation is founded on principles which are fallacious;
l&that we must consequently change this
!first foundation, and with it the
superstructure resting upon it.
 . . .
)! other confederacies which could
consulted as precedents
(have been vitiated by the same erroneous
lBprinciples, and can therefore furnish no other light than that of
beacons,
which
)#Cgive warning of the course to be shunned, without pointing out that
Federalist
45, Madison
 Federalist
38, Madison
Federalist
37, Madison
Federalist
2, Jay
Times
Caslon 540 Roman
which ought to be pursued.
#The most that the convention could
do in such
lFa situation, was to avoid the errors suggested by the past experience
of other
l%countries, as well as of our own; and
 to provide a convenient mode
lBrectifying their own errors, as future experience may unfold them.
The Framers had
)VEthe writings of Greek and Roman historians and of political theorists
such as Montesquieu and
)~ELocke, the Iroquois Constitution, the unwritten Constitution of Great
H)Britain, and the models of several State
:Constitutions, primarily the Massachusetts Constitution of
1780, to draw on
)UQin framing the Constitution.  From the writings of these historians and political
theorists, and the
)TLexperience of other governments, the Framers implemented a theory that would
H(allow a strong national government: the
separation of powers
l# The Separation of Powers Principle
Federalist
)1> 9, Hamilton defined the separation of powers principle as it
was contained in
the proposed
)BGConstitution, and described how refinements in that principle made the
    necessary
H    possible:
'The regular distribution of power into
distinct departments; the
introduction
)E=of legislative balances and checks; the institution of courts
composed of judges
)y/holding their offices during good behavior; the
representation
)P9of the people in the legislature by deputies of their own
election: these
)R8are wholly new discoveries, or have made their principal
lAprogress towards perfection in modern times. They are means, and
powerful
l=means, by which the excellences of republican government may
be retained
l*and its imperfections lessened or avoided.
In one of the most famous
essays in
The Federalist
Federalist
  51, Madison described
HQhow the principle would allow the requisite strength
 in dividing the essential
    powers of
government into three
)jHseparate branches, and in allowing each branch a measure of independence
H^from the others, the chances of a tyrannical government being formed would be greatly reduced:
AWHAT expedient, then, shall we finally resort, for maintaining in
l4practice the necessary partition of power among the
several departments, as
lKlaid down in the Constitution?  The only answer that can be given is, that
all these exterior provisions
.are found to be inadequate, the defect must be
lDsupplied, by so contriving the interior structure of the government
as that its
lGseveral constituent parts may, by their mutual relations, be the means
l0keeping each other in their proper places. . . .
In order to lay a
)d-due foundation for that separate and distinct
Federalist
37, Madison
Federalist
9, Hamilton
Times
Caslon 540 Roman
exercise of the
)N<different powers of government, which to a certain extent is
admitted on all hands to be
/essential to the preservation of liberty, it is
evident that
)E. each department should have a will of its own
l+consequently should be so constituted that
the members
of each should
have
Eas little agency as possible in the appointment of the members of the
others. . . .
.[T]he members of each department should be as
little dependent as
l)possible on those of the others, for the
$emoluments annexed to their offices.
Were
)"?the executive magistrate, or the judges, not independent of the
l<legislature in this particular, their independence in every
other would be
merely nominal.
SIn other words, each department should not only be independent, but independent of
HEothers for its salaries.  This was not enough, however.  A system of
checks and balances
    had to be
HLinstituted, which allowed each one of the three branches of government, the
legislative
lawmakers), the
executive
)/% (the enforcers of the law), and the
    judicial
 (the determinants
of whether
HMor not a law was broken) to restrict in some manner the actions of the other:
D[T]he great security against a gradual concentration of the several
    powers in
the same department, consists
&in giving to those who administer each
lCdepartment the necessary constitutional means and personal motives
l$resist encroachments of the others.
( The provision for defence must in this,
lJas in all other cases, be made commensurate to the danger of attack. . . .
.Ambition must be made to counteract ambition.
 The interest of the
lBman must be connected with the constitutional rights of the place.
XThe Framers knew that it was not enough to rely on politicians to
do the right thing
HYthe power of voting politicians out of office was not enough to secure such an essential
    criterion
H3for good government.  Thus, the Constitution would
contain
within itself
the means of its self
preservation:
 It may be a reflection on human
#nature, that such devices should be
l9necessary to control the abuses of government.  But what
is government
l/itself, but the greatest of all reflections on
human nature?  If men were
lDangels, no government would be necessary.  If angels were to govern
lJneither external nor internal controls on government would be necessary.
framing a government which
*is to be administered by men over men, the
lDgreat difficulty lies in this: you must first enable the government
to control
l@the governed; and in the next place oblige it to control itself.
Federalist
51, Madison
Federalist
51, Madison
Federalist
51, Madison
Times
BThus, branch would be set against branch.  Through the separation
of powers, it was then
possible to make those powers
confront
5each other on a daily basis.  Government was weakened
under the
divide et impera
)N6[divide and conquer] maxim referred to by Hamilton in
Federalist
 7.
H-the Framers had so carefully shown, division
*on a national level, under the Articles of
H/Confederation would have been a disaster.  But
.what was good for America, unity, was not good
HYfor America
s government.  America needed a strong government, but the government needed
be weakened:
Caslon 540 Roman
;This policy of supplying, by opposite and rival interests,
the defect of better
l;motives, might be traced through the whole system of human
affairs, private
as well as public.
)c- We see it particularly displayed in all the
subordinate
distributions of powers, where
the constant
)D aim is to divide and arrange the
l2several offices in such a manner as that each may
be a check on the other
lIthat the private interest of every individual may be a sentinel over the
public
rights.
But due
)*Mto the nature of each power, it was not possible for each to check each other
H6equally.  Since the legislative branch was seen to be
-the most powerful, it had to be subdivided as
H2well, into a House of Representatives and Senate.
- And the executive power had to be given what
H&was actually a legislative power, the
9, to stop
encroachments
 by the legislative branch.  But
this veto itself had
)]Kto be overrulable, to prevent undue concentration of power in the executive
branch:
?[I]t is not possible to give to each department an equal power
of self
defence. In republican
1government, the legislative authority necessarily
l#predominates.  The remedy for this
inconveniency is to divide the
l<legislature into different branches; and to render them, by
different modes
l3of election and different principles of action, as
little connected with each
l8other as the nature of their common functions and their
common
l%dependence on the society will admit.
"It may even be necessary to guard
against dangerous encroachments
l    by still
)+@further precautions.  As the weight of the legislative authority
requires that
)E<it should be thus divided, the weakness of the executive may
require on the
)L>other hand, that it should be fortified.  An absolute negative
on the
)(Blegislature appears, at first view, to be the natural defence with
which the
)7>executive magistrate should be armed.  But perhaps it would be
neither altogether
)_:safe nor alone sufficient.  On ordinary occasions it might
l0not be exerted with the requisite firmness, and
on extraordinary occasions it
might
)!Dbe perfidiously abused.  May not this defect of an absolute negative
be supplied by some qualified
)connection between this weaker department
Federalist
51, Madison
Times
Caslon 540 Roman
l2and the weaker branch of the stronger department,
by which the latter may
l3be led to support the constitutional rights of the
former, without being too
l4much detached from the rights of its own department?
DWith the principle of Separation of Powers had to go the subsidiary
principle of Checks
and Balances.
)NKPowers were not just separated (i.e. Congress legislates, the Supreme Court
judges), they were also
divided
.  For example, the power of
"impeachment was given to the House
H%of Representatives, and the power of
<trial of those impeachments was given to the Senate.  In the
process of this
)HSdivision, however, the principle of strict separation of powers was violated, since
the Congress was being given a
judicial
 power.  Giving
)W"the President the veto power would
HLbecome a legislative power, if the Congress did not override the veto.  The
Framers knew this was
HFa theoretical violation of an important principle, but they saw it as
necessary, to ultimately
preserve
HOthe Separation of Powers, by preventing any one branch from, through practice,
usurping the
HSpower of another.  Hamilton explained this in his defense of the impeachment power:
8The first of these objections is, that the provision in
question confounds
l;legislative and judiciary authorities in the same body, in
violation of that
l+important and well-established maxim which
requires a separation between
l.the different departments of power.  The true
meaning of this maxim has
lDbeen discussed and ascertained in another place, and has been shown
to be
l9entirely compatible with a partial intermixture of those
departments for
l*special purposes, preserving them, in the
main, distinct and unconnected.
l6This partial intermixture is even, in some cases, not
only proper but
l necessary to the mutual defence
(of the several members of the government
l$against each other.  An absolute or
(qualified negative in the executive upon
l"the acts of the legislative body,
.is admitted, by the ablest adepts in political
lBscience, to be an indispensable barrier against the encroachments
of the
latter upon the former.
, And it may, perhaps, with no less reason be
l9contended, that the powers relating to impeachments are,
    as before
l%intimated, an essential check in the
hands of that body upon the
encroachments of the executive.
,Hamilton argued that the legislative branch
-was the greatest threat, and that the primary
H<purpose of the checks and balances was to check that branch:
The tendency of
)^9the legislative authority to absorb every other, has been
l=fully displayed . . . In governments purely republican, this
tendency is
l;almost irresistible. The representatives of the people, in
a popular assembly,
l"seem sometimes to fancy that they
%are the people themselves, and betray
l"strong symptoms of impatience and
'disgust at the least sign of opposition
Federalist
51, Madison
Federalist
66, Hamilton
Times
Caslon 540 Roman
l=from any other quarter; as if the exercise of its rights, by
either the executive
or judiciary, were a
)e:breach of their privilege and an outrage to their dignity.
l>They often appear disposed to exert an imperious control over
    the other
l2departments; and as they commonly have the people
on their side, they
l!always act with such momentum as
'to make it very difficult for the other
lFmembers of the government to maintain the balance of the Constitution.
7But the Separation of Powers principle as contained in
r#the Constitution was different from
HPthe Massachusetts Constitution of 1780, which declared that such separation was
inviolable
H,Madison didn
t see inviolable separation as
8possible, since, in the first instance, it was sometimes
H>difficult to tell a legislative power from an executive power:
[N]o skill in
)C;the science of government has yet been able to discriminate
Adefine, with sufficient certainty, its three great provinces--the
l>legislative, executive, and judiciary; or even the privileges
and powers of the
l>different legislative branches.  Questions daily occur in the
    course of
practice, which
)W7prove the obscurity which reigns in these subjects, and
l6which puzzle the greatest adepts in political science.
NIn the second instance, some violation was necessary if it would preserve the
balance of
HQthe constitution.  Montesquieu had stated that if the principle of separation of
powers were
H:violated, tyranny would result.  Madison had to show that
these
limited
 violations of the principle,
HHthose contained in the Constitution,  were both necessary and tolerable:
From these facts, by
)u/which Montesquieu was guided, it may clearly be
l'inferred that, in saying "There can be
$no liberty where the legislative and
l#executive powers are united in the
)same person, or body of magistrates," or,
"if the power of
)R;judging be not separated from the legislative and executive
l9powers," he did not mean that these departments ought to
have no partial
l(agency in, or no control over, the acts
#of each other.  His meaning, as his
own words import,
)c9and still more conclusively as illustrated by the example
in his eye, can amount to no
-more than this, that where the whole power of
one department is exercised
)by the same hands which possess the whole
l    power of
):8another department, the fundamental principles of a free
constitution are subverted.
Unfortunately, Montesquieu had
;given contradictory information on this critical principle.
HKOn the one hand, Montesquieu had stated that complete separation of powers
was desirable (
if the
Federalist
71, Hamilton
Federalist
37, Madison
Federalist
47, Madison
Times
HMpower of judging be not separated . . .
).  On the other hand, the unwritten
British Constitution
H$which Montesquieu had praised had a
partial
)!.intermixture of powers.  Madison attempted to
H`with this ambiguity, and stated that
the whole power
 of one department could not be exercised
H/a body which held the
whole power
 of another
,department, and went on to explain that what
H]Montesquieu meant could only be discerned with reference to the phenomenon he was describing:
Caslon 540 Roman
This would have been
)x4the case in the constitution examined by him, if the
king, who is the sole
)l5executive magistrate, had possessed also the complete
legislative power, or
)l7the supreme administration of justice; or if the entire
l6legislative body had possessed the supreme judiciary,
or the supreme
l5executive authority.  This, however is not among the
vices of that
constitution.  The magistrate
)in whom the whole executive power resides
l>cannot of himself make a law, though he can put a negative on
every law;
not administer justice
)v1in person, though he has the appointment of those
Ddo administer it.  The judges can exercise no executive prerogative,
though they
)J8are shoots from the executive stock; nor any legislative
l*function, though they may be advised with
!by the legislative councils.  The
lEentire legislature can perform no judiciary act, though by the joint
act of two
l"of its branches the judges may be
&removed from their offices, and though
l7one of its branches is possessed of the judicial power
in the last resort.  The
l5entire legislature, again, can exercise no executive
prerogative, though one
Gits branches constitutes the supreme executive magistracy, and another,
on the impeachment
)r3of a third, can try and condemn all the subordinate
l%officers in the executive department.
6Madison showed that the State constitutions contained
specific and limited
 violations
of the
H+Separation of Powers, which were necessary
1to prevent the amalgamation of two or more powers
in one body:
<reasons on which Montesquieu grounds his maxim are a further
l8demonstration of his meaning. "When the legislative and
executive powers
are united in the same person
,or body," says he, "there can be no liberty,
l)because apprehensions may arise lest the
same monarch or senate should
l@enact tyrannical laws to execute them in a tyrannical manner."
Again:
l+"Were the power of judging joined with the
$legislative, the life and liberty of
the subject would be
)p6exposed to arbitrary control, for the judge would then
be the legislator.
)[7 Were it joined to the executive power, the judge might
behave with all the
)j5violence of an oppressor."  Some of these reasons are
l;more fully explained in other passages; but briefly stated
as they are here,
l(they sufficiently establish the meaning
which we have put on this
l+celebrated maxim of this celebrated author.
Federalist
47, Madison
Times
Caslon 540 Roman
<If we look into the constitutions of the several States, we
find that,
notwithstanding
)Z6the emphatical and, in some instances, the unqualified
l(terms in which this axiom has been laid
$down, there is not a single instance
l!in which the several departments
"of power have been kept absolutely
l'separate and distinct.  New Hampshire,
whose constitution was the last
formed, seems to
)m.have been fully aware of the impossibility and
l1inexpediency of avoiding any mixture whatever of
these departments, and
l2has qualified the doctrine by declaring "that the
legislative, executive, and
lDjudiciary powers ought to be kept as separate from, and independent
each other as the nature
4of a free government will admit; or as is consistent
l:with that chain of connection that binds the whole fabric
of the constitution
l-in one indissoluble bond of unity and amity."
4Madison then explained that the absolute separation
of powers mandated in the
HIMassachusetts Constitution of 1780 was not violated by the Constitution,
since that Constitution
H?also contained the only allowable exceptions to that principle:
1The constitution of Massachusetts has observed a
sufficient though less
lHpointed caution, in expressing this fundamental article of liberty.  It
declares
l;"that the legislative departments shall never exercise the
executive and
l(judicial powers, or either of them; the
"executive shall never exercise the
l.legislative and judicial powers, or either of
them; the judicial shall never
lCexercise the legislative and executive powers, or either of them."
 This
lGdeclaration corresponds precisely with the doctrine of Montesquieu, as
Hbeen explained, and is not in a single point violated by the plan of the
l convention.  It goes no farther
&than to prohibit any one of the entire
l?departments from exercising the powers of another department.
In the very
Constitution to
)S:which it is prefixed, a partial mixture of powers has been
l$admitted.  The executive magistrate
has a qualified negative on the
l+legislative body, and the Senate, which is
%a part of the legislature, is a court
of impeachment for members
#both of the executive and judiciary
l7departments.  The members of the judiciary department,
again, are
appointable by the executive
%department, and removable by the same
l9authority on the address of the two legislative branches.
Thus, with the Separation of
;Powers and Checks and Balances principles instituted in the
HTConstitution, the integrity of the Constitution would be preserved from the actions
of governmental
H(branches seeking to enhance their power.
$ Controlling the Problem of Factions
Federalist
47, Madison
Times
.But the Framers did not confine themselves to
    checking
governments
; due to the nature of
H1the American economic system, which consisted of
.a group of landowners (the
landed
 interest),
HCfactory owners (the
manufacturing
 interest), and the
well-born
 (the
monied
 interest), as well
H2as the slave-owners, American society was divided
into various classes, or
factions
.  Government
H=was a powerful tool; but in the wrong hands it could be used
v"by the faction A to confiscate the
H<wealth of faction B, by changing the laws to benefit A over
b%B.  In the other most famous essay of
Federalist
Federalist
)2A10, Madison explained how the new system would solve the problems
of factions:
Caslon 540 Roman
AMONG the numerous advantages
%promised by a well-constructed Union,
none
Cdeserves to be more accurately developed than its tendency to break
l%and control the violence of faction.
" The friend of popular governments
l<never finds himself so much alarmed for their character and
fate, as when
Gcontemplates their propensity to the dangerous vice.  He will not fail,
l%therefore, to set a due value on any
!plan which, without violating the
lBprinciples to which he is attached, provides a proper cure for it.
By a FACTION, I understand a
number of citizens, whether
l+amounting to a MAJORITY OR MINORITY of the
whole, who are united
l0and actuated by some common impulse of passion,
or of interest, adverse to
l(the rights of other citizens, or to the
$permanent and aggregate interests of
the community.
;As long as the reason of man continues fallible, and he is
at liberty to
l4exercise it, different opinions will be formed.  As
long as the connection
subsists between
)\;his reason and his self-love, his opinions and his passions
lDwill have a reciprocal influence on each other; and the former will
be objects
l+to which the latter will attach themselves.
"The diversity in the faculties of
men, from which the rights or
property originate, is
)s3not less an insuperable obstacle to a uniformity of
l5interests.  The protection of these faculties is the
first object of government.
lDFrom the protection of different and unequal faculties of acquiring
    property,
Apossession of different degrees and kinds of property immediately
results; and from the
)n5influence of these on the sentiments and views of the
lHrespective proprietors, ensues a division of the society into different
    interests
and parties.
<The latent causes of faction are thus sown in the nature of
man; and
?see them everywhere brought into different degrees of activity,
l;according to the different circumstances of civil society.
A zeal for different
opinions concerning
)t/religion, concerning government, and many other
points,
)(Aas well of speculation as of practice; an attachment to different
l:leaders ambitiously contending for preeminence and power;
or to persons of
other descriptions whose
+fortunes have been interesting to the human
passions, have, in turn,
)~0divided mankind into parties, inflamed them with
l7mutual animosity, and rendered them much more disposed
to vex and
Times
Caslon 540 Roman
l;oppress each other than to cooperate for their common good.
 So strong is
lGthis propensity of mankind to fall into mutual animosities, that where
l&substantial occasion presents itself,
the most frivolous and fanciful
distinctions have been
)~2sufficient to kindle their unfriendly passions and
l$excite their most violent conflicts.
>The most obvious source of faction, and the source of faction
leading to the greatest social
H$unrest,  was the division of wealth:
[T]he most common
)q3and durable source of factions has been the various
l6and unequal distribution of property.  Those who hold
and those who are
without property have ever
0formed distinct interests in society.  Those who
are creditors, and those who
1are debtors, fall under a like discrimination.  A
lDlanded interest, a manufacturing interest, a mercantile interest, a
moneyed
l;interest, with many lesser interests, grow up of necessity
in civilized nations,
l4and divide them into different classes, actuated by
different sentiments and
views.
The regulation
)S4of these various and interfering interests forms the
l&principal task of modern legislation,
$and involves the spirit of party and
lCfaction in the necessary and ordinary operations of the government.
3This concern with the problems of wealth (and lack
&thereof) had been a recurring theme at
H4the Convention.  On June 26, Madison had stated that
+In all civilized Countries the people fall
'into different classes . . . There will
l8be particularly the distinction of rich and poor. . . .
In framing a system
l*which we wish to last for ages, we should
not lose sight of the changes
l<which ages will produce.  An increase of population will of
    necessity
l;increase the proportion of those who will labour under all
the hardships of
lGlife, & secretly sigh for a  more equal distribution of its blessings.
    These may
l(in time  outnumber those who are placed
 above the feelings of indigence.
l=According to the equal laws of suffrage, the power will slip
into the hands of
the former.
)?<No agrarian attempts have yet been made in this Country, but
symtoms, of a leveling
0spirit, as we have understood, have sufficiently
lEappeared in a certain [quarter] to give notice of the future danger.
l. On August 7, Madison reiterated this concern:
Federalist
),&10, Madison(capital emphasis supplied)
Federalist
10, Madison
  RFC, v. 1, p. 422
Times
Caslon 540 Roman
l@In future times a great majority of the people will not only be
without
lJlanded, but any other sort of, property.  These will either combine under
l(influence of their common situation; in
$which case, the rights of property &
l<the public liberty, will not be secure in their hands . . .
8Gouverner Morris, a delegate from Pennsylvania (who was
a Governor),  agreed with
H?Madison.  As he stated on August 7,
[t]he time is not distant
l"when this Country will abound with
mechanics &
)@Qmanufacturers who will receive their bread from their employers. Will such men be
H,the secure & faithful Guardians of liberty?"
   But though Morris was
concerned with the political
HCpower of the propertyless, he was also concerned with the power of
people who owned a great
deal of property.  As he
)yGstated on July 2, "[t]he Rich will strive to establish their dominion &
H7enslave the rest.  They always did.  They always will."
    According to Morris,
the people would
H2not have enough information to resist the schemes
O&of the Rich, and, since they could not
H?communicate with each other, would be held hostage by a set of
ideas spread throughout the
country, which were
not designed
 for their
benefit
l/[T]he people never act from reason alone.  The
Rich will take advantage of
their
@passions & make these the instruments for  oppressing them.  The
l8Result of the Contest will be a violent aristocracy, or
a more violent
l4despotism.  The schemes of the Rich will be favored
by the extent of the
lECountry.  The people in such distant parts can not communicate & act
l$concert.  They will be the dupes of
!those who have more knowledge and
intercourse.
According to Morris,
[t]hey will have the same effect here as elsewhere if we do not by
such a Govt. keep
)Y!them within their proper sphere.
- Because of the inherent conflict of interest
HOinvolved between the propertyless and the many factions who owned property, no
H4propertyless or property-owning
special interest,
group
' of special interests, could be allowed
to dominate the legislature:
'No man is allowed to be a judge in his
own cause, because his interest
l(would certainly bias his judgment, and,
not improbably, corrupt his
l?integrity.  With equal, nay with greater reason, a body of men
are unfit to be
both judges and parties at the
(same time; yet what are many of the most
l+important acts of legislation, but so many
judicial determinations, not
  RFC, v. 2, pp. 203-04
  RFC, v. 2, p. 202
  RFC, v. 1, p. 512
  RFC, v. 1, p. 514
  RFC, v. 1, p. 514
Times
Caslon 540 Roman
indeed concerning the
)x6rights of single persons, but concerning the rights of
l>large bodies of citizens?  And what are the different classes
of legislators but
advocates and parties to
*the causes which they determine?  Is a law
lBproposed concerning private debts?  It is a question to which the
    creditors
are parties on
)I=one side and the debtors on the other.  Justice ought to hold
the balance between them.  Yet
(the parties are, and must be, themselves
lAthe judges; and the most numerous party, or, in other words, the
powerful faction
-must be expected to prevail.  Shall domestic
manufactures
be encouraged,
)c.and in what degree, by restrictions on foreign
l"manufactures? are questions which
#would be differently decided by the
landed and
)>>the manufacturing classes, and probably by neither with a sole
l,regard to justice and the public good. . . .
:The apportionment of taxes on the various descriptions of
property
is an act
)1Awhich seems to require the most exact impartiality; yet there is,
l    perhaps,
)0Bno legislative act in which greater opportunity and temptation are
given to a
);7predominant party to trample on the rules of justice.
Every
shilling with
)B>which they overburden the inferior number, is a shilling saved
to their own pockets.
DMadison completely rejected the theory that this problem (or any or
the problems
H^previously mentioned) could be solved merely by
electing the right people.
  The problem was
H3important to leave to the chance event (and wholly
improbable
#chance event) that the people would
H>invariably and inevitably elect wise and good representatives:
#It is vain to say that enlightened
&statesmen will be able to adjust these
l$clashing interests, and render them
#all subservient to the public good.
l)Enlightened statesmen will not always be
at the helm.
Nor, in many cases,
lHcan such an adjustment be made at all without taking into view indirect
remote
)'Econsiderations, which will rarely prevail over the immediate interest
lFwhich one party may find in disregarding the rights of another or the
good of
the whole.
&The inference to which we are brought
is, that
 the causes of faction
l8cannot be removed, and that relief is only to be sought
in the means of
controlling its effects.
EIf a faction consists of less than a majority, relief is supplied by
republican
);Bprinciple, which enables the majority to defeat its sinister views
by regular vote.
  It may clog the
)W,administration, it may convulse the society;
D it will be unable to execute and mask its violence under the forms
of the
Constitution.
Federalist
10, Madison
Federalist
10, Madison
Times
Here
Iwas the crux of Madison
s view: special interests could never capture the
government,  because the
){Gpeople would vote out their representatives when that happened.  If for
H!some unknown reason they didn
?the only adverse result would be that the administration of the
government
might
clogged,
 and that the society
might
" be
convulsed.
  However, special
H[interests would be
unable
mask their violence
 under the forms of the Constitution.
Thus,
H*the majority would be protected.  But how
9would minorities, the creditors, the landed interest, the
H\manufacturing interest, and the monied interest be protected from other minorities, such as
debtors,
or the
majority
 those
).Ewithout land or money?  Whatever solution would be found, it was very
H_important to preserve the
spirit and the form of popular government
 to retain the legitimacy
of the
H7government, though to achieve the objective would mean
eliminating
 the concept
of a truly popular
H8and representative government, since the solution would
U$necessitate the annihilation of the
    principle
of majority rule:
Caslon 540 Roman
.When a majority is included in a faction, the
form of popular government,
l9on the other hand, enables it to sacrifice to its ruling
passion or interest both
l1the public good and the rights of other citizens.
-To secure the public good and private rights
against the danger of
lDsuch a faction, and at the same time to preserve the spirit and the
form of
popular government,
)s3is then the great object to which our inquiries are
l    directed.
6Benjamin Franklin, who was representing Pennsylvania,
knew that the form of the
H@Constitution was important, to encourage immigration to America:
 "[I]f
[the Constitution]
H8should betray a great partiality to the rich, [it] will
not only hurt us in the esteem
of the most liberal and
6enlightened men [in Europe], but discourage the common
people
))!from removing into this Country."
Thus, the government had to
appear
 to be
representative.
5The solution, such as it was, could either go to the
v!root of the problem, or treat the
symptoms of the problem:
4By what means is this object attainable?  Evidently
by one of two only.
lFEither the existence of the same passion or interest in a majority at
the same
lHtime must be prevented, or the majority, having such coexistent passion
l%interest, must be rendered, by their
%number and local situation, unable to
l6concert and carry into effect schemes of oppression.
If the impulse and the
opportunity be
)R9suffered to coincide, we well know that neither moral nor
lEreligious motives can be relied on as an adequate control.  They are
found to be such on the
5injustice and violence of individuals, and lose their
l.efficacy in proportion to the number combined
together, that is, in
Federalist
10, Madison
;  RFC, v. 2, p. 249, August 10 (speaking of qualifications)
Times
Caslon 540 Roman
l-proportion as their efficacy becomes needful.
lM Democracy would not solve the problems of faction, it would make them worse:
Bsociety consisting of a small number of citizens, who assemble and
l5administer the government in person, can admit of no
cure for the mischiefs
lFof faction.  A common passion or interest will, in almost every case,
be felt
by a
Bmajority of the whole; a communication and concert result from the
l0form of government itself; and there is nothing
to check the inducements to
l6sacrifice the weaker party or an obnoxious individual.
"[S]uch democracies have ever been
spectacles of turbulence and
contention
)8>; have ever been found incompatible with personal security or
l(rights of property; and have in general
$been as short in their lives as they
l"have been violent in their deaths.
Here we
)+Rcan see clearly that, notwithstanding the claims of our politicians and the claims
of the media,
establishing
)<    democracy
)3;  was not on the agenda of the Framers of our Constitution,
H!and is exceptionally unlikely to
<be on the agenda of our government, a government established
H-under a Constitution that has eliminated the
possibility
 of democracy.
Unfortunately for
)VDdemocracy, Madison
s analysis of its inadequacy was based chiefly on
HLthe experiences of Massachusetts and Rhode Island.  At the time, due to the
fundamentally agrarian
HSand rural nature of the States, people were tied together inexorably by very rigid
bonds of
H8occupation, point of view, and religion.  The societies
J(were homogeneous, not heterogeneous.  In
H@addition, and equally important, Massachusetts had a population
of approximately 360,000 (less
H!than that of Brooklyn today) and
6Rhode Island had a population of approximately 58,000.
HFThus, in small, homogeneous societies, where farmers were burdened by
a debt that was allowing
creditors to confiscate
)mJtheir farms, it was no surprise that majorities (or, in the case of Shay
H=Rebellion, minorities who were losing their farms) were able
j&or willing to combine to protect their
HWinterests, by passing laws creating
paper money
 and
installment plans
 to help ease
their debt
burden and
):Rsave their farms.  1) A common interest, 2) a compelling interest, 3) with no real
H3dissent, and over 4) a small area can produce what
)would otherwise be an enormously unlikely
HHoccurrence.  However, Madison and the Framers were going to establish a
government for
based on the
only available evidence
 at the time:
l2A republic, by which I mean a government in which
the scheme of
l$representation takes place, opens a
$different prospect, and promises the
l$cure for which we are seeking. . . .
;The two great points of difference between a democracy and
republic are: first, the
)r7delegation of the government, in the latter, to a small
Federalist
10, Madison
Federalist
10, Madison
  RFC, V. 3, p. 253
Times
Caslon 540 Roman
number of citizens elected
,by the rest; secondly, the greater number of
citizens,
)1;and greater sphere of country, over which the latter may be
l    extended.
8The effect of the first difference is, on the one hand,
to refine and
enlarge the public views, by
+passing them through the medium of a chosen
l4body of citizens, whose wisdom may best discern the
true interest of their
country, and
)I<whose patriotism and love of justice will be least likely to
sacrifice it
)8Ato temporary or partial considerations.  Under such a regulation,
l<it may well happen that the public voice, pronounced by the
representatives
l9of the people, will be more consonant to the public good
than if pronounced
l3by the people themselves, convened for the purpose.
EThe first effect of a government in the Madisonian sense was that it
would
filter
 the will of
the people.
):SDecisions would not be made by the people themselves, but by their representatives.
H-But there was a potential problem with this:
Men of factious tempers, of
local
H$prejudices, or of sinister designs,
,may, by intrigue, by corruption, or by other
means, first
)HDobtain the suffrages, and then betray the interests, of the people.
H5In small districts, representatives would be able to
.combine people more readily.  The solution for
this was to create large
)sIdistricts, which would render politicians less able to appeal to people
short-term  self-interest:
 . . . as each representative will be
chosen by a greater
H2number of citizens in the large than in the small
[#republic, it will be more difficult
HEfor unworthy candidates to practice with success the vicious arts by
which
H&elections are too often carried . . .
In this
)!Mmanner, Madison was able to marry the concept that
Union was necessary
 with
H>the concept that
the larger the district, the more difficult
h"it would be for the majority would
HJcombine,
 since creating a Union would radically increase the size of the
area ruled by an
HAhomogeneous legal entity
 that is, the United States Government:
[T]he
)&8same advantage which a Republic has over a Democracy, in
l2controlling the effects of faction, is enjoyed by
a large over a small Republic
 is enjoyed by the Union over the States composing it. . . .
<The influence of factious leaders may kindle a flame within
their
particular
)8<States, but will be unable to spread a general conflagration
through the other
)a    States.
)-0A religious sect may degenerate into a political
faction in a part
)U;of the Confederacy; but the variety of sects dispersed over
l#the entire face of it, must secure
(the national councils against any danger
from that source:
 a rage for paper
)\(money, for an abolition of debts, for an
lIequal division of property, or for any other improper or wicked project,
Federalist
10, Madison
Federalist
10, Madison
Federalist
10, Madison
Times
Caslon 540 Roman
l-be less apt to pervade the whole body of the
Union than a particular
member of it
)B*; in the same proportion as such a malady
is more likely to taint
l7a particular country or district, than an entire State.
In the extent and
)j,proper structure of the Union, therefore, we
l:behold a republican remedy for the diseases most incident
to republican
government.
GIn a large, united, country, it would be difficult, if not impossible,
for the
majority
combine against the
minority
The smaller
)B@the society, the fewer probably will be the distinct parties and
l"interests composing it; the fewer
,the distinct parties and interests, the more
l+frequently will a majority be found of the
same party; and the smaller the
l@number of individuals composing a majority, and the smaller the
 compass
l'within which they are placed, the more
$easily will they concert and execute
l.their plans of oppression.  Extend the sphere
and you take in a greater
variety of
)3Cparties and interests; you make it less probable that a majority of
the whole will have
)g7a common motive to invade the rights of other citizens;
l#or if such a common motive exists,
-it will be more difficult for all who feel it
discover their
own strength
, and to
act in uniso
with each other.  Besides
l8other impediments, it may be remarked that, where there
is a consciousness
Cunjust or dishonorable purposes, communication is always checked by
lDdistrust in proportion to the number whose concurrence is necessary.
FThere was, unfortunately, one small problem with Madison
s analysis.
If Madison was
H wrong, and if special interests
 happen to capture
)]+the government against the interests of the
H majority, the majority would be
unable
+ to
discover their own strength
 and
in unison
 to stop
the problem.
 Thus,
= the minority interests captured the government, the majority
left with no remedy
9 In the meanwhile, the minority interests were left with
all the
H:structural advantages created by the Framers to
protect
them, with none of the natural
impediments to
)KPtheir combination such as lack of common interest, inability to communicate, and
geographical dispersion that
<affected the majority. The final consequence would be the re
H>installation of the Prisoner
s Dilemma effect the Framers had
r"so carefully argued against, where
H0each special interest would attempt to re-write
1the laws to its own particular advantage, without
H!regard to the common good.  Now,
instead of
States
. fighting each other and attempting to control
H/the government to the detriment of the general
#society, the U.S. would be prey to
special interests
[would attempt to manipulate the laws of government for their purposes, to the detriment of
H,general society.  And if this happened, the
structure of the Constitution
 would
insure that
problem would not be solved
, since the structure of
)q*the government, the dispersion of the laws
over a wide sphere,
)`-and the system of checks and balances, would
protect
 these special interests.
Federalist
10, Madison, pp. 48-9
Federalist
10, Madison
Times
HTThus, under the system of government constituted by the Framers, the Majority would
be checked,
the States would
)QKbe checked, and the three branches of government would be checked
 but the
special interests
)M    would not
.  As Madison said later in
Federalist
Caslon 540 Roman
lFIt is of great importance in a republic not only to guard the society
against
the oppression
)O?of its rulers, but to guard one part of the society against the
l>injustice of the other part.  Different interests necessarily
exist in different
classes of citizens.  If
)q5a majority be united by a common interest, the rights
l#of the minority will be insecure.
&There are but two methods of providing
l5against this evil: the one by creating a will in the
community independent of
lJthe majority--that is, of the society itself; the other, by comprehending
in the
society
)(Bso many separate descriptions of citizens as will render an unjust
l?combination of a majority of the whole very improbable, if not
impracticable.
l-The first method prevails in all governments
possessing an hereditary or
l3self-appointed authority.  This, at best, is but a
precarious security; because
l/a power independent of the society may as well
espouse the unjust views of
lAthe major, as the rightful interests of the minor party, and may
possibly be
turned against both parties.
,The second method will be exemplified in the
federal
))Brepublic of the United States.  Whilst all authority in it will be
l+derived from and dependent on the society,
!the society itself will be broken
l*into so many parts, interests and classes
of citizens, that the rights of
l?individuals, or of the minority, will be in little danger from
interested
combinations of the majority.
3the majority could be united by a common interest,
 the
rights,
power
HJminority interests such as landowners, creditors, and manufacturers would
be insecure.  But by
HNincreasing the size of the Nation, the majority of the people would no longer
common
H&interest, since they would be
broken
;into so many parts, interests and classes of citizens
 that
H8coalitions would be impossible.  Into this huge melting
N*pot would go the young, the old, the rich,
HUthe poor, the French, Spanish, Italians, Chinese, Vietnamese, African-Americans, the
HFimmigrants, the old immigrants, the
yuppies,
 the small businessmen,
the employees, teachers,
union members, the
middle-class,
 executives, lawyers, doctors, the Christians, the Jews, the
HLMoslems, the Atheists,
conservatives,
liberals,
 Democrats, Republicans,
Libertarians,
HXWomen
s Liberationists, Abortion supporters, and Abortion opponents
 an enormous range
varying philosophies and
>backgrounds, with each individual focused primarily on how the
government could secure his or
;her own particular point of view.  Thus, the existence of a
monolithic
majority
)uIa wide-ranging geographical area, particularly one with the heterogeneity
of America, was pure fantasy.
8Unfortunately, given that no strong national government
|#had yet been instituted, the effect
of special
)0Tinterests on a national government could not be analyzed.  Madison was well aware of
H=the dangers of allowing strong special interests to dominate
k"government, but believed, based on
recent experiences, and in
Ba homogeneous society of 3,000,000 people, that the greater danger
Federalist
51, Madison
Times
came from the majority:
Caslon 540 Roman
In a society under the
)u5forms of which the stronger faction can readily unite
and oppress the
)V;weaker, anarchy may as truly be said to reign as in a state
lBof nature, where the weaker individual is not secured against the
violence of
l?the stronger . . .  It can be little doubted that if the State
of Rhode Island
was separated
)Q:from the Confederacy and left to itself, the insecurity of
l8rights under the popular form of government within such
narrow limits
lIwould be displayed by such reiterated oppressions of factious majorities
some power
)A=altogether independent of the people would soon be called for
by the voice of the
)c7very factions whose misrule had proved the necessity of
=Madison well understood the problems of allowing factions to
capture a government.  The
HMfaction which was powerless, whether majority or minority, would exist under
the rule of law; but
2faction which wielded power existed in a state of
anarchy
)%$.  It was free to do what it wanted,
H    since it
created law
.  But notwithstanding
)m8his analysis of the powerlessness of the majority over a
H(wide-ranging geographical area, Madison
believed that
majority
)'# factions were inherently stronger,
and that
)&     minority
 factions were
most in danger, based on
&his most recent historical experience.
Thus, because Rhode
)iIIsland, with a population of 58,000, had displayed problems with majority
H'rule (for example, Rhode Island issued
1paper money which benefited people who owed money
HHversus people who had lent money, by creating inflation which decreased
the value of money), the
H<sphere of government was to be extended.  As a consequence,
just the size
the country alone
H^was enough to insure that if majorities ever combined, they would only combine when it was in
national interest:
In the extended republic of
.the United States, and among the great variety
l*of interests, parties, and sects which it
&embraces, a coalition of a majority of
the whole society could seldom
'take place on any other principles than
l-those of justice and the general good . . . .
&However, the separation of powers and
,checks and balances system instituted by the
Framers
checked
 the majority: it
)N    prevented
 a coalition of
)G&disorganized and fragmented minorities
from securing
)GLthe general good.  Thus, the majority was checked in two ways: from the very
HKstructure of the government, and from their geographical dispersion.  And,
as population
HQincreased, the effect would get worse and worse.  As more states were added, and
as more citizens
were given the
)HQvote, it would become more and more difficult to forge majority coalitions.  And,
by degrees,
Rsystem appropriate for 1787 became inappropriate for 1992, or any year thereafter.
H<Hamilton understood the dangers of appeal to authority when
l"the authority made recommendations
H0based on current population.  To follow rigidly
/the recommendations of an authority who was not
Federalist
51, Madison
Federalist
51, Madison
Times
H9considering the immediate historical circumstances was to
 invite trouble
Caslon 540 Roman
l:When Montesquieu recommends a small extent for republics,
the standards
l3he had in view were of dimensions far short of the
limits of almost every one
of these States.
)R9 Neither Virginia, Massachusetts, Pennsylvania, New York,
l'North Carolina, nor Georgia can by any
means be compared with the
l+models from which he reasoned and to which
the terms of his description
apply.
)#H If we therefore take his ideas on this point as the criterion of truth,
l0we shall be driven to the alternative either of
taking refuge at once in the
l4arms of monarchy, or of splitting ourselves into an
infinity of little, jealous,
clashing, tumultuous
)p2commonwealths, the wretched nurseries of unceasing
lAdiscord, and the miserable objects of universal pity or contempt.
-Thus, had the Framers followed Montesquieu
advice that Republics could not
HKencompass a wide area, the Nation would have divided into several separate
Countries, with the
inevitable byproducts
)hKof such division.  Wisely, they rejected Montesquieu
s advice, since it was
inappropriate for their time
.  And, wisely, they framed
a system appropriate for
their
time.  Under
HHthis system, the legislative authority would be divided in two, between
a House of
HLRepresentatives, who were to represent the people at large, and the Senate,
which was to represent
H2the States and the
aristocratic
 interests.  So,
7in the unlikely prospect that the
majority,
 (that is,
a disorganized
)GNpeople dispersed throughout the United States) could somehow capture the House
HCof Representatives, the Senate would be able to make less probable
the passage of legislation
H]against the special interests, since no law could be passed unless both bodies agreed.  And,
even in
H1the unlikely event that such legislation made it
2through, the President could veto the legislation.
H+Even if the two bodies managed to pass the
5law over the President
s veto, the President, who had
H[the executive power, could simply refuse to enforce the law.  And if the President decided
H;enforce the law, the Supreme Court, as it later developed,
e$would claim that it had the power to
declare laws
unconstitutional
. And since
)94the Supreme Court members were appointed, and served
HHfor indefinite terms, they did not have to consider the public interest
when they were reaching their
HDdecisions.  In this manner, the short-term self-interest of certain
minority groups would be
preserved.
 The Great Compromise
SIn forging their government, the Framers had to other issues to contend with other
than the
H8problems of factions.  At the Convention, it had become
^(readily apparent that the smaller States
H.feared that the larger States would overwhelm
.them, since both the Senate and the House were
intended to proportionally
Erepresent their population.  Thus, the four largest states, Virginia,
H%Massachusetts, Pennsylvania, and New
5York, though a minority when state representation was
H+considered, would actually have a majority
2of the votes, since their population, when totaled
H,(counting black people as 3/5 of a person),
1was 1,373,000, vs. 1,195,000 for the nine smaller
H%states (boldface type indicates that
@the state
s population includes 3/5 of the slaves who resided in
Federalist
9, Hamilton
Times
the state):
Caslon 540 Roman
State
Population
)U.Representatives   District Population per Rep.
Virginia
420,000
42,000
Massachusetts
360,000
45,000
Pennsylvania
360,000
45,000
New York
233,000
38,833
Maryland
218,000
36,333
Connecticut
202,000
40,400
North Carolina
200,000
40,000
South Carolina
150,000
30,000
New Jersey
138,000
34,500
New Hampshire
102,000
34,000
Georgia
90,000
30,000
Rhode Island
58,000
58,000
Delaware
37,000
37,000
8The Framers, perhaps to assuage this concern, initially
gave the top four states 32
Hbrepresentatives, vs. 33 for the bottom nine
 it is unlikely that this was an accident.  However,
HMsmaller states could not be sure that this largess would continue throughout
history.  They were
concerned
)4Qthat the large states would combine against them.  Roger Sherman, a delegate from
H%Connecticut, believed in the concept
one state, one vote
 to give one state more votes than
H<another was to endanger the liberties of the smaller states:
The rich man who
)h5enters into Society along with the poor man, gives up
l2more than the poor man, yet with an equal vote he
is equally safe.  Were he
lJto have more votes than the poor man in proportion to his superior stake,
l>rights of the poor man would immediately cease to be secure.
lGconsideration prevailed when the articles of confederation were formed.
%But Madison argued at the Convention
4that the smaller states had nothing to fear from the
HYlarger states.  As his reading of history showed, the most powerful entities would fight
amongst
H8themselves, and not seek to prey on the weaker entities:
It had never been seen
*that different counties in the same State,
conformable in extent, but
.disagreeing in other circumstances, betrayed a
l!propensity to such combinations.
$ Experience rather taught a contrary
l<lesson.  Among individuals of superior eminence & weight in
society,
rivalships were much more
,frequent than coalitions.  Among independent
l.nations preeminent over their neighbours, the
same remark was verified.
Carthage & Rome
)b:tore one another to pieces instead of uniting their forces
  RFC, v. 3, p. 253
  RFC, v. 1, p. 450
Times
Caslon 540 Roman
l0to devour the weaker nations of the Earth.  The
Houses of Austria and
lAFrance were hostile as long as they remained the greatest powers
of Europe.
l'England & France have succeeded to the
pre-eminence & to the enmity.
Ethis principle we owe perhaps our liberty.  A coalition between those
l#powers would have been fatal to us.
JGunning Bedford, a delegate from Delaware, rejected this reasoning, based
in parts on the
votes at the Convention:
:If political Societies possess ambition, avarice, and all
the other passions
which render them
)f6formidable to each other, ought we not to view them in
this light here? Will
)g5not the same motives operate in America as elsewhere?
l6If any gentleman doubts it let him look at the votes.
 Have they not been
l"dictated by interest, by ambition?
  Are not the large States
evidently seeking
lDto aggrandize themselves at the expense of the small? . . . Will it
be said that
an inequality
)G?of power will not result from an inequality of votes.  Give the
lHopportunity, and ambition will not fail to abuse it.  The whole history
mankind proves it.
?In Bedford
s view, it was easy for Madison, a delegate from the
 largest
state, to argue that
HPthe largest states should not be feared.  But Bedford, who was representing the
smallest
 State,
H5the opposing view.  As he continued later in the day,
Our deliberations here
)x4are a confirmation of the position; and I may add to
it, that each of them act[s]
(from interested, and many from ambitious
motives.  Look at the votes
*which have been given on the floor of this
l!house, and it will be found that
their numbers,
wealth and local views, have
actuated their determinations
; and
(that the larger states proceed as if our
eyes were already
)_;perfectly blinded.  Impartiality, with them, is already out
lBof the question
 the reported plan is their political creed, and
they support
l:it, right or wrong.  Even the diminutive state of Georgia
has an eye to her
l8future wealth and greatness
 South Carolina, puffed up
with the
possession of her
)a5wealth and negroes, and North Carolina, are all, from
l/different views, united with the great states.
! And these latter, although it is
l=said they can never, from interested view, form a coalition,
we find closely
united in one scheme of
+interest and ambition, notwithstanding they
l9endeavor to amuse us with the purity of their principles
and the rectitude of
l@their intentions, in asserting that the general government must
be drawn
from an
)+Bequal representation of the people.  Pretences to support ambition
  RFC, v. 1, p. 448
  RFC, v. 1, June 30, p. 491
Times
Caslon 540 Roman
l are never found wanting.  Their
,cry is, where is the danger? and they insist
lHthat altho
 the powers of the general government will be increased, yet
it will
l;be for the good of the whole; and although the three great
states form nearly
a majority of the
)W<people of America, they never will hurt or injure the lesser
l    states.
I do not, gentlemen, trust you.
 If you possess
the power, the abuse of it
could not be
)D;checked; and what then would prevent you from exercising it
our destruction?
)Y0  You gravely alledge that there is no danger of
l-combination, and triumphantly ask, how would
combinations be affected?
The larger states,
 you say,
all differ in productions and
commerce; and
experience shows that
)z2instead of combinations, they would be rivals, and
l7counteract the views of one another.
  This, I repeat,
is language calculated
only to amuse us.  Yes,
6sir, the larger states will be rivals, but not against
l-each other
 they will be rivals against the
rest of the states
JTo mollify the smaller States, the framers had to consider instituting in
the Constitution the
HAConnecticut Compromise (otherwise known as the Great Compromise)
made by Sherman on June
If the difficulty on the
){2subject of representation can not be otherwise got
over, [I] would agree to have
 two branches, and a proportional
representation in one of them,
)provided each State had an equal voice in
the other.
)9? This [is] necessary to secure the rights of the lesser States;
l2otherwise three or four of the large States would
rule the others as they
please.  Each State like each
/individual had its peculiar habits, usages, and
manners, which
)X:constituted its happiness.  It would not therefore give to
others
)#Ba power over this happiness, any more than an individual would do,
when he could avoid it.
In this Compromise, the House
6would have proportional representation, and the Senate
H>would have equal representation
 as it later developed, each
State would be allotted two
HISenators, even though their population was radically different. This may
have obeyed the principle
state
, one vote,
 but it
violated the principle of
 , one vote.
  On June 29, Oliver
H8Ellsworth, another delegate from Connecticut, suggested
that unless the Compromise was
H5accepted, the smaller states would not agree to sign
the Constitution.
   James Wilson, a delegate
HOfrom Pennsylvania, stated that he could not go along with any such compromise,
since it would
HDembody the discredited concept of minority rule in the Constitution:
[S]hould the
)N4deplored event happen, it would neither stagger [my]
!  RFC, v. 1, pp. 500-501, June 30
  RFC, v. 1, p. 343
  RFC v. 1, pp. 468-69, June 29
Times
Caslon 540 Roman
l9sentiments nor [my] duty.  If the minority of the people
of America refuse to
l    coalesce
)1?with the majority on just and proper principles, it could never
l<happen on better grounds.  The votes of yesterday agst. the
just principle of
l/representation, were as 22 to 90 of the people
of America. . . . Such an
l.equality will enable the minority to controul
in all cases whatsoever, the
l sentiments and interests of the
*majority.  Seven States will controul six;
seven
)#>States according to the estimates that had been used, composed
24/90 of the whole people.
 It would be in
)O"the power then of less than 1/3 to
l2overrule 2/3 whenever a question should happen to
divide the States in that
l/manner.  Can we forget for whom we are forming
a government?  Is it for
%, or for the imaginary beings called
States
Wilson went
)ECon to say that if the compromise were instituted, it would
prove a
H(fundamental Defect in the constitution.
Madison too had
)RHoriginally opposed this compromise, and the idea that the smaller States
H0should have an equal representation, [agreeing]
0with Wilson that it re-introduced the concept of
H.minority rule contained in the Articles: that
5four states, or even one state, would be empowered to
H.obstruct the most salutary proposals. On June
429, Madison rejected the idea that the States should
have equal representation:
I would always
)Z6exclude inconsistent principles in framing a system of
government.
)E< The difficulty of getting its defects amended are great and
l6sometimes insurmountable.   . . . The great danger to
our general
government
)>. is the great southern and northern interests
of the continent being
l@opposed to each other.  Look to the votes in congress, and most
of them stand divided
lIby the geography of the country, not according to the size of the states.
!Suppose the first branch granted
money, may not the second
l-branch, from the state views, counteract the
first?  In congress, the single
lAstate of Delaware prevented an embargo, at the time that all the
other states
thought it
)6@absolutely necessary for the support of the army.  Other powers,
and those very
)O?essential, besides the legislative, will be given to the second
l3branch
 such as the negativing all state laws.  I
would compromise on this
lFquestion, if I could do it on correct principles, but otherwise not
if the old
l7fabric of the confederation must be the ground-work of
the new, we must
fail.
VMadison asked the small states to
renounce a principle wch. was confessedly unjust,
which, if admitted, would
7infuse mortality into a Constitution which we wished to
  RFC, v. 1, pp. 482-83
  RFC, v. 1, p. 503
  RFC, v. 1, p. 476
Times
last
    forever.
O The smaller states refused to accept this analysis, however, and threatened to
H.break up the convention if the compromise was
not instituted.
  After additional debate, the
H;Compromise was considered on July 16,  and accepted, in an
extremely close vote: 5 for, 4
against, with one of
)aIthe four largest States, Massachusetts, divided.  New Hampshire and Rhode
HNIsland did not vote, nor did New York, one of the other four largest states.
The remaining two
HGlarge states, Pennsylvania and Virginia, voted no. Our Constitution in
its current form was thus
HQgiven to us by Connecticut, New Jersey, Delaware, Maryland, and North Carolina.
This vote was
so close that,
)ATif either Elbridge Gerry or Caleb Strong, the two delegates of the four representing
HWMassachusetts who voted
 had changed their
 votes to
 the motion would
not have
carried, at least not at
)lJthat time, since under the rules of the Convention tie votes resulted in a
loss.
In writing
Federalist
).=, Madison noted one of the chief problems with the compromise
H:he had so bitterly opposed, and undoubtedly voted against:
Caslon 540 Roman
AThere is a peculiarity in the federal Constitution which insures
a watchful
l/attention in a majority both of the people and
of their representatives to a
l0constitutional augmentation of the latter.  The
peculiarity lies in this, that
one branch of the legislature
1is a representation of citizens, the other of the
States: in the former,
)o6consequently, the larger States will have most weight;
in the latter, the advantage
'will be in favor of the smaller States.
  From this
circumstance it may with
4certainty be inferred that the larger States will be
l#strenuous advocates for increasing
%the number and weight of that part of
the legislature in
)\6which their influence predominates.  And it so happens
l#that four only of the largest will
)have a majority of the whole votes in the
l    House of
Representatives.
)_0Should the representatives or people, therefore,
lKof the smaller States oppose at any time a reasonable addition of members,
coalition
)/Bof a very few States will be sufficient to overrule the opposition
l9coalition which, notwithstanding the rivalship and local
prejudices which
l2might prevent it on ordinary occasions, would not
fail to take place, when
not merely prompted by common
)interest, but justified by equity and the
principles of the Constitution.
UAccording to Madison, it would be difficult for the House of Representatives to grow
H\the size necessary to keep up with population, since all laws had to be passed by the House
H9Senate.  Since the small states would prefer to not lose
W&power in the House of Representatives,
they would be able to prevent
@an augmentation of members in that House. In Madison
s time, the
average representation
)lIwas 1 representative for approximately every 40,000 people.  In our time,
  RFC, v. 1, p. 464
  SEE the debate of June 29.
  SEE RFC, v. 2, p. 17, July 16
Federalist
58, Madison
Times
as of 1987,
the average district size is
525,000.
%Thus, there is has been less and less
H>representation over time in the House of Representatives.  In
i(fact, Virginia, the largest state, had a
H1population of 532,000 in 1787 (counting a person
/with black skin as one person).  Since Virginia
H'had two senators, this was one Senator
2for every 266,000 people.  This means that today
H=average representation of population in the House is actually
 half
representative as the Senate
HKwas for the largest State in 1787! Over time, the House of Representatives
has become, with
HCreference to the ratio of  representation in 1787, a Second Senate.
DThus, one of the unfortunate by-products of the compromise was that
it radically altered
H"the original role of the House of
9Representatives, by making that branch of government less
H/representative and less responsive to the will
1of the people, whose interests it was supposed to
protect.
Caslon 540 Roman
@ The Need to Decrease the Velocity of the Passage of Legislation
The Framers
)?Kwanted to balance the need for rapid decisionmaking with the need to retain
HJstability: to keep the laws from changing too slowly or too rapidly.  One
of the purposes of the
H\bicameral requirement for the passage of all laws was that the people would have a check on
HXgovernment, through the House of Representatives, and the Government would have a check
the people, through the
)tHSenate,  the Presidential Veto, and, as it later turned out, the Supreme
Court.  As Madison stated:
GThe genius of republican liberty seems to demand on one side, not only
l6all power should be derived from the people, but that
those intrusted with it
l$should be kept in dependence on the
$people, by a short duration of their
appointments;
)O:and that even during this short period the trust should be
l,placed not in a few, but a number of hands.
 Stability, on the contrary,
l!requires that the hands in which
%power is lodged should continue for a
length of
)5;time the same.  A frequent change of men will result from a
frequent return of elections;
(and a frequent change of measures from a
frequent change of
)i4men: whilst energy in government requires not only a
lDcertain duration of power, but the execution of it by a single hand.
#Hamilton saw a check on the people
1as good, in preventing Prisoner
s Dilemma effects
Hcthat could occur if the people were united for purposes of securing their short-term self-interest:
!The republican principle demands
 that the deliberate sense of the
community should
)f4govern the conduct of those to whom they intrust the
l)management of their affairs; but it does
not require an unqualified
complaisance to every
/sudden breeze of passion, or to every transient
lGimpulse which the people may receive from the arts of men, who flatter
their
prejudices to
)FBbetray their interests.  It is a just observation, that the people
l    commonly
):9intend the PUBLIC GOOD.  This often applies to their very
Federalist
37, Madison
Times
Caslon 540 Roman
l9errors.  But their good sense would despise the adulator
who should pretend
that they always reason right
+about the means of promoting it.  They know
lEfrom experience that they sometimes err; and the wonder is that they
seldom err as they
)m3do, beset, as they continually are, by the wiles of
l:parasites and sycophants, by the snares of the ambitious,
the avaricious, the
l@desperate, by the artifices of men who possess their confidence
    more than
they
Gdeserve it, and of those who seek to possess rather than to deserve it.
lHWhen occasions present themselves, in which the interests of the people
l;at variance with their inclinations, it is the duty of the
persons whom they
have appointed to
)g5be the guardians of those interests, to withstand the
lHtemporary delusion, in order to give them time and opportunity for more
and sedate reflection.
9course, any government that could prevent the passage of
short-term
 legislation could
prevent the passage of
)l    long-term
@legislation.  One of the problems with the bicameral requirement
HEwas pointed out by Hamilton in the context of the Executive branch.
At the time, some had
HPproposed that the Constitution should create two or three Presidents.  Hamilton
argued that
H'inefficiency in the legislative branch
9was tolerable, even desirable, but that it was not in the
Executive branch:
>Upon the principles of a free government, inconveniences from
the source
l3just mentioned must necessarily be submitted to in
the formation of the
l$legislature; but it is unnecessary,
'and therefore unwise, to introduce them
l(into the constitution of the Executive.
% It is here too that they may be most
pernicious.
)??In the legislature, promptitude of decision is oftener an evil
lDa benefit.  The differences of opinion, and the jarrings of parties
in that
department
)D5of the government, though they may sometimes obstruct
salutary plans, yet
)j2often promote deliberation and circumspection, and
serve to check excesses in the
majority.
When a resolution too is once
l/taken, the opposition must be at an end.  That
resolution is a law, and
lFresistance to it punishable.  But no favorable circumstances palliate
or atone
lBfor the disadvantages of dissension in the executive department.
Here, they
l,are pure and unmixed.  There is no point at
which they cease to operate.
They serve to embarrass
/and weaken the execution of the plan or measure
lIto which they relate, from the first step to the final conclusion of it.
l-constantly counteract those qualities in the
Executive which are the most
lAnecessary ingredients in its composition,--vigor and expedition,
and this
l$without any counterbalancing good.
#In the conduct of war, in which the
energy of the
)G>Executive is the bulwark of the national security, every thing
l.would be to be apprehended from its plurality.
Federalist
71, Hamilton
Federalist
70, Hamilton, p. 358
Times
!Thus, the price of stability was
delay
, and a reduction in
the power of the legislature to
H    legislate
)&;.  The Executive branch, however, was not saddled with any
such Constitutional
H]inefficiencies.  We will see the consequences of this draftsmanship later on in this chapter.
Caslon 540 Roman
; Federalism: the Final Check Against the Federal Government
6The final security for Americans was the principle of
federalism
: there would be
not one
HRgovernment in America, but two
 State and Federal.  Thus, the Federal government
would check
HIthe State governments, and the State governments would check the Federal:
;In the compound republic of America, the power surrendered
by the people
is first divided
)R!between two distinct governments,
and then the portion
l/allotted to each subdivided among distinct and
separate departments.
Hence a double security arises
+to the rights of the people.  The different
l(governments will control each other, at
the same time that each will be
controlled by itself.
EThe strong Union that was necessary would be made possible since the
power of the
H"Union would be strictly limited.
9Those powers not given to the Federal government would be
given to the States.
)jCThe power of the State governments was to be protected from Federal
H+invasion, since the power of Congress were
8strictly limited under the grant of legislative power in
Article 1, Section 8:
<[I]t is to be remembered that the general government is not
to be charged
with
Fthe whole power of making and administering laws.  Its jurisdiction is
lHlimited to certain enumerated objects, which concern all the members of
lMrepublic, but which are not to be attained by the separate provisions of any.
4The subordinate governments, which can extend their
care to all
those other objects
)h7which can be separately provided for, will retain their
due authority and activity.
Vaddition to this check, Senators were to be appointed by the State Legislatures, which
HIwas a further protection for the state governments.  And the States were
protected from each other,
since Article
)?S4, Section 4 of the Constitution guaranteed the States protection against invasion,
H+whether from a foreign power or themselves.
Federalist
51, Madison
Federalist
14, Madison
Times
Caslon 540 Roman
FURTHER READING
ftp.netcom.com
/pub/krusch
The 21st Century Constitution
  @`
(    <&@
$,'&#
=I(&/01G)*'"8
H%7@D
 @@P0
"25<6
40#7:A9
3."?*
ph`@`
$,'&#
=I(&/01G)*'"8
H%7@D
"25<6
40#7:A9
3."?*
P    temp.0001
Demo Version Common Ground 1.1
Demo Version Common Ground 1.1
Microsoft Word
1OFST
Bookman
Times
Avant Garde
UltraShadow
Delphian
Machine
CasqueOpenFace9
Caslon 540 Roman
jPREC
vPRVS