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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. In order to ascertain the real character of the
 government, it may be considered in relation to the foundation on
 which it is to be established; to the sources from which its
 ordinary powers are to be drawn; to the operation of those powers;
 to the extent of them; and to the authority by which future
 changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that
 the 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, the authority of the people themselves.
 The act, therefore, establishing the Constitution, will not be a
 NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms
 are 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.