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1991-10-05
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FEDERALIST No. 39
The Conformity of the Plan to Republican Principles
For the Independent Journal.
MADISON
To the People of the State of New York:
THE last paper having concluded the observations which were
meant to introduce a candid survey of the plan of government
reported by the convention, we now proceed to the execution of that
part of our undertaking.
The first question that offers itself is, whether the general
form and aspect of the government be strictly republican. It is
evident that no other form would be reconcilable with the genius of
the people of America; with the fundamental principles of the
Revolution; or with that honorable determination which animates
every votary of freedom, to rest all our political experiments on
the capacity of mankind for self-government. If the plan of the
convention, therefore, be found to depart from the republican
character, its advocates must abandon it as no longer defensible.
What, then, are the distinctive characters of the republican
form? Were an answer to this question to be sought, not by
recurring to principles, but in the application of the term by
political writers, to the constitution of different States, no
satisfactory one would ever be found. Holland, in which no particle
of the supreme authority is derived from the people, has passed
almost universally under the denomination of a republic. The same
title has been bestowed on Venice, where absolute power over the
great body of the people is exercised, in the most absolute manner,
by a small body of hereditary nobles. Poland, which is a mixture of
aristocracy and of monarchy in their worst forms, has been dignified
with the same appellation. The government of England, which has one
republican branch only, combined with an hereditary aristocracy and
monarchy, has, with equal impropriety, been frequently placed on the
list of republics. These examples, which are nearly as dissimilar
to each other as to a genuine republic, show the extreme inaccuracy
with which the term has been used in political disquisitions.
If we resort for a criterion to the different principles on
which different forms of government are established, we may define a
republic to be, or at least may bestow that name on, a government
which derives all its powers directly or indirectly from the great
body of the people, and is administered by persons holding their
offices during pleasure, for a limited period, or during good
behavior. It is ESSENTIAL to such a government that it be derived
from the great body of the society, not from an inconsiderable
proportion, or a favored class of it; otherwise a handful of
tyrannical nobles, exercising their oppressions by a delegation of
their powers, might aspire to the rank of republicans, and claim for
their government the honorable title of republic. It is SUFFICIENT
for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that
they hold their appointments by either of the tenures just
specified; otherwise every government in the United States, as well
as every other popular government that has been or can be well
organized or well executed, would be degraded from the republican
character. According to the constitution of every State in the
Union, some or other of the officers of government are appointed
indirectly only by the people. According to most of them, the chief
magistrate himself is so appointed. And according to one, this mode
of appointment is extended to one of the co-ordinate branches of the
legislature. According to all the constitutions, also, the tenure
of the highest offices is extended to a definite period, and in many
instances, both within the legislative and executive departments, to
a period of years. According to the provisions of most of the
constitutions, again, as well as according to the most respectable
and received opinions on the subject, the members of the judiciary
department are to retain their offices by the firm tenure of good
behavior.
On comparing the Constitution planned by the convention with the
standard here fixed, we perceive at once that it is, in the most
rigid sense, conformable to it. The House of Representatives, like
that of one branch at least of all the State legislatures, is
elected immediately by the great body of the people. The Senate,
like the present Congress, and the Senate of Maryland, derives its
appointment indirectly from the people. The President is indirectly
derived from the choice of the people, according to the example in
most of the States. Even the judges, with all other officers of the
Union, will, as in the several States, be the choice, though a
remote choice, of the people themselves, the duration of the
appointments is equally conformable to the republican standard, and
to the model of State constitutions The House of Representatives is
periodically elective, as in all the States; and for the period of
two years, as in the State of South Carolina. The Senate is
elective, for the period of six years; which is but one year more
than the period of the Senate of Maryland, and but two more than
that of the Senates of New York and Virginia. The President is to
continue in office for the period of four years; as in New York and
Delaware, the chief magistrate is elected for three years, and in
South Carolina for two years. In the other States the election is
annual. In several of the States, however, no constitutional
provision is made for the impeachment of the chief magistrate. And
in Delaware and Virginia he is not impeachable till out of office.
The President of the United States is impeachable at any time
during his continuance in office. The tenure by which the judges
are to hold their places, is, as it unquestionably ought to be, that
of good behavior. The tenure of the ministerial offices generally,
will be a subject of legal regulation, conformably to the reason of
the case and the example of the State constitutions.
Could any further proof be required of the republican complexion
of this system, the most decisive one might be found in its absolute
prohibition of titles of nobility, both under the federal and the
State governments; and in its express guaranty of the republican
form to each of the latter.
``But it was not sufficient,'' say the adversaries of the
proposed Constitution, ``for the convention to adhere to the
republican form. They ought, with equal care, to have preserved the
FEDERAL form, which regards the Union as a CONFEDERACY of sovereign
states; instead of which, they have framed a NATIONAL government,
which regards the Union as a CONSOLIDATION of the States.'' And it
is asked by what authority this bold and radical innovation was
undertaken? The handle which has been made of this objection
requires that it should be examined with some precision.
Without inquiring into the accuracy of the distinction on which
the objection is founded, it will be necessary to a just estimate of
its force, first, to ascertain the real character of the government
in question; secondly, to inquire how far the convention were
authorized to propose such a government; and thirdly, how far the
duty they owed to their country could supply any defect of regular
authority.
First.τIn order to ascertain the real character of the
government, it may be considered in relation to the foundation on
which it is to be established; to the sources from which its
ordinary powers are to be drawn; to the operation of those powers;
to the extent of them; and to the authority by which future
changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that
the Constitution is to be founded on the assent and ratification of
the people of America, given by deputies elected for the special
purpose; but, on the other, that this assent and ratification is to
be given by the people, not as individuals composing one entire
nation, but as composing the distinct and independent States to
which they respectively belong. It is to be the assent and
ratification of the several States, derived from the supreme
authority in each State,τthe authority of the people themselves.
The act, therefore, establishing the Constitution, will not be a
NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms
are understood by the objectors; the act of the people, as forming
so many independent States, not as forming one aggregate nation, is
obvious from this single consideration, that it is to result neither
from the decision of a MAJORITY of the people of the Union, nor from
that of a MAJORITY of the States. It must result from the UNANIMOUS
assent of the several States that are parties to it, differing no
otherwise from their ordinary assent than in its being expressed,
not by the legislative authority, but by that of the people
themselves. Were the people regarded in this transaction as forming
one nation, the will of the majority of the whole people of the
United States would bind the minority, in the same manner as the
majority in each State must bind the minority; and the will of the
majority must be determined either by a comparison of the individual
votes, or by considering the will of the majority of the States as
evidence of the will of a majority of the people of the United
States. Neither of these rules have been adopted. Each State, in
ratifying the Constitution, is considered as a sovereign body,
independent of all others, and only to be bound by its own voluntary
act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution.
The next relation is, to the sources from which the ordinary
powers of government are to be derived. The House of
Representatives will derive its powers from the people of America;
and the people will be represented in the same proportion, and on
the same principle, as they are in the legislature of a particular
State. So far the government is NATIONAL, not FEDERAL. The Senate,
on the other hand, will derive its powers from the States, as
political and coequal societies; and these will be represented on
the principle of equality in the Senate, as they now are in the
existing Congress. So far the government is FEDERAL, not NATIONAL.
The executive power will be derived from a very compound source.
The immediate election of the President is to be made by the States
in their political characters. The votes allotted to them are in a
compound ratio, which considers them partly as distinct and coequal
societies, partly as unequal members of the same society. The
eventual election, again, is to be made by that branch of the
legislature which consists of the national representatives; but in
this particular act they are to be thrown into the form of
individual delegations, from so many distinct and coequal bodies
politic. From this aspect of the government it appears to be of a
mixed character, presenting at least as many FEDERAL as NATIONAL
features.
The difference between a federal and national government, as it
relates to the OPERATION OF THE GOVERNMENT, is supposed to consist
in this, that in the former the powers operate on the political
bodies composing the Confederacy, in their political capacities; in
the latter, on the individual citizens composing the nation, in
their individual capacities. On trying the Constitution by this
criterion, it falls under the NATIONAL, not the FEDERAL character;
though perhaps not so completely as has been understood. In
several cases, and particularly in the trial of controversies to
which States may be parties, they must be viewed and proceeded
against in their collective and political capacities only. So far
the national countenance of the government on this side seems to be
disfigured by a few federal features. But this blemish is perhaps
unavoidable in any plan; and the operation of the government on the
people, in their individual capacities, in its ordinary and most
essential proceedings, may, on the whole, designate it, in this
relation, a NATIONAL government.
But if the government be national with regard to the OPERATION
of its powers, it changes its aspect again when we contemplate it in
relation to the EXTENT of its powers. The idea of a national
government involves in it, not only an authority over the individual
citizens, but an indefinite supremacy over all persons and things,
so far as they are objects of lawful government. Among a people
consolidated into one nation, this supremacy is completely vested in
the national legislature. Among communities united for particular
purposes, it is vested partly in the general and partly in the
municipal legislatures. In the former case, all local authorities
are subordinate to the supreme; and may be controlled, directed, or
abolished by it at pleasure. In the latter, the local or municipal
authorities form distinct and independent portions of the supremacy,
no more subject, within their respective spheres, to the general
authority, than the general authority is subject to them, within its
own sphere. In this relation, then, the proposed government cannot
be deemed a NATIONAL one; since its jurisdiction extends to certain
enumerated objects only, and leaves to the several States a
residuary and inviolable sovereignty over all other objects. It is
true that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to be
established under the general government. But this does not change
the principle of the case. The decision is to be impartially made,
according to the rules of the Constitution; and all the usual and
most effectual precautions are taken to secure this impartiality.
Some such tribunal is clearly essential to prevent an appeal to the
sword and a dissolution of the compact; and that it ought to be
established under the general rather than under the local
governments, or, to speak more properly, that it could be safely
established under the first alone, is a position not likely to be
combated.
If we try the Constitution by its last relation to the authority
by which amendments are to be made, we find it neither wholly
NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme
and ultimate authority would reside in the MAJORITY of the people of
the Union; and this authority would be competent at all times, like
that of a majority of every national society, to alter or abolish
its established government. Were it wholly federal, on the other
hand, the concurrence of each State in the Union would be essential
to every alteration that would be binding on all. The mode provided
by the plan of the convention is not founded on either of these
principles. In requiring more than a majority, and principles. In
requiring more than a majority, and particularly in computing the
proportion by STATES, not by CITIZENS, it departs from the NATIONAL
and advances towards the FEDERAL character; in rendering the
concurrence of less than the whole number of States sufficient, it
loses again the FEDERAL and partakes of the NATIONAL character.
The proposed Constitution, therefore, is, in strictness, neither
a national nor a federal Constitution, but a composition of both.
In its foundation it is federal, not national; in the sources from
which the ordinary powers of the government are drawn, it is partly
federal and partly national; in the operation of these powers, it
is national, not federal; in the extent of them, again, it is
federal, not national; and, finally, in the authoritative mode of
introducing amendments, it is neither wholly federal nor wholly
national.
PUBLIUS.