Your SlideShare is downloading. ×
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
The Federalist Papers (In Modern Language)
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

The Federalist Papers (In Modern Language)

27,586

Published on

The Federalist Papers in Modern Language

The Federalist Papers in Modern Language

Published in: News & Politics
0 Comments
4 Likes
Statistics
Notes
  • Be the first to comment

No Downloads
Views
Total Views
27,586
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
260
Comments
0
Likes
4
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. FEDERALIST NO. 1 General Introduction Hamilton To the People of the State of New York: It is obvious that the Articles of Confederation have will be allowed, acknowledging that they will release failed to establish a viable government. Now you, as angry, malignant passions as opposing factions try to citizens, are challenged to establish a new system. At “sell” their opinions and recruit converts. Enlightened stake is nothing less than the Union’s existence, its government energy and efficiency will be stigmatized as citizens’ safety and its stature in the world. Many say that “jealous” offspring of despotic forces. Vigilance against Americans, by their conduct and example, must decide dangers to the people’s rights will be represented as stale whether societies are able to establish good bait for popularity at the expense of the public good. But governments. If this is true, the decision must be made jealousy, usually a component of love, and government now. vigor, essential to the security of liberty, can never, in —––––––––––––––––––––––––––––––––––––––––––— considering important public actions, be separated. —— Moreover, dangerous ambition more often lurks behind zeal for our rights than for firm, efficient government. But To all to whom these Presents shall come, we the history teaches that the former is a more certain road to undersigned Delegates of the States who affixed to our Names send greeting. despotism than to good administration. Of those tyrants Articles of Confederation and perpetual Union between who have overturned the liberties of republics, most have the states of New Hampshire, Massachusetts-Bay, Rhode begun their careers courting “the people.” Island and Providence Plantations, Connecticut, New York, These thoughts are intended to alert you to dishonest New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia. objections – while frankly admitting that I am “friendly” to Preamble to the Articles of Confederation the new Constitution: I believe ratification is the best way We, the people of the United States, in order to form a to achieve liberty and assure dignity and happiness. more perfect union, establish justice, insure domestic I plan a series of papers, to discuss: tranquillity, provide for the common defense, promote the • the Union’s importance to your political prosperity; general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this • the Confederation’s inability to preserve it; Constitution of the United States of America. • the importance to these goals of a government as Preamble to the United States Constitution energetic as the one proposed; • the proposal’s conformity to republican principle; –––––––––––––––––––––––––––––––––––––– • its similarity to your own State constitution; and —–– • the security to your liberty and to your property that This “project” will call for altruism and patriotism, and (I ratification will bring. hope, but do not expect) discipline to serve, without In the course of this discussion I will try to answer all distraction, our true interests. But the plan you will the known objections to ratification. consider affects too many local interests and institutions You may consider it unnecessary to defend the Union. not to be diverted into extraneous issues and passions. But we already hear whispers that one system cannot The obstacles against the new Constitution are the govern the thirteen States; that we must have separate resistance of certain men in every State to change that confederacies. But those able to see the whole picture could diminish their power, income and social status, and can see the dangers in Union dismemberment. others who hope to elevate themselves by abolishing the Publius. Union and dividing the country into several confederacies. I know it is insincere and unwise to automatically discredit political opposition as “self-interested.” And so, as always in great national discussions, these sentiments FEDERALIST NO. 2 Dangers from Foreign Force and Influence Jay To the People of the State of New York: The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 1 © 1999 Marshall R. Overstedt
  • 2. AMERICANS must now decide one of history’s most This country and this people seem to have been made important questions. We must also consider it thoroughly for each other; they should never be split into a number of and seriously. unsocial, jealous, alien sovereignties. Government is indispensable to civil society; to assure As citizens, we enjoy the same national rights, its success, we must all give up some of our rights. privileges, and protection. As a nation we have made Therefore, we must consider whether it would be in our peace and war, defeated enemies, formed alliances and best interests to be one nation, with one federal made agreements with foreign states. government, or divide into individual, sovereign States or This sense of Union inspired us – the minute we had a separate confederacies, each with “national” powers. political existence, while the Revolution still raged – to ———————————————————————— form a federal government to preserve and perpetuate it. At that time, there was little room for calm, mature inquiry Each State retains its sovereignty, freedom, and and thought required to form a wise, well-balanced independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to government for a free people. We should not be surprised the United States, in Congress assembled. to find, through experience, that a government instituted Article II of the Articles of Confederation in those times is inadequate to its intended purpose. [The Congress shall have the power] to make all laws An intelligent people, we recognized and regretted which shall be necessary and proper for carrying into execution the …powers [delegated to it by the these defects. Still attached to Union and liberty, we saw Constitution], and all other powers vested by this the immediate danger to the former and the more remote Constitution in the Government of the United States, or in risk to the latter. Persuaded that only a wisely framed any department or officer thereof. national government could protect both. we convened the Article I, Section 8(18) of the United States Constitution No State shall enter into any treaty, alliance, or late convention at Philadelphia, to consider that subject. confederation; grant letters of marque and reprisal; coin This convention included men who had the people’s money; emit bills of credit, make anything but gold and confidence, many distinguished by their patriotism, virtue silver coin a tender in payment of debts; pass any bill of and wisdom in trying times. In a time of peace, attainder, ex post facto law or law impairing the obligation unoccupied by other subjects, they consulted for many of contracts, or grant any title of nobility. Article I, Section 10(1) of the United States Constitution months and finally – unawed by power and uninfluenced No State shall, without the consent of the Congress, lay by any passion except love of country – they presented any imposts or duties on imports or exports, except what and recommended their joint, unanimously-approved plan may be absolutely necessary for executing its inspection to the people. laws; and the net produce of all duties and imposts, laid by Remember: this plan is only recommended, not any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be imposed; it is recommended for sedate, candid subject to the revision and control of the Congress. consideration the subject demands. Article I, Section 10(2) of the United States Constitution But this is more wished than expected. No State shall, without the consent of Congress, lay any Experience teaches us not to be too optimistic. duty on tonnage, keep troops and ships of war in time of peace, enter any agreement or compact with another Imminent danger induced the people of America to form State or with a foreign power, or engage in war, unless the memorable Congress of 1774, which recommended actually invaded or in such imminent danger a swell not certain wise measures – which were soon attacked by the admit of delay. press. Then many government officers, acting in their Article I, Section 10(3) of the United States Constitution own interests, and mistaken and over-ambitious others, ———————————————————————— worked to persuade the people to reject that Congress’ Until recently, we all agreed that our prosperity advice. depended on our continuing united, and our best, wisest But the majority acknowledged the wisdom, citizens were focused on that goal. Now some politicians experience and patriotism in Congress; that their insist that we would be more secure and prosperous in Representatives would not recommend imprudent or separate “confederacies” or “sovereignties.” We should unwise measures. Relying on Congress’ judgment and not adopt these radical political ideas unless convinced integrity, they took its advice – ignoring the grand efforts that they are correct. to steer them from it. America, rather than detached, distant territories, is If we had reason to rely on that inexperienced, little- one connected, fertile, wide-spreading country. We are known Congress, we have greater reason to respect the blessed with many soils and crops, watered with many convention’s judgment and advice because its most streams, surrounded by navigable waters, with noble distinguished members – now seasoned and recognized rivers forming highways for communication and for their abilities – were members of both. transportation for our various commodities. Every Congress, like the convention, has agreed with This one connected country belongs to one united the people that America’s prosperity depends on its people, descended from one heritage, speaking one Union. To preserve and perpetuate it was the reason to language, professing one religion, attached to one set of form the convention, and it is also the purpose of the government principles. We are very similar in our proposed plan. Why, then, are some men depreciating its manners and customs. Together, fighting through a long importance? Why do some suggest that several and bloody war, we have established liberty and confederacies would be better than one? I believe the independence. people have always been correct on this subject, and that their universal, uniform attachment to the Union rests on substantial reason that I will try to explain in later papers. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 2 © 1999 Marshall R. Overstedt
  • 3. Publius. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 3 © 1999 Marshall R. Overstedt
  • 4. FEDERALIST NO. 3 Foreign Dangers – #2 Jay To the People of the State of New York: Intelligent people generally adopt ideas and practices The number of wars in the world is in proportion to the that serve their interests. We have long acknowledged number and weight of real and perceived causes that the need for unity under one federal government, with provoke them. If true, will more or fewer war causes enough power to fill all national purposes. confront a United America than a disunited America? That government’s first requirement is an ability to Generally, wars are caused by treaty violations and protect the people. Public safety relates to many direct attacks. America already has treaties with at least situations and problems, which gives great latitude to six foreign nations, all except Prussia are maritime, and those trying to define it precisely and thoroughly. therefore able to harm us. We also have extensive For the moment, let’s confine the discussion to our commerce with Portugal, Spain, and Britain – and the safety from foreign arms and influence. Is, in fact, an latter two have major colonies in our “neighborhood.” efficient national government our best protection against To preserve the peace, America must observe hostilities from abroad? international laws relating to all these powers, and one ———————————————————————— national government can do this more effectively than thirteen separate States or three or four confederacies. No State shall engage in any war without the consent of Once established, a good national government can – the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have more easily than a town or State – draw on the time and received certain advice of a resolution being formed by talents of the best men in the country to serve and man- some nation of Indians to invade such State, and the age it. This will benefit other nations, as well as our own. danger is so imminent as not to admit of a delay till the Moreover, under the national government, treaties and United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or international laws will always be established and observed vessels of war, nor letters of marque or reprisal, except it in the same way, based on unified, national policies. be after a declaration of war by the United States in Otherwise, our partners would be forced to deal with as Congress assembled, and then only against the Kingdom many as 13 different points of view. or State and the subjects thereof, against which war has The convention was also wise enough to commit these been so declared, and under such regulations as shall be established by the United States in Congress assembled questions to courts appointed by and responsible to only … one national government. Article VI of the Articles of Confederation As a result, deliberate and accidental insults will have All charges of war, and all other expenses that shall be far less impact on a single, national government than on incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall several lesser ones. be defrayed out of a common treasury, … One good national government can also protect best Article VIII of the Articles of Confederation against direct, violent attacks. Not one Indian war has The Congress shall have power to lay and collect taxes, been caused by aggression by the present federal duties, imposts and excises, to … provide for the common government, feeble as it is; but several bloody Indian defense … [of] the United States; Article I Section 8(1) of the United States Constitution attacks have been provoked by improper conduct of To declare war … individual States. Article I Section 8(11) of the United States Constitution Quarrels between States and adjacent Spanish and To raise and support armies … British territories would be limited to those border areas. A Article I Section 8(12) of the United States Constitution To provide and maintain a navy; border State alone might become irritated enough to fight Article I Section 8(13) of the United States Constitution with a foreign power. In that case, nothing can prevent To make rules for the government and regulation of the hostilities more effectively than intervention by a unified land and naval forces; national government, whose wisdom and prudence would Article I Section 8(14) of the United States Constitution To provide for calling forth the militia to execute the laws of not be weakened by the combatants’ passions. the Union, suppress insurrections, and repel invasions; Indeed, the national government will not only eliminate Article I Section 8(15) of the United States Constitution just causes of war; it will have the power to settle disputes To provide for organizing, arming and disciplining the amicably. It will also act with less passion than pride-filled militia, and for governing such part of them as may be local and State authorities and will not need to justify all employed in the service of the United States, reserving to the States respectively the appointment of officers, and the actions or acknowledge, correct or repair errors and authority of training the militia according to the discipline offenses. And it can use moderation and candor to prescribed by Congress; consider and decide on proper means to extricate the Article I Section 8(16) of the United States Constitution beleaguered State from foreign challenges. Besides, a strong, united nation will more likely accept ––——————————————————— acknowledgments, explanations, and compensations than one of the thirteen States. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 4 © 1999 Marshall R. Overstedt
  • 5. Publius. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 5 © 1999 Marshall R. Overstedt
  • 6. FEDERALIST NO. 4 Foreign Dangers – #3 Jay To the People of the State of New York: Our safety from foreign force depends on both not Apply these facts to our case. Leave America divided giving or taking offense that can lead to hostilities. under multiple independent governments: what armies Nations generally make war whenever they believe and fleets could we raise and pay? If one was attacked, they can gain from it. Absolute rulers attack for the sake would the others spend their blood and money in its of military glory, revenge, ambition or commitments to defense? relatives, cronies or partisans. ———————————————————————— As for just causes, consider these opportunities for international “friction”: Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, With France and Britain we compete in fisheries, and which is not by this Confederation expressly delegated to can supply their markets cheaper than they. the United States, in Congress assembled. They and other European nations would celebrate our Article II of the Articles of Confederation failure in navigation and shipping, because our success, if The United States shall guarantee to every State in this Union a republican form of government, and shall protect any, will be at their expense. As might China and India, each of them against invasion, and on application of the who once sold us goods that we now supply ourselves. legislature, or of the executive (when the legislature cannot Operating our own commerce in our own ships irritates be convened), against domestic violence. European nations with nearby territories because the low Article IV Section 4 of the United States Constitution cost and high quality of our goods, closeness to sources and markets, and our merchants’ and sailors’ skill give us ———————————————————————— important advantages over them. The history of the Greek states abounds with such In response, Spain shuts us out of the Mississippi and instances and, under similar circumstances, we would Britain out of the Saint Lawrence, and both bar us from probably do the same. the other waters between them and us. This is why other Even if, say, New York would be willing to help an nations are jealous and uneasy. invaded State or confederacy: How much manpower and Americans know these “discomforts” can lead to war at money would it contribute? Who would command the any time. This is why they also consider Union and a allied armies and who would issue the orders? Who good national government necessary to peace. would negotiate or arbitrate the peace? One government can call talented, able people With one government watching over our general and wherever in the Union they might be. It can move on common interests, combining and directing the powers uniform principles of policy. It can harmonize, assimilate, and resources of the whole, these problems would not and – together or separately – protect the States. In arise. forming treaties, it can act for the whole, and the United under one national government or split, foreign particular interests of the States. nations will treat us accordingly. In sum, to defend any part, it can apply the resources They will be much more ready to cultivate our and power of the whole more easily and quickly than friendship than provoke our resentment if they see a well- State governments or separate confederacies. It can, as managed national government; prudently-regulated trade; the States could not, place the militia in one corps under a properly organized and disciplined militia; discreetly one chain of command, connected to the President. managed resources and finances; re-established credit; What would British militia be if the English, Scottish and a free, contented, united people. and Welsh recruits only obeyed their own governments? If, on the other hand, they see States or confederacies Against an invasion, could those three governments fight going their own way, one leaning to Britain, another to the enemy as effectively as the single government of France, and a third to Spain and perhaps played against Great Britain? each other by the three, what a poor, pitiful figure America We have heard much of the fleets of Britain, and the will make in their eyes! time may come when the American fleets will be as Experience has always taught that when a people or respected. But if one national government had not made family so divide, it never fails to be against itself. British navigation a nursery for seamen – if it had not Publius. organized all national resources for forming fleets – they would not exist. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 6 © 1999 Marshall R. Overstedt
  • 7. FEDERALIST NO. 5 Foreign Dangers – #4 Jay To the People of the State of New York: QUEEN ANNE once wrote to the Scottish Parliament conditions which tend to create and increase power in on the importance of the UNION then forming between one place and impede it in others, we must acknowledge England and Scotland. She said, in part: that superior policy and good management always An entire and perfect union will be the solid separate governments from each other. And we cannot foundation of lasting peace: It will secure your presume that all confederacies would be managed religion, liberty, and property; remove the animosities equally well. amongst yourselves, and the jealousies and When one of those nations or confederacies rises, as differences betwixt our two kingdoms. It must it certainly will, to political importance, the others will slip increase your strength, riches, and trade; and by this to “second-class” status, driven by envy and fear, and union the whole island, being joined in affection and then the real conflict will begin. free from all apprehensions of different interest, will The North, for example, is generally the region of be enabled to resist all its enemies. … We most strength, and we can expect that the most Northern of the earnestly recommend to you calmness and proposed confederacies would become the strongest. unanimity in this great and weighty affair, that the Soon, the Northerners’ success and the Southerners’ union may be brought to a happy conclusion, being want would ignite the kinds of conflict that afflict northern the only effectual way to secure our present and and southern Europe. future happiness, and disappoint the designs of our Anyone who understands history knows that American and your enemies, who will doubtless, on this confederacies would neither love nor trust each other, occasion, use their utmost endeavors to prevent this which, in other nations’ eyes, would make them union. dangerous only to each other because they could never I remarked in my previous paper that weakness and form defensive alliances against outsiders. Example: divisions at home would invite dangers from abroad; and When did the independent British states unite their forces that nothing would do more to protect us than union, against a foreign enemy? strength, and good government. British history gives us The proposed confederacies would be distinct nations, many lessons to follow without paying the price they paid. each having commerce and treaties with foreigners, built Although it seems obvious that people sharing an around the products and commodities they could offer for island should be one nation, for ages they were divided trade. Different commerce creates different interests, and into three – which almost constantly quarreled and fought. different political attachments to different foreign nations. Though their interests respecting European nations were Hence, a nation at war with the Southern confederacy the same, their mutual jealousies were always inflamed, might be the Northerners’ best ally and trading partner. and they were far more trouble than help to each other. In fact, as in Europe, our bordering confederacies Should we divide into three or four nations, would not acting in opposite interests would often take different the same thing happen? Would not similar long-cherished sides. And it would be more natural for them to fear one jealousies arise? Instead of being “joined in affection,” another than faroff European nations. And therefore they free from fear, envy and jealousy of each other, the would more likely use foreign alliances to guard against States’ and confederacies’ conflicting interests would be neighbors than neighbors against foreign attack. But the only objects of their policy and pursuits. And, like most remember – it is easier to welcome than repel foreign bordering nations, we would always be at odds or at war, fleets and armies. or living in suspicion and fear of each other. Publius. The most confident supporters of separation cannot suppose that they would begin or remain equally strong because no plan can ever assure equality. Beyond local FEDERALIST NO. 6 Dangers from Conflict Between States Hamilton To the People of the State of New York: The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 7 © 1999 Marshall R. Overstedt
  • 8. THERE IS no doubt that, disunited, the confederations In fact, republics are no less addicted to war than the 13 States might join would often fight each other. Men monarchies, and legislatures just as subject to irregular, are, after all, ambitious, vindictive and rapacious. To violent biases. They often place their trust in “imperfect” expect harmony between unconnected sovereignties in leaders, who taint them with their selfish passions and the same neighborhood is to forget and defy history. views. Causes of international hostility are many. Some afflict Moreover, commerce has done little to abolish war, governments almost constantly. These include the hunger because love of wealth is as corrupting a passion as for power, as against people’s desire for equality and power or glory. Witness that there have been as many safety; and commercial rivalry and competition. wars fought for commercial gain as for territory or Still others arise from private passions of community dominion. leaders who abuse the people’s confidence by sacrificing Sparta, Athens, Rome, and Carthage were republics. public tranquillity to personal benefit. Pericles, wooing a Yet they were as often at war as monarchies in those resentful prostitute, at his country’s expense, destroyed times. the city of the Samnians then, in anger, to avoid Sparta was little more than a well-regulated camp; and prosecution, to avert political accusations, or from several Rome never tired of conquest. causes, launched the Peloponnesian war, which ruined Carthage, a commercial republic, was the aggressor in Athens. the war that destroyed her. Henry VIII’s ambitious prime minister, aspiring to the Venice, in later years, more than once fought wars of crown, precipitated war between England and France. ambition until Pope Julius II gave a deadly blow to this And an example among ourselves: Shays’s haughty republic. indebtedness, which helped plunge Massachusetts into The provinces of Holland, until overwhelmed by debt civil war. and taxes, were conspicuous in European wars. Even today, there are no doubt men who believe there Few nations have engaged in more wars than Britain – can be “perpetual peace between the States,” though many instigated by the people and their representatives – separate and alienated from each other. The genius of often for commercial advantage, against the monarch’s republics (they say) is pacific; the spirit of commerce instincts and the State’s real interests. tends to soften men’s manners and quench tempers These are experiences of countries with interests which have so often kindled wars. Commercial republics similar to our own. How, then, can we expect interstate like ours (they say) would never waste themselves in peace and cordiality after the present Confederacy is ruinous conflicts with each other. They will be governed dissolved? It is time to awake from the dream of a golden (they say) by mutual interest and cultivate amity and age and map a practical direction for our political conduct. concord. The notion that harmony can accompany disunion is Is it not, we may ask, in all nations’ interest to cultivate far from the general sense of mankind. A longstanding such benevolent spirits? If so, have they pursued it? On political axiom has it that nearness and likeness create the contrary, momentary passions and interests have natural enemies, not friends. greater control over conduct than policy, utility or justice. Publius. FEDERALIST NO. 7 Dangers from Conflict Between States Hamilton To the People of the State of New York: SOME PEOPLE ask, why would the States, if The States that contain those lands have claimed them disunited, make war on each other? I answer: For the as their property. Others contend that the crown’s rights same reasons all nations have, at different times, been passed on to the Union – especially that part of the deluged in blood. Western territory which, by possession or submission of Territorial disputes have caused most wars that have Indian proprietors, fell under the king’s jurisdiction until desolated the earth – and would be a real threat for us. relinquished in the peace treaty. This, they say, was an We have vast unsettled territories. There are acquisition to America by compact with a foreign power. dissonant, undecided claims between several of them; Congress has prudently appeased this controversy by dissolution of the Union would cause similar claims asking the States to make cessions to the United States between them all. They have had serious discussions for the benefit of the whole. Under resulting agreements, concerning rights which were ungranted at the time of the a large part of the vacant Western territory is, if only by Revolution, on tracts which were usually deemed “crown cession, the common property of the Union. But if the lands.” Union were to end, the ceding States would be apt to reclaim the lands. The other States would insist on a The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt •Page 8 © 1999 Marshall R. Overstedt
  • 9. proportion, by right of representation. Their argument The opportunities some States would have to exploit would be that a grant, once made, cannot be revoked, others through commercial regulations would be resisted and that land rights acquired or secured by the by the exploitees. The relationship between New York, Confederacy’s joint efforts remain undiminished. Connecticut and New Jersey gives an example. New If, surprisingly, the States should agree that all share York’s revenue needs require her to lay duties on her ownership in the public lands, there would remain the importations, paid by citizen-consumers of the two other difficult question of apportionment. Some worry that States. New York could not give up this advantage, different States would set up different principles: self- because her citizens would not willingly pay a duty in favor interested principles that could lead to conflict, with no of their neighbors; nor could visitors in our markets be umpire or common judge to separate the contenders. separated from citizens. In a land dispute between Connecticut and How long would our oppressed neighbors, forced to Pennsylvania, the Articles of Confederation required support our happiness, let us live in peace? appeal to a federal court, which decided for Pennsylvania. The national debt could also cause collisions between But Connecticut was unsatisfied until compensated with the States or confederacies. The way the debt is an equivalent tract: she no doubt believed herself injured apportioned and paid would certainly produce ill-humor by the decision. and animosity. How could we agree on an apportionment The lesson is that States, like people, accept defeat rule satisfactory to all? Scarcely any we can propose is reluctantly. Those who witnessed the behind-the-scenes free from real objections, and these would be action in the controversy between New York State and exaggerated by “offended” parties. Vermont remember the opposition we faced from States Not even the States agree on a general principle for with real and pretended interests in the outcome. They discharging the debt. Some are unimpressed with the can attest that, had New York tried to claim its rights by need for national credit, others indifferent or opposed to force, the peace of the Confederacy would have been in any payment at any rate. Still other States, many of real danger. The threat grew from two motives: jealousy whose citizens are public creditors, would demand some of New York’s future power and the interests of influential equitable, effective provision. Their resentment would New Hampshire, Massachusetts and Connecticut citizens lengthen the former's procrastinations. In short, expect a who had gained land grants from the government of long delayed settlement. Citizens of the interested States Vermont. Even States with claims clashing with ours would clamor, while foreign powers demand satisfaction seemed more ready to dismember New York than admit of their claims, and peace between the States would be their own pretensions. New Jersey, Rhode Island and threatened by both external invasion and internal Maryland affected zealous support of Vermont’s contention. independence, hoping to deter our growing greatness. Even should the apportionment be made, there is Should we become disunited, these kinds of passions room to suppose that the rule agreed upon would, in would likely embroil all States. Commercial competitions practice bear harder upon some States than others. also generate tension. Smaller, less favorably located Naturally, the “sufferers” would seek relief from the States would want to gain advantage. Every State or burden while the others would dismiss a revision which separate confederacy would set its own peculiar would likely increase their own misery. Their refusal would commercial policy. All of this would create distinctions, encourage the complaining States to withhold preferences and exclusions, which would breed contributions, and this non-compliance would lead to discontent. more wrangling. If all the States agree, some would defer The relationships, based on equal privileges that we payments due to lack of funds, financial mismanagement have enjoyed since the first settlers arrived, would or “mistakes,” and the natural reluctance to support sharpen the causes of discontent. We should be ready to yesterday’s causes. And those delinquencies would recognize some perceived offenses as justifiable acts of generate complaints, recriminations, and quarrels sovereignties serving their own interests. because no one cares to contribute equally to efforts with Still, it is improbable that enterprising Americans would unequal benefit. It is an old but valid truth that nothing respect trade regulations certain States might use to causes friction more quickly than the payment of money. benefit their own citizens. Violations of those regulations Laws that violate private contracts and, thereby, on one side and efforts on the other to prevent and punish citizens’ rights, also cause enmity. We cannot expect that them would naturally lead to outrages, reprisals and wars. the separate States would legislate more liberally toward —————————————–—————— the others after ratification than before, unless we enact was to insure fairness. We witnessed, when the Rhode No tax or duty shall be laid on articles exported from any Island legislature offended Connecticut – the retaliatory State. spirit that can result. In such future “arguments,” real war Article I Section 9 (5) of the U.S. Constitution No preference shall be given by any regulation of is not out of the question. commerce or revenue to the ports of one State over those Previous papers have warned of the dangers to peace of another; nor shall vessels bound to or from one State be of “incompatible” alliances between States or obliged to enter, clear or pay duties in another. confederacies and foreign nations. If America is not Article I Section 9 (6) of the U.S. Constitution united, or only tied into some weak league, we would certainly entangle ourselves in Europe’s deadly intrigues, ———————————————————————— and become prey to its power-grabbing artifices and The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 9 © 1999 Marshall R. Overstedt
  • 10. machinations. We must make “Divide and Command” the motto of every nation that hates or fears us. Publius. FEDERALIST NO. 8 Consequences of Hostilities Between States Hamilton To the People of the State of New York: LET US assume that, if disunited, the States or any small, underendowed states have often defeated large, alliances they might form would undergo the rigors of rich enemies. But very quickly, pride and self-preservation mutual friendship and enmity that affect all neighboring would force potential victim states to arm and organize. nations. Then let us examine what that would mean. Then America would see the same engines of despotism First, we would see war between the States, and much that scourged the Old World. This would be the natural more painful war than befalls countries with longstanding course of events and our policies will more likely succeed military traditions. The disciplined armies of Europe, in maintaining freedom if they fit these realities. though indifferent to liberty and economy, have made These are not vague inferences from supposed sudden conquest impracticable and prevented rapid, defects in a Constitution that puts power in the hands of widespread desolation. The European art of fortification the people, their representatives or delegates. They are has also helped keep the peace: all European nations are solid conclusions, drawn from human history. encircled with battlements. Campaigns to defeat frontier You may ask why standing armies did not spring from garrisons by invasion are wastes of time, money and the dissension that often distracted the Greek republics? manpower. Previously, invaders penetrated to the enemy There is no one answer. Today’s industrious people, nation’s heart before the invadees knew they were under absorbed in gainful pursuits, are unlikely to build “soldier attack. Now a relatively small, disciplined defensive force, nations” like the Greeks produced. Modern revenue aided by listening posts and watchtowers, can stop large sources, multiplied by the growth of gold and silver, the armies in their tracks. Europe’s military history tells not of industrial arts, and financial sciences, have revolutionized nations subdued and empires overturned, but of battles war, making disciplined armies and hostilities inseparable. that decide nothing. There is also a wide difference between military In America, events would be reversed. Jealous of the establishments in countries rarely threatened and those in resources military establishments always consume, the constant fear of invasion. Safe countries may keep States would postpone building them, opening highways armies as large as any. But their citizens would be in no for enemies to travel. Big States would easily overrun danger of military subjugation, laws would not be written their small, weak neighbors. But once conquered, the to protect central authority, and civil government would newly-won territory would come under attack by someone maintain vigor. When they have no need for protection or larger and stronger. We would see random wars, one to submit to its oppression, citizens view the soldiery as a after another, typified by plunder and devastation necessary evil, and readily resist government attacks on expected from untrained, undisciplined, demoralized their rights. The army may help suppress a mob or irregulars. insurrection, but cannot encroach against the people’s Defense against invasion is the most powerful dictator united efforts. of national policy. Liberty cannot stand against it. Violent In a country constantly threatened, the opposite death and destruction and ongoing danger compel even happens. The government is obliged to always prepare to freedom-loving countries to resort to institutions that tend repel invasion. Its armies must be big enough for instant to destroy civil and political rights. defense. The continual need for their services increases These institutions include standing armies, which are the soldier’s importance and degrades the citizen’s. The not prohibited by the new Constitution; therefore some military rises above the civil. The rights of inhabitants of infer they may exist (though with great expense and threatened territories are unavoidably infringed. This difficulty) under it. Dissolution of the Union, however, weakens their sense of those rights and causes them to would guarantee standing armies, produced by frequent see the army as not only their protectors but their war and constant tension. Weaker States or superiors – eventually, as masters. And it is very difficult confederacies would arm first, to match more potent to motivate people to boldly or effectively resist the neighbors. They would also, by necessity, strengthen their military’s power. executive arms, while weakening the legislatures, and Britain falls in the “safe” category. Her geography and thereby begin a steady march toward monarchy. powerful marine guard her against invasion and eliminate This military strength would make the States or a need for a large army. All she needs is enough force to confederacies that use them superior to their neighbors. meet a sudden attack until the militia could form and rally. Under strong governments with disciplined military forces, National policy does not demand, and public opinion The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 10 © 1999 Marshall R. Overstedt
  • 11. would bar, a large regular army. For a long time, there Nearby colonies will likely continue too weak to threaten has been little room for the operation of the other causes us. Therefore we should not need an extensive military. of internal war. All these elements serve to preserve But if we should disunite, or should the States join in liberty in spite of Britain’s prevalent venality and two or three confederacies, we would soon look and act corruption. But if Britain were located on the continent, like European powers and our liberties would fall prey to she would be forced to build military establishments the need to defend ourselves against each other. competitive with the rest of Europe’s huge standing This question deserves the most serious and mature regular armies, and probably be victim to a single man’s consideration of all prudent, honest men of all parties. If absolute power. It is possible, though not likely, that the they will make a firm, solemn pause and meditate British may be enslaved from other causes, but not by its dispassionately on its importance in all its aspects, they inconsiderable army. will quickly part with trivial objections to a Constitution, If we are wise enough to preserve the Union we may rejection of which would probably end the Union. enjoy advantages similar to Britain’s. Europe is far away. Publius. FEDERALIST NO. 9 The Union as a Safeguard Against Domestic Faction and Insurrection Hamilton To the People of the State of New York: A FIRM Union will be vital to the States’ peace and during good behavior, establishing legislatures to which liberty, as a bar against faction and insurrection. You the people elect their own representatives – these are cannot read the history of the Greek and Italian new, or newly perfected, ideas. Republican governments confederacies without feeling horror and disgust at the use them to strengthen themselves and remove or reduce many revolutions that kept them continually swinging their imperfections. between tyranny and anarchy. Those were violent times, To these strengths, I add republicanism's ability to when creativity was often shattered by governmental serve large and small constituencies: single states as well vices. as continental confederacies, such as ours. In those disorders, modern despots find arguments Confederacies’ ability to suppress faction and to keep against republicanism. They label free government the domestic peace has been used in many countries and inconsistent with order and deride its supporters. Ages- times, and is sanctioned by the most distinguished old free institutions refute these fallacies. And I believe political writers. The Constitution’s opponents have America will create equally magnificent, permanent quoted Montesquieu on a republican government’s need monuments to liberty. to limit its territory. But they neglect some of that great The images of republican government they draw are man’s other opinions. distorted. But political science has improved greatly and, When Montesquieu recommends small republics, his though unknown to the ancients, is now well understood. standard was far smaller than almost all of our States. ———————————————————————– Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina or Georgia can be compared with his All legislative powers herein granted shall be vested in a models. If we accept his idea, we must resort to Congress of the United States, which shall consist of a Senate and House of Representatives. monarchy or split into infinite little, jealous, clashing, Article I Section 1 of the United States Constitution stormy commonwealths breeding endless discord and The executive power shall be vested in a President of the earning universal contempt. Some writers on the other United States. He shall hold his office during the term of side seem aware of the dilemma, and have even four years, and together with the Vice-President, chosen for the same term, be elected as follows: suggested division of the larger States. That policy, Article II Section 1 of the United States Constitution creating countless offices, would serve petty politicians The judicial power of the United States shall be vested in who could never promote the greatness or happiness of one Supreme Court, and in such inferior courts as the the American people. Congress may from time to time ordain and establish. The Moreover, while it would force us to shrink our largest judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated States, it would not prevent them from joining in one times, receive for their services a compensation which confederate government – and this is the real issue here. shall not be diminished during their continuance in office Not only does Montesquieu not oppose a general .Article III Section 1 of the United States Constitution Union of States, he views a confederate republic as a way to strengthen popular government. He says: ———————————————————————— Dividing power into distinct departments, legislating balances and checks, staffing courts with judges serving The Federalist Papers: An Update • Edited by Marshall Overstedt • Page 11 © 1999 Marshall R. Overstedt
  • 12. It is very probable that mankind would have These passages summarize the principal arguments been obliged at length to live constantly under the for the Union, and remove the false impressions intended government of a single person, had they not by misapplying other parts of the work. They are also contrived a kind of constitution that has all the connected with the subject of this paper: the Union’s internal advantages of a republican, together with ability to repress domestic faction and insurrection. the external force of a monarchical government. I A subtle distinction has been raised between a mean a confederate republic. confederacy and a consolidation of States. The essence This form of government is a convention by of the first, it is said, is that its authority is restricted to the which several smaller states agree to become members’ collective capacities, excluding the individuals members of a larger one, which they intend to that compose them. Some contend that the national form. It is a kind of assemblage of societies that government should be uninvolved in internal constitute a new one, capable of increasing, by administration. Others insist that a confederacy’s member means of new associations, till they arrive to such States must have exactly equal suffrage. These arbitrary a degree of power as to be able to provide for the positions are unsupported by principle and precedent. security of the united body. Indeed, there is no absolute rule on these subjects. This A republic of this kind, able to withstand an investigation will show such equality has caused incurable external force, may support itself without any disorder and imbecility. internal corruptions. The form of this society The definition of a confederate republic seems simply prevents all manner of inconveniences. to be “an assemblage of societies,” or two or more States If a single member should attempt to usurp the joined in one State. The extent and specifics of federal supreme authority, he could not be supposed to authority are discretionary. So long as the States’ have an equal authority and credit in all the separate governments stay in power serving local confederate states. Were he to have too great purposes but subordinate to the Union’s general authority, influence over one, this would alarm the rest. it would still be an association of States, or a confederacy. Were he to subdue a part, that which would still The proposed Constitution, far from abolishing the remain free might oppose him with forces State governments, makes them integral to national independent of those which he had usurped and sovereignty, by allowing them direct representation in the overpower him before he could be settled in his Senate and certain exclusive, important portions of usurpation. sovereign power. This conforms to the definition of a Should a popular insurrection happen in one of federal government. the confederate states the others are able to quell In the Lycian confederacy, consisting of 23 cities or it. Should abuses creep into one part, they are republics, the largest were entitled to three votes in the reformed by those that remain sound. The state common council, those in the middle to two, and the may be destroyed on one side, and not on the smallest to one. The common council appointed all the other; the confederacy may be dissolved, and the cities’ judges and magistrates. This, obviously, interfered confederates preserve their sovereignty. with the local jurisdictions’ natural powers, which include As this government is composed of small appointing their own officers. Yet Montesquieu said of this republics, it enjoys the internal happiness of association: “Were I to give a model of an excellent each; and with respect to its external situation, it Confederate Republic, it would be that of Lycia.” is possessed, by means of the association, of all From this it is apparent that he never contemplated the the advantages of large monarchies. distinctions the objectors insist upon. Publius. FEDERALIST NO. 10 The Union vs. Faction and Insurrection – #2 Madison To the People of the State of New York: IN POPULAR governments, faction is a dangerous governments are too unstable; that the public good is vice. The Union’s key advantage is its ability to break and disregarded in factional rivalries and decisions are too control it. often based on the majority’s overbearing interest. Faction generates instability, injustice and chaos that These complaints are in some degree true, and some have destroyed many elected governments – arming of the blame we lay to government is mistaken. Still, liberty’s enemies. Our State constitutions have introduced many serious problems derive from distrust of public improvements on democracy, but faction remains a actions and fear for private rights. These largely result danger. Some prominent citizens complain our The Federalist Papers: An Update • Edited by Marshall Overstedt • Page 12 © 1999 Marshall R. Overstedt
  • 13. from factious spirits reflected in unsteady, unjust Elected government must protect against it in order to administration. win popular support, either by preventing a bad idea from By a faction, I mean a minority or majority united and gaining a majority or an “infected” majority from taking motivated by an interest conflicting with others’ rights or malevolent action. the community’s interests. From this, you may conclude that a democracy, where There are two cures for faction: (1) remove its causes, citizens govern in person, cannot cure the ills of faction. (2) control its effects. And there are two ways to remove Common passions or interests almost always affect the causes: (1) destroy liberty and (2) give everyone the majorities of the whole; there is nothing to stop them from same opinions, passions and the interests. sacrificing the minority to its own cause. This is why The first remedy is worse than the disease. To abolish democracies are typically turbulent and contentious, liberty because it nourishes faction makes as much sense incompatible with personal security or property rights and as abolishing air because it supports fire. As to the typified by short lives ending in violent deaths. Theoretic second, as long as reason isn’t perfect, and we are free politicians who promote pure democracy suppose that to exercise it, opinions will differ. As reason is linked to perfect equality will equalize everyone’s possessions, ego, opinions and passions influence each other. Men’s opinions and passions; history shows this is mistaken. varied faculties – the source of property rights – also ———————————————————————— prevent uniform interests. Protecting these faculties is government’s first duty. Each State shall appoint, in such manner as the legislature thereof may direct, a number of Electors, equal to the Protecting different, unequal property-acquiring faculties whole number of Senators and Representatives to which creates different sizes and kinds of property, and their the State may be entitled in the Congress; but no Senator influence on the emotions and views of respective owners or Representative, or person holding an office of trust or divides society into factions. profit under the United States shall be appointed an Elector. Faction is human nature, and it works everywhere at Article II Section 2 of the United States Constitution different levels. Different religions, political ideas, The Electors shall meet in their respective States and vote attachment to different candidates … These are some by ballot for two persons, of whom one at least shall not be things that divide us into factions. Sometimes faction an inhabitant of the same State with themselves. And they inflames animosity and drives us to fight each other. This shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and “drive” is so strong, that when there is no major cause at certify, and transmit sealed to the seat of the government work, minor distractions can ignite violence. of the United States, directed to the President of the But the most common, durable cause of faction is Senate. The President of the Senate shall, in the presence unequal property distribution. Those with and those of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The without property have always taken political sides. person having the greatest number of votes shall be the Regulating these conflicting interests (an essential President, if such number be a majority of the whole legislative mission) involves partisanship and faction in number of Electors appointed; and if there be more than government’s necessary, ordinary operations. one who have such majority, and have an equal number of No man is allowed to be a judge in his own cause, votes, then the House of Representatives shall immediately choose by ballot one of them for President; because his interest would bias his judgment and and if no person have a majority, then from the five probably corrupt his integrity. Wisely, bodies of men are highest on the list the said House shall in like manner barred from both judgment and advocacy of a given choose the President. But in choosing the President the cause. But most legislation is judicial as it concerns votes shall be taken by States, the representation from each State having one vote … citizens’ rights. And legislators are advocates and parties Article II Section 3 of the United States Constitution to political causes on which they decide and vote. To a Note: The Articles of Confederation do not contain the words proposed law concerning private debts, creditors are “President” or “election.” parties on one side and debtors on the other. Justice should hold the balance between them, yet the parties ———————————————————————— themselves are the judges and the largest, most powerful A republic where people act through elected will win. representatives offers the cure. Examine its differences Shall we encourage domestic manufacturing by from pure democracy, and you will see how it benefits the restricting foreign goods? This question would be decided Union. The two great differences between a democracy very differently by the landed versus the manufacturing and a republic are: classes. It is pointless to say that enlightened statesmen 1. The small number of delegates elected to can adjust these clashing interests and subject them to government by the rest. the public good. In fact, they will not always be in charge. 2. The greater number of citizens, and greater territory, In short, causes of faction cannot be removed but only over which the republic may extend. (hopefully) controlled to optimize or minimize its effects. The first difference refines and enlarges public views But in a republic, if an evil faction has less than a by passing them through a chosen body, whose wisdom majority, the republican principle allows the majority to can best discern the country’s true interest, and is least vote against and defeat it. The offenders may clog likely to sacrifice that interest to expediency. This way, the government and convulse society, but the Constitution will people’s voices, amplified by their representatives, are prevent their violence. more in harmony with the public good than if pronounced But when a faction holds a majority, nothing can stop it by the people themselves in a meeting for the purpose. from sacrificing the public good for its own benefit. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt t • Page 13 © 1999 Marshall R. Overstedt
  • 14. On the other hand, the effect may be inverted. Corrupt learn their interests. Too few voters tied to them limit their men may use intrigue, bribery or other means to win ability to understand and deal with national questions. election and then betray the people’s interests. This The federal Constitution refers the great, aggregate raises the question whether small or large republics can interests to the national Congress and local, particular elect better guardians of the public good. Larger republics questions to the State legislatures. are the best choice, because: Another difference: A republic can govern a larger A. However small, the republic must have enough population and territory than a democracy, because it is representatives to guard against the malicious few. most able to control faction. B. However large, delegates must be few enough to The smaller the society and the fewer the interests prevent the chaos of over-representation. within it, the more often a majority concentrates in one Note that the number of representatives in each case party and fewer individuals are needed to form a majority is not in proportion to its constituency, and the small – which operates over a short, narrow range of issues. republic has a greater proportion. It follows that if the ratio This makes it easy for oppressors to organize, plot and of fit candidates in the large republic equals that in the operate. small, the large republic will offer more choices a better But when you widen the fields of interest, including chance to elect a qualified representative body. more people, more parties and diverse interests, you ———————————————————————— make it more difficult for a majority to violate the For the most convenient management of the general minority’s rights. That limits a faction’s opportunity and interests of the United States, delegates shall be annually ability to function. For one reason, it takes many more appointed in such manner as the legislatures of each State people to gather critical mass and soon distrust and shall direct, to meet in Congress on the first Monday in dissension begin to erode effectiveness. November, in every year, with a power reserved to each In controlling faction, a large republic like the proposed State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the United States has the same advantage over a small remainder of the year. No State shall be represented in republic that any republic holds over a pure democracy: Congress by less than two, nor more than seven members the ability to place many strong obstacles against unjust … self-interested majorities. Article V of the Articles of Confederation Factious leaders may kindle fires within their own Representatives and direct taxes shall be apportioned States, but they could not spread general conflagration among the several States which may b e included within through the others. A religious sect may degenerate into a this Union, according to their respective numbers, which shall be determined by adding to the whole number of free political faction in a corner of the nation, but the number persons, including those bound to service for a term of and variety of denominations spread across it will shield years, and excluding Indians not taxed, three-fifths of all the country from that kind of danger. A rage for paper other persons. money, an abolition of debts, an equal division of property Article II Section 3 of the United States Constitution or any other improper or wicked project will be unlikely to ——————————————————————— pervade the Union. Moreover, as each representative will be elected by In the Union’s size and proper organization, I see a more voters in the large than in the small republic, it will republican cure for the diseases that most often afflict be more difficult for unworthy men to win election; and republican governments. In the pride we feel in being since voters are more free, they will likely gravitate to republicans should be our zeal in cherishing the spirit and worthy candidates. supporting the character of Federalists. Yet there is a middle ground, surrounded by concerns. Publius. Too many voters make it difficult for representatives to The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt t • Page 14 © 1999 Marshall R. Overstedt
  • 15. FEDERALIST NO. 11 Need for the Union and a Navy to Advance Commerce Hamilton To the People of the State of New York: THERE IS little disagreement on the Union’s ability to build a navy able to challenge the Europeans. commercial importance to foreign trade. This would be especially valuable to our operations in the European maritime powers are uneasy about our West Indies. A few American ships, sent to reinforce adventurous commercial spirit and its possible threat to either the British or the Spaniards could be enough to their shipping – the basis of their navigation strength. make either a winner or loser. Those with American colonies foresee dangers from In the West Indies, we can command great respect. bordering States able to build powerful marines. And if we offer useful American military equipment, we ———————————————————————— can negotiate commercial privileges and set attractive prices on our friendship and neutrality. No vessel of war shall be kept up in time of peace by any Indeed, by keeping the Union we can “referee” State, except such number only, as shall be deemed necessary by the United States in Congress assembled, Europe’s American conflicts, and turn them to our for the defense of such State, or its trade … advantage. But by separating, we would allow rivalries Article VI of the Articles of Confederation [The Congress shall have the power) To provide and between the States to destroy all of our advantages in maintain a navy … [and] To make rules for the government international politics and trade. European nations at war and regulation of the … naval forces … with each other would not fear us, and could raid our Article I, Section 8 (13) & (14) of the United States Constitution No State shall, without the consent of Congress … keep resources to fill their needs. troops and ships of war in time of peace … Neutrality rights are respected only when defended. A Article I, Section 10 (3) & of the United States Constitution weak nation gives up even the privilege to be neutral. Under a vigorous national government, our natural ———————————————————————— strength and resources, directed to a common purpose, In defense, they will likely try to divide us and keep us would impede European efforts to limit our growth. Active from carrying our goods in our own ships. This would commerce, extensive navigation and a thriving maritime prevent us from competing with them, gaining the profits industry are, in short, morally and physically necessary. from our own goods and realizing our potential greatness. But disunited, even little schemes by little politicians By remaining united, we can counter this threat in could defeat us. Powerful maritime nations, capitalizing many ways. By enacting regulations, nationwide, we can on our impotence, could set the conditions for our political force foreigners to bid against each other for access to existence. Moreover, as they have a common interest in our markets. This is a real concern to those who see the carrying our goods and preventing us from shipping importance of our rapidly growing, essentially agricultural theirs, they would likely unite to destroy, or at least markets to all manufacturing nations. By not acting neutralize, our shipping. We would then be forced to against us, they risk huge losses in trade and shipping. accept any price for our commodities, and hand our trade Suppose we had a government strong enough to bar profits to our enemies. The unequaled spirit of enterprise, Great Britain (with whom we have no commercial treaty). which signifies the genius of American merchants and This would enable us to negotiate vast, valuable navigators, and is an inexhaustible mine of national commercial privileges in the British colonies. wealth, would be stifled and lost. Then poverty and In the past, Britain might have responded by simply disgrace would spread across a country that, with shipping her goods to America through the Dutch. But wisdom, could win the world’s admiration and envy. the loss of revenue from not using her own ships would Some rights of importance to American trade are also be heavy. And the Dutch, not they, would pocket the rights of the Union. I mean the fisheries, navigation of the principal profits. This round-about, expensive trade Western lakes and access to the Mississippi. Dissolving arrangement would also make British goods higher priced the Union would bring the nation’s whole waterborne and less competitive against the rest of Europe – another mercantile future into question. Our enemies would serious financial threat. certainly exploit our disunity. I believe that these disadvantages would force Britain Spain stands between us and the Mississippi. France to grant us market privileges in her island colonies in the and Britain compete with us for fisheries – and see them West Indies. To gain these benefits, we would need to as critical to their navigation. They would not neglect this grant some exemptions and immunities in our own, and valuable weapon that prevents us from underselling them this would affect relations with other nations hoping to in their own markets. What could be more natural than share in our trade. preventing their success? Another way to influence European nations’ conduct We should not consider our maritime strength a partial toward us would be to establish a federal navy. One of an benefit. All the navigating States could – probably would – effective Union government would be the strength and The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 15
  • 16. benefit from it. As a nursery of seamen, it is a universal On the other hand, whether the States are united or resource. To the launching of a navy, it is indispensable. not, there would be intimate intercourse between them. To the navy, the Union is important in various ways. In But this commerce would be obstructed by many causes, fact, every federal institution will grow and flourish in which have been amply detailed in these papers. Unity, proportion to the size and weight of united support we put whether commercial or political, can only result from behind it. A United States Navy, which would tap all the government unity. States’ resources, would be easier for the Union to build There are other striking, animated points of view on than any single State or partial confederacy. this subject, but they lead too far into the future for Indeed, different parts of united America have peculiar discussion in a newspaper article. Still, I say our situation advantages to put behind this enterprise. The southern invites and our interests prompt us to plan for on-going States have certain kinds of naval stores – wood for hulls, improvement in American government. The world may tar, pitch, and turpentine – in abundance. Some Southern politically and geographically be divided into four parts and Middle States have ample, high-quality iron. Seamen (Europe, Africa, Asia and America), with four sets of must come chiefly from the North. interests. Unhappily for the other three, Europe – through Unrestrained commerce between the States will force, negotiations and fraud – dominates them all. Her assure success of their products, both at home and, success tempts her to believe the rest of mankind exists through access to ports, overseas. Also, the different for her benefit. Philosophers have credited Europeans States’ varied products will help commercial enterprise with physical superiority, and have asserted that all grow ever larger. When one State’s staple fails from a animals, including humans, degenerate in America. It is bad harvest, another State can replace it. our responsibility to vindicate the honor of the human Wide varieties, as well as high values, of exportable race and to teach the arrogant Europeans humility. products permit market competition and fluctuations that Union will let us do that. Disunion will defeat us. Let allow us to operate on better terms. Some items may be Americans refuse to become instruments of European in demand at one time and unsalable at another, but a greatness! Let the thirteen States, bound together in a range of articles could not all suffer down markets at strict and indissoluble Union, erect one great American once. Shrewd traders will readily recognize these system, superior to transatlantic force or influence, and opportunities and will acknowledge that the aggregate able to dictate terms of connection between the old and balance of United States commerce would be much more new world! favorable than that of thirteen separate or partially-united Publius. States. FEDERALIST NO. 12 The Union’s Value to Revenue Creation Hamilton To the People of the State of New York: A flourishing commerce is the nation’s most productive defeated repeatedly by government gluttony and source of wealth. Accordingly, it deserves intense inefficiency, and the economy’s inability to create wealth. discussion. By rewarding investment and hard work and This surprises no one acquainted with other countries. promoting circulation of currency, it energizes industry In Britain, where direct taxes on huge wealth should be and keeps it flowing abundantly. Every businessman more tolerable and government is vigorous in collecting aspires and expects to profit from his effort. Indeed, we them, most national revenue comes from indirect taxes: now know the shared interests of agriculture and domestic imposts and import duties. commerce have erased their old rivalries. History shows, ———————————————————————— as commerce prospers, land values rise because, when businessmen add value to earth products, farming The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the creates new wealth. Nothing works harder than enterprise several States within the time agreed upon by the United to optimize the value of labor and industry. Still, some States in Congress assembled. men argue against this obvious truth. Article VIII of the Articles of Confederation Tax rates should conform to the volume and circulation The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide velocity of wealth in the economy. Commerce contributes for the common defense and general welfare of the United to both volume and velocity, making taxation easier. States; but all duties, imposts and excises shall be uniform The Emperor of Germany controls Europe’s best gold throughout the United States. and silver mines. Yet, with weak commerce, he collects Article I Section 8 (1) of the United States Constitution small revenues and must borrow from other nations. In America under the Articles of Confederation, direct ———————————————————————— national and State taxation is impracticable. It has been America obviously must depend on them as well. But with difficulty. Excises must come from a short, narrow list The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 16 © 1999 Marshall R. Overstedt
  • 17. of sources because our enterprising business people will dangers of our rugged coast and detection by our navy resist and find ways to avoid them. Farmers will yield before and after reaching their destinations. A few armed reluctantly to impositions on their houses and lands. And vessels, stationed at port entrances, could prevent personal property is too unstable and easily concealed to infractions of our revenue rights. And because the be taxed, except at the time of consumption. national government would have a uniform interest to We must find a tax mode and source that eliminate prevent smuggling throughout the States, enforcement these negative concerns and best fill our political and would also be uniform. economic needs. It must be based on a federal/national Should we dissolve the Union, we would throw away Union, must support commerce and must expand its this advantage. The United States lie a great distance ability to create wealth and, thereby, generate from Europe. No one can pass from there to here in a government revenues. It must also make tax collection matter of hours, as happens between France and Britain. simpler, more effective and more productive without This is a great weapon against overseas smuggling. The raising the rate of duties, and must make it possible for difference between importation from abroad and through government to raise the rate without reducing trade. a channel to a neighboring State is obvious. And a But there are many factors that facilitate import-tax national government could, at much less expense, extend evasion through smuggling: the many rivers, bays and import duties further than any single State or partial other means of communication-transportation within and confederacy. between the States, and their similar language, manners Historically, I believe, State duties have not exceeded and customs. Should we disunite, mutual jealousy would three per cent. In France they are estimated at about 15 force the separate States or confederacies to keep duties per cent; in Britain they exceed that. In this country, there low in order to avoid those temptations. This is because is nothing to keep the States from tripling their taxes. One the temper of their governments would not allow the kinds barrel of whiskey could yield important revenue. About of extreme measures European nations use to guard their four million gallons of spirits are imported yearly into New trade routes and ports. York State. A shilling tax per gallon would produce two France has an army, estimated at 20,000 strong, to hundred thousand pounds. The liquor industry could constantly patrol her inroads from smugglers. This shows absorb this rate of duty, and if it diminished consumption, the difficulty it faces in preventing illicit traffic. Should that would benefit agriculture, the economy, the public disunion place our States in the same situation, such morals and the health of the society. force would not be tolerated. What if we cannot fully utilize this resource? Without But with one government working for all the States, revenues, a nation loses its independence, and degrades and free trade between them, we would have only the into a province. No government would choose that status. Atlantic Coast to guard. Foreign vessels would rarely risk Publius. unloading before reaching port. They would face the FEDERALIST NO. 13 Union’s Benefit to Government Economy Hamilton To the People of the State of New York: Some say the convention plan would cost too much. weak eastern flank to such a powerful confederacy. New But the more money government can save, the less it Jersey, too small to serve as a frontier against it, would needs to raise in taxes. United under one government, turn north. Even Pennsylvania, with her foreign the States will have only one national budget. But dividing commerce, strong navigation and her citizens’ into several confederacies will create many treasuries to dependency on them, would want to join the Northern fill. separating into unconnected governments would cost league. more. Conversely, Southern States would see little reason to Those who consider dismemberment seem to envision encourage navigation and give other nations freedom to three confederacies: a Northern and Middle group of four carry and buy the commodities they produce. States each, and a Southern group of five. Each would be Pennsylvania, which must in any case be a frontier, would larger in area than Britain. No entity that size could feel safest with her exposed side facing the weaker survive with a government smaller than proposed; once a Southern confederacy. than the more powerful North. society reaches a certain size, it requires the same civil Whatever her decision, if the Northern group includes energy and organization as the largest nation. New Jersey, there would be no more than one Also, if you study the States’ geography, economies confederacy south of Pennsylvania. and peculiar habits and prejudices, you see that disunion Obviously, the thirteen States can better support one will most naturally align them under two governments. national government than two or more confederate I believe that the “New England” States, with many administrations. This negates the mistaken constitutional links, will unite. New York could not afford to expose her objection based on cost. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 17 © 1999 Marshall R. Overstedt
  • 18. Considering the number of governments and the invasion, it is clear that separation would injure our employees – police, military and administrators – needed economy, tranquillity, and liberty. to oversee the routes and borders between the different Publius. confederacies and guard them against smuggling and FEDERALIST NO. 14 Geographic Objections to the Proposed Plan Madison To the People of the State of New York: FEW DOUBT the Union’s value in defending us from 2. The first objective of the federal Constitution is to foreign dangers, domestic unrest and economic secure our 13-State Union, the second is to add other weakness. It also protects us from military regimes like States. Both goals, we know, are practical. those that subverted Europe and the diseases of faction 3. Commerce across the Union will be aided by better that have killed other popular governments. Only one roads and accommodations, an interior waterway down reasonable objection remains: the huge area the Union the Atlantic coast and other communications facilities. must govern. 4. Almost every State will, on one side or another, be a Adversaries of the new Constitution imagine that a frontier bordering foreign nations and, therefore, have the republic’s ability to govern is limited. I believe they greatest need of its strength and resources. mistake republics for democracies. The real difference It may be inconvenient for Georgia or other Western between them is that, in a democracy the people meet and Northwestern border States to send representatives and exercise government in person; in a republic they to Congress, but not as much as struggling alone against delegate it to elected representatives. an invasion. If they benefit less in some ways than more Democracies, as a result, apply best to small nations. central States, they will benefit more in other ways. Republics can administer huge territories, like ours. Do not listen to that voice saying that the American Some writers in absolute or limited monarchies, try to people, united by so many cords of affection, can no exaggerate republican vices and defects, citing the longer live together in the same family, can no longer turbulent democracies of ancient Greece and modern protect mutual happiness, can no longer share a great, Italy. respectable, robust empire. Do not believe that the Even today’s Europe, which invented representative proposed government is a novelty that attempts the government, has not one pure republic. Americans have impossible. The most alarming novelty is that of tearing the opportunity to establish the first genuine republic. But us apart to save our liberties and promote our happiness. sadly, some citizens would, by rejecting the proposed Why reject the experiment of an extended republic constitution, deprive us of its many benefits. merely because it is new? Is it not our glory that, while we A democracy’s limit is the distance the most remote respect other times and systems, we will not overrule our citizens can afford to travel to participate in government. good sense and the lessons of our own experience. A republic’s limit is the distance from the center that Future generations will be indebted for the many barely allows representatives to meet as often as innovations about to benefit private rights and public necessary to administer public affairs. Do the United happiness. Had the leaders of the Revolution acted only States’ borders exceed this distance? Over the past on established precedent, or proposed no government thirteen years, the States’ representatives in Congress, without a perfect historic model, Americans might be from the nearest and the farthest-away districts, have suffering the same misery bad governments have always met almost continually. inflicted on mankind. But, happily for America and the The Union’s limits, fixed by our peace treaty with whole human race, they found a new and nobler way. Britain, are the Atlantic on the east, latitude 31º on the They accomplished a revolution which has no parallel in south, the Mississippi on the west, and on the north an history; created governments with no models on earth. irregular border running between 42º and 45º. Comparing They designed a great Confederacy, which their this area with several European countries, the task of successors must improve and perpetuate. Their product governing it is well within our ability. It is only a little larger is not perfect, but we wonder at how close they came. than Germany, where a diet representing the whole True, in framing the Articles of Confederation, they empire meets every day. In Great Britain, members of structured a flawed Union, but this was the most difficult Parliament from the northern extremity routinely travel as task they faced and this is the mistake that the convention far as the longest distance within the Union. In addition: has corrected. 1. The general government’s lawmaking powers would Publius be limited to concerns that affect all States. The State governments would deal with all others. The Federalist Papers: An Update • Edited by Marshall Overstedt • Page 18 © 1999 Marshall R. Overstedt
  • 19. FEDERALIST NO. 15 The Articles’ Inability to Save the Union – #1 Hamilton To the People of the State of New York. THE CONVENTION plan’s supporters and opponents authority, but pervades and governs the powers on which agree that our national system has material imperfections its efficiency and effectiveness depend. and something must be done to prevent anarchy. Indeed, The United States can indefinitely requisition men and we have seen virtually everything that can wound an money, but not by going directly to individual American independent nation. citizens. As a result, though government resolutions are For example, we have incurred debts to foreigners and laws in theory, in practice they are only recommendations fellow citizens to preserve our political existence, with no the States may observe or ignore. proper provision for repayment. It is troubling, after our experience with tyranny, that A foreign power – against our interests and our rights there still are men who fault the new Constitution for – holds important territories and valuable posts that we deviating from this baneful old principle, which is should have reclaimed long ago. incompatible with the idea of government and would We have neither troops, treasury or government to substitute a bloody sword for reason and persuasion. repel aggression or even remonstrate with dignity. There is no reason not to support the idea of a league We cannot freely navigate the Mississippi because or alliance between independent nations for specific Spain bars us from it. purposes precisely stated in a treaty that leaves nothing Our public credit, indispensable in dangerous times, to interpretation and whose success depends on the good has been abandoned as irretrievable. faith of the parties. This kind of agreement exists among Our commerce, essential to national wealth, is at its all civilized nations, subject to the usual rigors of peace lowest point. and war, of compliance and non-compliance, and the Respectability in foreign powers’ eyes should protect parties’ changing interests. Early in this century, Europe us from encroachment, but our government’s imbecility had an “epidemic” of these treaties, whose fondly-hoped- discourages them from dealing with us; our ambassadors for benefits never materialized. To establish a balance of abroad are a joke. power and secure peace, all the resources of negotiation Violent, unnatural decline in land values is another were exhausted and triple and quadruple alliances were sign of our distress. Our low improved-land prices can formed – and then immediately broken. It taught mankind only be explained by lack of confidence. how little to depend on treaties with no sanction other Our shortage of private credit, too, more reflects than good faith, that entrust peace and justice to insecurity than scarcity of money. immediate political interests or passions. Who and what brought us to this situation? The same If our States chose that kind of relationship, with no interests and ideas that would reject the proposed central government, they would risk the same kind of Constitution. Federalism’s old adversaries strenuously failure. It would give them an alliance both offensive and oppose the only principles that can give us a chance to defensive where they would be friends one day and succeed. Admitting the United States government is enemies the next as their rivalries, fed by foreigners’ devoid of energy, they oppose equipping it with powers intrigues, ebb and flow. needed to supply it. They still aim to increase Union But if we refuse to be placed in that situation, and authority without decreasing State authority. This choose a national government or a common council, the demands full exposure of the Confederation’s main plan must include the elements that separate leagues defects, products of errors correctable only by from governments. It must extend the Union’s authority to redesigning and rebuilding the entire structure. our citizens – government’s only proper interests. ———————————————————————– ––––––––––––––––––––––––––––––––––––––––––—— – The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the The citizens of each State shall be entitled to all privileges security of their liberties, and their mutual and general and immunities of citizens in the several States. welfare, binding themselves to assist each other, against – Article IV Section 2 [1] of the United States Constitution all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any ———————————————————————– other pretense whatever. Article III of the Articles of Confederation Government implies the power to make laws. It is essential that a law include a sanction: a penalty or ———————————————————————–– punishment for disobedience. Otherwise, resolutions or The Confederation’s great fault is in the principle of commands pretending to be laws will amount to nothing legislating for States as collective entities, not for their more than advisories or recommendations. And the individual citizens. It does not run through all Union penalty, whatever it may be, can only be inflicted (1) by the courts and ministers of justice or (2) by force of arms. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 19 © 1999 Marshall R. Overstedt
  • 20. The first kind applies only to men, the second to Therefore, if federal laws cannot be enforced without bodies politic or communities or States, because there is federal authority, they will not be enforced at all. The no way for a court to punish a rebellious government. In State governments, with or without constitutional power to an association where general authority applies to the act, will make their own judgments on the rightness of collective bodies of the communities that compose it, those laws according to their immediate interests, aims every law violation must evoke a state of war. Such a and the degree of convenience. This scrutiny will take state does not deserve to be called “government,” nor place oblivious to national interest and concern essential would any sensible person commit his life, liberty and to right judgment, but with a strong bias to local politics, happiness to it. which always misguides decisions. The process will be At one time we were told that a sense of common repeated in every State and the actual execution will be interest would assure the States’ compliance with the heavily influenced by its ill-informed, prejudiced opinion. Union’s constitutional requisitions. Today, based on our Those who take part in Congressional debate, who know intervening experience, this idea seems ridiculous. It how difficult it is to gain agreement on important issues, betrays an ignorance of human nature. recognize the impossibility of inducing cooperation among Why institute government at all? Because, without all those State legislatures, deliberating independently at constraint, men will not conform to reason and justice. different times with different motivations. Have we found that bodies of men act with greater In our case, the Articles of Confederation require integrity or impartiality than individuals? All accurate agreement of all thirteen sovereign wills to execute every observers of mankind’s conduct answer “no.” And the vital national measure. As predicted, Union measures source of the inference is that self respect is weaker have not been carried out and the States’ delinquencies when the blame for a bad deed is divided among many have halted the national government. Today Congress than when laid to one. A spirit of faction, which poisons can scarcely keep up the forms of administration, until the deliberations of all bodies of men, often rushes States take the time to agree to replace the present collectivities into acts that individual members would shadow of a federal government. never commit on their own. This desperate situation did not arise at once. The Additionally, inherent in sovereign power is a specified causes first produced unequal, disproportionate resistance to outside control. In every political association degrees of State compliance. Some States’ deficiencies formed to unite a number of smaller groups in a common gave others pretexts to follow suit. Why, they asked, interest, we see a tendency for subgroups to move away should we bear more than our proper share of the from the common center. This comes from the love of common burden? Human selfishness could not resist power. Power controlled or abridged almost always such suggestions. Even visionary men, who looked opposes power that controls or abridges it. forward to distant-future results, could not combat them. This proposition teaches us not to expect that the Each State, yielding to immediate interest or people trusted to govern the States will agree and comply convenience, withdrew its support, until our frail, tottering with all of the general authority’s resolutions or decrees. governmental edifice seems ready to fall upon our heads Human nature dictates that they will do the opposite. and crush us beneath its ruins. Publius. FEDERALIST NO. 16 The Articles’ Inability to Save the Union – #2 Hamilton To the People of the State of New York: The Practice of most confederacies to legislate for dissident might turn for help to foreign powers, who their political units (e.g., States or Provinces) rather than readily exploit competing confederacies' dissension. for their citizens is called “the parent of anarchy.” It In any event, the first war of this kind would probably naturally leads those units to ignore or violate national destroy the Union. laws. This drives the central government to resort to force Actually, what we seem to be facing is a more natural and, often, civil war, a bent that compels it to always death, unless the federal system is quickly and maintain a large army. Otherwise, it could either not substantially reinvigorated. It is not likely, considering the punish delinquency or hope the winner in the ensuing war genius of this country, that States supporting the Union will be friendly to the confederacy. would join it in a war against dissenters. As we have seen Generally, the dereliction of duty is joined by several in the past, they would more readily take a middle road by States or, through bullying or contrived warnings of some imitating the violators’ example. The guilt of all would thus common danger, a large, powerful violator would drag become the security of all and this would make it difficult others into the fight. If allies are not available at home, a to determine whether and when force is necessary. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 20 © 1999 Marshall R. Overstedt
  • 21. More than likely, the violation would amount to national authority must be exercised through the courts of withholding tax moneys or other contributions. Before we justice. The Union government, like any State could take armed action, we would need to know, without government, must be able to address itself directly to doubt, whether the nonpayment results from refusal or individuals’ needs and to stir those passions that most inability to pay. To justify force, the act must be so strongly move them. It must, in short, be able to use the flagrant as to be obvious. This problem alone would open same powers invested in the State governments. factious views and controversy in the national legislature. One may object that if any State should become The States should not enact a national Constitution disaffected with Union authority, it could obstruct its laws that could only be kept in force by a large army on foot to just as forcefully as under a State-centered system. True, enforce ordinary government actions. Yet this would be if State legislature interposition is needed activate a Union the result should the debate be won by those who would measure, they can defeat it by inaction or evasion. deny the power to govern individuals. Their way would But if national laws were to take effect without this lead to military despotism, which could not be sustained intervention, a State could not stop progress without an because the Union could not afford to raise or keep an open, violent display of unconstitutional power. This would army powerful enough to compel larger States to do their be politically very dangerous in the face of a populace duty. Anyone who can imagine these States’ future enlightened enough to distinguish between a legal action population and wealth can envision trying to use the law and an illegal usurpation of authority. Its success would to coerce them. require a State legislative majority and agreement of the There are confederacies with members smaller than courts and the body of the people. Unless the judges many of our counties. Even there, legislating for participated in a given conspiracy with the legislature, they sovereign States, backed by military force, has never would pronounce it unconstitutional and void, and the succeeded. It has rarely been tried except against weak people would throw their weight against it. members, and usually attempts to coerce obedience have As to occasional disquiet, the general government led to bloody internecine wars. could command larger resources than any State. And as From this, an intelligent person must conclude that a to those feuds that can enflame whole nations: no federal government able to regulate the nation’s concerns government can always avoid or control them and it is and preserve the general tranquillity must govern the pointless to object to a government unable to perform citizens first. It must not put the States between the impossibilities. legislature and the people and must have direct power to Publius. execute and enforce its own decisions. Moreover, the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 21 © 1999 Marshall R. Overstedt
  • 22. FEDERALIST NO. 17 The Articles’ Inability to Save the Union – #3 Hamilton To the People of the State of New York: SOME SAY the principle of governing for individual As we know from past federal constitutions, national citizens would make the government too powerful, giving governments operate out of sight of the masses. So they it powers properly left to the States. Why would the are less apt to directly affect the people’s feelings and general government do that? It seems commerce, opinions, or to inspire a sense of obligation or attachment. finance, negotiation and war – and all the rightfully Though the ancient feudal systems were not, national powers to regulate them – are enough to occupy technically, confederacies, they were similar. There was a it. Administering justice between citizens, supervising sovereign with authority over the whole nation and many agriculture and similar concerns are legitimate local feudal lords controlling lands allotted to them, and trains concerns. Federal usurpation of them would waste time, of retainers who occupied and obediently cultivated that money and effort. But the good sense of the citizens of land. This arrangement violated central authority leading the States affected, and their members of Congress, to frequent wars between the feudal lords and sovereigns, would quash it. who were too weak to protect the peace or the people It is easier for the State governments to encroach on from their oppressive lords. Historians call this period of national powers, as long as they govern honestly and European affairs “the times of feudal anarchy.” prudently, because they have more influence over the Vigorous, warlike sovereigns of superior ability public. In fact, this is a weakness of all federal acquired enormous prestige, influence and the closest constitutions. thing at that time to “general” authority. But in general, the The States’ superior influence would result partly from subordinate feudal lords defeated them, often taking over the national government’s wide, thinly-spread operations, their fiefs and turning them into independent States. Even but mainly from the nature of the States’ responsibilities. It when the sovereign prevailed, he owed his success to the is natural that the more distant and unclear an issue, the tyranny and violence the lords – who were enemies of less attention people pay it. A man is more attached to his those above and below them – inflicted on their tenants. neighborhood than to the State, to the State than to the But had the lords earned their vassals’ loyalty and nation – unless the national government manages that devotion, they certainly would have prevailed. much better than State authorities. Our well-run State governments may be compared to The many minute interests that occupy local the successful feudal lords and the Confederacy with the administrations require more tedious, closer attention to vulnerable sovereign. By gaining and maintaining the detail than a central authority could exert or maintain. people’s confidence and goodwill, the States (like the The State governments have an especially large lords) can defeat the national government’s advantage in administering criminal and civil justice – the encroachments. This is because the States’ interest is most powerful, most relevant source of popular governing individual citizens while the Confederacy obedience and attachment. As immediate, visible, vigilant concentrates on the States as collectivities, as well as the guardians of life and property, State law enforcers collective States. regulate individual citizens’ most personal interests. It Publius. also makes the States dangerous rivals to Union power. FEDERALIST NO. 18 Articles’ Inability to Save the Union – #4 Hamilton and Madison To the People of the State of New York: OF THE ancient confederacies, the most famous was • propose actions it judged necessary for Grecian the one that included the Greek republics under the common welfare; Amphictyonic council. Available history tells us it bore an • declare and wage war; instructive resemblance to the United States under the • decide disputes between members and fine the guilty; Articles of Confederation. • use all the confederacy’s resources to punish the The member city-states were sovereign states, with disobedient; and equal votes in the federal council and the power to: • admit new members. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 22 © 1999 Marshall R. Overstedt
  • 23. The Amphictyons were the guardians of religion and The Achaean league, another confederacy of Greek vast treasures in the temple of Delphos, where they heard republics, had a far closer, better organized union. The complaints of inhabitants and directed those who came to Achaeans retained their municipal jurisdiction, appointed consult the oracle. To legitimize their federal powers, they their own officers, and enjoyed perfect equality. Their swore to defend the united cities, punish violators of the senate had the sole power of peace and war, establishing oath and inflict vengeance on despoilers of the temple. diplomatic relations, entering treaties and alliances and In theory, these powers seemed sufficient for all appointing a “president.” general purposes. But in several key areas, they He commanded the army and, with ten senators’ exceeded the authority specified by their articles of advice and consent, governed the nation between senate confederation. The Amphictyons' exploitation of the sessions and, during assemblies, joined its deliberations. superstitious ideas of those times was one of classical The cities shared laws and customs, weights and government’s most effective tools. They also assumed measures and currency. When Lacedaemon joined the authority to deal with dissident member cities when league from another, it abolished old institutions, adopted necessary. the Achaeans’ but kept her government and legislation. In practice, the powers, like those of Congress under Many details of the Achaean government are lost to our Articles, were exercised by deputies appointed by the antiquity. But historians note that it was far more just and city states they governed. But, instead of complying, less violent than any of the independent cities acting powerful city states (Athens, and later the alone. One scholar says that popular government – so Lacedaemonians and Thebans) used their deputies to tempestuous elsewhere – caused no disorders in the tyrannize the rest. This weakened, then destroyed, the Achaean republic because it was tempered by the confederacy. authority and laws of a centrally-administered union. Even during the wars with Persia and Macedon, the But the Achaean system did suffer faction. During the members never acted together and were often duped or Amphictyonic confederacy, the Achaean league’s smaller, bought off by the enemy. Between wars, they suffered little-important member cities – gained little notice and, domestic hardships, convulsions and carnage. when the Amphictyonics were ruled by Macedon, they After the war with Xerxes, the Lacedaemonians remained free. But Alexander’s and Philip’s successors reportedly tried to expel some cities from the confederacy worked to divide them: they seduced each into separate for their unfaithful service. The Athenians, finding that the interests and dissolved the union. Some were subjugated Lacedaemonians would gain power at Athens’ expense, by Macedonian garrisons, others by domestic usurpers. defeated the attempt. This piece of history proves the But before long, shame and oppression awoke the inefficiency of the confederacy, the ambition and jealousy Achaean love of liberty. Cities reunited as they found of its most powerful members, and the dependent, ways to cut off their tyrants. Soon the rejuvenated degraded condition of the rest. Smaller members, though confederacy embraced most of Peloponnesus. Macedon entitled in theory to equality under the system, became watched but internal problems prevented action to stop satellites. the progress. All Greece caught the spirit and seemed Were the Greeks as wise as they were brave, their ready to unite in one confederacy, but Sparta and Athens, experience would have taught them the need for a closer jealous of the Achaeans’ rising glory, quenched the union, and they would have used the peace following their enterprise. After a series of complex intrigues, the defense against Persia to establish it. Instead, glory- Achaeans were forced to either surrender to Sparta or inflated Athens and Sparta fought each other in the beg Macedon for mercy. They chose the latter, and a Peloponnesian war, which ruined the Athenians who Macedonian army quickly defeated the Spartan king, started it. Cleomenes. The Achaeans soon learned that a powerful, Weak governments, when at peace, are always torn by victorious ally is another name for a master. Though internal dissension, which always brings trouble from weakened by dissension, the Achaeans stood against the abroad. When the Phocians plowed some consecrated Macedonians – this time by allying with the Romans, who ground belonging to the temple of Apollo, the re-enslaved the Achaeans. Amphictyonic council fined them. The Phocians, helped I believe this history teaches the tendency of federal by Athens and Sparta, refused to pay. The Thebans, bodies to succumb to anarchy among their members allied with other city states, tried to enforce the fine with (e.g., States) rather than tyranny by the central help from other city states and, secretly, from Philip of government. Macedon – who ultimately made himself master of the Publius confederacy. But had Greece been united by a strong central government, she would never have worn Macedon’s chains and might have prevented the Roman Empire. FEDERALIST NO. 19 The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 23 © 1999 Marshall R. Overstedt
  • 24. Articles’ Inability to Save the Union – #5 Hamilton and Madison To the People of the State of New York: IN THE early days of Christianity, Germany was and attempts – aborted or involving death and desolation inhabited by seven separate nations. Charlemagne, the – to enforce them, general imbecility, confusion, and king of the Franks, made Germany part of his empire. He misery. invented imperial power, along with its trappings, insignia In the Sixteenth Century, the emperor went to war with and manners. But he had left the other nation chiefs – some princes and states and, in one conflict, was put to Charlemagne’s principal vassals – and their legislatures flight and nearly captured. The late king of Prussia more intact. Inevitably, their fiefs became hereditary and their than once fought and defeated his imperial sovereign. combined power grew. In the Eleventh Century, they Books are filled with bloody quarrels and wars between overthrew the Franks and each advanced to true the member states. Before the Peace of Westphalia, sovereignty, independence. Then, in the Fifteenth Germany was desolated by 30 years of war with Sweden. Century, furious private wars between them consumed Foreign powers negotiated and enforced the peace, and their imperial authority. made the articles of it, to which foreign powers are Out of this feudal system, which had many features of parties, part of the Germanic constitution. a confederacy, grew the federal system which constitutes Organizing for war does not necessarily strengthen a the Germanic empire. Its powers are vested in: union. Military preparations are so complex that, before • A diet representing the member states. they are complete, the enemy is on the march. • The emperor, also the executive magistrate with veto The few national troops thought adequate in peace- power over the diet. time are poorly kept up and paid, and demoralized. • Judiciary tribunals with jurisdiction over disputes To maintain order and justice among these entities, the involving the empire and/or its members. German empire was divided into nine or ten districts, The diet has the power to legislate for the empire, each with its own internal organization responsible for the make war and peace, form alliances, assess quotas of military execution of laws against neglect and troops and money, build forts, regulate coinage and admit rebelliousness. This demonstrates that each district is a new members. It can also punish disobedient members miniature of the monster. Member states either fail to by depriving them of their sovereign rights and seizing execute their commissions, or do it with the devastation their possessions. and carnage of civil war. Sometimes the districts’ “Disobedience” is in part defined as entering compacts offenses are worse than the mischief to be remedied. prejudicial to the empire, imposing tolls and duties without For example, at one point, it was necessary to put a the emperor’s and diet’s consent, altering the value of city in the circle of Suabia under the ban of the empire money, doing injustice to one another and aiding or and the Duke of Bavaria, as director of another circle, abetting lawbreakers. was appointed to enforce it. He soon arrived with 10,000 Diet members are subject to judgment by the emperor troops and, as he secretly intended to revive an ancestral and diet and, in their private capacities, by the judiciary. claim, he seized it in his own name, disarmed and The emperor’s powers are many. Most important is his punished the inhabitants. exclusive right to propose initiatives to the diet, veto its You may ask, what holds the miserable German resolutions, name ambassadors, bestow dignities and confederacy together? It is unwillingness of most titles, fill vacant electorates, found universities, grant member-states to seek help from foreign powers; privileges not injurious to the empire, collect and spend weakness of most principal members, compared with the public revenue and watch over public safety. In certain powers surrounding them; the weight and influence the cases, the electors form councils to meet with him. On emperor derives from his separate hereditary dominions; the debit side, he owns no land, nor receives any and the family connections that make him the first prince payment (although his overall income and properties in Europe. Meanwhile, time continues to strengthen that make him one of Europe’s most powerful princes). feeble, insecure confederacy, preventing any reform This massive list of constitutional powers is typical of based on a proper consolidation. Indeed, neighboring European confederacies. Each rests on the basic powers hate the possibility that consolidation would give principle that the empire is a community of sovereigns, the empire the real strength and stature it deserves. that the diet represents and addresses all laws to the Foreign nations have long considered themselves parties sovereigns. Which renders the empire unable to regulate to the changes in the German constitution and have often its member states and insecure against external dangers exposed their hidden agenda of perpetuating its or internal fermentations. weakness. Germany has a long history of wars between the Another example: The connection between the Swiss emperor and the princes and/or states, licentiousness of cantons does not amount to a confederacy, though the the strong, oppression of the weak, foreign invasions and relationship has a similar kind of stability. The cantons intrigues, questionable requisitions of men and money share no “national” treasury, no army, no currency, no The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 24 © 1999 Marshall R. Overstedt
  • 25. judiciary, no mark of sovereignty of any kind. They are times, Swiss religious controversies have kindled violence kept together by the peculiarity of their geography, their that has severed the league. Today Protestant and individual weakness and need to band together for Catholic cantons have their own diets, leaving the general defense against powerful neighbors, by a lack of sources Swiss diet little business. of contention, by their shared possessions and by the This separation also drove Berne and Luzerne into need to formally settle disputes between them. opposing foreign alliances. There is little in common between Switzerland and the Publius. United States except their histories of failing to use their aggregate power to settle important differences. Three The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 25 © 1999 Marshall R. Overstedt
  • 26. FEDERALIST NO. 20 The Articles’ Inability to Save the Union – #6 Hamilton and Madison To the People of the State of New York: THE UNITED Netherlands, a confederacy of ruined by their constitution. The union of Utrecht, says aristocracies, also supports the main points of these another writer, gives the States-General seemingly papers. It has seven equal, sovereign provinces, each enough authority to secure harmony, which jealousy in composed of equal, independent cities. On all important the provinces cancels out. political issues, the provinces and cities must be The same instrument, says another, forces each unanimous. province to levy certain taxes but this article is hardly The confederacy is governed by about 50 deputies executed because the inland provinces have little appointed by the provinces, who sit in an assembly called commerce and cannot pay the quotas. a “States-General.” Some hold their seats for life, others As a result, the provinces that can and do meet their for one to six years; two deputies serve “during pleasure.” quotas must pay and then try to gain reimbursement from The States-General has power to: the others, as they can. More than once, the province of • Make and execute treaties and alliances. Holland – which is richer and more powerful than all the • Make war and peace. rest – has collected at bayonet-point. • Raise armies and fleets. Foreign ministers, says Sir William Temple, himself a • Ascertain quotas and demand taxes. past foreign minister, negate referendum results with • Appoint and receive ambassadors. which they disagree by tampering with the provinces and • Collect import and export duties. cities. This way the treaty of Hanover, in 1726, was • Regulate the mint. delayed a whole year. Like instances are many and • Govern the dependent territories. infamous. The provinces cannot, without general consent, enter In emergencies, States-General are often forced to foreign treaties, establish interprovincial imposts or duties exceed their constitutional powers. They concluded, higher than they charge their own subjects. A council of without legislative approval, the 1648 treaty of Westphalia state supports the federal administration. that recognized their independence. The union’s chief executive is the stadtholder, now an A weak constitution must fail for lack of proper powers hereditary prince. His political power comes from this or the usurpation of those necessary to public safety. independent title, his great family estates, connections Tyranny has probably more often grown from with some of Europe’s chief potentates and, most “emergency” assumptions of power called for by defective importantly, from his position as stadtholder for the constitutions than from the full exercise of overgenerous individual provinces. This gives him the power to appoint constitutional government powers. town magistrates under certain circumstances, execute Even given the defects of stadtholdership, its influence provincial decrees, preside in provincial tribunals and in the provinces has probably prevented anarchy that pardon wrongdoers. could have dissolved it. The power of, and the intrigues As stadtholder of the union, he has authority to settle fed by, The Netherlands’ neighbors necessitate union. Its disputes between provinces, help in States-General patriots have long spoken against these dangers and tried deliberations and conferences, give audiences to foreign four times to remedy them by reforming their flawed ambassadors and be represented at foreign courts. constitution. As commander of a 40,000-man standing army he Now the American people, under the Articles of provides for garrisons, and generally manages military Confederation, seem to be suffering from popular affairs – appoints officers, from colonels to ensigns. As convulsions, interstate conflict and invasion. The world is admiral-general, he commands everything naval, hoping that this crisis will end in a true union able to bring presiding over the admiralties in person or by proxy, Americans tranquillity, freedom and happiness. They also appointing lieutenant-admirals and other officers, and hope these blessings will be quickly secured so that they establishing councils of war, whose sentences he may be “imported” to end their own political catastrophes. approves. Experience is the prophet of truth. The important truth This is the Belgic confederacy, as outlined on paper. In is that a sovereignty over sovereigns, a government over practice, it is characterized by imbecility in the governments, a legislature for communities rather than government, discord among the provinces, foreign individuals, subverts the ends of civil discourse by influence and indignity, an unstable peace and peculiar substituting violence for law. calamities from war. Publius. Long ago, Grotius remarked that nothing but his countrymen’s hatred of Austria kept them from being The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 26 © 1999 Marshall R. Overstedt
  • 27. FEDERALIST NO. 21 Other Confederation Defects Hamilton To the People of the State of New York: AN OBVIOUS defect in the Articles is a lack of powers too many checks: civil peace and governmental stability to exact obedience or punish disobedience to their depend on their effectiveness. Where all government power is in the people’s hands, resolutions, either by fine, suspension or loss of privileges there is less pretext for the State to use violence against or any other constitutional device. Nor can the federal citizens. In a popular or representative government, the authority use force against delinquent States. It is absurd natural cure for maladministration is a change of men. A that this power does not exist – America is the world’s guarantee by the national authority would be as valuable only confederation without the constitutional power to against rulers’ usurpations as against ferments and outrages of community faction and sedition. enforce its own statutes – and there has been much Another of the Articles’ basic errors is the power to severe criticism of its absence in the proposed convention collect taxes from the States by quota, which violates the plan. principal of State equality. Those who understand the Without a constitutional penalty for the violation of many ways national wealth is created know there is no such thing as a standard measure of public wealth. Try to federal laws, the major benefit of Statehood – help from compare the wealth of the United Netherlands with that of other States in repelling domestic dangers – must be Russia, Germany or France – factoring total land values abandoned. Seizures of power can happen in every State, and populations. There are no common denominators to allowing violators to trample liberty, and the national take us to an honest valuation. The same comparison between our States would yield the same result. government could legally do nothing but express Contrasting Virginia with North Carolina, Pennsylvania indignation. Recently, Massachusetts emerged from a with Connecticut or Maryland with New Jersey convinces crisis that illustrates this danger. Who can say what might us that the revenue those States generate in no way have happened if the malcontents had been led by a relates to their land areas or populations. The same is “Caesar” or “Cromwell,” rather than a hooligan? Who can true of counties. Anyone familiar with New York State knows that King’s County is far wealthier than predict what havoc a despotism based in Massachusetts Montgomery, but this is not reflected in square miles and can wreak the liberties of New Hampshire, Rhode Island, populations. Connecticut or New York? National wealth depends on an infinite variety of factors. ———————————————————————– Geography, soil, climate, types of businesses, the nature of the government, education, availability to news and Each State retains its sovereignty, freedom, and information, cultural environment and many more independence, and every power, jurisdiction, and right, complex, minute, unique circumstances. which is not by this Confederation expressly delegated to ———————————————————————–– the United States, in Congress assembled. Article II of the Articles of Confederation All charges of war, and all other expenses that shall be Full faith and credit shall be given in each State to the incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall public acts, records, and judicial proceedings of every be defrayed out of a common treasury, which shall be other State. And the Congress may by general laws supplied by the several States in proportion to the value of prescribe the manner in which such acts, records, and all land within each State, granted or surveyed for any proceedings shall be proved, and the effect thereof. person, as such land and buildings and improvements Article IV Section 1 (1) of the United States Constitution thereon shall be estimated according to such mode as the A person charged in any State with treason, felony, or United States in Congress assembled shall from time to other crime, who shall flee from justice, and be found in time direct/appoint. The taxes for paying that proportion another State, shall, on demand of the executive authority shall be laid and levied by the authority and direction of the of the State from which he fled, be delivered up, to be legislatures of the several States within the time agreed upon by the United States in Congress assembled. removed to the State having jurisdiction of the crime. Article VIII of the Articles of Confederation Article IV Section 2 (2) of the United States Constitution The Congress shall have power to lay and collect taxes, No person held to service or labor in one State, under the duties, imposts and excises, to pay the debts and provide laws thereof, escaping into another, shall, in consequence for the common defense and general welfare of the United of any law or regulation therein, be discharged from such States; but all duties, imposts and excises shall be uniform service or labor, but shall be delivered up on claim to the throughout the United States … party to whom such service or labor may be due. Article I Section 8 (1) of the United States Constitution Article IV Section 2 (3) of the United States Constitution ———————————————————————— ———————————————————————— If there is no common measure of State wealth, there Some object that a guarantee in the federal is no general rule to determine a State’s ability to pay government might give over-ambitious State governments an excuse to bully others. Accepting this claim would taxes. Any attempt to set quotas on contributions will end cancel one of the Union’s main advantages and reflects in inequality and oppression, which could eventually misunderstanding of the concept. The guarantee would destroy the Union. The suffering States would refuse to not diminish the right of a majority of a State’s citizens to cooperate with a formula that impoverishes their citizens legally, peacefully reform its constitution. but would only oppose violent changes, against which we cannot have while others prosper. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 27 © 1999 Marshall R. Overstedt
  • 28. The only way to prevent it is to authorize the national If duties are too high, they cut consumption, taxes are government to raise its own revenues in its own way. eluded and the treasury loses revenue it would collect Imposts, excises, and duties on consumed articles are with proper, moderate rates. This forms a complete essentially “fluid”: they find their own levels by the means barrier against oppressive taxes. used to collect them. Each citizen, by the way he uses his Consumption taxes are classified as “indirect” taxes, money, can determine the amount of his own taxes. The and must for a long time raise the bulk of revenue in this rich may be extravagant, the poor frugal, and overtaxation country. “Direct” taxes are generally applied to land, can always be avoided by making prudent consumption buildings and people, and may, on the other hand, be choices. Inequality that arises in some States from certain apportioned according to fixed “value” or “population” duties will probably be counterbalanced by inequalities formulas. from other taxes in other States. Over time, equilibrium A nation’s agricultural strength and its population are will occur everywhere. If inequalities persist, they will nearly connected with each other. In every country it is a never be as extreme as those created by quotas. large task to maximize land values. In a sparsely- A signal advantage of consumption taxes is that they populated, developing country like ours, it is prohibitively automatically protect us against excessive levies. They expensive. In a branch of taxation where government prescribe their own limit, which we cannot exceed with- discretion is not limited by the nature of things, out defeating the goal of expanding revenue. Applied to establishing a fixed rule compatible with the end may be this issue, the saying is as accurate as it is clever that, “in more convenient than to leave that discretion to the political arithmetic, two and two do not always make four.” people. Publius. FEDERALIST No. 22 Other Confederation Defects – #2 Hamilton To the People of the State of New York: IN ADDITION to the present system’s defects already deemed requisite to garrison the forts necessary for the discussed is its lack of a power to regulate commerce defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently between States and with foreign countries. Nothing armed and accoutered, and shall provide and constantly affecting our economy more urgently needs national have ready for use, in public stores, a due number of filed supervision. It has caused friction between the States and pieces and tents, and a proper quantity of arms, prevented our entering fruitful treaties. Any nation that ammunition and camp equipage. Article VI of the Articles of Confederation understands our political system would be mistaken to —————————————————————————————— concede important privileges to the United States knowing that, at any moment, the States might violate The power to raise armies, under the Articles, is them. It is no wonder that a trade bill in the British House merely a power to requisition quotas of men from the of Commons declares that no new arrangements should States. During the Revolution, this practice created competition between States resulting in a kind of auction be made until our government demonstrates that it can for men: To meet their quotas, they outbid each other with be depended on to perform as promised. enormous, insupportable bounties. Hoping for yet higher Several States have tried – through separate self- “rewards,” many men delayed their enlistments and tried prohibitions, -restrictions, and -exclusions – to win to serve as briefly as possible. Hence, at the most critical periods of the war, enlistments were slow and small and Britain’s confidence, but the absence of unity behind a short duty tours caused huge recruitment and training national authority able to end interstate umbrage has costs. This ruined discipline and often placed public frustrated them. They will continue to fail as long as that safety under the protection of a disbanded army. obstacle exists. Occasionally, we used oppressive “recruiting” expedients; German commerce is continually shackled by the e.g., impressment. many duties various princes and states exact on goods Recruiting quotas not only hinder the war effort but traversing their territories – to the point where the unbalance the States’ military burden. States near the war country’s many fine streams and navigable rivers have zone, motivated by self-preservation, tried to overfill their become almost useless. Though Americans might not quotas, and those well behind the lines were equally permit this to happen to us, conflicting regulations, at negligent. Unlike monetary quota failures, which could be length, could cause each State’s citizens to be treated as punished through fines, manpower could not be foreigners. quantified for redress. The system of quotas and ———————————————————————– requisitions, whether applied to men or money, is imbecilic and unjust. [No] body of forces [shall] be kept up by any State in time ———————————————————————–– of peace, except such number only, as in the judgment of the United States in Congress assembled, shall be The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 28 © 1999 Marshall R. Overstedt
  • 29. In determining questions in the United States in Congress emergency, the majority, to get something done, must assembled, each State shall have one vote. accept the minority view. In fact, it is fortunate when such Article V of the Articles of Confederation Representatives and direct taxes shall be apportioned compromises can take place because many crises will among the several States which may b e included within not accommodate them. Then government action must this Union, according to their respective numbers, which be painfully suspended or defeated. Unable to gain the shall be determined by adding to the whole number of free necessary number of votes, it is often kept inactive. Its persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all situation must always smack of weakness, sometimes other persons. bordering on anarchy. Article I Section 3 (2) of the United States Constitution This kind of dilemma creates more opportunity for foreign meddling and domestic faction than a climate —————————————————————– where the majority controls decisions, though some The right of equal suffrage among States is another presume the opposite. Their mistake is to not pay Confederation defect. Every rule of fair representation attention to damage caused by obstructing government rejects the idea that gives to Rhode Island a vote equal during crises. When the Constitution requires majority with those of Massachusetts, Connecticut and New York. agreement before national action, we can feel safe Equal representation also contradicts the basic principle because nothing improper is likely to be done. But we of republican government: “the majority rules.” Its forget how much good can be prevented, and how much supporters may answer that, as sovereigns are equal, a ill produced, by the power to hinder what may be State majority vote amounts to a majority of confederated necessary. America. But it may happen that a majority of States hold Suppose we were at war, allied with one foreign nation a minority of our population and two thirds of the against another. Suppose our interest demanded peace American people will not submit their interests to but our ally elected to fight on. Naturally, we would be management and disposal by one third. Large States best served by seeking separate terms. In that event, our would soon refuse to obey laws made by the small. To ally would find it easier to prevent our making peace were accept such a loss of importance would be to ignore both a two thirds’ vote required rather than a simple majority the love of power and equality. It is not rational to expect because he would have to corrupt a smaller number. A the first, or just to require the last. Small States, two-thirds vote would also help a foreign enemy to considering how greatly their safety and welfare depend frustrate us. on union, should renounce “equal” representation,” which The principle also has commercial application. A would eventually destroy it. trading partner could use the two-thirds rule to easily Objectors may say that not seven but nine States, or prevent our doing business with her competitor. two thirds of the thirteen, must approve the most One weakness of republics is that they open doors to important acts of Congress, and infer that that would foreign corruption. An hereditary king has so great a always compose a majority of the Union. But this does not personal interest in his nation’s and his own glory, that a negate the problem of an equal vote between unequal foreign power cannot bribe him into corruption. But in States, nor is the inference accurate for we can count republics, officers elevated from the masses to pre- nine States containing less than a majority of the people eminence and power by their fellow citizens’ votes more and it is constitutionally possible for these nine to provide readily accept payment for betraying their trust. History the deciding votes. Besides, there will be many bills in shows how corruption contributed to the deaths of the Congress requiring bare majorities. Others which seem ancient commonwealths. Deputies of the United worthy of a seven-vote majority could have major impact. Provinces have been purchased by emissaries of And the number of States is certain to grow, but there is neighboring kingdoms. In Sweden officials were so no provision in the Articles to increase the vote ratio. brazenly bought by France and England that Europe’s To allow a minority to over-rule the majority (which most limited monarch – in a single day, without tumult, always happens when a decision requires more than a violence, or opposition – became one of its most absolute majority), subjects the sense of the greater number to that and uncontrolled. of the lesser. Congress, in the absence of a very few The want of a judiciary power is the worst of the States has often been in the situation where one vote can Confederation’s defects. Laws are a dead letter without stop all movement. Several times, one-sixtieth of the courts to expound and define their meaning and function. Union – about the proportion of Delaware and Rhode Treaties, to have force, must be considered part of the Island – has been able to do just that. This is one of those law of the land. Their true import, to individuals, must, like refinements that, in practice, causes the reverse of what all other laws, be judicially determined. To assure is intended. The necessity of unanimity in public bodies, consistency in these determinations, they should be or something approaching it, is supposed to strengthen submitted, in the last resort, to one supreme tribunal, security. Actually, it embarrasses the administration, instituted under the same authority that forms treaties. If destroys government energy and substitutes the pleasure each State has a court of final jurisdiction, one point may of a clique for legitimate deliberations of a respectable have as many different final determinations as there are majority. In national emergencies when government States and courts. Men’s opinions are endlessly diverse. goodness or badness, weakness or strength is critical, We often see different courts and judges of the same there is often a need to act. If a stubborn minority – using courts differing from each other. To avoid contradictory clever strategies and tactics – can influence the decisions of a number of independent judiciaries, all majority’s opinion regarding the best way to manage the nations have found it necessary to establish one court The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 29 © 1999 Marshall R. Overstedt
  • 30. superior to the rest, authorized to settle and uniform rules Under the Articles of Confederation, treaties of the of civil justice. United States are open to interpretation by thirteen ———————————————————————–– different legislatures, and as many different courts of final jurisdiction governed by those legislatures. The faith, The judicial power of the United States shall be vested in reputation and peace of the whole Union, are continually one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The at the mercy of the prejudices, passions and interests of judges, both of the Supreme and inferior courts, shall hold each State. How can foreign nations respect or confide in their offices during good behavior, and shall, at stated such a government? How can the people entrust their times, receive for their services a compensation which honor, happiness and safety to it? shall not be diminished during their continuance in office. Article III, Section 1 (1) of the United States Constitution By now it must be clear to all reflective men capable of The judicial power shall extend to all cases, in law and objectivity that our system is so vicious and unsound as to equity, arising under this Constitution, the laws of the require not only amendment but an entire change. United States, and treaties made, or which shall be made, The Congress, by itself, is utterly improper for the under their authority; to all cases affecting ambassadors, exercise of the powers necessary to the Union. A other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to unicameral assembly may suffice for those narrow, which the United States shall be a party; to controversies limited authorities heretofore delegated to the federal between two or more States; between a State and citizens head, but not for the additional powers which even some of another State; between citizens of different States; of the Constitution’s adversaries admit should reside in between citizens of the same State claiming lands under grants of different States, and between a State, or the the central government. If that plan is not adopted, and if citizens thereof, and foreign states, citizens, or subjects. the Union is left to the ambitious aims of men who will Article III, Section 2 (1) of the United States Constitution use its dissolution to enrich and empower themselves, we will probably need to confer more upon Congress as now ———————————————————————–– constituted. Then either the Confederation, from its This is especially important in our government, where intrinsic feebleness, will fall into pieces in spite of our laws of the nation can be negated by the laws of its parts. efforts to prop it or, by progressive, necessary additions to Giving ultimate jurisdiction to the State supreme courts its power, we will one day build a single government with makes contradictions from differences of opinion – as all the most important prerogatives of sovereignty. We will well as local views, prejudices and regulations – very thus impose upon our children one of the worst forms of damaging. Every time such interference happened, it government ever contrived – the tyranny the new would be understood that State or local statutes might be Constitution’s adversaries say they want to avoid. preferred to national laws: it is natural for men in office to The fact that the Articles were never ratified by the defer to the authority to which gives them power. people weakens the system still further. Resting only on —————————————————————–– the consent of the several legislatures, the validity of its powers is often questioned – in detail. This has given rise No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by to the powerful doctrine of legislative repeal, which holds the United States in Congress assembled, with any King, that, since the Articles were enacted by a State Prince or State, in pursuance of any treaties already legislature, they could be repealed the same way. It is a proposed by Congress, to the courts of France and Spain. gross heresy to maintain that a party to an agreement has Article VI of the Articles of Confederation This Constitution, and the laws of the United States which the right to revoke it. Still, the idea has respectable shall be made in pursuance thereof, and all treaties made, advocates. The fact that the question can be asked or which shall be made, under the authority of the United proves the need to build our national government on a States, shall be the supreme law of the land … foundation deeper than a mere sanction of delegated Article VI [2] of the United States Constitution authority: specifically, on the consent of the people. The streams of national power ought to flow immediately from —————————————————————–– that pure, original fountain of all legitimate authority. Publius. FEDERALIST No. 23 Why the New Government is Required to Preserve the Union Hamilton To the People of the State of New York: The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 30 © 1999 Marshall R. Overstedt
  • 31. THIS INQUIRY will deal with the new government’s major features and benefits, the amount of power it needs Whether there should be a federal government to fulfill its purpose and the people who should apply it. entrusted with the common defense is a question that ———————————————————– underlies our nation, and is open to discussion. If the answer is “yes,” the government must have all the powers The said States hereby severally enter into a firm league of required to execute its trust. And unless it can be shown friendship with each other, for their common defense, the security of their liberties, and their mutual and general that threats to public safety can be placed within definable welfare, binding themselves to assist each other, against limits, there can be no constitutional limit on the all force offered to, or attacks made upon them, or any of government’s authority to form, command or support them, on account of religion, sovereignty, trade, or any other pretense whatever. national forces and resources. Article III of the Articles of Confederation Though the present Confederation fails to fulfill this The Congress shall have power to … provide for the common defense and general welfare of the United States need, its framers recognized this principle. … ———————————————————————— Article I Section 8 (1) of the United States Constitution To declare war … … every State shall always keep up a well-regulated and Article I Section 8 (11) of the United States Constitution disciplined militia, sufficiently armed and accoutered, and To raise and support armies … shall provide and constantly have ready for use, in public Article I Section 8 (12) of the United States Constitution stores, a due number of field pieces and tents, and a To provide and maintain a navy; proper quantity of arms, ammunition and camp equipage. Article I Section 8 (13) of the United States Constitution Article VI of the Articles of Confederation To make rules for the government and regulation of the All charges of war, and all other expenses that shall be land and naval forces; incurred for the common defense or general welfare, and Article I Section 8 (14) of the United States Constitution allowed by the United States in Congress assembled, shall To provide for calling forth the militia to execute the laws of be defrayed out of a common treasury, which shall be the Union, suppress insurrections, and repel invasions; supplied by the several States … Article I Section 8 (15) of the United States Constitution Article VIII of the Articles of Confederation To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be ———————————————————————– employed in the service of the United States, reserving to the States respectively the appointment of officers, and the Congress has unlimited power to requisition men and authority of training the militia according to the discipline money, govern the army and navy and direct their prescribed by Congress; operations. As these requisitions are constitutionally Article I Section 8 (16) of the United States Constitution To make all laws which shall be necessary and proper for binding on the States, who are obligated to furnish the carrying into execution the foregoing powers, and all other required supplies, the framers evidently intended that the powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. United States should command whatever resources they Article I Section 8 (18) of the United States Constitution deemed requisite to the “common defense and general welfare.” They presumed that the States could fulfill their ————————————————————————————— The Constitution’s main features are specified duty by pledging to the federal government to serve the provisions to: nation’s true interests in good faith. • Defend the United States. Experience has proven this expectation ill-founded and • Protect against internal convulsions and external illusory and the observations made in the last paper will, I attacks. imagine, convince the objective, thoughtful reader that the • Regulate commerce with other nations and between entire system must be replaced; that if we are serious the States. about keeping the Union alive in the future, we must stop • Supervise political and commercial relations with legislating for the States as collective entities and extend foreign countries. the laws of the federal government to the individual The powers essential to national defense are to: citizens of America. We must also discard our fallacious • Raise armies, build and equip fleets, prescribe rules quotas and requisitions as unworkable and unjust. to govern both, direct their operations and fund their In sum, the Union should be invested with full power to support. levy troops, build and equip fleets and raise the revenues These powers should be unlimited, because the required to form and support of an army and navy in the variety, scope and severity of dangers confronting us is same customary, ordinary manner as other governments. infinite. And they should be at least equal to all possible If we agree that our country needs a republican combinations of threats, and assigned to the same government, the next essential issue is how to distribute authorities that govern the common defense. power between the different branches of the government To an intelligent, honest person, this is a self-evident in order to fulfill their constitutional assignments. Should truth, which can be blurred but not made clearer by the Union be constituted the guardian of common safety? argument or reason. It rests on such simple, universal Are fleets, armies and funds necessary to this purpose? axioms as … If so, the Union government must be empowered to pass all laws, make all regulations related to national The means should be defense, interstate commerce and every other matter proportioned to the end. within its authority. And … Does administration of justice between citizens of one The people expected to complete State belong to the local governments? If so, they must the task should have the means to have the legal resources connected to this and every complete it. other obligation assigned to their direction. Not to confer The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 31 © 1999 Marshall R. Overstedt
  • 32. the necessary powers would violate the most obvious reject any plan that does not completely protect their rules of prudence and propriety, and to unwisely entrust welfare. Adversaries of the convention plan should not the nation’s great interests to incompetent hands. have voiced inflammatory declamations and unmeaning We need to determine what level of government is complaints about the extent of its powers. The powers are best suited to provide for the public defense by virtue of not, as opponents charge, too extensive for the its ability to: management of our national interests. If it were true, as • centralize information in order to best understand the insinuated by some opposing writers, that the country's extent and urgency of threats; size will not permit us to form a government with such • represent the whole' ample powers, it would prove that we should resort to ª most deeply involve itself in defending all the States; separate confederacies operating within narrower • most sensibly exert necessary effort; and boundaries. For it would be absurd to trust a government • establish uniformity and consistency in defense plans with our most essential national interests without trusting and measures. it with the powers that are indispensable to success. Let Is it not obviously inconsistent to assign the general us not try to reconcile contradictions, but embrace a defense function to the federal government and give the rational alternative. State governments the power to provide the moneys, men But I believe the impracticability of one general system and materiel to carry it out? Is not a lack of cooperation cannot be shown. Nothing of weight has been advanced the result of such a system? Will not this disorganization to support that position and submit that the arguments in – naturally – be accompanied by weakness, disorder, these papers have made the reverse position as clear as unbalanced distribution of financial burdens and human possible. In any event, it must be evident that the extent calamities? Did we not suffer enough from these of the country argues strongly in favor of an energetic deficiencies during the Revolution? government because certainly no other can preserve the If we are honest, we will see it is unwise and Union of so large an empire. dangerous to restrict the federal government’s defensive Publius. powers. The people, of course, will be wise to exert care and vigilance to vest them with the correct authority and The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 32 © 1999 Marshall R. Overstedt
  • 33. FEDERALIST No. 24 Powers Necessary to Common Defense – #1 Hamilton To the People of the State of New York: TO THE proposed federal powers to create and direct to a plan which should at least receive a fair, honest the national forces, I have heard only one specific examination by all sincere lovers of their country! objection: that the convention plan does not prohibit But a close examination will show that legislative standing armies in time of peace. I will try to show its restraints respecting armies in peacetime would be weakness. improper, and if imposed out of societal necessity, would It is expressed in vague, unsupported – though bold – probably be ignored. generalities contradicting the practice of other free Though a wide ocean separates the United States nations, and the general sense of America as expressed from Europe, we should not feel excessively confident or in most of the existing State constitutions. Moreover, the secure. On one side of us, stretching far to our rear, are objection turns on a supposed need to limit the national growing settlements subject to Britain. legislature’s military oversight – a principle found in two On the other side, bordering the British settlements, State constitutions and rejected in all the rest. are Spanish colonies and establishments. These colonies Should a stranger read today’s newspapers but not the and their settlements in the nearby West India Islands, convention plan, he would conclude either that it give them, in relation to us, a common interest. The mandates peacetime standing armies or that it gives the tribes on our Western frontier should be regarded as our executive the power to levy troops with no legislative natural enemies and their natural allies, because they approval. have most to fear from us, and most to hope from them. If he then read the plan itself, he would find that neither Improvements in navigation have made distant nations is true: that the whole power to raise armies is lodged in virtual neighbors. Britain and Spain are among Europe’s the legislature, not the executive; that this legislature is to principal maritime powers. Future alliances between them be a body of elected representatives, and that, instead of should be regarded as probable. Meanwhile, as a result, favoring standing armies, there is a clause which forbids the family compact between France and Spain is appropriation to support an army longer than two years – diminishing every day. Politicians, logically, have always a precaution which seems a real security against considered blood ties as weak links in the political chain. unnecessarily keeping up troops. These realities admonish us not to consider ourselves ———————————————————————– entirely out of danger. Before and since the Revolution, there has been a The Congress shall have power to raise and support constant need to keep small garrisons on our Western armies, but no appropriation of money to that use shall be for a longer term than two years. frontier. These will continue to be indispensable, if only Article I, Section 8 (12) of the United States Constitution against the attacks by the Indians. These garrisons must either be manned by occasional militia detachments or ———————————————————————–– permanent corps in government pay. Conjecturing further, this imaginary newspaper reader The first idea is impracticable; the militia would not would realize that America – so jealous of its liberties that long agree to be dragged from their occupations and all State constitutions contain precise, rigid precautions families to perform that most disagreeable duty in peace on this point – would not omit them from this new plan. time. And if they would, the cost of frequent troop Indeed, if he reviewed the State constitutions, he rotations and industry's loss of their labor would cause would find that only two of them ban peacetime standing loud objections. It would be burdensome and injurious to armies and that the other eleven are either silent on the the public and ruinous to private citizens. subject or expressly admit the legislature’s right to allow The latter, permanent-corps, option amounts to a them. peacetime standing army; albeit a small one, but no less Still, convinced that there must be some plausible real. This simple fact shows at once the impropriety of a foundation for the outcry – because he could not imagine constitutional prohibition, and the need to leave the matter that it was nothing more than a test of public credulity to the legislature’s discretion and prudence. designed to deceive – he would search the existing And as our strength grows, no doubt Britain and Spain Confederation for the explicit provisions against will increase their military forces in our neighborhood. peacetime military establishments that seem to influence Unless we are willing to stand exposed and defenseless these “political champions”. But his astonishment would to their insults and encroachments, we will wisely increase and acquire a measure of indignation upon increase our frontier garrisons in proportion to the discovering that they impose not a single such restraint annoyance our Western settlements might suffer. There on the United States. And he would see these clamors as are, and will be, certain posts commanding large the dishonest ruses of a sinister, unprincipled opposition territories to facilitate invasions of the remainder. Some of them will be keys to trade with the Indian nations. Can The Federalist Papers: An Update • Edited by Marshall Overstedt • Page 33 © 1999 Marshall R. Overstedt
  • 34. any man think it would be wise to leave such posts use our fleets to protect our dockyards, those garrisons undefended against one or the other formidable will become unnecessary. But where naval forces are in neighboring powers? their infancy, moderate garrisons are indispensable If we mean to be a commercial people, or merely to be against attacks to destroy those facilities – and the fleet secure on our Atlantic side, we must endeavor, as soon itself. as possible, to build a navy. To that end, we must build Publius. dockyards and arsenals, and fortifications and garrisons to defend them. When we grow powerful enough at sea to FEDERALIST NO. 25 Powers Necessary to Common Defense – #2 Hamilton To the People of the State of New York: SOME MAY urge that the States, under Union The experience of ages attests that the people are always direction, should provide for the common defense. But most in danger when the means to injure their rights this inverts the primary principle of our political belong those of whom they are least suspicious. association. Transferring the common defense from the The framers of the Confederation, aware of the danger federal head to the States would oppress some States, from separate State military forces, prohibited them from endanger all, and poison the Confederacy. having ships or troops without Congress’ consent. The British and Spanish territories of Britain, like the ———————————————————————–– Indian nations in our neighborhood, do not border on particular States, but encircle the Union from Maine to No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed Georgia. The danger, though varying in degree, is necessary by the United States in Congress assembled, therefore common. And the means of guarding against it for the defense of such State, or its trade; nor shall any should also be the responsibility of a common authority body of forces be kept up by any State in time of peace … and a common treasury. As it happens, some States are Article VI of the Articles of Confederation more directly exposed. New York is one. Under a plan Placing a federal government and military that divides defensive authority, New York would have to establishment under State authority is no less illogical undertake all of the tasks and expenses needed to than paying for them from the federal treasury in a system protect her and her neighbors. This would be neither be of quotas and requisitions. fair to New York nor safe for the other States. ———————————————————————– Various problems would result. The States required to …every State shall always keep up a well-regulated and support the necessary undertakings would, for a long time disciplined militia, sufficiently armed and accoutered, and to come, be unable and unwilling to carry the load of a shall provide and constantly have ready for use, in public competent defense establishment. The security of all stores, a due number of field pieces and tents, and a would suffer from the selfishness, wastefulness, or proper quantity of arms, ammunition and camp equipage. Article VI of the Articles of Confederation incompetence of one member. Should that State become All charges of war, and all other expenses that shall be more wealthy and powerful, and its resources enlarged, incurred for the common defense or general welfare, and the others would quickly become alarmed seeing the allowed by the United States in Congress assembled, shall entire Union military force in the hands of its two or three be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of most powerful members. Each would try to all land within each State, granted or surveyed for any counterbalance that power. And then military units, fed by person, as such land and buildings and improvements mutual jealousy, would swell beyond their proper size. thereon shall be estimated according to such mode as the And, being at the mercy of fellow States, they could take United States in Congress assembled shall from time to time direct/appoint. action that would destroy our national authority. Article VIII of the Articles of Confederation We have heard reasons to suppose that the State governments will be naturally prone to challenge the ——————————————————————— Union for power, and that in such a contest the people will The objection, designed to preclude standing most likely unite with their State governments. If the peacetime armies, never tells whether the prohibition States should feel empowered by this huge advantage, should apply to raising armies, keeping them up in along with their own military forces, they could be tranquil days, or both. tempted, as well as equipped, to try to subvert the Union’s If confined to the “maintenance” issue, it has no constitutional authority. In that case, the people’s liberty precise meaning, and cannot serve the intended purpose. would be less safe than if the national forces remained in When armies are once raised, what shall be defined as national government hands. If an army is to become a “keeping them up” in violation of the Constitution? What means to gain power, better that it be under the authority duration will be required to verify a violation? will it be a Americans are most, rather than least, likely to distrust. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 34 © 1999 Marshall R. Overstedt
  • 35. week, a month, a year? Or will we say the troops may feel and know that their country’s liberty could not have stay afoot as long as the danger requiring their service been established by their efforts alone, however great and continues? This would admit that they could be kept in valuable. War, like most things, is a science, learned and time of peace, against threatening or impending danger, perfected by diligence, perseverance, time, and practice. which would at once deviate from the prohibition’s literal All violent policy, contrary as it is to the natural, meaning and considerably broaden the power to raise experienced course of human affairs, defeats itself. and keep armies. Who will judge the existence and Pennsylvania gives us an example of this truth. Its Bill of duration of danger? This must be submitted to the Rights declares standing armies dangers to liberty, not to national government which could then, to respond to the be kept up in peacetime. Responding to disorder in a few danger, first raise troops and afterwards keep them on of her counties, Pennsylvania, though not at war, raised a duty as long as the community is in jeopardy. It is easy to body of troops – which it will probably keep as long as see how a power so broad would give room to elude its there is any trace of danger to public peace. force. Massachusetts teaches that, without waiting for The value of such a provision must rest on the Congressional sanction, as required by the Articles of supposed probability, or at least possibility, of a Confederation, she once raised troops to quell a domestic usurpation plot between the executive and the legislative. insurrection, and still pays them to prevent a revival. Should this ever happen, how easy would it be to invent The Massachusetts constitution contains no obstacle pretenses of approaching danger! Indian attacks, to the measure, still the instance teaches us that such instigated by Spain or Britain, would always be at hand. If cases are likely to happen under our government, as they we ever have reason to believe such a conspiracy exists, have under others. And this sometimes makes a military and that it has sufficient chance of success, the army – force in time of peace vital to the society’s security. raised on any pretext – could be used to execute it. Therefore it is improper to limit the legislature’s options on If, to prevent this kind of intrigue, we should ban this issue. peacetime armies, the Constitution would incapacitate the It also teaches us how little a feeble government’s United States to defend themselves – even before an rights are respected, even by its own citizens. And it invasion. For it would require us to wait until an enemy is teaches us how unequal parchment provisions are to real- inside our borders before the government could legally life national emergencies. begin inducting men to protect the State. We must suffer It was a maxim of the Lacedaemonian commonwealth, the blow before we could even prepare to return it. And that the title of admiral should not be given twice to the we must abstain from all the means nations have always same person. The Peloponnesian confederates, severely used to prevent and ward off danger as conflicting with defeated at sea by the Athenians, demanded that the principles of our “free government.” We must expose Lysander, a former successful admiral, to command the our property and liberty to foreign invaders, and allow combined fleets. To gratify their allies and still adhere to ourselves, through our weakness, to become naked, the ancient principle, the Lacedaemonians resorted to the defenseless prey. Why? Because we are afraid that rulers flimsy subterfuge of giving Lysander the power of an we have created, serving with our consent, might admiral, but under the nominal title of vice-admiral. This is endanger our liberty by abusing means necessary to one of many instances that confirms the truth that nations preserve it. pay little regard to rules and policies calculated to run Now I expect to be told that the militia is the country’s counter to national necessities. natural bulwark, always equal to its defense. This Wise politicians beware fettering the government with doctrine, literally, nearly lost us our independence. It cost restrictions that cannot be observed, because they know the United States millions we could have saved. The that breaches of fundamental laws, though dictated by experience is too recent to again allow this policy to dupe necessity, impair a leader’s respect for his nation’s us. Waging an ongoing war against a regular army can constitution and create precedents for more breaches, only succeed with another disciplined regular army. even in situations where there is no necessity. The American militia, in the late war, erected many Publius. eternal monuments to their fame, but the bravest of them FEDERALIST NO. 26 Limiting Legislative Military Authority – #1 Hamilton To the People of the State of New York: THE PROPOSAL to restrict the legislature’s authority have wisely judged that some branch of government must to defend the nation was inspired by an excessive zeal for be trusted with this vital responsibility and that it is better liberty. But it is not widely popular: only Pennsylvania and to risk its abuse than to endanger public safety by North Carolina have applied it in any degree. Other States restricting it. The Constitution’s opponents, rather than The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 35 © 1999 Marshall R. Overstedt
  • 36. learn from experience to correct such extreme notions, Accordingly, some constitutions are totally silent on the seem ready to lead us into still more dangerous schemes. issue. Should their ideas become popular, they would disqualify Note that the two States that considered banning America for any kind of government. But Americans are peacetime armies used cautionary rather than prohibitive too intelligent to be gulled into anarchy. I believe language. They say that they should rather than “shall” experience has convinced them that an energized not be kept up. This ambiguity seems to reflect conflict government is essential to our welfare and prosperity. between the desire to ban them at all events and the The idea to prohibit military establishments in time of inclination that an absolute ban would be unwise and peace must be traced to habits of thinking inherited from unsafe. Undoubtedly, the legislature would interpret this our common British heritage. In England, long after the language, in a real emergency, as a mere admonition. Norman Conquest, the monarch’s authority was almost What good is it, if it ceases to operate the minute we are unlimited. Little by little, libertarian ideas – first advanced tempted to disregard it? by the barons and later by the people – took hold until the Is there be any operational comparison between those monarchy’s worst pretensions became extinct. But not State constitution articles and the national defense until the revolution in 1688, which put the Prince of language in the new Constitution? Orange on the throne, did English liberty triumph. Using ———————————————————–– the undefined war-making power that was an acknowledged crown prerogative, Charles II kept on foot The Congress shall have power to…raise and support a peacetime body of 5,000 regular troops, which James II armies, but no appropriation of money to that use shall be for a longer term than two years; increased to 30,000. The Bill of Rights framed at the Article I Section 8 (12) of the United States Constitution revolution stated that “the raising or keeping a standing army within the kingdom in time of peace, unless with the —————————————————————————————— consent of parliament, is against law.” The former, by trying to do too much, does nothing; the In Britain, at a time when liberty was strongest, no one latter, by dealing logically with national realities, will have saw a need to protect against standing armies, beyond a powerful, beneficial effect. prohibiting the magistrate from raising or keeping them This provision will oblige Congressmen, at least once up. The patriots who won the revolution knew that a every two years, to consider the practicality of keeping an certain number of troops was indispensable as guards army on duty, to write a new resolution on the issue, and and in garrisons; that national emergencies could not be to declare their opinion by a formal vote in front of their foreseen or controlled and, therefore, that a power equal constituents. They cannot give the executive permanent to every contingency must exist somewhere in the funds to support an army. As politics infects all elected government. bodies, some persons in the Congress will try to When they delegated that power to the legislature, the criminalize the majority and indict its views. Support for a American people took the maximum precaution available military will always be a subject for speeches and to guard community safety. ————————————— debates. As often as it arises, the opposition party will ——————————— harangue the public about it and, should the majority want to exceed the constitutional limits, warn the community of [No] body of forces [shall] be kept up by any State in time the danger and at least try to take measures against it. of peace, except such number only, as in the judgment of the United States in Congress assembled, shall be Independent of parties in the Congress, the State deemed requisite to garrison the forts necessary for the legislatures, always guarding citizens’ rights against defense of such State; but every State shall always keep federal government encroachments, will, if misconduct up a well-regulated and disciplined militia … occurs, be the voice and the arm of public discontent. Article VI of the Articles of Confederation Schemes to subvert a great nations’ liberties take time Also from our English tradition comes our supposed to mature and unfold. An army large enough to threaten “instinct” regarding peacetime armies’ threat to liberty. freedom must be formed step by step. This would Then our revolution-quickened public sensibility suppose an ongoing conspiracy between the legislature illuminated the need to protect popular rights. Reflecting and executive. Could such a conspiracy exist at all? this “zeal” is the fact that only two States’ tried to Could the plotters persist, year after year, and pass the constitutionally restrict their legislatures’ military powers. strategy, objective and plan across biennial elections from In those States, the principles which taught us to limit the one Congress to the next and the next? Would every powers of hereditary monarchs were unwisely extended Representative and Senator become a traitor to his to the State legislators. Even some States that avoided constituents and to his country? Can you conceive that this error declared that standing peacetime armies should not one honest man would detect such an atrocious not be kept up without legislative consent. I call these conspiracy and warn the people of the danger? If so, we declarations unnecessary because the logic which should at once end all delegated authority, recall all the introduced a similar provision into the English Bill of powers we have delegated to the Congress and turn our Rights does not apply to any State constitution. The counties into democratic sovereignties. power to raise armies, under those constitutions, must be But even if such a conspiracy were possible, lodged in the legislatures. Moreover, it was superfluous to concealing it – for any time – would be impossible. We declare that a matter should not be done without consent would see it the minute the army inexplicably began to of the body which alone has the power to do it. grow. What excuse could there be for a country at peace to expand its military? The people would not be long The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 36 © 1999 Marshall R. Overstedt
  • 37. deceived, and the plot and plotters would soon thereafter necessitates an army large enough to endanger its liberty, be destroyed. no form of government can prevent or cure it. Some say that limiting military funding to two years But this evil is infinitely more likely to befall us if we are would fail because the Executive, supported by a force disunited than if united under the Constitution. Indeed, we large enough to subjugate the people, would find ways are altogether unlikely to face it if we stay together. It is around legislative oversight. But on what pretext could he difficult to conceive dangers to the Union formidable justify a peacetime army so large, even (or especially) in enough to demand a force powerful enough to jeopardize response to a recent emergency? our liberties, especially if we take into view the support of Few persons will seriously argue that military forces the militia, which will always be a powerful auxiliary. But should not be raised to quell rebellion or resist invasion, disunited, such a threat would be almost unavoidable. and if the community’s defense in those circumstances Publius. FEDERALIST NO. 27 Limiting Legislative Military Authority – #2 Hamilton To the People of the State of New York: WE HEAR that the kind of Constitution the convention turbulent faction may easily contend with a State proposes must have military support to execute its laws. government but is no match for the United States of This, like most things the other side alleges, is America. unsupported by any precise or intelligible argument. As I hazard that the more federal government mingles in far as I can determine, the notion presupposes that the everyday life, the more community respect and loyalty it people will not recognize any internal federal authority. will earn. People are creatures of habit. Things we rarely Ignoring for the moment any distinction between “internal” experience little influence us. A government distant and and “external,” on what grounds does such an attitude out of sight can hardly stir our interest. exist. Unless we presume that the general government But as the Union’s authority and citizens’ affection will serve the people less honorably or more maliciously towards it will be strengthened, not weakened, by its than State governments, there seems no reason to involvement in “internal matters,” it will have less and less presume public ill-will. I believe that confidence in and reason to resort to force. obedience to any administration relates to its perceived One thing is obvious: a government like that proposed goodness or badness. I admit that there are exceptions to would try harder to avoid the need to use force than the this rule, but they depend on accidental causes, kind most opponents favor, whose authority would apply unrelatable to the Constitution’s inherent merits or only on the States as political and collective entities. We demerits. have seen that such a Confederacy can only enforce its These papers suggest various reasons to believe that laws by force, that violations of member States are built the general government will be better managed than the into that system and that they can be redressed only by State governments, including the multitude of political war and violence. choices it will offer the people. Moreover, because the The convention plan, by contrast, extends federal national Senate will be selected by the State legislatures – authority to the individual citizens of the States, which themselves bodies of select civic leaders – we can means it can use the power of the citizenry to enforce its expect that it will be composed with great care and laws. This will, naturally, tend to destroy the distinctions judgment. Both features of the proposed system promise between government levels, and allow federal authorities that the national councils will exhibit higher levels of to achieve the same due obedience and influence on knowledge and less factionalism, ill humor and prejudice. public opinion that the States enjoy. This, again, will result As a result, we can also expect they will operate without from its power to draw for help on all the Union’s the dissension that often breeds injustice, oppression, resources. and schemes that end in general distress. Therefore, until We should be particularly aware that Union laws, as we have reason to believe the federal government will specified in the Constitution, will become the supreme law govern badly, we can assume that it will execute the of the land, and all officers, legislative, executive, and Union’s laws with no less respect and professionalism judicial, in each State, will be obligated by oath to enforce than the States apply to theirs. and obey them. In this way, the State legislatures, courts, The hope of escape from punishment encourages, and and magistrates will be incorporated into the operations of fear of it discourages, sedition. The duly empowered the national government as far as its just, constitutional Union government, with access to all Confederacy authority extends and will help to enforce its laws. resources, will be more apt to repress the former Anyone who reflects on the meaning and sentiment and to inspire the latter than any single State. A consequences of this situation will realize there is reason The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 37 © 1999 Marshall R. Overstedt
  • 38. to expect a regular, peaceful execution of Union law, But though the proposed Constitution’s adversaries provided the Union administers its powers with common presume the national leaders would not heed the public sense. Anyone who supposes the opposite may infer good or their obligations, I would still ask them how such anything he pleases, because it is possible, by corruptly conduct would promote a spirit of encroachment. exercising the best laws of the best government ever Publius. created, to provoke the people into the wildest excesses. FEDERALIST NO. 28 Limiting Legislative Military Authority – #3 Hamilton To the People of the State of New York: I CANNOT DENY that we may see times when the Independent of other arguments, here is a full national government must resort to force. Sedition and answer to those who demand an overriding statute insurrection arise in all societies, however constituted. banning military establishments in time of peace: The notion that we can govern at all times by the simple force of law is a dream of political doctors who scorn the The whole power of the proposed government lessons of experience. will be in the hands of the people’s When such emergencies happen under federal representatives. jurisdiction, force is the only response and it must be proportioned to the situation's severity. For a small, This is civil society's essential and only effective isolated commotion, the State militia would suffice. But protection for citizens’ rights and privileges. insurrection threatens all government. Respect for law If the people’s representatives betray them, there is no and order alone would motivate responsible citizens to recourse but the original right of self-defense that is oppose the insurgents. And if they see the general paramount to all positive forms of government. And this government working for their welfare, the people will right is infinitely more effective against usurpations by defend it. national than State officials. If a State government If the insurrection should affect a major part of a State, exceeds its authority, the counties, cities, towns and a different kind of force might be needed. Massachusetts townships, having no military powers, are defenseless. was forced to raise troops to repress its disorder. The citizens must respond with only their own arms, Pennsylvania followed suit, merely in fear of unrest courage and anger. The violators, clothed in pseudo-legal among some of her citizens. Had New York State decided authority, can usually crush such opposition at its to reclaim her lost power over Vermont, would the militia dawning. And the smaller the territory, the more difficult it alone have succeeded? New York would have been is for citizens to resist effectively because intelligence on compelled to raise and maintain a more regular force. their preparations and movements is faster and easier to If we admit that civil emergencies require a State to collect. maintain a force superior to its militia, how can we argue The obstacles to usurpation and the ability to resist that the national government cannot do the same? It is increase with the size of the state, provided the citizens surprising that men who declare loyalty to the Union in the understand their rights and are willing to defend them. A abstract oppose the proposed Constitution that supports large population’s natural strength, as opposed to its their policy with ten times as much force – an inevitable government’s artificial power, can usually overpower consequence of any large-scale political establishment. attempts to institute tyranny. And who would not prefer keeping a full-time security In a confederacy the people control their fate. Power force to the endless agitations and revolutions we see in being the only rival of power, the general government will petty republics? always be ready to check State usurpations, and the In another light, suppose, instead of one general States ready to defend against federal violations. system, we would form two, three or more confederacies. Whichever side the people support will dominate: if either Would not the same problems arise under each of them? invades their rights, they can use the other to gain And would it not uphold its authority by resorting to the redress. They will be wise to support the Union, which same means to which our opponents object in a gives them insurmountable advantages. government for all the States? Could its militia defend it? It is an axiom in our political system that State All honest, intelligent men must acknowledge that the governments will, in all cases, defend liberty against the principle applies equally to both cases, Whether we have national authority. Usurpation conspiracies cannot avoid one government for all States or several authorities for detection by the State legislatures, which have better parcels of them – or complete separation – we might means of information than the people, and can spot need to enact laws against insurrection and rebellion, and danger at a distance. Controlling all the organs of civil enforce them with a force other than the militia. power, and the people’s confidence, they can form The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 38 © 1999 Marshall R. Overstedt
  • 39. regular plans of opposition, combining all the community’s The size of a military force depends on national resources. They can also communicate with other State resources. For years to come, we will not be able to keep governments and combine forces to protect their common a large army, but as population grows, so will our military. liberty. Consider what it would take for a future federal America’s great expanse is another protection. We government to raise and maintain an army able to install a have seen its value against foreign attack; it would work despotism over an immense empire whose population the same way against domestic violators. If a renegade can, through the State governments, build defenses equal federal army quells resistance in one State, distant States to many independent nations. can bring fresh forces. Gains in one place must be Publius. abandoned to fight elsewhere, and once a defeated area is left to itself, it renews resistance. FEDERALIST NO. 29 Concerning the Militia Hamilton To the People of the State of New York: THE POWER to regulate the militia and command its laws to execute specified powers would not include that of service in times of insurrection and invasion is inherent to requiring citizens to help officers execute those laws. national defense. No military knowledge is needed to see And what reason is there to infer the convention that their uniform organization and discipline are vital intends force to be the only tool of authority, merely when the militia are needed for public defense. It enables because the power to use it is available if needed? them to train effectively in camp and operate intelligently, We are even taught to fear the militia itself, once in as a bona fide army, in the field. It also accelerates the federal government hands. The theory is that it may form readiness essential to their usefulness. select corps of the young and ardent, and use them to This uniformity can only be accomplished by install an “arbitrary power.” delegating regulation of the militia to national authority. Were the Constitution ratified, and were I to deliver my That is why the convention proposes to empower the sentiments on militia organization to my representative in Union to use the militia to confront problems requiring the federal legislature, I would say: military solutions. Disciplining all the militia of the United States If a well-regulated militia is a free country’s most would be futile and injurious – if it could be done. natural defense, it should be organized by and available Military expertise requires time and practice. A to the authority responsible for guarding national security. day, or even a week, will not suffice. To require Opponents who argue that standing armies endanger the great body of our freeholding farmers and freedom should, to prevent them, demand federally- other citizens to be under arms as often as might regulated militia. Otherwise something like a standing be needed to train a well-regulated force, would army is mandatory. inflict real grief on the people and serious public inconvenience and loss. The annual amount of productive labor it would take from the nation The Congress shall have power to provide for … calling would approach the cost of governing all the forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; States. And the experiment could not succeed Article I Section 8(15) of the United States Constitution because we could not long endure it. A reasonable For … organizing, arming and disciplining the militia, and goal, with respect to “citizen soldiers,” would be to for governing such part of them as may be employed in the properly arm and equip them. To do that, we will service of the United States, reserving to the States respectively the appointment of officers, and the authority need to assemble them once or twice a year. of training the militia according to the discipline prescribed But though organizing and disciplining the by Congress; entire nation is impracticable, as soon as possible, Article I Section 8(16) of the United States Constitution we must adopt a well-digested plan to properly establish the militia. The goal should be to a select –——————————————————————— corps of moderate size, applying principles that will To discredit Union militia control, some note that the really fit them for service in time of need. This will proposed Constitution fails to authorize activating the not only reduce the need for a standing army, but posse comitatus (i.e., deputizing common citizens) to if ever the government must form an army, it could help the President execute his duty. From this they infer never be powerful enough to threaten the people’s that military force is intended to be his only recourse. I question the objectors’ sincerity. They say in one liberties as long as there is a large body of citizens breath that federal powers will be despotic and unlimited; nearly as well-armed, -disciplined and ready to in the next that it has no authority to call out the posse defend their own and their fellow Americans’ comitatus. It is absurd to suppose that a power to pass The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 39 © 1999 Marshall R. Overstedt
  • 40. rights. This to me is the only substitute for a Do the ranters of these ravings imagine they will standing army the best defense against it. influence the American people so hungry for truth? The idea that the militia can endanger liberty is Should there ever be an army to use as the engine of outrageously far-fetched. Where are our fears to end if we despotism, what need of the militia? Should there be no cannot trust our sons, brothers, neighbors, and fellow such army, to where would the militia – irritated by being citizens? What danger can there be from men who daily sent on a long, hopeless expedition to enslave their mingle with the rest of us and share our opinions and countrymen – steer their course, but at the perpetrating interests – particularly when the States have the exclusive tyrants, to make them an example of the just vengeance power to appoint their officers … a reality that should at of an abused and angry people? Is this how usurpers once extinguish it? After all, this right of appointment strive to dominate a large, enlightened nation? Do they assures the states permanent control over the militia. begin by stirring the loathing of the armed, trained Many of the publications against the Constitution soldiers they intend to use to destroy their fellow discolor and disfigure everything it represents. Examples Americans’ rights? Do they start their campaigns with include exaggerated, improbable suggestions respecting wanton, disgusting atrocities, calculated only to earn the power to call the militia to service. That of New universal hatred? Hampshire is to be marched to Georgia, of Georgia to In times of insurrection or invasion – in resisting a New Hampshire, of New York to Kentucky, of Kentucky to common enemy or guarding the republic against a violent Lake Champlain … No, debts to France and Holland will faction or sedition – of course the militia of one State be paid in militiamen instead of louis d’ors and ducats. would march into its neighbor. It happened often during Now there is to be a large army to destroy the people’s the late war; indeed, this mutual support is a vital function liberties, later the Virginia militia will be dragged 500 or of the Union. If the power of regulating it is assigned to 600 miles from home to tame republican unruliness in the Union, there will be no danger that one State will Massachusetts and Massachusetts’ men an equal ignore threats against its neighbors until its help is too distance to subdue the aristocratic Virginians. feeble or too late. Publius. FEDERALIST NO. 30 The General Power of Taxation Hamilton To the People of the State of New York: THE WRITERS believe the federal government should person, as such land and buildings and improvements be empowered to pay expenses by means of thereon shall be estimated according to such mode as the United States in Congress assembled shall from time to disbursements from the national treasury. We conclude time direct/appoint. that there must be, in the framework of the government, a The taxes for paying that proportion shall be laid and general power of taxation. levied by the authority and direction of the legislatures of Money is the fundamental resource of the body politic the several States within the time agreed upon by the United States in Congress assembled. that enables it to perform its most essential functions. A Article VIII of the Articles of Confederation power to secure regular, adequate funds is indispensable to every constitution. Without it, either the people must be ———————————————————————– subjected to continual plunder or the government will The Articles of Confederation, feeble as they are atrophy and soon die. intended to be, give the United States unlimited power to In the Ottoman or Turkish empire, the sovereign, in fill their monetary wants. But they operate in a manner other respects his subjects’ absolute master, has no right that defeats their purpose. to impose new taxes. To compensate, he permits the The Congress is authorized to call upon the States for province governors to loot the people mercilessly. In turn, sums it deems necessary to the United States’ welfare. A he squeezes them for the funds he needs. States’ right to refuse compliance would violate the For similar reasons, the American government is Articles of Union, but it is exercised, and will be as long as approaching annihilation. No doubt, the people in both Confederacy must depend on the States’ resources. countries would be happier under governments able to This stealthful practice of withholding funds has provide needed public revenues. brought us shame and handed our enemies a triumph. As a remedy, I suggest that we replace our fallacious, delusive quotas and requisitions with a national All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and government power to raise its own revenues through allowed by the United States in Congress assembled, shall ordinary taxation, as under every well-ordered be defrayed out of a common treasury, which shall be constitution. supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 40 © 1999 Marshall R. Overstedt
  • 41. The new Constitution’s intelligent adversaries agree requisitions and unable on its own to obtain fresh with this reasoning, but call for a system of “internal” and moneys, it would probably be forced by the national “external” taxes. The former they would reserve to the danger to divert to the defense effort funds already State governments, the latter – duties on imported goods appropriated for legitimate operations. And if so, it would – to the federal head. probably destroy public credit essential to public safety. But this distinction would violate the sensible policy to In modern war, even the most wealthy nations need proportion every power to its purpose. Because tariffs access to large loans. To a poor country such as ours, alone could not fill the Union’s needs, it would also leave they would be more critical. But who would lend to a the general government dependent on the States, which government proven to be an unreliable debtor? Loans we conflicts with administrative vigor and efficiency. History might be able to get would be limited in value, with hugely teaches that a nation’s financial needs can be expected to burdensome terms. at least equal, and often exceed, its resources. We may imagine that, from our limited national wealth, To say needs unfilled by the tariffs could be filled by the need to divert funds would exist alongside an requisitions from the States acknowledges that we cannot unlimited power to tax. But two considerations will quiet depend on the “internal/external” tax system and that we our fears: one, we are sure all the nation’s resources will must depend on it beyond a certain limit. Those who be available to the war effort and, two, any shortfall could recognize and understand its vices refuse to entrust be borrowed. America’s national interests in any degree to quotas, The power to create new funds via taxation would which inevitably weaken the Union and ties between the enable the national government to borrow as much as federal head and the State, and between the States needed. Foreigners, as well as Americans, could then themselves. Will this system perform more efficiently in comfortably trust it. But who would depend on a the future? If less is required from the States, they will be government that must depend on thirteen (or more) other proportionally less able to comply. governments for revenues to fulfill its contracts? How can a government always in need fulfill its Reflections of this kind may have little weight with men institutional purposes, provide for our security, advance with fabulous, poetic hopes for America. But to those who prosperity, and support the nation’s reputation? How can expect to experience the rigors and calamities that befall it ever generate energy or stability, dignity or credit, all nations, they require serious attention. Such men must confidence at home or respectability abroad? How can its acknowledge the realities we face with painful concern, operation be other than a series of stopgaps? How can it and see the need to do what is necessary to defend produce long-term public good? against the harm that an enemy’s ambition or revenge How will this situation affect us when the next war might inflict on our nation. befalls us? Suppose the suggested impost duties are able Publius. to support a peacetime government. Then war breaks out. Taught by experience not to depend on old FEDERALIST NO. 31 The General Power of Taxation – #2 Hamilton To the People of the State of New York: THERE ARE certain basic truths on which all reason The purposes of geometrical inquiry are so unrelated depends. These include maxims in geometry, that “the to our subjective, emotion-driven pursuits that we easily whole is greater than its part; things equal to the same accept not only simple scientific theorems but the most are equal to one another …” Each contains internal complex, seemingly contradictory ideas. evidence that requires the mind to accept the proposition But in dealing with moral or political ideas, people are before applying or considering it further. If an individual far more skeptical. To a point, this makes sense: Caution cannot agree, it is because of some organic defect or and inquiry are necessary defenses against mistakes and disorder or some strong interest, or prejudice. arbitrary imposition. But it can be carried too far, and may So it is with certain ethical and political maxims: “there degenerate into bullheadedness or hypocrisy. We cannot can be no effect without a cause,” “the means should be pretend that moral or political principles are as certain as proportioned to the end,” “every power should be mathematical axioms. But, judging from politicians’ balanced with its purpose,” “there should be no limit on a conduct at times, they have larger claims to credibility power to fill a purpose which is itself incapable of than they deserve. The ambiguity is more often in our limitation.” emotions and prejudices than in the subject. Too often, There are other truths that, if not of “axiom” rank, are we devalue our own ideas and knowledge and, yielding to direct inferences from them and so obvious and sensible, bias, entangle ourselves in verbiage and confuse that they demand, with irresistible force and conviction, ourselves with subtleties. acceptance by sound, unbiased minds. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 41 © 1999 Marshall R. Overstedt
  • 42. How else (if we admit the objectors’ sincerity) could deprive the States of those resources, and would put intelligent people oppose the obvious necessity of a them entirely at the mercy of the Congress. As the general Union taxing power? Union’s laws are to become the supreme law of the land, –——————————————————————— as it is to have power to pass all laws its duties require, the national government might at any time abolish State The Congress shall have power to lay and collect taxes, taxes, pretending interference with its own. It might allege duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United a need to do this in order to make its own taxes more States; but all duties, imposts and excises shall be uniform effective. Thus the federal government might impose a throughout the United States. monopoly on tax sources and destroy the State Article 1, Section 8 [1] of the United States Constitution governments.” This rationale seems sometimes to suppose a federal –——————————————————— bent on usurpation. Other times, it seems designed only Though these papers have already stated the writers’ to reduce its constitutional powers. Only in the latter light positions on this issue, it is proper to repeat them as can we see any pretensions to fairness. When we start introduction to an examination of the objections against guessing about federal usurpations, we trade reason for them. In substance, we submit that: imagination. Whatever the limits or modifications of Union • A government should have every power powers, it is easy to imagine endless dangers, and by required to fully achieve the purposes and indulging jealousy and timidity, we may carry ourselves to functions committed to its care, and to a state of absolute skepticism and irresolution. thoroughly exercise the trusts for which it is I repeat that conjectures on the danger of usurpation responsible – free from any limit but regard for should apply to government composition and structure, public good and the sense of the people. not to the nature or extent of its powers. The State • As the duties of managing the national constitutions invested them with complete sovereignty. defense and guarding peace against foreign or What protection do we have against their usurpations? domestic violence involve casualties and Answer: The way they were formed and a due dangers to which no possible limits can be dependence of those who govern them for the people. If assigned, the power to fulfill those we find that the structure of the proposed general responsibilities should have no limits other than government gives us the same sort of security, we should national needs and resources. discard all fears of federal usurpation. • As revenue is the essential engine for We should remember that the federal and State answering national needs, the power to procure governments are equally disposed to encroach upon each revenue must be equal to the responsibility of other’s rights. Which side would likely prevail in such a filling those requirements. conflict would depend on the means of each to insure • As theory and practice prove the inefficiency success. As a republic’s strength is always on the side of of procuring revenue by requisitions on the its people, and as there are sound reasons to believe the States, the federal government must have State governments will have the most influence over unqualified power to tax in the ordinary modes. them, I conclude the Union will lose. Moreover, the States If experience did not show the contrary, these will more probably encroach on the federal head than the propositions would be all the support needed for a other way around. But all guesses of this kind are general federal taxing power. But the proposed extremely vague and fallible: it is safest to lay them aside Constitution’s antagonists seem to make this part their and focus on the nature and extent of powers the main target. Constitution bestows. Everything past this point must be Their strongest arguments seem to amount to: “It is left to the people’s common sense and firmness; they, not true, because the Union’s needs may not be who hold the scales, will hopefully always take care to unlimited, that its power to tax should be unlimited. preserve the constitutional equilibrium between the Revenue is as essential to the State governments as to general and State governments. On this firm ground, it the Union, and the former are at least as important as the will be easy to avert objections to a limitless national latter to the people’s happiness. It is therefore as power of taxation. necessary for the States as the national government to Publius. command means to fill the people’s wants. But an indefinite federal taxation power probably would in time FEDERALIST NO. 32 The General Power of Taxation – #3 Hamilton To the People of the State of New York: I BELIEVE the State governments’ fears that the unjustified. I think the sense of the people, the danger of federal government will “control” their levies of money are provoking the States’ resentment and their importance to The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 42 © 1999 Marshall R. Overstedt
  • 43. the citizens would prevent the Union from oppressively This power must be exclusive: If every State could using such a power. Still, I admit that the individual States write its own rule, there could be no national rule. should have independent, uncontrolled authority to raise An example of a “shared” power is taxation on articles their own revenues. Making this concession, I affirm that other than exports and exports. The Constitution nowhere (except for import and export duties) they would, under grants it exclusively to the Union or prohibits it to the the convention plan, retain that power and any federal States. But there is a conclusive argument for equality: attempt to abridge it would violate the Constitution. the restraint on the States related to import/export duties, Massing the States into one national union would which implies that, without it, the States would retain this subordinate them to a general system. Their retained power and all other taxing rights. The restriction amounts powers would depend on the will of all the people. to what the legal profession calls a negative pregnant: “a But the convention plan calls only for a partial union, denial that admits or involves an affirmative implication wherein the State governments would keep all powers not that favors a pleader's adversary.” In practice, it negates specifically delegated to the United States. the States’ import/export tax authority and affirms their This exclusive delegation would only occur where the authority to tax all other articles. It would be illogical to bar Constitution would grant: them from these revenues but allow them to collect others • An exclusive authority to the Union. subject to Congressional control. The prohibitory clause • An authority, in one instance, to the Union, and in says only that they shall not lay such duties without the another prohibit the States from exercising a like power. Congress’ consent. Logically, the Constitution should then • Authority to the Union which, if given to the States, formally provide that the States, with Congressional would conflict with its purpose. consent, might tax imports, exports and every other These three cases may be illustrated, respectively, by article, unless Congressionally restrained. If this was the these examples: intention, why not simply confer a general power of 1. Article I Section 8 [17] – “(The Congress shall taxation on the Union? Obviously, this cannot have been have the power to) exercise exclusive legislation in all the intention. cases whatsoever over such district (not exceeding ten A supposed conflict between a Union and State miles square), by cession of particular States and the taxation power cannot be supported. A State's right to tax acceptance of Congress, become the seat of the a particular article denied the Union would not imply a Government of the United States, and to exercise like constitutional inability to impose a further tax. The amount authority over all places purchased by the consent of the of the tax and the practicality of an increase on either side legislature of the State in which the same shall be, for the would be questions of mutual prudence, but there would erection of forts, magazines, arsenals, dockyards, and be no direct conflict of powers. The taxing policies of the other needful buildings.” Union and the States might not always be in harmony and 2. Article I Section 8 [1] – “The Congress shall have might need negotiation and adjustment, but a pre-existing power to lay and collect taxes, duties, imposts and right of sovereignty can only be endangered by a true excises, to pay the debts and provide for the common constitutional conflict, not a mere inconvenience in the defense and general welfare of the United States; but all exercise of powers. duties, imposts and excises shall be uniform throughout The need for shared jurisdiction in certain cases the United States.” results from the separation of powers. Moreover, the 3. Article I Section 10 [2] – “No State shall, without the convention rule – that all powers not explicitly transferred consent of the Congress, lay any imposts or duties on from the States to the Union stay with them – is not a imports or exports, except what may be absolutely theoretical result of separation but a basic tenet of the necessary for executing its inspection laws; and the net proposed Constitution. Beyond the grants of general produce of all duties and imposts, laid by any State on authorities, the delegates took great care in cases where imports or exports, shall be for the use of the Treasury of they believed the States should not have powers similar the United States; and all such laws shall be subject to to federal authorities. Article I Section 10 consists entirely the revision and control of the Congress. second clause of such provisions – a deliberate expression of the of the tenth section of the same article declares that, “no convention’s sense that furnishes a rule of interpretation state shall, without the consent of Congress, lay any that justifies my position and refutes every argument to imposts or duties on imports or exports, except for the the contrary. purpose of executing its inspection laws.” –———————————————————–———— This clause gives the Union exclusive power to lay [1] No State shall enter into any treaty, alliance, or duties on imports and exports, with the noted exception, confederation; grant letters of marque and reprisal; coin but it is abridged by… money; emit bills of credit, make anything but gold and Article I Section 9 [5]: No tax or duty shall be laid on silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law or law impairing the obligation articles exported from any State. of contracts, or grant any title of nobility. As a result, Section 10 [2] covers only duties on foreign imports, which illustrates the second case (power granted [2] No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what to the Union, denied to the States). may be absolutely necessary for executing its inspection The third is exemplified in … laws; and the net produce of all duties and imposts, laid by Article I Section 8 [4] (The Congress shall have power) any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be to establish an uniform rule of naturalization. subject to the revision and control of the Congress. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 43 © 1999 Marshall R. Overstedt
  • 44. [3] No State shall, without the consent of Congress, lay any Article I Section 10 of the United States Constitution duty on tonnage, keep troops and ships of war in time of peace, enter any agreement or compact with another ———————————————————— State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger a swell not Publius. admit of delay. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 44 © 1999 Marshall R. Overstedt
  • 45. FEDERALIST NO. 33 The General Power of Taxation – #4 Hamilton To the People of the State of New York: Two clauses of the proposed Constitution have Why then did the convention introduce it? Only to attracted bitter profanity and irascible oratory: guard against the petty, quarrelsome knitpicks of those A. “(The Congress shall have the power) to make all who, after ratification, might want to reduce and evade the laws which shall be necessary and proper for carrying Union’s legitimate authorities. The delegates probably into execution the foregoing powers, and all other powers foresaw one of these papers’ principal lessons – that the vested by this Constitution in the Government of the greatest danger to our political welfare is that the State United States, or in any department or officer thereof.” governments will undermine and weaken the Union’s Article I Section 8 [18] of the United States Constitution foundations – and determined not to leave such a critical B. “This Constitution, and the laws of the United point open to interpretation. Whatever the reason, the States which shall be made in pursuance thereof, and all wisdom of the precaution is obvious from the cry against treaties made, or which shall be made, under the it, which betrays a tendency to question the Union’s power authority of the United States, shall be the supreme law of to do its duty. the land; and the judges in every State shall be bound Who will judge the necessity and rightness of laws thereby, anything in the Constitution or laws of any State passed to execute the Union’s powers? This question to the contrary notwithstanding.” addresses the granting of those powers, as well as the Article VI Clause [2] of the United States Constitution language in the clause. I answer that, first, the national government, like every other, must assess the quality of They are described as deadly engines to destroy State its acts and the body politic must be the final judge. governments and exterminate liberties. Should the federal government autocratically exceed its Yet, after all this clamor, I confidently affirm that the authority, the people – who created it – must take constitutional operation of the intended government – whatever actions to repair the resulting constitutional even without these clauses – would be the same as if damage as the situation may suggest and good sense they were repeated in every article. They merely declare a justify. truth inherent to the act of constituting a federal We must judge the validity of a law by the nature of the government and vesting it with certain powers. powers that underlie it. Suppose the Congress should try I A “power” is the ability and the freedom to use the to alter a law in one of the States. This is an excess of means necessary to do a thing. authority and an infringement against that State’s citizens. I A legislative power is a power to make laws. The Suppose that, on the pretense of interference with its means necessary to make laws are laws. revenues, the Congress should try to abrogate a State’s I The power of laying and collecting taxes is the land tax. Would this not be an equally obvious invasion of power to make laws to lay and collect taxes. And the constitutionally-sanctioned shared taxing powers. proper means to do that are necessary and proper laws. If anyone doubts this, the blame belongs to those who This train of inquiry is a test by which to judge a have labored to obscure the plainest and simplest truths. controversial constitutional clause. It leads us to this But it is said that the laws of the Union will be the concrete truth: supreme law of the land. From this we can infer that if they were not supreme, they would amount to nothing. A power to lay and collect taxes must be a A law, by definition, includes supremacy. Those to power to pass all laws necessary and proper for whom it is prescribed must observe it. This requirement is the execution of that power. built into every political association. If one enters a society, that society’s laws must be the supreme regulator The provision in question merely declares the same of his conduct. If a number of political societies join or truth; to wit, that the Congress, to whom the power to lay form a larger entity, the latter’s laws, according its powers and collect taxes had been previously given, might, to under its constitution, must be supreme over them and execute that power, pass all laws necessary and proper their citizens. Otherwise the arrangement would be a to carry it into effect. mere treaty, dependent on the parties’ good faith, and not I confine these observations to taxation because it is a government – which is another word for political power the most important proposed power to be delegated to the and supremacy. Union. But the same process leads to the same result, Still, it will not follow that acts of the large society which when applied to all other Constitutional powers. And it is invade the smaller societies’ powers will become the expressly to execute these powers that the subject clause supreme law of the land. They are acts of usurpation, authorizes the Congress to pass all necessary and proper deserving to be treated as such. laws. If there is anything questionable, it exists in the As a result, we perceive that the clause declaring the specific powers upon which it is based; by itself, the supremacy of the Union’s laws, like that just considered, clause, needlessly repetitive as it may be, is harmless. only declares a truth which flows necessarily from the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 45 © 1999 Marshall R. Overstedt
  • 46. institution of a federal government. It expressly confines usurpation of power. Improper taxes on the same object this supremacy to laws conforming to the Constitution would create a mutual inconvenience, arising from an (which I mention only to illustrate the care taken by the unwise exercise of power by one or the other. convention), since that limitation would have been In sum, the States would, under the proposed understood, if not expressed. Constitution, retain independent, uncontrollable authority Therefore a tax for use by the United States would be to raise any amount of revenue they may need, by any “supreme” and could not legally be opposed or controlled, kind of tax, except duties on imports and exports. but a law preventing a State from collecting a tax (except Publius. on imports and exports), would be but an unconstitutional FEDERALIST NO. 34 The General Power of Taxation – #5 Hamilton To the People of the State of New York: AS TO REVENUE, the proposed Constitution, gives It is easy to say, in general terms, that we can the particular States and the Union equal authority, except rationally calculate what would be required to confront on import duties. As this gives the States uncontrolled probable future dangers. But we should require whoever access to greatly expanded community resources, no one makes the assertion to present his data. Moreover, any can say that they would not have ample means to supply data produced would be as uncertain as all previous their wants of which, compared to the federal share of computations on the probable duration of the world. public expenses, they would have very few. Observations confined to possible internal conflicts, which To argue that this shared authority cannot exist is to remain uncomputable, deserve no weight. But if we intend theorize against fact and reality. However proper it might to be a commercial people, part of our policy must be to be to show that it should not exist, the evidence is clear defend that commerce. Supporting a navy and naval wars that it does. would involve contingencies that baffle political arithmetic. In the Roman republic the legislative authority, in the We should, indeed, debar our government from last resort, resided in two independent bodies: the comitia waging offensive wars for mere political reasons, but centuriata, serving the patrician class, and the comitia certainly not from guarding us against foreign attack. tributa representing the plebeian. Each had power to There has been a cloud over Europe for some time. annul or repeal the others’ acts. But no one would dare try Should it become a storm, no one can insure that we are to invalidate this system. These two legislatures coexisted out of its reach. Peace or war will not always be our through the ages when Rome attained its greatness. choice. Who imagined at the end of the last war that In the case of co-equal taxing power, no such France and Britain, exhausted as both were, would soon contradiction exists. For example, neither side may bring hostility on each other? counteract the other. And we need not fear any conflict Judging from history, the passions of war reign more because, very soon, the States’ wants would become very powerfully in the human breast than sentiments of peace, narrow, and in the interim, the United States will probably and to model our politics on speculations of lasting want to abstain from the duties the States would assume. tranquillity is not realistic. To precisely judge of the question, consider the What are the main causes of spending in every proportion between the responsibilities requiring federal government? What has inflicted enormous debts on versus State spending. The federal needs are unlimited; several European nations? The plain answers are…war, the State’s very limited. Further, we cannot confine our rebellion and support for establishments to guard against view to the present because constitutions are not framed them. The costs of domestic law enforcement, the to deal with current conditions but for the ages, according legislative, executive, and judicial departments and to the natural and tried course of human affairs. It would encouragement of agriculture and manufacturing are be wrong to base the national government’s powers on insignificant compared with those of national defense. today’s needs. We must be able to provide for future Great Britain spends less than 7% of annual income contingencies as they happen. Moreover, as these are on the monarchy’s ostentatious apparatus; the other 93% illimitable in nature, it is impossible to safely limit that goes to pay the interest on debts contracted to carry on its ability. past wars and to maintain fleets and armies. Needless to Perhaps it is possible to compute the quantity of say, the costs of the monarchy’s ambitious, vainglorious revenue needed for existing peacetime Union expenses, pursuits have no place in the budget of our republican and to maintain that level for some time. But would it be government. wise or folly to trust the government to manage the Consider the debt we have contracted in one war, and national defense without the means to protect against calculate the common share of events that disrupt the future wars? If we exceed this point, where can we stop peace of nations, and you will see that there is always a short of an indefinite power to meet emergencies as they huge difference between federal and State expenditures. arise? It is true that several States incurred considerable debts The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 46 © 1999 Marshall R. Overstedt
  • 47. during the late war. Under the proposed system, this defray 5% to 10% of its expenses, while the Union would could not happen again, and when these debts are paid, have 33% of the treasury to pay 90% to 95% its bills. If we the only significant revenue the States will need will be to give the States all power to tax houses and lands, there support their civil obligations, which will total far less than would still be a great imbalance between the means and today. the end: access to 33% of national resources to supply, at In framing a government for today and tomorrow, we most, 10% of its wants. But if we could choose and supply should also, in calculating provisions intended to be any fund equal to and not greater than the purpose, it permanent, calculate our permanent funding needs. If we would not cover the States’ existing debts, but leave them compute fairly, the State governments can, indeed, be dependent on the Union for the balance. reasonably estimated, while Union needs will be The above examination, again, supports the position unlimited. To extend the States’ revenue power further, at that a shared taxation power is the only way to avoid a Union expense, would be to take national resources from complete subordination of State to Union authority. authorities who can legitimately use them for the public Separating this authority would sacrifice the nation’s great good and put them in hands with no proper use for them. interests to the individual States. The convention chose Suppose the convention had proportioned Union and this “concurrent jurisdiction” – which reconciles an State taxing powers to their relative needs. What indefinite federal taxing power with an adequate, particular fund could they select for the States' use to independent power in the States – over that match their present and future needs? As in apportioning subordination. external and internal taxes, this would give the States Publius command of roughly 67% of the national treasury to FEDERALIST NO. 35 The General Power of Taxation – #6 Hamilton To the People of the State of New York: IF FEDERAL taxes were confined to import duties, the wants in their own industries will consume fewer imported government would be tempted to stretch these tariffs to articles relative to their population and wealth and thereby excess. Some imagine they cannot be carried too far deny the public treasury the value of their labors. To since, the higher they are, the more they will limit lavish assure their contributions, the federal government must consumption and help create a balance of trade favoring have access to excises, which are most properly tied to domestic manufacturing. Actually, exorbitant import duties certain kinds of manufacturing. encourage smuggling – harmful to fair trade and New York residents who support limited federal revenues. They also tend to: taxation ignore these issues' importance to our State. • Make other sectors overly dependent on New York is an importing State, not likely to become a manufacturing, giving it an artificial market monopoly. manufacturing center. So confining the Union to • Force industries out of normal channels into less- commercial imposts would not benefit us. productive areas. As to the danger of extending tariffs to harmful lengths, • Oppress merchants, who must – when markets are our attention on the revenues generated would protect us overstocked – pay tariffs themselves, without against such extremes – as long as other resources were reimbursement from consumers. This sometimes open. But if avenues to other funds were closed, need exhausts profits and drains capital. would bring experimentation, enforced by rigorous (I suspect that, too often, sellers and buyers divide precautions and penalties. These would generate needed duty payments between them.) moneys for as long as it takes to invent ways around the It is not always possible to raise commodity prices to precautions and penalties. Early success would inspire meet added costs. Merchants, especially in a country false security, which might take years of problems to poor in commercial capital, are often forced to keep correct. Political necessity often raises false hopes, false prices down to generate sales. logic, and a system of corresponding mistaken measures. In fact, consumers pay these taxes more often than do But even if the excesses should not result from limiting merchants and it would be more just to use them to federal taxing power, the above inequalities would follow, benefit the nation, rather than the importing states. When though not in the same degree, from the other causes we merchants pay import duties, they create an added tax on have discussed. importing States, whose citizens pay the government’s Continuing our examination of objections, some say share by consuming the goods. In this light, those levies that the House of Representatives is too small to create inequality between the States, which would deepen represent and empathize with all classes of citizens and as duties rise. all of their interests and opinions. The idea that the House Limiting federal taxes to tariffs would also create can contain members to “represent” all classes of the inequality between manufacturing and non-manufacturing people is utopian. Unless the Constitution requires that States. Those most successful in supplying their citizens’ each occupation send members, it would never take The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 47 © 1999 Marshall R. Overstedt
  • 48. place. Mechanics, artisans and manufacturers will usually interests? Will not landholders promote or insure the vote for merchants, rather than their fellows because they interest of landed property? And will they not, from their know that, as their arts produce what mercantile own self-interest, resist attempts to injure or encumber enterprises sell, merchants are their natural patrons and land ownership? Will not the merchant understand and friends. They also know that, however great their cultivate the manufacturers on whose arts they rely? Will confidence in their own good sense, merchants can more not the learned professional remain neutral to the rivalries effectively advance their interests than they can. Further, between commerce and industry, and promote both as they sense that their life habits do not supply the long as their interests advance society’s? knowledge and skills required for success in a If we consider the changing moods of certain groups, deliberative assembly and that merchants’ social assets which a wise administration will always attend to, make them better able to operate in the public councils intelligent representatives will likely judge them more that are often unfriendly to industrial-trade interests. competently than those who observes little beyond their As to the learned professions: with little interest in own social circles? It is natural that candidates for the society or government, they trust and vote for each other, people’s favor, dependent on their votes to continue their and other parts of the community. public honors, would learn about their attitudes and That leaves the landed interest which unites the tendencies and allow them to properly influence upon wealthiest landlord to the poorest tenant. Every land tax their conduct in office? This dependence is the true bond affects each equally and that interest in keeping real between representatives and constituents. estate tax rates as low as possible is a sure bond of No government function requires more extensive, sympathy. Moreover, there is no reason to conclude that thorough knowledge of political economy than taxation. the first would stand a better chance than the last of being The representative who understands these principles is elected to the Congress. Indeed, landowners control the unlikely to oppress or sacrifice any class of citizens to tax current senate and assembly. collection. It is demonstrable that the most productive The truth is that, where voters’ qualifications are the financial system is always the least burdensome. To same, and whether voters must choose a few or many, judiciously exercise the power of taxation, the person they support candidates – rich or poor – in whom they responsible must understand the intelligence, habits, and have the most confidence. modes of thinking of the people at large and with the It is said that member-representatives should come nation’s resources. And this is the only reasonable from all classes, the better to understand and attend to definition of “a knowledge of the people’s interests and their feelings and interests. But we have seen that this will feelings.” In any other sense the proposition has no never happen in a system where the people are free to meaning, or an absurd one. And in that sense let every vote their own convictions. With few exceptions, the thoughtful citizen judge for himself where to look for the Congress will be composed of landholders, merchants required political qualifications. and learned professionals. But why do we fear that these Publius. three groups will not understand or attend to the others FEDERALIST No. 36 The General Power of Taxation – #7 Hamilton To the People of the State of New York: Objectors assert that the Congress could never of local or State knowledge required for taxation institute national internal taxation without creating purposes. problems. The reasons, they say, are twofold: Under consideration are internal taxes of two types: 1. Its lack of sufficient knowledge of State conditions. “direct” and “indirect.” The local-knowledge objection is 2. The necessary Union legislation would interfere with aimed at both kinds, but the reasoning seems confined to the States’ taxing powers. indirect levies; i.e., duties and excises on consumed The supposed want of proper knowledge seems goods. I am at a loss to see the problem. Knowledge of a unfounded. A State legislature in need of detailed consumed article must be suggested by the nature of the knowledge of a county easily acquires the information item itself or available from any well-informed person, from the member(s) representing the county. Congress generally of the mercantile class. Differences between can get like knowledge from the States’ delegations. identical articles made in two different states are generally Certainly those sent to Congress will be wise enough to few and simple. The key requirement would be to avoid share it. products already State taxed and it is not difficult to get To administer their finances, governments usually this information from statutes and/or the appropriate appoint individuals or boards who, first, digest and House members. prepare taxation plans to be later passed into law. The objection has slightly more substance when Inquisitive, enlightened statesmen are generally applied to real property. Land taxes are commonly based considered best qualified to judiciously select programs on actual permanent or periodic valuations by officers able to produce revenue. This clearly indicates the kinds empowered to make them. In either case, institution and administration require the local property knowledge of The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 48 © 1999 Marshall R. Overstedt
  • 49. elected or appointed assessors or commissioners. The abstain from purposes and actions the other side has law must only name the persons or prescribe the mode of undertaken. As neither can control the other, each will their election or appointment, fix their numbers and qualifications and outline their powers and duties. have an obvious, sensible interest in forbearance, and What in all this cannot the Congress perform as well where we have a direct common interest in an issue, we as a State legislature? Both must follow the same can safely depend on mutual compliance. principles and refer local details to officials who will Once the States retire their debts and their costs fit execute the plan. The Congress, for its part, can adopt their means, the danger of conflict will disappear. For the the State’s method of laying and collecting these taxes. Let us remember that apportioning these taxes would States, a small land tax will suffice. be determined, not by the Congress, but according to the Many fictional horrors – duplication of taxes, sets of population of each State. revenue officers and labor, plus oppressive poll-taxes – —–—————————————————— have been cleverly created and advertised to frighten the people away from internal taxation. Representatives and direct taxes shall be apportioned On the first point, there are two situations which leave among the several States which may b e included within this Union, according to their respective numbers, which no room for double sets of officers: (1) where the right to shall be determined by adding to the whole number of free impose the tax is reserved to the Union, which applies to persons, including those bound to service for a term of import duties, and (2) where no State enacts any form of years, and excluding Indians not taxed, three-fifths of all internal tax. In other cases, the United States will probably other persons. Article I Section 2 [3] of the United States Constitution either abstain from the forms in use by one or more States or use State officials and regulations to collect the —————————————————————————————— added tax. This will save the collection costs and avoid An actual census of the people must justify taxation the ire of State governments and citizens. between the States, which will effectively prevent As to a supposed federal system to influence State favoritism or oppression. officers: Should such a usurpative spirit arise, the best —–——————————————————– way to achieve its aim would be to attach the State officers to the Union and incur their wages. This would The actual enumeration [i.e., census] shall be made within channel State influence toward the national government; three years after the first meeting of the Congress of the in short, reverse the flow of federal influence. But we United States, and within every subsequent term of ten years, in such manner as they shall by law direct. must eliminate such presumptions from discussion of the Article I Section 2 [3] of the United States Constitution great question before us because they will only obscure No capitation or other direct tax shall be laid, unless in the truth. proportion to the census or enumeration hereinbefore On the double-taxation issue: the Union’s wants will be directed to be taken. Article I Section 9 [4] of the United States Constitution filled one way or another. If by its own authority, it will not have access to State powers. The amount of taxes raised —–——————————————————— must be the same in either case, with the advantage that The convention very carefully guarded against taxing – (a) if the Union determines that it can use consumption power abuse. Besides the above precautions, it has taxes more efficiently than the States, (b) it will make provided that all citizens in all States will pay equal tax more troublesome taxation species unnecessary and (c) rates. greater care will be given to organizing and collecting the ——–————————————————— taxes – internal taxes will supply a larger reservoir of revenue while minimizing unhappiness among the The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide masses. It is fortunate when government’s interest in for the common defense and general welfare of the United preserving its own power tends to protect the less-than- States; but all duties, imposts and excises shall be uniform wealthy from oppression! throughout the United States. As to poll taxes, I disapprove of them, and though they Article I Section 8 [1] of the United States Constitution have long benefited those States most jealous of their —————————————————————————— rights, I would not want to see the national government Different Constitution supporters observe that, if using them. Still, just because there is a power to lay necessary, the new government can resort to the kinds of them is it inevitable that they will be laid? All States have requisitions we know today. Others ask, “Why not omit poll-taxing power but some have never imposed them. internal taxes and leave things as they are?” I can supply two solid answers: Should we stigmatize those that have as tyrannies? If not, 1. Internal taxes, if problem-free, will be more effective, what would justify such a charge against the national though we can only learn this by enacting them and government? As unfriendly as I am to poll taxes, I believe experiencing the results. the federal government should have recourse to them. In 2. Writing internal-tax power in the Constitution will add certain national emergencies, options ordinarily avoided value to requisitioning. Knowing the Union can function become essential to public welfare. The government, in without those quotas, the States will be motivated to exert staying prepared at all times for those crises should more effort in their own support. always have the choice of using of them. This country’s As to Union interference with the States’ tax laws, I scarcity of productive revenue sources is good reason to have explained why there can be no clash or not limit the national councils’ tax options, for there may inconsistency of authority. And it is not difficult to avoid come critical situations in which a poll tax may be vital. conflicts between federal and State policies: Each can This portion of the globe is not exempt from the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 49 © 1999 Marshall R. Overstedt
  • 50. calamities that befall its other parts. Hence my aversion to Publius. projects to deprive of weapons for our defense and security. FEDERALIST No. 37 Challenges Met by the Convention Madison To the People of the State of New York: RARELY ARE public measures investigated as to their ———————————————————–– real potential to help or hinder the public good, especially when events call for particularly close study. Students of Each STATE retains its sovereignty, freedom, and public affairs could not be surprised that the convention independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to draft, which recommends so many important changes the United States, in Congress assembled. and innovations, should excite such resistance to a fair Article II of the Articles of Confederation discussion and accurate judgment of its merits. It is obvious that some publications and scholars scanned the ———————————————————–– proposal with their opinions, pro or con, already firmly set. • We must change this foundation and the structure it This prejudice must render their opinions of little value to supports. the debate. By giving these different authorities and their ———————————————————— arguments equal weight, I do not imply that their intentions are of equal purity. I point out only that, though We, the PEOPLE of the United States, in order to form a everyone knows our situation demands action, some more perfect union, establish justice, insure domestic commentators have formed biases from specious tranquillity, provide for the common defense, promote the general welfare, and secure the blessing of liberty to arguments and considerations, some of a sinister nature. ourselves and our posterity, do ordain and establish this But these papers are not addressed to the Constitution’s Constitution of the United States of America. predetermined supporters or opponents but only to those The Preamble to the Constitution of the United States with sincere zeal for their country’s happiness and a just means of promoting it. ———————————————————— Unbiased citizens will examine the convention plan • Other confederacies that serve as precedents were aware that a “perfect” plan was never expected. They will impaired by the same erroneous principles. judiciously allow for errors always chargeable to a body of • Their experiences warn us of the path to be avoided. fallible men and the difficulties inherent in the delegates’ But they did not point to a path we could or should unique assignment. follow. Consequently, the most the convention could do These papers have shown that: was avoid their, as well as our own, historic errors and to • The Articles of Confederation are based on fallacies. provide a suitable way to avoid similar errors in the future. One important difficulty the convention faced was in combining the necessary government stability and energy, while protecting liberty and the republican form. Without achieving these goals, the delegates would have very imperfectly fulfilled their assignment and our expectations. But it was not be easily achieved. Government energy is essential to our security against external and internal danger and to promptly, beneficially execute the laws according to the very definition of good government. Government stability is essential to national character and to that vital blessing of civil society, the peace of mind of the people. Inconsistent, erratic legislation is evil and odious in itself, and I am convinced that, enlightened and interested as they are in the nature and effects of good government, our citizens will not be satisfied until government remedies the hardships and uncertainties that characterize the State governments. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 50 © 1999 Marshall R. Overstedt
  • 51. But comparing these valuable ingredients to the vital 2. Imperfect organ of conception. principles of liberty, we see at once the difficulty of 3. Inadequate vehicle of ideas. combining and then properly balancing them. The genius Any of these will create confusion. The convention, in of republican liberty is that all power comes from the defining the federal and State jurisdictions, must have felt people, and that those entrusted with it are kept the full effects of them all. accountable to the people by the short duration of their To the above difficulties add the interfering pretensions appointments. Even during these short terms of office, the of the large and small States. Large States will demand public trust should be placed not in a few, but numerous participation in the federal government according to their hands. superior wealth and importance, The smaller States will Stability, on the other hand, requires that the same just as tenaciously demand the equality they now enjoy. hands should hold power for a length of time. Frequent Neither side will completely yield to the other; changes of men result from frequent elections and consequently, the conflict can be settled only by frequent changes of measures from frequent changes of compromise. And this compromise on the balance of men, while government energy requires execution by a representation will create a new power struggle over single hand. government organization and division of power between The convention’s success in this part of its work will be the branches. apparent after a deeper review and analysis of the There are features in the Constitution which verify that "product." From this superficial overview, it appears to the convention must have been compelled to sacrifice have been an arduous part. theoretical propriety to irrelevancy. Besides disputes No less arduous must have been the task of between the large and small States, other combinations, separating federal from State authority. The science of resulting from incompatible local positions and policies, government distinguishes and defines three great must have created difficulties. As every State may be provinces: the legislative, executive, and judiciary. Not divided into districts, and its citizens into classes with even history’s most enlightened legislatures and jurists contending interests and jealousies, different parts of the have delineated the functions and dimensions of different United States are distinguished by circumstances. And codes of laws and tribunals of justice. The precise limits though these interests may benefit the government when of common law, statute law, maritime law, ecclesiastical formed, every one must be aware of opposite influences. law, and corporate law, among others, are unestablished It is a wonder that so many difficulties have been in Great Britain, where they are more vigorously pursued resolved, with unprecedented, unexpected unanimity. than anywhere else in the world. The jurisdictions of her We took notice in an earlier paper of the United several national and local courts are no less discussed Netherlands’ repeated, unsuccessful trials to reform its today than ever. All new laws, penned with great technical constitution’s notorious vices. The history of mankind’s skill and passed with the most mature deliberation, are efforts to reconcile discordant opinions, assuage mutual considered open to interpretation until debate and jealousies, and adjust respective interests, tells of adjudication determine their meaning. Besides the laws’ factions, contentions and disappointments. They are ambiguity – owing to their complexity and human among the darkest displays of our species’ infirmities and imperfection – the means by which we communicate depravities. If an occasional brighter view appears, it these conceptions to each other add even more serves only to remind us of the general truth. In studying speculation. We use words to express ideas. Intelligence the causes of these exceptions and applying them to the and clarity, therefore, require that ideas be distinctly instances before us, we are led to two important formed and expressed in terms exclusively appropriate to conclusions. First, that the convention must have enjoyed, them. No language is large enough to supply words and in a singular degree, an exemption from poisonous party phrases for every complex idea, or so correct as to animosities common to deliberative proceedings. Second, always express thoughts precisely. Hence, however that all the delegates attending the convention were accurately we may (or think we may) differentiate satisfied by the final act or induced to agree to it by a purposes and functions from each other, we may muddle deep conviction of the necessity to sacrifice private their meanings by expressing them in imprecise terms. opinions and selfish interests to the public good, and fear And this unavoidable inaccuracy is greater or less that this necessity would be diminished by delays or new depending on the subjects’ complexity and uniqueness. experiments. Here are three sources of vague or incorrect Publius. definitions: 1. Unclear expression. FEDERALIST NO. 38 Challenges Met by the Convention – #2 Madison The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 51 © 1999 Marshall R. Overstedt
  • 52. To the People of the State of New York: EVERY ANCIENT government framed with public his doctors, should he not try the original prescription deliberation and consent was created, not by an assembly rather than listen to people who neither deny the need for resembling the constitutional convention, but by an a fast remedy nor agree in proposing one? individual of preeminent wisdom and integrity. Examples: America is in that position today. Acknowledging her Minos of Crete, Theseus of Athens, Lycurgus of Sparta, illness, she has gained advice from men of her own Romulus of Rome. This also applies to confederate choice. And she is warned by others against following this governments. Amphictyon and Achaeus authored the advice under pain of death. Do the second-guessers deny ones that bore their names. the peril? No. Do they deny the need for fast, powerful How much influence these lone lawgivers actually medicine? No. Are they agreed on a cure? They argue … wielded is uncertain, though some definitely had absolute • “The proposed Constitution should be rejected approval. The question is, how could the Greeks – because it is a government over individuals, not a con- famously jealous of their liberty – place their destiny in federation of the States.” one man’s hands? The Athenians, who would not have an • “It should be a government over individuals – to an army commanded by fewer than ten generals, chose a extent, but not to the extent proposed.” “committee of one” to safeguard their fortune and future • “I do not object to the government over individuals or over the collective wisdom and integrity of its many to the extent proposed, but to the absence of a bill of historic thinkers. We can only suppose that fear that rights.” those legendary figures would not agree outweighed fear • “I concur in the need for a bill of rights but it should of one man’s treachery or incompetence. guarantee, not individuals’ personal rights but the States’ History tells of the difficulties those celebrated political rights versus the Union.” reformers faces, as well as the political contrivances they • “A bill of rights of any sort would be superfluous and were forced to use to institute their reforms. Solon, the misplaced, and the plan would be unexceptional except reformer of Athens, confessed that he gave his people for the fatal power of regulating election times and the government best suited to their prejudices, rather than places.” their happiness. And Lycurgus found it necessary to mix • “I am from a large State and oppose the violence with superstition, then assure success by unreasonable equal representation in the Senate.” voluntarily renouncing his country, then his life. These • “I am from a small State and I oppose the dangerous lessons teach us to admire the improvement America has inequality in the House of Representatives.” made on the ancient mode of preparing and establishing • “We are alarmed at the amazing cost of regular government. They also warn us of the dangers administering the new government.” and difficulties in the process and the great imprudence of • “The Congress will only be a shadow of a unnecessarily multiplying them. representative body, and the government would be far There may be errors in the convention plan resulting better if the number and the expense were doubled.” from lack of professional government-making experience • “My State does not import or export and I object to that we will not discover until its application exposes the power of direct taxation.” them. Our experience with the Articles of Confederation • “Mine has great exports and imports and is unhappy validates this presumption. Among many objections and that the whole tax burden may fall on consumption.” amendments the States raised when the Articles were • “As a politician, I see in the Constitution a direct, submitted for ratification, none pointed out the great, irresistible tendency to monarchy.” radical mistake for which we are paying today. And not • “No, I am convinced it will end in aristocracy.” one suggestion was important enough to justify revision of • “I cannot say which of these shapes it will ultimately the system. There is ample reason, nevertheless, to assume, but clearly see it must be one or other of them.” suppose, immaterial as these objections were, that some • “I affirm that the Constitution is has no bias towards States would have followed them with dangerous rigidity either monarchy or aristocracy, but the weight on that side had their instinct for self-preservation not stifled their zeal will not be enough to keep it upright and firm against its for local interests. One State refused for several years to opposite propensities.” agree even though, the whole time, the British occupied • “The language of the Constitution intermixes the our country. In the end, that State’s change of heart came legislative, executive, and judiciary branches in such a way as to contradict all ideas of regular government and from her fear of being accused of extending public misery all necessary means to protect liberty.” and endangering victory. • “Joining the Senate and the President in the power of A patient whose illness worsens daily calls in appointment, instead of vesting it in the Executive alone, physicians he judges most entitled to his confidence. The is the vicious part of the proposal.” physicians attend, the patient is examined and, after • “Excluding the House of Representatives – whose large membership could guard against corruption and consulting, they unanimously agree the symptoms are bias – from appointments is equally obnoxious.” critical and prescribe a remedy. But no sooner is it made • “Admitting the President to any share of appointment public than another group warns the patient that the authority – always dangerous in the hands of the medicine will poison him and forbids him to use it. Might executive magistrate – violates the maxims of republican jealousy.” not the patient reasonably demand, before following this • “No part of the arrangement is more unexceptable advice, that its authors prescribe a substitute remedy? than trial of impeachments by the Senate, which belongs And if he sees them disagreeing with one another as with both to the legislative and executive branches; besides this power belongs to the judiciary.” The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • 52 © 1999 Marshall R. Overstedt
  • 53. • “We fully agree with the above objection, but note that assigning impeachments to the judiciary would only –——————————————————–— worsen the error. We especially dislike the extensive Query: Is it dangerous to put the keys of the treasury powers already lodged in that branch.” and command of the army, in the same hands? The Even among avid supporters of a council of state, the Confederation gives both to Congress. most irreconcilable differences of opinion concern the way Query: Is a bill of rights essential to liberty? The it should be constituted. One gentleman demands that the Confederation has none. council should consist of a small number appointed by the Query: Is it objected that the new Constitution largest House in the Congress. Another wants a large empowers the Senate, with Executive agreement, to body, appointed by the President. make treaties which are to be the laws of the land? The Suppose that the writers against the proposal are right existing Congress, with no such control, can declare and in believing that they can appoint a better convention to make treaties which most States, in fact, recognize to be draft a better plan. And suppose the nation agrees and the supreme law of the land. convenes the objectors, with full powers to replace the Query: Will the new Constitution abolish slave present plan. Even given the above hostile opinions, I importation in 20 years? The Articles, by their silence on doubt that they would depart widely from the first. the issue, allow it forever. The objectors to the new Constitution never mention the defects of the document it would replace. But the —–——————————————————– major objections to the new system are ten times as relevant to the Articles? The migration or importation of such persons as any of the Query: Is it dangerous that the present Congress can States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808, but a tax requisition any amount it pleases, and the States must or duty may be imposed on such importation, not pay it. Congress can release bills of credit as long as it exceeding ten dollars for each person. pays for the paper to print them and borrow anywhere, as Article I Section 9 [1] of the United States Constitution long as a cent will be lent. ———————————————————————– —–————————————————————————————– I will be told, that however dangerous this mixture of All charges of war, and all other expenses that shall be powers in theory, the Congress’ dependence on the incurred for the common defense or general welfare, and States for the funds to act makes it harmless. In that allowed by the United States in Congress assembled, shall case, we can charge the Confederation to declare certain be defrayed out of a common treasury, which shall be federal powers necessary and, at the same time, make supplied by the several States in proportion to the value of them vacant. If the Union is to continue unchanged, all land within each State, granted or surveyed for any effective powers must be given to or assumed by the person, as such land and buildings and improvements existing Congress. Out of our present “lifeless mass” has thereon shall be estimated according to such mode as the grown a mass of abnormal power, giving life to all the United States in Congress assembled shall from time to feared dangers of bad government. time direct/appoint. The West will no doubt yield vast wealth for the United States. It cannot be redeemed instantly to cure our The taxes for paying that proportion shall be laid and levied present financial ills or supply all public needs but, by the authority and direction of the legislatures of the properly managed, it will eventually pay off the domestic several States within the time agreed upon by the United debt and furnish liberal, ongoing infusions to the federal States in Congress assembled. treasury. Much of this wealth has been already Article VIII of the Articles of Confederation surrendered by individual States and we can expect that the others will make similar contributions. So we can ––——————————————————— calculate that the rich, fertile land to the west – equal in Query: Is infinite power to raise troops a danger? area to our inhabited territories – will soon become a Congress now has it, and has begun to use it. national asset. The Congress has assumed management of this great —––—————————————————— resource and begun to make it productive. It is also forming new States and territorial governments, (E)very State shall always keep up a well-regulated and appointing their officers and defining conditions for disciplined militia, sufficiently armed and accoutered, and admission to the Union. It is doing all this with no duly shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a constituted authority, but no blame has been whispered proper quantity of arms, ammunition and camp equipage. and no alarm sounded. Large, independent revenues are Article VI of the Articles of Confederation passing to this single body, which can raise indefinite numbers of troops and money to indefinitely support —–——————————————————— them. Query: Is it improper and unsafe to combine different Still there are men who watch in silence then loudly governmental powers in one body? Congress is the sole advocate the system that supports it and object to the repository of all federal powers. new system, as noted above. Wouldn’t they be more honest, urging ratification of the Constitution to protect the Union against bodies like the existing runaway Congress? –——————————————————–— I do not mean to censure the measures the Congress has pursued – it could not do otherwise under the Articles For the most convenient management of the general of Confederation. But it alarmingly demonstrates the interests of the United States, delegates shall be annually damage possible by a government with no regular powers appointed … to meet in Congress … proportioned to its purposes and functions. It is always In determining questions in the United States in Congress exposed to threats of dissolution and usurpation. assembled, each State shall have one vote. Publius. Article V of the Articles of Confederation FEDERALIST NO. 39 How the Plan Meets Republican Principles The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • 53 © 1999 Marshall R. Overstedt
  • 54. Madison To the People of the State of New York: WILL THE NEW government’s shape and direction be Judges should sit during good behavior. strictly republican? Obviously, only a republic will conform Ministers would serve according to set regulations, a to the intelligence and creativity of the American people, standard also set by State constitutions. with the basic principles of the Revolution and with the But the most convincing proof of the proposed system’s essential goal of freedom: to truly test mankind’s capacity republican nature is its prohibition of titles of nobility and its for self-government. If the convention plan departs from guarantee to all States of republican administration. republicanism, it cannot be defended. “It was not enough,” say adversaries, “to adhere to the What are republican government’s unique features? If republican form. It should have kept the federal definition of we ask the political writers this question, we would never the Union as a confederacy of sovereign States. Instead, it get a satisfactory answer. has framed a national government – a coalition of the Among nations accepted as true republics are Holland, States.” where the people have no official authority; Venice, where a In answer, I point out that it will be the American people few f hereditary nobles exercise absolute power people; who will assent to and ratify the Constitution. Their approval Poland, a mixture of the worst kinds of aristocracy and will be put forward by representatives they elect for that monarchy; and England, which combines but one purpose. In this, the people will act, not as subjects of one republican branch with an hereditary aristocracy and entire nation, but as citizens of the independent States that monarchy. comprise their nation. Yes, it will be expressed in action by These examples, nearly as different from each other as the States. But it will take place on their sovereign authority from a genuine republic, show the inaccuracy of the – which is the authority of the people themselves. political “experts'” use of the term. Therefore, the act establishing the Constitution will be a If we are honest and objective, we will say: federal, not a national, act. A republic is a government that receives all its The test of its federal nature, as the objectors powers directly or indirectly from the great body of understand the term (i.e., action of the people as citizens the people, and is administered by people holding of, not one aggregate nation, but of independent member office for a limited period, or during good behavior. States) is that ratification will result from a vote of the Power must be derived from society at large, not from a States that are parties to it, as determined by their citizens’ minority or favored class; otherwise a handful of tyrannical votes. “nobles” could use their elective powers to oppress every- Were the people deemed subjects of one monolithic one else and claim to be republicans ruling a republic. It nation, a majority vote would bind the minority, as happens suffices that the people, directly or indirectly, appoint in every State. The majority vote would be defined as (a) administrators, to serve with their consent; otherwise no the total number of individual votes or (b) by allowing a vote popular government anywhere could be called a “republic.” of the majority of States to signify the will of a majority of Every State constitution allows some officials to be the American people. Neither rule is proposed: Each State, appointed indirectly by the people. Most permit the chief in voting on ratification of the Constitution, will act as a magistrate – and one allows legislators – to be so sovereign, independent body, bound only by its own appointed. All limit legislative and executive tenures to voluntary act. And that proves the new Constitution will, if definite periods. And most allow judges to sit during “good established, be a federal, not a national, instrument. behavior.” –––——————————————————— The convention plan rigidly conforms to the above standards. As in all or most States … The ratification of the conventions of nine States shall be • The people would directly elect the national House of sufficient for the establishment of this Constitution between Representatives. the States so ratifying the same. • State legislators, representing the people, would Article VII Section 1 [1] of the United States Constitution appoint Senators. • The people would elect the chief executive via their —–——————————————————— votes for State electors. The States have also set the precedents for judicial From where would the government’s ordinary powers appointments. come? The House of Representatives would gain its Tenures, too, are based on the States’ experience: powers from the people of America, represented in the • Two years for House of Representatives members. same proportion, and on the same principle, as they are in • Six years for Senators. their State legislatures. If we stopped there, the government • Four years for the President. created would be national, not federal. The President of the United States would be –———————————————————— impeachable any time during his term. But several States have no provision for the governor’s impeachment; in The House of Representatives shall be composed of Delaware and Virginia, he is not impeachable until out of members chosen every second year by the people of the office. several States, and the electors in each State shall have the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 54
  • 55. qualifications requisite for electors of the numerous branch of —–——————————————————— the State legislature. Article I Section 2 [1] of the United States Constitution. But in this particular act they would be grouped in —–——————————————————— separate, coequal State delegations. This aspect of the plan makes the proposed government seem like a “mixed” But the Senate will be empowered by the States, as federal/national assembly. political, coequal entities, represented there as they are in The difference between a federal and national the existing congress. Now the government is federal, not government is that the former would wield power over national. States; the latter would rule over individual American –––——————————————————— citizens composing the nation. In defining the Constitution by this criterion, it becomes largely a national, not federal, entity. In controversies between States, they would be The Senate of the United States shall be composed of two Senators form each State, chosen by the legislature thereof considered and dealt with only as collective, political for six years; and each Senator shall have one vote. entities. Article I Section 3 [1] of the United States Constitution The government, in light of its direct relationship to the people, appears as essentially a national system with a few –––——————————————————— federal features. But the picture changes when we view its full range of proposed powers. A true “national” government The President will be elected directly by the States. The classically wields power over all persons and things subject votes allotted to them would be in a compound ratio, to lawful government. Under the Constitution: whereby they would be partly distinct, equal sovereignties • The total national authority over the people would be and partly unequal members of a united sovereignty. totally lodged in the Congress. Should there be a tie vote, the eventual election is to be • Relevant authority over cities and towns operating in made in the House of Representatives – the legislative unison for specified purposes will be divided, as division consisting of the national representatives. appropriate, between the Congress and town/city councils. –––——————————————————— A “national” regime would govern all local authorities all the time, at its pleasure. Under a federal plan, municipalities would be distinct and independent, no more [1] The executive power shall be vested in a President of the United States. He shall hold his office during the term of four subject to the federal government than the federal years, and together with the Vice-President, chosen for the government is subject to them. In this relationship, the same term, be elected as follows: proposed government cannot be called “national” since its jurisdiction covers only certain constitutionally specified [2] Each State shall appoint, in such manner s the legislature thereof may direct, a number of Electors, equal to the whole purposes and functions while the States are sovereign over number of Senators and Representatives to which the State all other concerns. may be entitled in the Congress; but no Senator or It is true that “borderline” controversies between the two Representative, or person holding an office of trust or profit jurisdictions will be decided by a tribunal to be established under the United States shall be appointed an Elector. by the general government. But decisions would be [3] The Electors shall meet in their respective States and impartially made, according to the Constitutional rules and vote by ballot for two persons, of whom one at least shall not precautions would be taken to insure this impartiality. be an inhabitant of the same State with themselves. And Some independent tribunal is needed to guard the they shall make a list of all the persons voted for, and of the peace and the Union. Few disagree that it should be set up number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of by the general, rather than State, government. the United States, directed to the President of the Senate. The Constitution’s authority over amendments is neither The President of the Senate shall, in the presence of the wholly national or federal. Were it national, ultimate Senate and House of Representatives, open all the authority would lie with the majority of the American people, certificates, and the votes shall then be counted. The person who could at any time, like a majority of every national having the greatest number of votes shall be the President, is such number be a majority of the whole number of society, alter or abolish the government. Were it wholly Electors appointed; and if there are more than one who have federal, a binding agreement would require the votes of all such majority, and if there be more than one who have such the States. majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of –––——————————————————— them for President; and if no person have a majority, then from the five highest on the list the said House shall in like The Congress, whenever two-thirds of both Houses shall manner choose the President. But in choosing the President deem it necessary, shall propose amendments to this the votes shall be taken by States, the representation from Constitution, or, on the application of the legislatures of two- each State having one vote; a quorum for this purpose shall thirds of the several States, shall call a convention for consist of a member or members from two-thirds of the proposing amendments, which in either case shall be valid to States, and a majority of all the States shall be necessary to all intents and purposes as part of this Constitution, when a choice. In every case, after the choice of he President,. ratified by the legislatures of three-fourths of the several The person having the greatest number of votes of the States, or by conventions in three-fourths thereof, as the one Electors shall be the Vice-President. But if there should or the other mode of ratification may be proposed by the remain two or more who have equal votes, the Senate shall Congress; provided that no amendment which may be made choose from them by ballot the Vice-President. prior to the year 1808 shall in any manner affect the first and Article II Section 1 of the United States Constitution fourth clauses in the Ninth Section of the First Article; and The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 55 © 1999 Marshall R. Overstedt
  • 56. that no State, without its consent shall be deprived of its The proposed Constitution is neither a national or a equal suffrage in the State. federal system; it is a combination of both. Its foundation is Article V of the United States Constitution federal, not national; the sources of the proposed —–——————————————————— government’s ordinary powers are partly federal and partly national; in applying those powers, it is national, not federal; in the range of them, again, it is federal, not national; and, The convention plan uses neither principle. In requiring a finally, the proposed method of introducing amendments to supermajority (three-quarters) of the States (not citizens) it the Constitution is neither federal or national. moves toward the federal side; in not requiring a vote of all the States, it swings back to the national character. Publius. FEDERALIST No. 40 Convention Power to Form a Mixed Government Madison To the People of the State of New York: WAS THE convention empowered to frame and propose and provisions therein, as shall, when agreed to in this mixed national/federal Constitution? Its powers are Congress, and confirmed by the States, render the clearly reflected in the recommendations of the meetings, federal Constitution adequate to the exigencies of respectively, in September, 1786, at Annapolis and in Congress, February, 1787. government and the preservation of the union. The Annapolis act recommends “appointment of commissioners to take into consideration the situation of the From these two acts, we deduce that the convention United States; to devise such further provisions as shall was authorized to frame a national government, adequate appear to them necessary to render the Constitution of the to the demands of governing and preserving the Union federal government adequate to the exigencies of the union; and to revise the Articles of Confederation as needed to and to report such an act for that purpose, to the United accomplish these ends. States in Congress assembled, as when agreed to by them, There are two rules we can use to arrive at a clear and afterwards confirmed by the legislature of every State, statement of purpose and empowerment. The first is to will effectually provide for the same.” give meaning to all parts of each statement and connect Congress recommended … them to a common, agreed-upon end. The second is, where parts do not agree, to subordinate the lesser to the more important parts – sacrificing the means to the end, Whereas, There is provision in the articles of rather than the end to the means. Confederation and perpetual Union, for making Suppose that “Annapolis” and “Congress” gave alterations therein, by the assent of a Congress of the conflicting instructions; that the convention could not United States, and of the legislatures of the several possibly achieve an adequate national government with States; mere “alterations and provisions” to the Articles of Confederation. Now the question is, which part(s) should and whereas experience hath evinced, that there have been saved, and which deleted? Which were the are defects in the present Confederation; more and less important parts? Which is the end; which as a mean to remedy which, several of the States, are the means? and particularly the state of New York, by express Let honest Constitution supporters and objectors instructions to their delegates in Congress, have answer: Is it best to (a) discard the Articles, provide an suggested a convention for the purposes expressed in adequate government and preserve the Union or (b) save the Articles and allow the Union to die? the following resolution; Can we make no changes or additions that would and such convention appearing to be the most make the articles a functional national government? No probable mean of establishing in these States a firm one will argue that the delegates were not authorized to national government: devise a new title. Changes in the Articles themselves, as Resolved, That in the opinion of Congress it is well as new provisions, are also expressly authorized. expedient, that on the second Monday of May next a Is this power exceeded if any part of the old articles remain? Those who say yes should mark the boundary convention of delegates, who shall have been between authorized and prohibited innovations, between appointed by the several States, be held at the power to change, expand or replace the old document Philadelphia, for the sole and express purpose of and government. The States would never have appointed revising the articles of confederation, and reporting to any convention had they not expected substantial reform. Congress and the several legislatures such alterations Would anyone say the convention had no power to examine or change the Confederation’s basic principles? I The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 56 © 1999 Marshall R. Overstedt
  • 57. ask, what are these principles? Do they require that a new They were fully conscious that all Americans’ hopes Constitution must regard the States as independent and expectations were focused on these deliberations, sovereigns? In the proposed Constitution, they are so and that external and internal enemies agitated against regarded. our liberty and prosperity. Do they require that government officials derive their They saw public enthusiasm aroused by one State’s powers from the legislatures, rather than the people of the (Virginia’s) modest, original proposition to partially amend States? (One house of Congress, the Senate, is to be the Articles. appointed by them.) At Annapolis they saw the authority assumed by a very Do they require that government act on the States, not few delegates from a very few States applied to a great, directly on individuals? Some new government powers critical endeavor that was alien to their assignment but will so apply, but this is not new. The Articles apply many justified by the mass of public opinion. powers to individuals; e.g., cases of capture, piracy, At Philadelphia they saw this spirit materialize into a postal service, coinage, weights and measures, trade with convention involving 12 of the 13 States. Indians, land-grant claims by separate States and courts And they acted, because they had watched Congress marshal trials, which may inflict death without intervention assume dangerous, great powers, unspecified by the by a jury or even a civil judge. Articles, to address minor concerns. Do the Articles’ basic principles require that no tax be From this they realized that actions by established levied without the State administration? They authorize a governments must be based on substance, not passing limited direct postal-service tax and Congress interprets fashion. Otherwise the people’s right to collectively coinage as a direct levy. But, disregarding these improve or replace their government to strengthen and examples, it was the convention’s acknowledged aim, and protect their freedom becomes vacant. the people’s expectation, that the new general Thus it is not only legitimate and possible, but essential government would regulate trade in ways to make it a for patriotic, respectable individuals and bodies of citizens direct source of taxes. Congress repeatedly to use “informal,” “unauthorized” means to affect needed recommended this measure as consistent with the progress. Indeed, the conveners recalled that the States, Articles and all but one of the States, including New York, by just such irregular, assumed privilege, united against accept this idea. the British. Ignoring their lack of real power, they formed Do the Articles’ basic principles require limited general committees and congresses to concentrate their efforts government powers and, beyond this limit, States and defend their rights; and framed the constitutions by sovereignty and independence? The new and old which they govern today. Let us remember that the only governments’ powers are limited and the States, in all supporters of “ordinary forms” were those secretly specified cases, would remain sovereign. The truth is, we opposed to the substance sought by all this unrest. may consider the great principles of the Constitution Bear in mind as well that submitting the proposed plan proposed by the convention as expansions of those in the for approval to the people would destroy the old supreme Articles. Our problem is that, under the old system, these power – along with its errors and irregularities – forever. principles’ feebleness justifies all the inefficiency charged What if the delegates, under all these pressures and against it, and requires an entire new system. amid all these considerations, had not demonstrated In one particular, the convention admittedly departed confidence in their country which had so uniquely honored from its predetermined course. It required ratification by them? What if they had not produced a system they judge the people rather than all the State legislatures, and able to secure its happiness? In other words, what if they approval by only nine States to put it in effect. had coldly and sullenly resolved to disappoint their Interestingly, this provision, has received the fewest country’s hopes, to sacrifice substance to fashion, to objections. This leniency avoids the absurdity of commit their dearest interests to the uncertainties of delay subjecting twelve “aye” States – with 59/60ths of the and the hazard of events? I ask every thoughtful person: American people – to the obstructionism of one “nay” had the convention failed to do its duty, how should the State with one sixtieth of the population. impartial world, the friends of mankind, every virtuous To this point, we have characterized the convention as citizen judge its conduct and character? wielding real, final powers to establish a new United Or, to the person with an uncontrolled need to States Constitution. But its authority was merely to advise condemn, I ask how would you punish the 12 States who and recommend. Moreover, the States intended and the seized the power to send delegates to the convention – delegates understood them to be so and that the an unconstitutional act in every one of them? How would Constitution they accordingly planned and proposed is you deal with Congress, who – illegally, under the Articles vacant unless and until it is approved by those it will of Confederation – advised this body’s appointment? And affect. This realization puts the subject in a different view how would you condemn New York State, which first and allows us to properly judge the convention’s product. urged and then participated in this illegitimate innovation? The delegates were deeply, unanimously affected by To disarm the objectors of every possible excuse, I will the crisis that has necessitated drastic steps to correct grant for the moment that the Annapolis meeting, the system’s errors. They are no less convinced that the Congress or circumstances authorized the convention to reform they propose is absolutely necessary to fulfill the frame a Constitution. Does it follow that it should, for purposes of their appointment. those reason, be rejected? The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 57 © 1999 Marshall R. Overstedt
  • 58. If, according to the noble precept, it is lawful to accept powers, they were not only authorized but required as good advice even from an enemy, shall we set the bad their country’s servants and by current circumstances. example of refusing good advice offered by our friends? Moreover, even had they, to achieve the people’s aims The issue is not from whom the advice comes but and happiness, violated their powers and obligations, the whether it is good. new Constitution should nevertheless be embraced. In sum, the charge that the convention exceeded its Publius. powers is unfounded. Had the delegates exceeded their The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 58 © 1999 Marshall R. Overstedt
  • 59. FEDERALIST No. 41 Overview of Constitutional Powers Madison To the People of the State of New York: THE AMOUNT of power the proposed Constitution Europe to follow suit, or wear the chains of a universal would create raises two questions: monarch. The same could happen today. 1. Will any powers transferred to the general Rome’s legions dominated their undisciplined, government be unnecessary or improper? valorous foes and made her mistress of the world. It is no 2. Will they endanger those remaining with the less true that the Romans’ and other Europeans’ liberties States? fell victim to her military establishments. Cool, candid people understand that the purest human A standing force, thus, is a dangerous necessity. blessings contain some impurity; that the choice is always But a wise nation will, without rashly precluding assets between a lesser and greater – but never a perfect – essential to its safety, take care not to build an army that good. Every political power to improve public happiness can threaten its freedom. The proposed Constitution may be misused or abused. contains the necessary precautions. Our first decision must be whether such a power is The Union it cements and secures destroys all necessary and, if so, the second must be how to guard, excuses for a potentially dangerous military as effectively as possible, against perversion. To reach establishment. America united, without a single soldier, is the correct conclusion, we should review these federal a stronger obstacle to foreign ambition than a disunited powers by classifying them as to: America with a hundred thousand combat-ready veterans. a. Security against foreign danger. The United States’ distance from the powerful nations b. Regulation of foreign trade. of the world gives them the same security as Britain’s c. Maintenance of harmony and trade between States. separation from mainland Europe. Additionally, a d. Certain useful miscellaneous projects. dangerous military will never be necessary so long as we e. Restraint of the States from injurious acts. continue as a united people. But the moment the Union f. Provisions for making all these powers effective. dissolves, the weak States’ fears and/or the ambitions of In the first class are the powers to declare war and the strong will bring to the New World the misery Charles grant letters of marque; to provide armies and fleets; VII brought to the Old, and America’s liberty, like to regulate and call forth the militia; to levy and Europe’s, will be crushed between standing armies and borrow money. perpetual taxes. Security against foreign danger is one of civil society’s In fact, a disunited America will be even more unlucky most basic functions – an avowed, essential purpose of than Europe, whose villains are confined to the our Union. The required powers must be effectively continent’s limits. Europe, unlike America, has no assigned to the federal government. powerful enemies from other parts of the world sowing Do we need a power to declare war? No one will conflict between competing nations, inflaming their mutual answer no – the existing Articles amply establish it. animosities, and using them to advance ambition, Do we need a power to raise armies and equip fleets? jealousy and revenge. In America, these and more evils It is inseparable from our right of self-defense. would spring from Europe’s economic stake in the New But do we need an indefinite power to raise troops and World and its freedom from a similar threat. provide fleets in peace, as well as in war? Our answer The disastrous danger of disunion cannot be appears elsewhere, and seems too obvious and exaggerated. conclusive to justify discussion. Every man who loves peace, who loves his country, How could we limit defensive force without the who loves liberty should always have it in view, so he can ability to limit our enemies’ offensive forces? appreciate our Union’s meaning and value and be able Moreover, how could we safely prohibit our own and ready to defend it. peacetime preparations for war readiness without the Next to effectively establishing the Union, the best power to ban every hostile nation’s preparations and possible way to protect against danger from a domestic establishments? Security measures must be proportioned standing army is to limit the term for which Congress may to enemy strength and the danger of attack. It is less than appropriate funds to support it – which the Constitution useless to enact barriers to self-preservation because it prudently would do. plants in the Constitution necessary seizures of power In Britain, to keep an army on foot requires an annual leading to unnecessary repetitions. One nation constantly legislative vote. Our Constitution would lengthen this maintaining a disciplined army obligates the most critical period to two years. This is how the two provisions peaceful nations within its reach to take like precautions. are discussed in public, but is it an honest discussion? The 15th century saw many peacetime armies. ———————————————————— Introduced by Charles VII of France, they forced all The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 59 © 1999 Marshall R. Overstedt
  • 60. The Congress shall have power to … raise and support –——————————————————— armies, but no appropriation of money to that use shall be But it would be a costly mistake not to include in our for a longer term than two years. revenue calculations the wide fluctuations, inherent in Article I Section 8 [12] of the United States Constitution foreign commerce, in volume and kinds of imports. Remember, too: these fluctuations do not move with ———————————————————— population growth, which underlies consumer demand. As Truly stated, in Britain the term for supplying the army, long as agriculture remains our only labor market, import while constitutionally unlimited, is in practice limited to one volume must increase with our consumption level. But it must decrease as population grows and our own industry year only by the parliamentary mood of the moment. The absorbs the hands no longer needed in agriculture. In the American literally makes two years the longest legally future, the bulk of our imports could be raw materials to admissible term. be used to make our own exports – which will require The British House of Commons is a large body, bounties rather than discouraging tariffs. A government designed to endure should plan on and plan for these elected – for seven years, a long electoral term – by a revolutions, and accommodate them. small percentage of the voters. As a result, Some who acknowledge the need for taxing representatives feel empowered to mislead the voters, authority attack the language the Constitution uses to just as the Crown misleads Parliament. And this body has define it. power to support the army indefinitely with no real need to They urge that the power to tax in Article I Section 8 [1] amounts to an unlimited license to use every power extend the “official” term past one year. Looking back conceivable in the name of national defense or general over this arrangement’s long history, are we not justified welfare. Were there no other Congressional powers, this in trusting the United States’ representatives – elected argument might have some weight. How can one infer a freely every two years by the whole body of the people – power to destroy freedom of the press or trial by jury in “to raise money for the general welfare?” Particularly when a with the authority to renew military appropriations no more complete list of Congressional powers immediately seldom than every two years? follows, separated only by a semicolon? The objectors’ attempt to exploit our prudent distrust of ––——————————————————— standing armies has awakened us to this important issue. Inevitably, this will convince us that the Constitution will be [1] The Congress shall have power to lay and collect the most effective protection available against that danger taxes, duties, imposts and excises, to pay the debts and and that nothing short of a Constitution adequate to the provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be national defense and preservation of the Union can save uniform throughout the United States; us from the many standing armies that will arise if we [2] To borrow money on the credit of the United dissolve into separate States or Confederacies. States; Our obvious need for the power to raise a navy is all [3] To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but untouched by criticism. The Union that provides our [4] To establish an uniform rule of naturalization, and maritime strength will also be our primary security against uniform laws on the subject of bankruptcies throughout the danger from abroad. Our isolation by sea is another United States; similarity between the United States and Britain. [5] To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; All residents of the Atlantic coast have a major stake in [6] To provide for the punishment of counterfeiting the our naval defenses, which guard them from foreign securities and current coin of the United States; predators. This good fortune is not creditable to the [7] To establish post offices and post roads; existing government. [8] To promote the progress of science and useful arts New York State is highly vulnerable from the Atlantic. by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; Her seacoast is long. A key part of the State is an island. [9] To constitute tribunals inferior to the Supreme A large navigable river penetrates the State for over 150 Court; miles. Its great commercial center, the source of its [10] To define and punish piracies and felonies wealth, is constantly at the mercy of events, foreign committed on the high seas and offenses against the law of nations; enemies and brigands. [11] To declare war, grant letters of marque and Should Europe’s precarious situation lead to war on reprisal, and make rules concerning captures on land and the ocean, we will be exposed to it, and the States most water; exposed cannot rely on our present phantom of a general [12] To raise and support armies, but no appropriation government. If their own defenses were equal to the of money to that use shall be for a longer term than two years; danger, the assets to be defended would be nearly [13] To provide and maintain a navy; consumed by the act of defending them. [14] To make rules for the government and regulation As to the value of taxation, levying imported goods of the land and naval forces; will always be a valuable revenue source. [15] To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel For a considerable time, it must be a principal source. invasions; At this moment, it is an essential one. [16] To provide for organizing, arming and disciplining –——————————————————— the militia, and for governing such part of them as may be employed in the service of the United States, reserving to The Congress shall have power to lay and collect taxes, the States respectively the appointment of officers, and the duties, imposts and excises, to pay the debts and provide authority of training the militia according to the discipline for the common defense and general welfare of the United prescribed by Congress; States; but all duties, imposts and excises shall be uniform [17] To exercise exclusive legislation in all cases throughout the United States. whatsoever over such district (not exceeding ten miles Article I Section 8 [1] of the United States Constitution square), by cession of particular States and the acceptance of Congress, become the seat of the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 60 © 1999 Marshall R. Overstedt
  • 61. Government of the United States, and to exercise like them, on account of religion, sovereignty, trade, or any authority over all places purchased by the consent of the other pretense whatever. legislature of the State in which the same shall be, for the Article III of the Articles of Confederation erection of forts, magazines, arsenals, dockyards, and other needful buildings; —–—————————————————— [18] To make all laws which shall be necessary and The terms of Article I Section 8, above, are even more proper for carrying into execution the foregoing powers, like those in number VIII of the Articles. and all other powers vested by this Constitution in the Government of the United States, or in any department or —–—————————————————— officer thereof. Article I Section 8 of the United States Constitution All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and —–—————————————————— allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be Why include a complete list of specific powers if we supplied by the several States in proportion to the value of mean to make them part of the first power in the list? It is all land within each State, granted or surveyed for any natural and customary to recite a general phrase and then person, as such land and buildings and improvements explain and qualify it with relevant details. But to list thereon shall be estimated according to such mode as the details that would neither explain nor qualify, but only United States in Congress assembled shall from time to mislead, would be absurd. This objection is the more time direct/appoint. extraordinary as it appears that the convention language nearly copies the Articles of Confederation. The taxes for paying that proportion shall be laid and levied —–—————————————————— by the authority and direction of the legislatures of the several States within the time agreed upon by the United We the people of the United States, in order to form a States in Congress assembled. more perfect union, establish justice, insure domestic Article VIII of the Articles of Confederation tranquillity, provide for the common defense, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this —–—————————————————— Constitution of the United States of America. Construe VIII by the construction used in the The Preamble to the United States Constitution Constitution and the existing Congress has unlimited The said States hereby severally enter into a firm league of legislative power. But if this generalization gave Congress friendship with each other, for their common defense, the unlimited powers re the common defense and general security of their liberties, and their mutual and general welfare, the objectors would not use the same reasoning welfare, binding themselves to assist each other, against to justify them as they use against the convention. all force offered to, or attacks made upon them, or any of Publius. FEDERALIST No. 42 Overview of Constitutional Powers – #2 Madison To the People of the State of New York: THE SECOND class of general government powers The Articles of Confederation include powers to make would regulate intercourse with foreign nations: treaties and to send and receive ambassadors. • To make treaties. ––——————————————————— • To send and receive ambassadors, other public ministers, and consuls. No State, without the consent of the United States in • To define and punish piracies and felonies on the Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, high seas, and offenses against the law of nations. agreement, alliance or treaty with any King, Prince or State • To regulate foreign commerce, including prohibition, … after 1808, of importation of slaves, and to lay an Article VI of the Articles of Confederation intermediate per-head duty to discourage it. This class of powers is essential to the federal ———————————————————————— administration. If we are to be one nation in any respect, it One difference: The convention plan relieves the treaty clearly should be in the other nations’ eyes. power of frustration by eliminating conflicting State —————————————–—————————— regulations. —––—————————————————— The President shall … have power, by and with the advice and consent of the Senate, to make treaties, provided two- No State shall enter into any treaty, alliance, or thirds of the Senators present concur … confederation; grant letters of marque and reprisal;… Article II Section 2 [2] of the United States Constitution Article I Section 10 [1] of the United States Constitution —––—————————————————— The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 61 © 1999 Marshall R. Overstedt
  • 62. Also, a power to appoint and receive “other public Felony is loosely defined, even in the common law of ministers and consuls,” is expressly, properly added to England, and varies in importance in its statute law. But the Articles’ provision concerning “embassies.” every nation should legislate a standard common-law and —–—————————————————— statutory definition. It is not defined the same in any two States and takes on more new meanings as States revise The President shall … nominate, and, by and with the their criminal laws. For certainty’s and uniformity’s sake, advice and consent of the Senate, shall appoint assigning the power to define felonies in this case is ambassadors, other public ministers and consuls … Article II Section 2 [2] of the United States Constitution necessary and proper. No State, without the consent of the United States in Regulation of foreign commerce has already been fully Congress assembled, shall send any embassy to, or discussed in these papers. receive any embassy … any King, Prince or State; Many would stop slave importation immediately, and Article VI of the Articles of Confederation not wait until 1808. But it is easy to understand both the restriction itself and the way the clause is expressed. —–—————————————————— In the Articles of Confederation “ambassador” refers —–——————————————————– only to the highest grade of emissary deployed to foreign [1] The migration or importation of such persons as any of embassies; “ministers” and “consuls are excluded.” But the States now existing shall think proper to admit shall not Congress employs lower-grade ministers and exchanges be prohibited by the Congress prior to the year 1808, but a consuls. Because trade agreements often stipulate tax or duty may be imposed on such importation, not mutual assignment of consuls to commercial functions, exceeding ten dollars for each person. admission of foreign consuls may fall within the power to Article I Section 9 [1] of the United States Constitution make commercial treaties. Additionally, where no such treaties exist, committing consuls to foreign countries —–——————————————————– could be covered under the authority given in the Articles It should be considered a great gain for humanity that of Confederation to appoint civil officers necessary to a period of 20 years may end this barbaric traffic forever manage the general affairs of the United States. within these States and that, during that time, the federal But it does not provide for admitting consuls into the government will emphatically discourage it. It may be United States, unless stipulated by treaty. Filling this need totally abolished by the concurrence of the few affected is one of the convention’s minor contributions. But small States to the example of the majority of the Union. provisions become important when they obviate the Some have tried to turn this clause into an objection gradual, secret seizure power. Many times, Confederation against the Constitution, representing it on one side as defects have forced Congress to violate its powers – a criminal toleration of an illicit practice, and on another as strong argument in favor of the new Constitution. calculated to prevent voluntary, beneficial emigration from —–—————————————————— Europe to America. I mention these misconstructions, not to give them an The Congress shall have power to … define and punish answer (they deserve none), but to display the manner piracies and felonies committed on the high seas and and spirit in which some conduct their opposition to the offenses against the law of nations … proposed government. Article I Section 8 [10] of the United States Constitution The United States in Congress assembled, shall have the The third class of powers includes those to promote sole and exclusive right and power of … establishing rules harmony among the States, e.g. restraints on States’ for deciding in all cases, what captures on land or water authority and certain judicial powers (to be examined shall be legal, and in what manner prizes taken by land or along with government’s structure and organization). naval forces in the service of the United States shall be divided or appropriated – of granting letters of marque and Most notable are federal authority to: reprisal in times of peace – appointing courts for the trial of • Regulate commerce among States and Indian tribes. piracies and felonies committed on the high seas and • Coin money establishing courts for receiving and determining finally • Regulate the value of domestic and foreign coin. appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said • Punish counterfeiting of United States current coin courts. and securities. Article IX of the Articles of Confederation • Fix standards of weights and measures. • Establish a uniform rule of naturalization. ———————————————————————— • Set uniform bankruptcy laws. The power to define and punish piracies and felonies • Prescribe the manner in which each State’s public committed on the high seas, and offenses against the law acts, records, and judicial proceedings shall be proved, of nations, belongs to the general government, and is a and their effect in other States. still greater improvement on the articles of Confederation, • Establish post offices and post roads. which do not provide for offenses against the law of ———————————————————————— nations and thereby allow any reckless State to embroil the Confederacy with foreign nations. The Congress shall have power to … regulate commerce The Articles’ language on piracies and felonies covers … among the several States, and with the Indian tribes; … establish an uniform rule of naturalization, and uniform only establishment of courts to try them. The definition of laws on the subject of bankruptcies throughout the United piracies might be left to the law of nations, but we find a States; … coin money, regulate the value thereof, and of legislative definition in every municipal code. A definition foreign coin, and fix the standard of weights and measures; of felonies on the high seas is obviously needed. … provide for the punishment of counterfeiting the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 62 © 1999 Marshall R. Overstedt
  • 63. securities and current coin of the United States; … All we need say about the power to coin and regulate establish post offices and post roads; … money is that, by including regulation of foreign money, Article I Section 8 of the United States Constitution the Constitution fills a serious void in the Articles of ———————————————————————–– Confederation. The existing Congress may regulate only Experience has exposed the existing Articles' failure to coin struck by its own or the respective States’ authority. regulate interstate commerce. To the proofs and remarks Obviously, the proposed uniformity in the value of the presented in former papers, we may add that, without this current coin might be destroyed by subjecting foreign coin provision, the essential power to regulate foreign to the varying regulations of the different States. commerce would be ineffective. —–—————————————————— An important purpose of this power is to relieve States The United States in Congress assembled shall also have of improper taxes levied for the privilege of importing or [I] the sole and exclusive right and power of regulating the exporting through other States. Were those States free to alloy and value of coin struck by their own authority, or by regulate this trade, they certainly would find ways to load that of the respective States – fixing the standards of the in-transit articles in question with duties which would weights and measures throughout the United States Article IX of the Articles of Confederation fall on their manufacturers and ultimate consumers. Past experience would teach us that such taxes would be introduced by future contrivances that would certainly ———————————————————————– nourish enmity, ending in military action. To those with no Punishing public-securities and current-coin personal interest, the commercial States’ desire to collect counterfeiting is submitted, of course, to the authority indirect revenues from uncommercial neighbors, must empowered to secure the value of both. seem imprudent and unfair, because it would encourage Regulation of weights and measures is duplicated from the injured parties, by resentment as well as interest, to the Articles of Confederation. trade via less convenient channels. But the voice of Dissimilarity in naturalization rules has long been seen reason, pleading for a larger, lasting interest, is too often as a fault in our system, and as a foundation for intricate, drowned by clamor for immediate, immoderate gain. delicate questions. The need for superintendence over trade between In the fourth article of the Confederation, it is declared confederated States has been illustrated elsewhere. “that the free inhabitants of each of these States, Switzerland’s weak union obligates each canton to allow paupers, vagabonds, and fugitives from justice, excepted, merchandise to pass untaxed through its jurisdiction into shall be entitled to all privileges and immunities of free other cantons. Germany prohibits princes and states from citizens in the several States; and the people of each laying tolls or customs on bridges, rivers, or passages State shall, in every other, enjoy all the privileges of trade without the emperor’s and the diet’s consent, though and commerce,” etc. This is confusing language. It there are reports that the law is not always followed, cannot be easily determined why one part of the Article which has produced the same problems there that we uses the term “free inhabitants,” another uses “free foresee arising here. The Netherlands restrains its citizens” and yet another specifies “people;” or what was members, from establishing, without general permission, meant by superadding to “all privileges and immunities of disadvantageous imposts on their neighbors. free citizens,” “all the privileges of trade and commerce.” Regulation of commerce with Indian tribes is liberated Whatever the legal consequences of all this might have from two limitations in the Articles, which make the been, other consequences too serious not to be provided provision obscure and contradictory. The power applies to against would probably have resulted. The new Indians not members of any State, and would not violate Constitution thus authorizes the general government to the legislative right of any State within its own limits. establish a uniform national naturalization rule. ———————————————————————— –––—————————————————— The Congress shall have power to … establish an uniform The United States in Congress assembled shall also have rule of naturalization, and uniform laws on the subject of the sole and exclusive right and power of regulating the bankruptcies throughout the United States … trade and managing all affairs with the Indians, not Article I Section 8 [4] of the United States Constitution members of any of the States, provided that the legislative right of any State within its own limits be not infringed or ———————————————————————— violated The power to establish uniform bankruptcy laws is Article XX of the Articles of Confederation intimately connected with regulation of commerce. It will prevent many frauds where parties or their property may ———————————————————————– lie in or be removed to other States. What Indians will be deemed members of a State is The power to prescribe general laws for proving each not yet settled and perplexes and divides federal officers. State’s public acts, records and judicial proceedings and How an external authority, without intruding on internal their effects in other States, is a valuable improvement legislative rights, can regulate trade with Indians who are over the Articles of Confederation clause on this subject. residents but not citizens of a State is incomprehensible. –——————————————————— This is not the only case in which the Articles of Confederation have tried to achieve the impossible. Full faith and credit shall be given in each of these States Included are attempts to reconcile partial Union to the records, acts, and judicial proceedings of the courts sovereignty with complete State sovereignty and to and magistrates of every other State. Article IV of the Articles of Confederation subvert a mathematical axiom by taking away a part and letting the whole remain. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 63 © 1999 Marshall R. Overstedt
  • 64. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws The Congress shall have power to … establish post prescribe the manner in which such acts, records, and offices and post roads; proceedings shall be proved, and the effect thereof. Article I, Section 8 [7] of the United States Constitution Article IV, Section 1 of the United States Constitution –——————————————————— –——————————————————— The power of establishing post roads is harmless and The meaning of the original is unclear and of little may, perhaps, by judicious management, produce great importance under any interpretation it will bear. public convenience. Anything that tends to facilitate The power Article IV of the Constitution establishes commerce between the States is worthy of public care. should be a convenient instrument of justice, particularly Publius beneficial to contiguous States. –——————————————————————— FEDERALIST NO. 43 Overview of Constitutional Powers – #3 Madison To the People of the State of New York: THE FOURTH CLASS comprises the following • That State, in the enabling contract, will no doubt miscellaneous powers: protect the rights and consent of the district’s citizens. 1. A power (of Congress) “to promote the progress • The inhabitants will find ample incentive to agree to of science and useful arts, by securing to authors the cession: election of the federal authorities who will and inventors, for a limited time, the exclusive rights govern them. to their respective writings and discoveries.” [Article I • They will also elect their own local legislature. Section 8 (8) of the U.S. Constitution] • And the authority of the legislature and citizens of the The author’s copy right is considered, in Great Britain, ceding State will be required to concur in the cession, as a right of common law. Inventors, for the same reason, well as the ratification of the Constitution. deserve the rights to their useful inventions. The public The need for similar federal authority over magazines, good is served by both powers. States cannot separately forts, etc., is equally obvious: The public money provide either protection, and most agree and abide by expended, and the property deposited, in them requires the laws on this point that Congress has passed. their exemption from a particular State’s authority. It 2. (Congress has power) “To exercise exclusive would also be improper to entrust to one State places on legislation, in all cases whatsoever, over such district which the entire Union’s security may depend. (not exceeding ten miles square) as may, by cession All other objections are obviated, by requiring that all of particular States and the acceptance of Congress, concerned States agree on all such establishments. become the seat of the government of the United 3. (The government has the power) “To declare the States; and to exercise like authority over all places punishment of treason, but no attainder of treason purchased by the consent of the legislatures of the shall work corruption of blood, or forfeiture, except States in which the same shall be, for the erection of during the life of the person attained.” forts, magazines, arsenals, dockyards, and other –——————————————————————— needful buildings.” Article I Section 8 (17) Treason against the United States shall consist only in The need for complete authority over the seat of levying war against them, or in adhering to their enemies, government proves itself. Every State legislature giving them aid and comfort. No person shall be convicted exercises it via its inherent authority. Without it, public of treason unless on the testimony of two witnesses to the authority may be degraded, proceedings could be same overt act, or on confession in open court. Article III Section 3 (1) of the United States Constitution disrupted with impunity and the State hosting the capitol might attain influence dishonoring the Union and –——————————————————— upsetting to other Union members. As treason may be committed against the United Moreover, building and maintaining public buildings States, the United States should have power to punish it. and facilities that are certain to accumulate in the nation’s But “treasons,” such as those by the signers of the capital city would impose too large an obligation for one Declaration of Independence and leaders in the State and create so many obstacles to the government as Revolution, are often the engines by which violent to erode its – necessary – independence. factions, born of free governments, combat each other. The proposed Constitution sufficiently limits the size ofThus, the convention, wisely, protected this freedom by this federal district to satisfy the politically jealous: defining the crime, fixing the proof necessary for • It will be appropriated to this use with the consent of conviction of it and restraining the Congress from the State ceding it. extending punishment beyond its author’s person. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 64 © 1999 Marshall R. Overstedt
  • 65. 4. (Congress has the power) “To admit new States But, could it not become a pretext to alter the State into the Union; but no new State shall be formed or governments against their will by capricious enemies, erected within the jurisdiction of any other State; nor politicians or foreign powers? If the general government any State be formed by the junction of two or more should use its Constitutional authority to interject itself in States, or parts of States, without the consent of the such adventures, it would be bound to pursue the legislatures of the States concerned, as well as of the authority. But the authority extends only to a guarantee of Congress.” Article IV Section 3 (1) a republican form of government, which is supposed to The Articles of Confederation contain no provision on pre-exist. Therefore, as long as the States continue under this important subject. Canada was to be admitted “by the republican form, they are guaranteed by the federal right,” upon joining the measures of the United States; Constitution. Yet, the States have the right to substitute and the other British colonies could join if “approved” by other republican forms and claim the federal guarantee nine States. Establishment of other new states was for the latter. But they may not trade republican for unaddressed. antirepublican constitutions; a restriction, I believe, that This omission has caused serious problems and led will not be grieved. the Congress to assume unrealistic powers. The new Every political structure is obligated to protect the system will correct the defect by way of a practical and society against invasion. This obligation includes security just general precaution that no new States shall be against foreigners and more powerful neighbors. formed without concurrence of the federal authority and The history of ancient and modern confederacies the States affected. The clause against erecting new proves that weaker members should not ignore the point States by partitioning another without its consent benefits of this article. Protection against internal violence is larger States; the smaller are protected by a prohibition equally practical. Even the Swiss cantons, which, properly against combining States without their consent. speaking, are not under one government, have this 5. “To dispose of and make all needful rules and security and they have frequently claimed and received regulations respecting the territory or other property mutual aid. belonging to the United States, with a proviso, that Our history, too, tells us to prepare for such emergencies. At first view, it might seem to not square nothing in the Constitution shall be so construed as with republican theory to suppose either that a majority to prejudice any claims of the United States, or of any has not the right nor a minority the force to subvert a particular State.” Article IV Section 3 (2) government and, therefore, federal intervention can never This is an important power, required by considerations be required – except when it would be improper. But akin to those justifying item “4,” above. The added proviso theoretical reasoning, in this as in most cases, must be is also proper, and probably necessitated by jealousies qualified by experience. and questions concerning the Western territory. It is possible for majorities within States, counties, 6. “To guarantee to every State in the Union a republican form districts or towns to combine illegally to attack others. And of government; to protect each of them against invasion; and on then the federal government should act to support the application of the legislature, or of the executive (when the State authority. Parts of State constitutions are so legislature cannot be convened), against domestic violence.” [Article interwoven with the federal Constitution that a violent blow IV Section 4] to one will wound the other. In a confederacy of republican states founded on Insurrections in a State will rarely induce federal republican principles, the overriding government should interposition, unless there is a credible threat to the be authorized to defend the system against aristocratic or friends of government. Yet, it will be much better for the monarchical schemes. The more intimate the Union, the overriding power to suppress such violence than to allow greater the members’ interest in each others’ political the majority to impose its will by bloody aggression. institutions and the greater their right to insist on the The existence of a right to intervene will generally diligent maintenance of the forms of government prevent the need to apply it. underlying their association. Are force and right inevitably on the same side in But a right implies a remedy, and where else could it republican governments? May not the minor party be placed than in the Constitution? possess financial resources, military talents, experience Governments of dissimilar principles and forms are and/or secret foreign alliances to give it a majority of less well-suited to federal coalitions than those that agree. power? May not a strategically advantageous position and “As the confederate republic of Germany,” says organization exert leverage against a superior number Montesquieu, “consists of free cities and petty states unable to effectively and promptly apply its strength? subject to different princes, experience shows us that it is It is fanciful to imagine that, in a crisis, victory may be more imperfect than that of Holland and Switzerland. calculated by rules applied in a census or election! Greece was undone,“ he adds, “as soon as the king of May not a minority of citizens become a majority by Macedon obtained a seat among the Amphictyons.” In allying with immigrants, adventurers or disenfranchised Greece, the king’s disproportionate monarchical power no residents? There are many in some States who, during doubt strongly influenced the association. tranquil times, disappear but, when violence rises, come One may ask, why do we need this precaution? If to light and strengthen one side or the other. federal intervention in these crises is not needed, the When there is doubt on which side justice lies, what clause will be a harmless superfluity in the Constitution. better umpires could two violent factions desire than the cool, objective representatives of confederate States? The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 65 © 1999 Marshall R. Overstedt
  • 66. What a peaceful world it would be if all nations could have general and State governments equal opportunity to such a remedy for political violence. amend the framers’ errors. Among the advantages of confederate republics listed The exception favoring the Senate’s equal suffrage by Montesquieu, an important one is that, “should a was probably meant to safeguard the States’ sovereignty, popular insurrection happen in one of the States, the and was demanded by those benefiting from that equality. others are able to quell it. Should abuses creep into one 9. “The ratification of the conventions of nine part, they are reformed by those that remain sound.” States shall suffice to establish this Constitution 7. “To consider all debts contracted, and between the States, ratifying the same.'' Article VI Section engagements entered into, before the adoption of 1 (1) this Constitution, as being no less valid against the Only the express authority of the people can validate United States, under this Constitution, than under the the Constitution. To require the unanimous ratification of Confederation.” Art. VI (1) the 13 States would subject the essential interests of the This proposition may have been inserted to, among whole to the one State’s caprice. It would have shown an other things, satisfy foreign creditors who know that inexcusable lack of foresight in the convention. political changes often dissolve nations’ moral obligations. This issue raises two questions: Some Constitutional critics say that the validity of On what principle can we supercede the obligations should have been asserted in favor of, as well Confederation, which is a solemn compact between the as against, the United States. As little critics usually do, States, without their unanimous consent? they magnify the omission into a plot against our national The answer is dictated by the necessity of ratification, rights. As transactions are by nature reciprocal, asserting by the principle of self-preservation, by the transcendent their validity on one side automatically validates them on law of nature and of nature's God that society’s safety and the other. Moreover, as the article is merely declaratory, happiness are the purposes of all political institutions, to establishing the principle in one case is sufficient for all. which all such institutions must be sacrificed. Every constitution must limit its precautions to real Another answer lies in the compact itself. We have dangers and there is no real danger that the government noted a major Confederation defect is that many of States would, on such flimsy pretexts, forgive debts justly due to gave it no higher sanction than a legislative ratification. the public. Fairness seems to require that other States should be 8. “To provide for amendments to be ratified by entitled to use the same low standard. A compact three fourths of the States under two exceptions between sovereigns, founded on ordinary legislative acts, only.” can pretend to no higher validity than a league or treaty. It -——————————————————————— is doctrine that all treaty articles are conditions of each other: that a breach of one article is a breach of the whole The Congress, whenever two-thirds of both Houses shall treaty and that a breach by either party releases the other deem it necessary, shall propose amendments to this and authorizes it to void the agreement. Constitution, or, on the application of the legislatures of If we need to apply these truths to justify dispensing two-thirds of the several States, shall call a convention for proposing amendments, which in either case shall be valid with the States’ consent in dissolving the federal pact, to all intents and purposes as part of this Constitution, how will the complainers answer for their many when ratified by the legislatures of three-fourths of the infractions? several States, or by conventions in three-fourths thereof, How will the nine States ratifying the Constitution relate as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment to the few who do not? which may be made prior to the year 1808 shall in any This question is no less delicate than the first, and the manner affect the first and fourth clauses in the Ninth prospect of its being merely hypothetical forbids a deep Section of the First Article; and that no State, without its discussion: it must be left to provide for itself. In general, consent shall be deprived of its equal suffrage in the State. Article VI of the United States Constitution we may observe that, though no political relation can exist between the assenting and dissenting States, their moral ———————————————————– relations will remain uncancelled. The claims of justice, Experience will, of course, suggest useful changes to on both sides, will remain in force, and must be fulfilled. the Constitution and a system for introducing them is Human rights must be duly and mutually respected. Our required. The Convention preferred a system that guards common interests and triumph over the obstacles to the equally against a “convenience” that would make the Union will, I hope, encourage moderation and prudence. Constitution too easily changed and “extreme difficulty” Publius. that would perpetuate its known faults. It also gives the FEDERALIST NO. 44 Restrictions on the States’ Authority The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 66 © 1999 Marshall R. Overstedt
  • 67. Madison To the People of the State of New York: A FIFTH class of federal constitutional powers deals industry, and to put society’s business on a straight with States rights: course. 1. “No State shall enter into any treaty, alliance, or The prohibition of titles of nobility comes from the confederation; grant letters of marque and reprisal; articles of Confederation and needs no comment. coin money; emit bills of credit; make any thing but 2. “No State shall, without the consent of the gold and silver a legal tender in payment of debts; Congress, lay any imposts or duties on imports or pass any bill of attainder, ex-post-facto law, or law exports, except what may be absolutely necessary for impairing the obligation of contracts; or grant any executing its inspection laws, and the net produce of title of nobility.” Article I Section 10 (1) of the U.S. Constitution all duties and imposts laid by any State on imports or The prohibitions on treaties, alliances, confederations exports, shall be for the use of the treasury of the and letters of marque are transferred from the Articles of United States; and all such laws shall be subject to Confederation. (The Articles allow State letters of marque the revision and control of the Congress. No State after declarations of war. ) Their purpose is to give the shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of Union the advantage of national uniformity in foreign peace, enter into any agreement or compact with relations policy. another State, or with a foreign power, or engage in Coinage rights, which the Constitution takes from the war unless actually invaded, or in such imminent States, are, under the Confederation, shared with danger as will not admit of delay.” Article I Section 10 (2) of the U.S. Constitution Congress, which has the exclusive right to regulate the Forbidding States to import or export recognizes the alloy and value. The proposed provision would eliminate need for central trade regulation. The restraint is the obvious problems caused by multiple, expensive calculated to allow them the discretion to provide for State mints, as well as forms and weights of the pieces simple, easy movement of goods, and the United States circulated. This defeats a major purpose for giving the to reasonably check abuse of the discretion. The clause’s power to coin to the federal head. The “inconvenience” of remaining reasonings are either obvious or already fully remitting gold and silver for recoinage to the central mint discussed. can easily be resolved with local mints under the federal The sixth and last class consists of powers and authority. provisions that give efficacy to all the rest. Extending the prohibition to bills of credit will benefit 3. “The power to make all laws which shall be everyone by promoting public prosperity. necessary and proper for carrying into execution the Since the peace, America’s use of paper money has foregoing powers, and all other powers vested by greatly reduced trust between men, in the public councils, this Constitution in the government of the United in industry, in public and in republican government. The States, or in any department or officer thereof.” Article I Section 8 (18) of the U.S. Constitution enormous debt against the States chargeable to paper Few parts of the proposal have been assailed more money will long remain unsatisfied. For the same reasons intemperately than this. Yet without this power, the States should not be allowed to coin, they should not to Constitution would be a dead letter. Objectors, therefore, be free to substitute paper for metal. can only mean that its form is improper. But what better Moreover, if every State can regulate the value of its form could replace it? coin, there could be as many currencies as States, and There are four other methods the convention might this would impede commerce between them. Altogether have used on this subject. possible are arbitrary value changes that could injure (1) Copying the language in Article II of the existing citizens and cause conflict between States. Should Confederation, prohibiting exercise of any power not foreign subjects be hurt by one State’s indiscretion, the expressly delegated. entire Union could be discredited and dragged into major (2) Attempting a positive itemization of the powers international disputes. acknowledged as “necessary and proper.” Bills of attainder, ex-post-facto laws, and laws (3) Attempting a negative itemization, specifying the impairing contract obligations are contrary to the powers excepted from the general definition. principles of the social compact and sound legislation. All (4) Remaining silent on the subject, leaving these are prohibited by the letter and/or spirit of many State necessary, proper powers to interpretation and inference. constitutions. The convention has properly protected Had the convention used method (1), the new against these dangers to personal security and private Congress, like the old, would be forced to construe the rights. term “expressly” (a) so rigorously as to disarm the Thoughtful Americans resent sudden changes and government of all real authority or (b) so broadly as to legislative interference in personal rights that foster destroy the restriction's force. It would be easy to show, if careers for enterprising, influential speculators and necessary, that Congress can execute no important entrapments for the industrious but uninformed. One such power in the Articles of Confederation without resorting to legislative interference is only the first link in a chain of legalistic implication or interpretation. repetitions. Thorough reform is needed to banish As the powers delegated under the new system are speculation on public measures, to inspire prudence and more extensive, the government, to administer them, would find itself still more distressed by having to choose The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 67 © 1999 Marshall R. Overstedt
  • 68. between betrayal of the public interest by doing nothing or 2. “This Constitution and the laws of the United violating the Constitution by exercising powers that may States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the be indispensable and proper, but not expressly granted. authority of the United States, shall be the supreme Had the convention listed, item by item, the powers law of the land, and the judges in every State shall be necessary and proper to execute the other powers, it bound thereby, any thing in the constitution or laws would have to include every law on every subject to which of any State to the contrary notwithstanding.” [Article VI [2] ) of the U.S. Constitution] the Constitution relates, accommodating existing and all Without this article, the Constitution would be obviously possible future conditions. This is because, for every new and radically weakened. To understand why, note that the application of a general power, there must be particular State constitutions had been left intact by a saving clause powers to enforce it. Moreover, the particular powers in their favor. must always vary with that goal while the goal remains the In the first place, these constitutions give State same. legislatures absolute sovereignty in all cases not excepted Had they tried to name the particular powers or means by the existing Articles of Confederation. So all powers in not necessary or proper for executing their authority, the the proposed Constitution, so far as they exceed those in task would have been no less fanciful and every defect on the Confederation, would be null and the new Congress the list would have been equal to a positive power. If, to would be reduced to impotence. avoid this silliness, they had tried to list just some Second, some State constitutions do not even exceptions and, in general terms, described the results, expressly and fully recognize the Confederacy’s existing they would have to include only a few of the excepted powers. Thus, a clause preserving their supremacy would powers, and these would be the ones least likely to be have brought into question every power in the new assumed or tolerated. This is because the list makers proposal. would, of course, choose the least necessary or proper Third, State constitutions differ widely. So a treaty or authorities and the leftover unnecessary, improper items national law of equal importance to the States' could would be less avidly accepted than if they had not interfere with some but not all of them. Consequently, this bothered to make the effort. legislation would be valid in some, invalid in the rest. Then Were the Constitution silent on this subject, there is no the world would, for the first time, see a governmental doubt that all the powers required to execute general system based on a reversal of the basic principles of all government authority would take force by unavoidable government: a general authority inferior to that of the implication. parts – a monster whose head is commanded by its body. No legal or rational axiom is more firmly established 3. “The Senators and Representatives, and the than that wherever end is required, the means to reach it members of the several State legislatures, and all are also required. Had the convention stood mute on executive and judicial officers, both of the United “necessary and proper powers,” every objection now States and the several States, shall be bound by oath heard against the plan would, by default, remain valid, or affirmation to support this Constitution.” Article VI (3 ) of the U.S. Constitution and the real problems would result – particularly in Some ask what necessity binds the State government national emergencies – from not removing these excuses to support the federal Constitution, but not United States to question the Union’s essential powers. officers to the State constitutions. The best answer is that If you ask what will happen if Congress misuses this federal officials will have no role in executing State part of the Constitution, and exercises powers not constitutions. State government members and officials, warranted by its true meaning, I answer: the same as if on the contrary, will be essential to the federal any government should misapply or enlarge any other Constitution. All elections of Presidents, Senators and Constitutional power. First, the usurpation’s success will federal Representatives will depend on the State depend on the executive and judiciary branches, which legislatures, officials and laws. are required to explain and enforce legislative acts. Last, We have now reviewed all the Constitutional articles it must be remedied by the people, by way of election of delegating powers to the United States Congress and representatives who will annul the usurpers acts. conclude that all are necessary and proper to the Union’s The truth is that this “ultimate redress” may be more necessary goals. applicable against unconstitutional Congressional than The question, therefore, whether this power should be State-legislative acts. The reason is that every such act granted is answered by two other questions: 1. Should we by Congress will invade the rights of the State establish a government equal to the challenges facing the legislatures, which will be ever ready to note the violation, Union? 2. Shall the Union itself be preserved. alert the people and use their influence to change the Congressional membership. Publius. As there is no similar intermediate body between the State legislatures and the people, State constitutions are more likely to be violated without notice. FEDERALIST NO. 45 Alleged Dangers to State Governments The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 68 © 1999 Marshall R. Overstedt
  • 69. Madison To the People of the State of New York: HAVING shown that the powers transferred to the from the federal authority’s incapacity to prevent the federal government are necessary and proper, we need disunion of the subordinate authorities. to ask whether, en masse, they will threaten the States’ These cases deserve our attention because the hostile remaining powers. Adversaries to the convention plan, external forces that forced their member governments to instead of considering what powers are necessary to the unite were far more powerful than those we face. federal government’s purposes, have exhausted Consequently, weaker links were required to tie the themselves investigating their possible effects on States’ members to the head and to each other. rights. But if the Union, as we have shown, is essential to Under the feudal system, the local sovereigns, whether the security of the American people against foreign popular or much disliked, were generally able to defeat danger, against contentions and wars between States, threats to their power. Had no external dangers against violent, antifreedom factions, and against strengthened internal harmony and control and poisonous military establishments, it is ridiculous to say particularly, had the local sovereigns won the people’s that a government that defends the Union may lessen the affections, Europe’s great kingdoms would now consist of States’ importance? as many independent princes as there were once feudal Did we fight the American Revolution, form the barons. American Confederacy, spill the precious blood of The State governments will have important thousands, and lavish the hard-earned substance of advantages over the Federal government relative to the millions, not so Americans may enjoy peace, liberty, and dependence of each on the other, the relative weight of safety, but so that the State governments can enjoy their popular influence, their respective Constitutional power and certain dignities and attributes of sovereignty? powers, the people’s biases and support, and their We have heard the impious Old World doctrine that tendencies and abilities to resist and frustrate each the people were made for kings, not kings for the people. other’s measures. We may see the States as federal Will we revive it in the New World and sacrifice the constituents and essential federal parts, but the federal people’s happiness to some new royalty? It is too early for authority is in no way essential to the States’ politicians to presume we have forgotten that (a) the organizations or operations. supreme reason for the nation to exist is to serve the Without the State legislatures’ participation, the public good – the real welfare of the great body of the President of the United States cannot be elected. They people – or that (b) no form of government has any value will always share importantly in his appointment; in fact, beyond attaining that goal. will probably determine it. Were the convention plan adverse to public happiness, The State legislatures – exclusively – will elect the I would say, “Reject it.” Were the Union itself inconsistent Senate. Even elections to the House of Representatives with public happiness, I would say, “Abolish the Union.” In will be influenced by the same class of men, whose the same spirit, if the States’ sovereignty will not promote popular influence drives their own elections. the people’s happiness, every good citizen must say, Thus, each of the federal government’s principal “Sacrifice States’ rights to the people’s rights.” branches will owe its existence more or less to the State How far the sacrifice is necessary has been shown. governments’ approval and must, therefore, feel Now the question is how far the unsacrificed residue will dependent on them – which is more likely to produce a be endangered. subservient rather than overbearing attitude towards These papers have belittled the supposition that them. federal government operations will, little by little, do in the On the other side, the State governments will in no way State governments. The more I study the subject, the be indebted to the federal government for their role in more I believe that the balance is more likely to be offset national affairs, or to the local influence of United States by the dominance of the States than by the national Senators and Representatives. government. Far fewer people will be employed under the United In all ancient and modern confederacies, we have States Constitution than by the States, resulting in less seen a strong disposition in the members (states, federal influence at the State level. provinces …) to weaken the general governments, which The total number of State, county, corporation and have failed to defend themselves against the town legislators, administrators, judges, justices of peace, encroachments. Though most of those systems were very militia and law-enforcement officers who will serve the unlike the one being considered, as the States will retain millions of Americans and be intermixed and acquainted much of their existing powers, we should not totally with every class and circle of them, must exceed those disregard the inference. who will administer the limited powers of the federal The federal head of the Achaean league probably had system. Thus, we may pronounce the States’ advantage powers similar to those in the proposed Constitution. The to be decisive. Lycian Confederacy was, in principle and form, even It is true that the Union will exercise the power to more like the system we are considering. Yet neither collect internal and external taxes throughout the States. collapsed into one consolidated government. On the But this power will probably not be applied, except to contrary, we know that the ruin of one of them resulted supplement federal revenue, and then the States will The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 69
  • 70. have the option to make their collections before filling As “dangerous” periods will probably be rare, the State federal needs; and the eventual collection, under the governments will enjoy more of the people’s attention. immediate authority of the Union, will generally be made If we examine the new Constitution accurately and by the officers, and according to rules the States will honestly, we will see that the change it proposes establish. In other cases, particularly in organizing the subtracts power from the Union, rather than invigorates judiciary, the State officers will probably have authority its original authority. Regulating commerce, it is true, is a comparable to the Union's. Should, however, the federal new power, but few oppose or fear it. government appoint separate internal revenue collectors, Federal powers regarding war and peace, armies and their strength would be far less than that of the States’ fleets, treaties and finance, along with the other, greater many officers. powers, are all vested by the Articles of Confederation in Within every district with an assigned federal collector the existing Congress. The Constitution will not expand there would be at least 30 or 40 State officers of different them but substitute better means to administer them. descriptions, many of them persons of character and Taxation changes may seem the most important. Yet influence favoring their home States. the present Congress is empowered to require the States The powers delegated by the proposed Constitution to to supply indefinite funds for the common defense and the federal government are few and defined. Those that general welfare. In contrast, the future Congress will will stay in the State governments are many and flexible. require them of individual citizens, who will be no more The federal will operate on external issues: war, bound than the States now are to pay their quotas. peace, negotiation, and foreign commerce (with which its Had the States complied punctually with the Articles of taxing power will, for the most part, be connected). Confederation, or could their compliance have been as The powers reserved to the several States will extend peacefully enforced as the means applicable to single to all the “everyday” issues affecting the people’s lives, persons, perhaps no one would have raised the fear that liberties, and properties, and local measures to secure the State governments might lose their constitutional order, improvement, and prosperity. powers and consolidate. To predict such an event is to Federal operations will be most extensive and say that the State governments’ existence is incompatible important in times of war and national danger; State with any system to preserve and empower the Union. activities, in secure, peaceful times. Publius. FEDERALIST No. 46 Comparing State and Federal Influence Madison To the People of the State of New York: WILL the federal government or the States win the credit and monetary obligations were backed by mere people’s loyalty and support? Despite their different paper. I expect, under an effective constitutional system, electoral systems, both will depend on the great body of it will again serve the people well. citizens. Both are agents and trustees of the people, but It was engaged, too, in an enterprise to protect all that with different powers for different purposes. was dear, and to gain all the people could desire. Even Constitution adversaries view them as rivals whose so, after their fleeting enthusiasm for the early powers are unprotected by a common authority. They Congresses had passed, the people’s loyalty returned to must be told that the ultimate authority resides in the their local governments. Then the federal council lost people, regardless of a government’s ambition, location favor, and opposition to expanding its powers and or relative numeric strength. importance was led by men bent on building their own Truth requires that every case depend on the people’s political strength by serving their fellow citizens’. approval. There is little doubt that the people will first and If one day the people favor the federal over the State naturally relate to their State governments, which will governments, it will be because the former better serves allow many more persons to wield power through far them. Then the people should be free to place their more offices generating more salaries and wages. These confidence where they believe it belongs. But even then, State offices will be better located and organized to State governments would have little to fear from federal regulate and fill the people’s personal interests. power operating within a Constitutionally-limited sphere. Moreover, there will be much closer ties, personal and Again, the federal government will depend more on the family, between the people and their State authorities. State authorities than the reverse. And the people will be Therefore, we can expect the popular bias to incline more attentive and loyal to their State governments than most strongly to the State governments. Experience to the federal. But in a distinct, important way, the federal teaches the same lesson. Though defective under the side will hold an advantage. Articles of Confederation, the federal administration The biases that Congress members and others will performed well during the Revolutionary War, even when take to the federal government will generally favor their The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 70 © 1999 Marshall R. Overstedt
  • 71. States. Rarely will State officials favor the general federal set – would contend against thirteen sets of government and “act nationally.” representatives and all of their common constituents. Everyone knows that most State legislatures’ mistakes The only argument for those who predict the State result from their members’ tendency to sacrifice the governments’ downfall is that the federal government States’ broad interest to their home counties’ and might assemble a military force before taking action. I districts’ concerns. If they do not adequately widen their don’t believe this danger exists. Who could dream that views to embrace State needs, how can they embrace the people and the States would, for a sustained period, the Union’s aggregate prosperity and its government’s elect a parade of men ready to betray both; that the dignity and respectability? traitors would use the time to systematically plot and work For the same reason State legislators are unlikely to to expand the military; that the State governments and attach themselves securely to national issues, members citizens would silently and patiently look on and supply of Congress will likely adhere too much to local interests. the materiel for their own subjugation …? The States will relate to the federal government as towns Even if the federal government built and commanded and counties relate to State authority: measures will too a national-class regular army, the State governments, often be decided according to their probable benefits, not with the people on their side, could repel it. to the larger constituency, but to the voters back home. The largest army, according to the best computation, In what spirit has the present Congress proceeded? could not exceed 1% of the total population, or 4% of Past members’ journals and remembrances show that those able to bear arms. This would yield, in the United they often act as State partisans than as impartial States, an army of not more than 25,000 to 30,000 men – guardians of a common interest. Great national questions versus a militia nearly a half million strong, led by officers have suffered a hundred times more often from undue of their choice, fighting for their common liberties and attention to local views than Congress members have commanded by governments to which they have given all improperly sacrificed a local interest to federal their political affection and confidence. aggrandizement,. I doubt such an army could ever defeat such a citizen I do not mean to insinuate that the new federal force. As do those most familiar with our last successful government will not carry a larger portfolio than the old, or resistance to British arms. Besides the advantage of that its attention to local interests will be as focused as being armed, which Americans hold over almost all other the State legislatures. I mean only that it will have enough nations, they alone control the governments which would to occupy its time without invading the States’ rights. appoint the militia officers – a barrier to ambition stronger The State governments’ efforts to expand their power than any simple government can defeat. at federal expense will not be thwarted by their legislators’ Notwithstanding the European kingdoms’ military reciprocal biases. But if the federal government were establishments, which are as large and strong as public equally inclined to overextend its power, the States would resources will support, their governments are afraid to still be better positioned to defeat it. trust the people with arms. And it is not certain, even so, If a given State should take an action unfriendly to the that the people could not defeat them. national government but popular among its citizens, and Give the European people the advantage of local not too grossly in violation of the officers’ oaths, it will be governments they elect, who could amass the national executed immediately by all available means. Federal will and direct a nationwide force through officers from the intervention would only inflame the State’s zeal and the people’s militia and, assuredly, they would overturn every evil could not be prevented or repaired without pain. tyranny in Europe despite the legions protecting it. On the other hand, should the federal government Let us not insult the free, gallant Americans with the enact an unpopular measure against a State, powerful suspicion that they would be less able to defend their ways to combat it would always be at hand. The people’s rights than the oppressed Europeans to rescue their unrest and, perhaps, refusal to cooperate with Union freedom. And let us not suppose that they would tamely officers, the disapproval of State administrators, the submit to measures aiming toward their subjugation. embarrassments from laws would bring serious The essential question is whether the federal impediments. Should other States agree with the government structure will render it sufficiently dependent opposition, the federal government would face more on the people. If so, it will be restrained from schemes unwelcome obstructions. In short, the same fears and against their constituents. If not, it will also not earn the responses would arise as were produced by the dread of people’s confidence and its threats to liberty will be easily foreign tyranny. defeated by the State governments – which will be But what madness would drive the federal government supported by the people. to such an extreme act? In sum, these last two papers are convincing evidence The war with Great Britain, pitted one part of the that the proposed federal powers are as little danger to empire against the other. The larger part unjustly and the States’ authority as they are indispensable to the unwisely invaded the rights of the smaller part. But in the Union’s purposes, and that all those fears of planned supposed contest between the federal and State annihilation of the State governments are imaginary. governments, who would be the parties? One set – the Publius. FEDERALIST No. 47 The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 71 © 1999 Marshall R. Overstedt
  • 72. Government Structure Madison To the People of the State of New York: More respectable Constitution adversaries charge that did not mean that these entities should never cooperate it neglects and violates the maxim that legislative, with or influence each other. He meant, as his words executive, and judiciary branches be separate and convey and his examples illustrate, that allowing the independent. The branches, they say, are organized in a whole power of one branch to be exercised by the same way that endangers some units to others’ disproportionate hands that exercise the whole power of another subverts powers. the fundamental principles of a free constitution. This The objection is based on an valuable political truth: would have been the case had the English Constitution Concentrating all legislative, executive, and judiciary given the king complete legislative and/or judicial power, powers in the same hereditary, self-appointed or elective or if the Parliament held supreme judiciary or executive hands may be defined as tyranny. authority. Were the federal Constitution really to accumulate The magistrate with the whole executive power cannot such of powers, or support a mixture tending to allow it, it alone make laws, though he can “veto” them, nor would deserve denunciation. But I believe the charge administer justice in person, though he appoints those cannot be supported, and that the objectors misapply the who do. Judges can take no executive action, though separation maxim. their power results from executive action. Nor can they ————————————————————————— enact legislation, though legislators may advise them. The entire legislature can decide no judicial case, though it All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a can remove judges from office and though one House Senate and House of Representatives possesses last-resort judicial power. Legislators cannot Article I Section 1 of the U.S. Constitution. initiate executive measures, though one House The executive power shall be vested in a President of the constitutes the supreme executive magistracy and the United States … other the decisive authority in impeachments of executive Article II Section I (1) of the U.S. Constitution The judicial power of the United States shall bed vested in branch members. one Supreme Court, and in such inferior courts as the Montesquieu’s reasoning on separation also Congress may from time to time ordain and establish. demonstrates his meaning. He says: Article III Section 1 (1) of the U.S. Constitution When the legislative and executive powers are united in the same person or body, there ———————————————————————— can be no liberty, because apprehensions To understand this vital issue, one must understand may arise lest the same monarch or senate the reasons liberty depends on separation. should enact tyrannical laws to execute them The “prophet” always consulted and cited on this in a tyrannical manner. subject is Baron de la Brede et de Montesquieu, (1689- Again: 1755), the philosopher/jurist who helped lead the early Were the power of judging joined with the French Enlightenment. If not the actual author of the legislative, the life and liberty of the subject separation doctrine, he introduced and recommended it to would be exposed to arbitrary control, for the mankind. judge would then be the legislator. Were it As Homer’s works set the standards by which all epics joined to the executive power, the judge might are judged, Montesquieu saw the English Constitution as behave with all the violence of an oppressor. the medium by which elementary constitutional truths Not one of the State constitutions keeps the three have been conveyed. branches separate and independent. The English Constitution does not totally separate the The New York constitution has no separation branches. The chief executive (the prime minister) is declaration but appears to have been framed in light of integral to legislative authority. Only he can make treaties the danger of mixing different branches. Nevertheless, it – which, when written under certain limitations, have gives the governor partial control over the legislature and legislative force – with foreign sovereigns. He appoints the judiciary – and blends the executive and judiciary in and can have removed all judiciary members, who serve exercising this control. Moreover, the New York as constitutional counsels. One House of Parliament also legislature counsels the executive on appointment of composes a constitutional executive and exercises executive and judiciary officers. And the State’s court for judicial power in impeachments and appellate powers in impeachment and other trials consists of one house of the all others. The judges often attend and participate in legislature and judiciary-branch members. Parliamentary deliberations, though not permitted to vote In citing State constitutions wherein the legislative, on legislation. executive, and judiciary branches are not separate and From these facts, we may infer that, in saying “There independent, I am not advocating that the federal can be no liberty where the legislative and executive constitution should follow their examples. I know that, powers are united in the same person or body of among the many excellent principles they exemplify, they magistrates,” or, “if the power of judging be not separated reflect the haste and inexperience under which they were from the legislative and executive powers,” Montesquieu framed. It is obvious that in some cases the separation The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 72 © 1999 Marshall R. Overstedt
  • 73. principle has been violated by too much mixing, and even author’s intended meaning or by the sense in which it is actual consolidation, of powers. understood in America. But what I wish to demonstrate is that the charge Publius against the proposed Constitution of violating the sacred maxim of free government is unwarranted either by its . FEDERALIST No. 48 Checks and Balances Between Branches Madison To the People of the State of New York: UNLESS the legislative, executive and judicial Meanwhile, the executive’s narrow, relatively simple branches are connected to give each a constitutional powers, and the judiciary’s even more carefully defined control over the others, we cannot maintain the limits, immediately betray and defeat their usurpations. separation essential to free government. All agree that And let us not forget: The legislature alone has access their proper powers should not be administered by either to the people’s pocketbooks and, in some constitutions, of the others and none should influence the others’ full discretion and great influence over the other branches’ execution of theirs. budgets: dependency that makes incursions even easier. Power seeks more power, and must be restrained Our own experience supports this political truth. As from passing its assigned limits. After defining the classes witnesses, I would call all citizens who have taken part in of power as legislative, executive and judiciary, we must or been affected by government. But for more concise protect each from invasion by the others. And the greatest evidence, I refer to the experiences of two States. difficulty is deciding what this protection should be. Virginia’s constitution requires that the three branches The State constitution framers seemed to believe it be separate, according to Mr. Jefferson who was himself was enough to mark the boundaries between branches in its governor. I quote him follows from his Notes on the the Constitution, and then trust these paper barriers to State of Virginia: stop encroachment. But experience teaches that some The concentrating of (the legislative, executive stronger defense is needed between weaker and stronger and judiciary) in the same hands, is precisely the branches. definition of despotic government. It will be no Legislatures constantly try to expand their authority alleviation, that these powers will be exercised by and take over others’ powers. Founders of republics give a plurality of hands, and not by a single one. One themselves such great credit for their wisdom in doing so hundred and seventy-three despots would surely that pointing out their errors must be very painful. But be as oppressive as one. Let those who doubt it, they seem to never turn their eyes from the danger to turn their eyes on the republic of Venice. liberty presented by overgrown, all-grasping hereditary As little will it avail us, that they are chosen by magistrates supported by hereditary legislatures, or to ourselves. An elective despotism was not the see danger from the legislative instinct to amass all power government we fought for; but one which should in the same hands, which leads to tyranny as surely as not only be founded on free principles, but in which does executive usurpation. the powers of government should be so divided In monarchies, the executive branch is – correctly – and balanced among several bodies of magistracy, regarded as dangerous and watched jealously. In as that no one could transcend their legal limits, democracies, people legislate in person and are without being effectually checked and restrained vulnerable by their inexperience to executive intrigue that by the others. For this reason, that convention can impose tyranny through a convenient “emergency.” which passed the ordinance of government, laid its But in representative republics, executive authority is foundation on this basis, that the legislative, carefully limited. Legislation is by elected assemblies, executive, and judiciary departments should be bolstered by their influence over and the confidence of the separate and distinct, so that no person should voters. Moreover, legislatures are large enough to feel exercise the powers of more than one of them at passions that ignite the electorate, yet small enough to the same time. actually act on them. But no barrier separated these powers. The judiciary In short, the legislature is the branch we should fear. and the executive depended on the legislative for Compared to the others, its constitutional powers are subsistence, financial and political. Therefore, the broader and less precise. It can easily use complicated, legislature could, unopposed, assume executive and deceptive measures to mask encroachments. It is often a judicial powers. Any resistance would be ineffective delicate question whether a given measure will, or will not, because the legislators could record proceedings as “acts exceed its authority. of Assembly,” rendering them obligatory on all. Indeed, they have often decided rights that should belong to the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 73
  • 74. judiciary and made a habit, while in session, of “directing” Particulars of these events are printed in the council’s the executive. journals. Some, to be fair, may be attributable to wartime Pennsylvania’s example involves the Council of anomalies, but most resulted simply from bad Censors, which sat in 1783 and 1784. Part of the body’s government. constitutional duty was “to inquire whether the It appears that the executive, too, had breached the constitution had been preserved inviolate in every part; constitution, although many of the instances were and whether the legislative and executive branches of produced by the necessities of war, or recommended by government had performed their duty as guardians of the Congress or the commander-in-chief; most other people, or assumed to themselves, or exercised, other or instances conformed to the legislature’s sentiments. greater powers than they are entitled to by the Pennsylvania's executive branch has many more constitution.” members than other States’. In this respect, it is more like The council compared legislative and executive acts a legislature than an executive council. And as its acts as with their constitutional powers. From the facts collected, a body are exempt from individual accountability and the it appears that the legislature: members, understandably, use each other’s confidence • Unnecessarily passed many laws violating the rule and follow their examples, it can more freely risk requiring that, before passage, all public bills be unauthorized measures than can an executive branch printed for the people’s consideration. administered by one or a few hands. • Violated the right of trial by jury. From these examples I conclude that mere paper • Assumed unconstitutional powers. barriers between branches’ constitutional limits are too • Usurped executive powers. weak to guard against encroachments leading to • Varied judges’ salaries, which the constitution tyrannical consolidation of government power. requires to be fixed. Publius. • Decided cases belonging to the judiciary. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 74 © 1999 Marshall R. Overstedt
  • 75. FEDERALIST NO. 49 Using Conventions to Prevent Encroachment Hamilton or Madison To the People of the State of New York: THOMAS JEFFERSON appended to his Notes on the A more serious objection to whole-public participation State of Virginia a draft of a State constitution he had in constitutional debate is the danger of over-inflaming prepared for discussion at a convention to be called by public passions. Notwithstanding the success of our new the legislature in 1783. It advocates a republican form of government, which honors American virtue and government and deals with dangers against which it intelligence, these experiments are too risk-prone to be should be guarded. too often undertaken. He proposes “that whenever any two of the three We should remember that all the existing constitutions branches of government shall concur in opinion (as to) were formed in amid great danger to order and concord; altering the constitution, or correcting breaches of it, a when the people’s confidence in their patriotic leaders convention shall be called for the purpose. stifled ordinary debate on great national questions; when “As the people are the only legitimate fountain of we all shared an ardor for new political ideas born of our power, and it is from them that the constitutional charter, resentment against the British; and when there were no under which the several branches of government hold factions to distract us from the changes we needed to their power, is derived, it seems strictly consonant to the make or the abuses we needed to reform. republican theory, to recur to the same original authority, But the greatest objection is that the decisions which not only whenever it may be necessary to enlarge, would probably result from all-out participation would not reduce, or new-model the powers of the government, but support the government’s constitutional equilibrium. also whenever any one of the branches may encroach on We have seen that republican governments tend to the chartered authorities of the others.” aggrandize legislatures at the other branches’ expense. Mr. Jefferson’s point is that the branches are equal Appeals for conventions, therefore, would usually be under the law: none has a right to settle the boundaries made by the executive and judiciary. But whether made between their respective powers. So, how can we prevent by one side or the other, would they yield equal encroachments by the strong or redress the wrongs of the advantages to all sides? Let us view their situations. weak without appealing to the people who alone can The executive and judiciary members are few in define and enforce the commissions that empower them? number, and personally known to very few people. The This is a powerful idea, which the Constitution must judiciary, by its mode of appointment, its nature and allow to assure the people a way to decide extraordinary permanency, is too far removed from the people to share questions. But there are powerful objections to allowing their concerns. them to deliberate on all Constitutional questions. Legislators, on the other hand, are many. They are In the first place, it does not cover the “ganging up” of well distributed and live among the people at large. Their two branches against the third. If the legislature, which family, social and other connections make them part of has so many ways to influence the other branches, could society’s most influential classes. The nature of their somehow recruit even a third of either of them to its public trust and their charge to protect the people’s rights cause, the one remaining would be helpless. and liberties give them great personal influence. These In the next place, it might weaken public respect for advantages deny adversaries equal standing in public the government, as every such appeal would, inherently, debate. In fact, in an interbranch debate, the legislators imply a government defect. Without due respect, not even would not only be able to argue their case most the wisest, most free governments could retain the successfully; they would probably appoint themselves stability they need to govern effectively. judges. The same influence that wins them election would Governments are opinion-based and -driven and the gain them convention seats. strength of an individual’s opinion and its influence on his The convention delegates, in short, would be men who conduct require that he hears others sharing his opinion. are, were, or expect to be members of the branch under People are timid when they feel isolated, but gain examination – parties to the question they will decide. firmness and confidence as their ideas gain popularity. But sometimes appeals could favor the executive and When evidence and experience that fortify ideas are old judiciary departments, when legislative usurpations and widely shared, they have even greater power. obviously, flagrantly violate others’ rights. In such cases, a Respect for the law is taught and reinforced by strong faction of dissenting legislators might join the other enlightened reason. But a nation of philosophers is as branches. And should there be an especially popular wild a dream as Plato’s wished-for race of philosophical president, public support could be swayed his way. kings. To the most rational government, having the But still, do not expect convention decisions to turn on community’s prejudices on its side is a valuable the questions’ true merits. They would inevitably connect advantage. to the spirit of interested parties or parties springing from the issue itself. They would be heavily influenced by The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 75 © 1999 Marshall R. Overstedt
  • 76. prominent figures with extensive community influence – We found in the last paper, that mere declarations in perhaps even the controversy’s instigators, who would the written Constitution cannot confine the branches either benefit or suffer from the decisions. within their legal powers. It appears that occasional Public passion, therefore, not reason, would decide. conventions would be neither a proper nor an effective But it is public reason that should control and regulate the course of action. government, leaving passions to be controlled and Publius regulated by the government. FEDERALIST NO. 50 Considering Periodical Appeals to the People Hamilton or Madison To the People of the State of New York: SOME MAY contend that scheduled conventions is the Thirdly. Every page of the minutes testifies to the way to prevent and correct Constitutional infractions by effects of all these factors on their decisions. Throughout government branches. Others could say this plan is as its deliberations, the council was split into two set, violent unacceptable as calling conventions only to solve specific factions – a fact members acknowledged and regret. In all problems. If the between-convention interval is short, the questions, however trivial or unconnected with each other, issues addressed will be of current or recent concern and the same names stand in favor and opposed. From the therefore have all the disadvantages of occasional record, every unbiased observer may infer that PASSION, changes. If the interval is long, any resulting public not REASON, presided over the council. When men censure would be a very feeble punishment for abuses or reason coolly and freely on separate issues, their opinions excesses occurring near the start of the cycle. differ on some of them. When governed by common Are we to imagine that a 100- to 200-member passions, they agree. legislature – bent on a special interest and violating the Fourthly. It is to be wondered whether the body’s Constitution to serve it – would cease and desist for fear decisions did not, in several instances, misconstrue rather of being called to task in 10, 15, or 20 years? The abuses than reduce or limit the legislature’s and executive’s would probably have done their damage long before any constitutional limits. remedial action. Otherwise, the harm would be Fifthly. I have never believed that the council’s longstanding, with deep, strong roots. decisions, right or wrong, in any way corrected any Pennsylvania tried to revise its constitution to correct legislative abuse or excess. It even appears that, in one recent breaches by way of a council, which met in 1783- instance, the sitting legislature rejected the council’s 84 to inquire “whether the constitution had been violated, findings. This censorial body, therefore, proves at once and whether the legislative and executive departments that the disease exists and the remedy does not work. had encroached upon each other.” This important, novel It would not change my mind to point out that the State, political experiment illustrates the above reasoning. at the time, was beset and distracted by raging First. It appears that at least some of the Council’s most factionalism. We cannot presume – or desire – that when active members had also been active, leading characters such a convention meets that Pennsylvania, or any State, in pre-existing factions. will be free of faction. If so, it would mean public safety is Secondly. These members had been active, influential in danger or liberty is dead. members of the legislative and executive branches Including only people not in government during the reviewed, and even patrons or opponents of the period in question would not solve the problem. For then measures tested during the period. Two of the members the important task would probably fall on delegates with had been State vice-presidents, several had served the inferior ability. Whether or not they had participated in the executive council, one had been speaker, and a number suspect activities, they would probably have belonged to of others distinguished legislators. one of the factions and elected with its support. Publius . FEDERALIST NO. 51 Checks and Balances Between Branches Hamilton or Madison To the People of the State of New York: HOW will we maintain the separation of powers only answer, as no external safeguards would suffice, is between branches that the Constitution requires? The The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 76 © 1999 Marshall R. Overstedt
  • 77. that the government must be internally structured so that administrators the constitutional means and motivation to the branches check and balance each other. resist the others’ encroachments. ——————————————————————— Whatever the method, it must reflect the importance of the defense and the potential damage of successful All legislative powers herein granted shall be vested in a encroachment. Ambition must be used to counteract Congress of the United States, which shall consist of a ambition. The individuals’ interest must be connected with Senate and House of Representatives. Article I, Section 1 one of the United States Constitution the constitutional rights of the place. The executive power shall be vested in a President of the It may reflect human nature that such measures are United States. needed to control government abuses. But government Article II, Section 1 [1] one of the United States Constitution itself is the greatest of all reflections on human nature. If The judicial power of the United States shall bed vested in one Supreme Court, and in such inferior courts as the men were angels, no government would be necessary. If Congress may from time to time ordain and establish. angels were to govern men, neither external nor internal Article III, Section 1 [1] of the United States Constitution controls on government would be necessary. The great difficulty in framing a government to be administered by ————————————–– men over men is that, first, the government must be able to govern the governed and, second, it must be obligated I will try to place this important idea in a clear light so to control itself. that we can correctly see and study the governmental The primary control on the government is its principles and structure the convention has designed. dependence on the people but experience teaches that To effectively separate the powers – as all involved other precautions are also needed. This policy of agree to be essential to our liberty – it is evident that each revealing defects of “good” motives by opposite, rival branch must have a will of its own and be constituted so interests has been applied throughout the history of that its members wield as little power or influence as private and public affairs. We see it clearly displayed in possible in appointing others’ members. If adhered to, this subordinate distributions of power, where the aim is to “separation” principle would require that all appointments divide and arrange offices so that each becomes a check to major executive, legislative and judiciary offices be on the other by using officials’ personal interests (e.g., drawn from the same “pool” of authority – namely, the continued employment in government) to guard public people – operating through unconnected channels. rights. Perhaps constructing the several branches would be They apply just as effectively in maintaining “borders” easier in practice than in contemplation, but it would entail between the upper levels of government. But we cannot some difficulties and some additional cost. Therefore, give to every branch equal powers of self-defense. some deviations from the separation principle must be Republican governments are necessarily dominated by expected. the legislative authority. The way to check and balance In organizing the judiciary branch in particular, it might power within the legislature is to divide it into different be unwise to insist on total separation. Because members parts – we call them “Houses” – and give each a mode of must possess unique qualifications, primary consideration election and principles of operation as unconnected as should be to use the selection process that secures those their common functions and dependence on society will qualifications. Moreover, the “permanent” tenure of admit. And even these safeguards against intra-legislative judicial appointments will destroy all sense of dependence encroachment may not be enough. on the authorities (the President and Senate) conferring As the weight of legislative powers requires that they them. be divided, the weakness of the executive may require ——————————————————————— that it be fortified. An absolute power to reject – “veto” – The judges, both of the Supreme and inferior courts, legislative action seems, at first glance, the executive’s shall hold their offices during good behavior, and natural weapon or “check” on legislators. But it may not shall, at stated times, receive for their services a be safe or, by itself, sufficient. On ordinary questions it compensation which shall not be diminished during might not be applied firmly enough to assure safety but their continuance in office. Article III Section 1 [1] of the United States Constitution when legislative action is in the right, it might be abused. May not the lack of an absolute executive veto be filled [The President] shall have power, by and with the advice by some “measured” connection between the relatively and consent of the Senate, to … appoint … judges of the weak executive and the weaker chamber (the Senate) of Supreme Court, and all other officers of the United States the more powerful legislature, which may thus be led to whose appointments are not herein otherwise provided for, and which shall be established by law … support the executive’s constitutional rights without Article II Section 2 [2] of the United States Constitution compromising or endangering its own? If the principles supporting these observations are just, as I believe they ————————————————————————————— are, we should apply the “veto” principle to both the State It is equally evident that each branch’s members and federal constitutions. But if the federal law does not should be as little dependent as possible on the others for exactly conform to the State laws, the States will not be salaries and other rewards. Without financial able to pass the test. independence, the president’s and judges’ independence There are two more interesting considerations peculiar in other respects would be merely nominal. to the proposed federal system. But the best way to prevent concentration of executive, 1. In a single-tiered republic (i.e., without the second legislative and judicial powers in one branch is to give “State” level of authority that typifies America), all power to administer the central government is surrendered by The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 77 © 1999 Marshall R. Overstedt
  • 78. the people and usurpations are controlled by dividing the This view of the subject proves to all true friends of government into distinct, separate parts. In America’s republicanism the wisdom of a federal system, as it “compound republic,” the people’s power is first divided shows that dividing the Union into disunited between two governments – federal and State – and then Confederacies will create dangerous majority factions and the portion of authority allotted to each is subdivided weaken security for all citizens' rights. Consequently, the among distinct, separate branches. This gives the stability and independence of one branch of the people’s rights a double security: (a) The different government, the only other security, must be governments control each other and (b) each is controlled proportionately increased. by itself. Justice is the purpose of government. It is the purpose 2. In a republic, it is vital to guard the society against of civil society. It always has been and always will be oppression by its rulers and by aggressive factions within pursued until it is obtained, or until liberty is lost. the society. Different classes of citizens necessarily have In a society where a strong faction can readily unite different interests. If a majority unites around a common and oppress the weak, anarchy will reign and even interest, the rights of the minority will be insecure. stronger individuals will be driven, by the uncertainty of There are only two ways to protect against this evil: (a) their condition, to submit to a government that can protect by creating an independent “community will” that the weak as well as themselves. Thus, in the first case, overrides that of the majority and (b) by composing the more powerful factions or parties will gradually come to society of so many diverse kinds of citizens that support government able to protect the weak and the assembling an unjust majority is unlikely and impractical. powerful. The first method exists in all governments ruled by There is no doubt that, should the tiny State of Rhode monarchs or unelected dictators. But this is an unreliable Island be separated from the Union and left to itself that security because a power that rules from outside the some power altogether independent of the people would society can impose unjust majority views on the minority soon be called for by the factions whose misrule would and turn them against both sides. make it necessary. The second method will be applied to the federal In the extended republic of the United States – and republic of the United States. While all power within it will among the many interests, parties and religious come from and depend on the people, the people will be denominations it embraces – it would be very difficult for a divided into so many parts, interests, and classes that majority to form around any principles other than justice there will be no majority combinations to threaten and the general good. And there would be less pretext to individual or minority rights. introduce into the government a will not dependent on the In a free government civil and religious rights must be people. protected equally. This protection derives from the It is as certain as it is important that the larger the multiplicity of each and from the territory and population society, the greater its capacity for self-government. the government administers. Publius. FEDERALIST No. 52 The House of Representatives Hamilton or Madison To the People of the State of New York: THE QUALIFICATIONS of those who will elect and fear that their constitutions can be changed to abridge those who will serve as Representatives will be the same their federal Constitutional rights. as in the largest house of each State legislature. The convention plan prescribes that … Defining the right to vote is basic to republican government. The convention, therefore, was required to [1] The House of Representatives shall be composed of define and establish this right in the Constitution. It could members chosen every second year by the people of the not leave it open for occasional regulation by Congress or several States, and the electors in each State shall have the qualifications requisite for electors of the most the State legislatures, which otherwise would have gained numerous branch of the State legislature. power over the Congress that belongs only to the people. To reduce the States’ different qualifications to one [2] No person shall be a Representative who shall not have uniform rule would probably have dissatisfied some of attained the age of twenty-five years, and have been them, as well as many delegates. seven years a citizen of the United States, and who shall The convention’s solution seems to be the best not, when elected, be an inhabitant of that State in which available. It must be satisfactory to every State, because he shall be chosen. it conforms to the standard they have already, or could, Article I Section 2 of the United States Constitution set themselves. It will be safe to the United States, because, being fixed by the State constitutions, the State These reasonable limitations open the door of the governments cannot change it and their citizens need not “House” to all men of merit, native or naturalized, young or old, poor or wealthy and of any religious faith. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 78 © 1999 Marshall R. Overstedt
  • 79. As to the “every-second-year” term for which occasional vacancies by electing new members, and in Representatives will be elected, two questions must be the rare event that might induce a new general election. considered: (1) the safety and (2) necessity of biennial The Irish parliament’s ability to protect its constituents’ elections. rights was limited by the crown’s control over the issues First. It is essential to liberty that the government have addressed. Recently those limits were eliminated and a common interest with the people and that the “House” eight-year terms established. No one knows what effect directly depend on, and have the loyalty of, the people. this might have. Only frequent elections can secure and guarantee this The Irish example throws little light on the subject. We dependence and loyalty. can only conclude that if the people are able to retain any How often elections must be held depends on a variety liberty, a two-year election cycle, and the connection it of connected circumstances. For guidance, we can turn to would create with their representatives, would bring them other nations' experience with representative bodies. unlimited freedom. The best available example is the British House of While they were British colonies, all of our own States Commons, which preceded the Magna Carta. The earliest enjoyed representation in at least one legislative house. records show that parliaments were required only to sit But election periods varied, from one to seven years. every year, not to be elected every year. These annual Should we infer, from the representatives’ spirit and sessions were at the discretion of the monarch, whose conduct before the Revolution, that two-year elections ambition often produced long, dangerous intermissions. would have endangered public liberties? To the contrary, As a remedy, a law was passed in the reign of Charles II the spirit we saw at the onset of the war, which swept that restricted the intermissions to no more than three away all obstacles to independence, proves that we years. On the accession of William III, when a revolution enjoyed enough freedom to gain a sense of its worth and took place in the government, the issue was more a hunger for more. This applies equally to the then seriously discussed, and it was declared that frequent colonies whose elections were least and most frequent. parliamentary sessions were a fundamental right of the Virginia was the first to resist Great Britain’s parliamentary people. Another statute, passed in the same reign, gave usurpations, and the first to publicly espouse the “frequently” a precise meaning: within three years after Declaration of Independence. the end of the former session. The last change, from Nevertheless, under the colonial government, three to seven years, was introduced early in the Virginia’s elections were septennial; further proof that Eighteenth Century. liberty is in no danger from biennial elections. From this it appears that, to assure a strong bond These examples lead us to conclude that: between representatives and constituents, Britain 1. The federal legislature will have only part of the considered three years the maximum allowable interval supreme authority vested in the British Parliament, between elections. And if we argue from the degree of the colonial assemblies and the Irish legislature. It British liberty even with seven-year terms, among other is a well-founded maxim that the greater the defects in the parliamentary constitution, we can be power, the shorter should be its duration and, assured that (given necessary reforms) reducing the conversely, the smaller the power, the more safely terms from seven to three years would so strengthen the we may extend its duration. people’s influence over their representatives that biennial 2. We have seen that the federal legislature will not elections, under the federal system, would not threaten only be restrained by its dependence on the people, the House of Representatives’ dependence on as are other legislatures, and (as others are not) it constituents. will be watched and controlled by several collateral Elections in Ireland, until recently, occurred entirely at assemblies. the crown’s discretion, and were seldom repeated except 3. With less power to abuse, the federal on the accession of a new prince or a similar event. The representatives can be less tempted on one side parliament that began under George I continued through and will be doubly watched on the other. his 35-year reign. Those representatives’ only Publius. “dependence” consisted in the people’s right to fill FEDERALIST No. 53 The House of Representatives – #2 Hamilton or Madison To the People of the State of New York: I am reminded of the observation that, “where annual No one will invite ridicule by pretending any natural elections end, tyranny begins.” If it is true that proverbial connection between the sun’s seasonal movements and sayings are generally based on reason, it is also true that, the length of time wherein human virtue can resist the once established, they are often applied to cases to which temptations of power. Happily for mankind, liberty is not their logic does not follow – such as the one before us. confined to any one point of time, but lies between The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 79 © 1999 Marshall R. Overstedt
  • 80. extremes that accommodate all the variations required by As to whether biennial elections are necessary or civil society's various situations and circumstances. useful, no man can be a competent legislator without a Elections of officers might be, as they occasionally certain degree of knowledge of subjects legislated. Some have been, daily, weekly, or monthly, as well as annual. If of this knowledge can come from information sources, but circumstances require a deviation from the rule on one most can come only from experience gained in office. side, why not also on the other? The period of service should, therefore, relate to the —–——————————————————— volume of practical knowledge needed to perform effectively. The House of Representatives shall be composed of In most states, the term of service in the largest members chosen every second year by the people of the legislative chamber is one year. The question then several States … becomes: would a two-year federal term supply Article I Section 2 [1] of the United States Constitution experience proportional to that gained in a one-year State term? In a single State, the knowledge requirement ———————————————————————–– applies to (a) laws that are uniform within it and with The electoral terms established for State legislatures’ which all citizens are more or less conversant, and (b) the most popular houses, like those for civil magistrates, vary general affairs within that relatively small territory, which widely. In Connecticut and Rhode Island, the periods are make up a major share of public attention and half-yearly. In the other States they are annual; in South conversation. Carolina, biennial – as proposed in the federal The great theatre of the United States presents a very government. different scene. The laws vary from State to State. Public Here is a range of four to one between the longest and affairs, modified by local interpretations and versions and shortest terms. Yet no one can prove that Connecticut or spread over a huge area, can only be learned in a central Rhode Island is better governed, or enjoys greater liberty, council from members from all parts. than South Carolina, or that either of these States is Yet the members should have some knowledge of the distinguished in these respects and by these causes from affairs and even the laws of all the States. States whose elections differ from both. How can domestic or foreign trade be uniformly In searching for the basic logic of this doctrine, I can regulated, taxes fairly and effectively collected, militias find only one that applies to our case. The important formed into armies without some acquaintance with the distinction Americans understand so well between a different governments’ unique circumstances? Constitution established by the people and unalterable by The most laborious task will be to properly inaugurate the government and a law established and only alterable the government and form a federal code. Every year, the by the government seems little understood and less first drafts will improve, become easier and fewer. For observed in any other country. new members, past government transactions will be Whatever entity holds the supreme legislative power ready, accurate information sources. With, Union affairs has always also controlled the power to change the form will become of greater public interest and more of government. Even in Great Britain, where political and intelligently discussed among citizens. And growing traffic civil liberty have been most discussed, and where we between States will spread mutual knowledge of their hear most about Constitutional rights, the Parliament’s affairs and help assimilate their manners and laws. authority, as regards the Constitution and ordinary Still, the business of federal legislation will so far legislative actions, is overriding and uncontrollable. exceed, in complexity and difficulty, that of any single Parliament has in several instances actually legislated State as to justify a longer period of Congressional changes in some of the government’s most fundamental service. articles. Most notably, it has, several times, changed the Another branch of knowledge important to federal election period. Most recently, it not only replaced a three- representatives is foreign affairs. In regulating our own year term with a seven-year interval but, by the same act, commerce they should be not only acquainted with added four years to its own term. treaties between the United States and other nations, but As a result of these abuses, election frequency has with those countries’ commercial policies and laws. They become the cornerstone of free governments seeking to should not be altogether ignorant of international law and guard liberty against the danger they present. its influence on domestic affairs. And though the House of Where no constitution dominates government, there Representatives will not directly participate, foreign can be no constitutional security as we know. Some other relations will often affect legislation and require its protection, therefore, is needed, and what better for fixing attention, sanction and cooperation. national sentiment and uniting patriotic endeavors than Some of this knowledge a man can acquire from his applying some simple time interval as a standard own library and some can come from public sources. But measure of dangerous political adventures? his best education will be through attention to those The simplest, most familiar applicable period was one subjects during actual legislative service. year, and hence the doctrine has been (laudably) If Congressional service is limited to only one year, the promoted. But what is the purpose of applying this distance that many representatives will need to travel, and measure to a government limited, as the federal the arrangements necessary to do it, might become government will be, by an overriding Constitution? Will not serious objections. Delegates to the existing Congress freedom be better protected by unalterably, cannot make this argument: though elected annually, their constitutionally-fixed biennial elections than by any re-election is considered almost “automatic.” interval set by some arbitrary power? The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt age 80 © 1999 Marshall R. Overstedt
  • 81. Representatives elected by the people would not be Were federal legislative elections to be annual, abuse governed by the same principle. A few members, as might become a serious issue, particularly in more always, will have superior talents and, by frequent re- remote States. Each house, as it must, judges its elections, become longstanding members and masters of elections, qualifications, and members’ vote returns. the public business. But the higher the percentage of new Whatever improvements experience may suggest to members, and the more limited the knowledge and simplify and accelerate the investigatory process, most of experience of the bulk of members, the more easily they a term could pass before an illegitimate member could be fall into snares those “old masters” will lay for them. This expelled. also applies to the relationship that will surely form All these considerations, together, justify affirmation between the House of Representatives and the Senate. that biennial elections will be useful to public affairs and A serious inconvenience of frequent elections is that the people’s liberty. fraudulent elections cannot be investigated and annulled Publius. in time to have due effect. FEDERALIST NO. 54 Apportioning Representatives and Taxes Hamilton or Madison To the People of the State of New York: MEMBERS of the House of Representatives will be Those on the other (Southern) side of the argument appointed according to the same rule that governs direct might say, “We believe that representation relates more taxes, based on the population of each State. directly to persons and taxation more directly to property. ———————————————————————–– But we deny that slaves are always ‘property’ and never persons. In truth, our laws view them as both: in some Representatives and direct taxes shall be apportioned respects, as persons; in others as property. In being among the several States which may b e included within forced to labor for a master, vendible by one master to this Union, according to their respective numbers, which another, deprived of liberty and physically punished at shall be determined by adding to the whole number of free someone else’s will, slaves may seem below human rank persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all and classed with animals which are legally defined as other persons [i.e., slaves] … property. Article I Section 2 [3] of the United States Constitution “On the other hand, in being protected in life and in limb against violence by all others including their masters ———————————————————————— and punishable for violence they commit, slaves are Few will argue that State population should not be the legally members of society. basis for apportioning representatives or taxes, though “The federal Constitution, therefore, correctly views the principles involved are different. them as persons and property. This is because the law As to appointing representatives, the rule refers to the has transformed the negroes into objects of property to people’s personal rights, with which it connects naturally be made part of the numbers to be computed. We also and universally. grant that, if the laws were to restore their rights, they On the matter of taxes, it refers to the proportion of could no longer be refused equal representation. wealth, which it in no way precisely measures; in fact, in “In another light, all agree that numbers are the best most cases, it is an ill-fitting concept. But even with its basis for measuring wealth for taxes and population for imperfections, the convention delegates apparently found representative districting. Would the convention have it the least objectionable of available options. Besides, the been inconsistent had it subtracted slaves from the list of American people have generally sanctioned the principle. inhabitants when mapping representative districts, and The objection is to applying the number of slaves in then added them when calculating tax liabilities? Would formulating the number of seats each State will have in the Southern States agree to a system that considers the Congress. Slaves, objectors will probably say, are their slaves financial assets when imposing burdens but property, not persons and should be used to estimate as something less when bestowing benefits? Might we taxes on property, but excluded from representation to be not be appalled at those who (a) reproach the South for determined by a census of persons. considering human beings as property and then (b) themselves contend that the government of all the States ———————————————————————– should consider them property?” The answer might be that, in none of the States that The actual enumeration [census] shall be made within have them, slaves are not included when apportioning three years after the first meeting of the Congress of the seats. They neither vote themselves nor increase their United States, and within every subsequent term of ten years, in such manner as they shall by law direct. masters’ votes. How, then, should they relate to federal Article I Section 2 [2] of the United States Constitution representation? In subtracting them altogether, the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt age 81 © 1999 Marshall R. Overstedt
  • 82. Constitution would follow the very laws generally citizen’s vote for a representative will often influence other considered the proper guide. voters’ choices and, thereby, make property rights a This objection is countered by observing that a factor in electing representatives. fundamental principle of the proposed Constitution is that, A State can exert no such influence over other States. as the number of each States’ representatives will be The richest State in the Confederacy could not sway the determined by a federal rule based on its population, choice of a single representative in any other State. Nor each State has the right to decide what proportion of the will the larger, richer States have any advantage beyond population to apply. their delegations’ justifiably greater voting strength. The qualifications for the right of suffrage vary among This is one factor that makes the new Constitution the States. In some, the differences are significant. Every different from the confederation governments wherein the State constitution excludes a certain proportion of value of federal resolutions depends on their constituent inhabitants that will be included in the census the federal states' responses to and support of federal initiatives. As Constitution prescribes for apportioning representatives. a result, those “parts,” though casting equal votes, have To this the Southern States might retort that the unequal power in activating or stifling those actions. principle the convention laid down requires that the Under the proposed Constitution, federal acts will take States’ policies toward their citizens be disregarded; effect without the States’ intervention, but merely on the consequently, if a State so chooses, the full number of its majority of votes in Congress. Consequently each vote, slaves should be included in the census with other from a big or little, rich or poor State will have equal disenfranchised inhabitants. weight. The only exception might result from the personal But those who would benefit by this would be its least character or prestige of an outstanding member, vigorous supporters: They ask only that both sides accept regardless of his district’s size or strength. the Constitutional compromise that regards a slave as an This is how an advocate for the Southern interests inhabitant minus two-fifths the value of a man. might reason on this issue and, though strained on some Another perspective: Up to now we have presumed points, on the whole it justifies my support of the formula that representation relates to persons only, and not at all for representation the convention has established. to property. But is this fair? In one way, establishing one measure for Government exists to protect both property and representation and taxation will be useful. As the individual people. Both may therefore be considered accuracy of the census Congress must conduct will rely constituents of the House of Representatives. on the States’ disposition, if not on their cooperation, we On this principle, several States (notably New York) should give them as little incentive as possible to “adjust” designate a government branch the “guardian” of their numbers. property, elected by the part of society most interested in If their share of representation alone were to be governmental purpose. The federal Constitution avoids governed by this rule, they would want to exaggerate their this policy and commits property and personal rights to counts. If their share of taxation alone were the issue, the the same hands. But we should pay some attention to opposite temptation would prevail. By applying the rule to which hands are responsible for property. both representation and taxes, the States will have There is yet another reason votes in the House of opposite interests, which will control and balance each Representatives should be proportioned to the States’ other, and produce the required impartiality. comparative wealth. States, unlike individuals, do not hold Publius. influence over each other based on relative wealth. A rich The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt age 82 © 1999 Marshall R. Overstedt
  • 83. FEDERALIST NO. 55 Membership of the House of Representatives Hamilton or Madison To the People of the State of New York: JUDGING BY the passion of its critics, this is the most overpowers reason. Even if every Athenian had been a carefully-studied article in the Constitution Their main Socrates, every Athenian assembly would have been a charges are that House members (1) will be too few to mob. safely manage public affairs, (2) will not know enough of We should remember our arguments for biennial the voters’ circumstances, (3) will try to elevate the few by elections. For the same reason the House's limited depressing the many and (4) will not increase in number powers and the control of the State legislatures justify proportionally as the population grows. relatively infrequent elections, we need fewer No political problem is more difficult to solve than one Representatives than if they had total legislative power. relating to the membership of a representative legislature. That in mind, let us weigh the objections against the Nor is there any point on which the States disagree more, proposed smaller membership. as indicated by the many ways their assemblies differ Some say we cannot trust so few – 56, at the outset – from each other and the way they apportion seats to with so much power. But … within three years we will take population. Ignoring differences between the smallest and a census, which may add one seat for every 30,000 largest States (Delaware, whose largest chamber has 21 inhabitants. Then there will be a census every ten years, members versus Massachusetts’ 300 to 400) there are presumably adding more representatives. big variances between those of similar size. The first census, at the rate of one seat per 30,000 1 Pennsylvania’s “House” is /5 the size of Massachusetts’. population, could raise the membership to at least 100. 3 New York, with 20% more people than South Carolina, Factoring negroes as /5 of a free inhabitant, the United 1 has /3 as many representatives. The disparity between States could, if it does not already, have three million Rhode Island and Georgia or Delaware is just as great. people. In 25 years, according to the computed growth In addition, the ratio between representatives and rate, there will be 200 representatives; in 50 years, 400. people should not be the same whether population is That number, I believe, will end fears of Congressional large or small. Given the same proportion as Rhode smallness. Island, Virginia would have 400 to 500 State I expect that House membership will be expanded representatives today, and 1,000 in 20 to 30 years. On from time to time as the Constitution prescribes. But the the other hand, Pennsylvania, given the same ratio as real issue is whether the temporarily small number is Delaware, would have a popular assembly of to seven or dangerous to public liberty. eight members. Can 65 members for a few years and 100 or 200 for a –——————————————————————— few more protect the United States’ legislative power? I personally have faith that the American people will not Representatives and direct taxes shall be apportioned elect, and every second year re-elect, 65 or 100 men among the several States which may b e included within this Union, according to their respective numbers, which ready and able to plan and inflict tyranny or treachery. I shall be determined by adding to the whole number of free cannot conceive that the State legislatures, with so many persons, including those bound to service for a term of reasons to beware and so many ways to act, would fail to years, and excluding Indians not taxed, three-fifths of all detect or defeat a Congressional conspiracy against our other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of liberties. the United States, and within every subsequent term of ten Nor can I imagine that there are or will be 65 or 100 years, in such manner as they shall by law direct. The American men able to present themselves for election number of Representatives shall not exceed one for every and, within two years, betray their trust. How thirty thousand, but each State shall have at least one circumstances, time, and a larger population might Representative … Article I Section 2 [3] of the United States Constitution change our country, I cannot predict. But from today’s conditions and those likely to arise in the foreseeable –——————————————————————— future, I pronounce the liberties of America safe in the Nothing makes less sense than basing political number of hands the Constitution proposes. calculations on arithmetic. Sixty or 70 men can be more From where could danger arise? From foreign bribes? properly trusted with a given degree of power than six or If foreign gold could so easily corrupt our federal officials, seven. But it does not follow that, proportionally, 600 or how have we become a free and independent nation? 700 would do a better job. And if we extrapolate to 6,000 The Congress which governed through the Revolution or 7,000, the argument should be reversed. was smaller than its successors will be. It was not elected The truth is that we need a certain minimum number to by or accountable to the citizens. Though appointed from protect the benefits of free consultation and discussion year to year, and recallable at pleasure, members and “complicate” abuse of power. And the maximum generally served three years, and before ratification of the number should be limited to avoid confusion and over- Articles of Confederation, for a longer term. They always government. In all very large assemblies, passion always met in secret and had total power to deal with foreign The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt age 83 © 1999 Marshall R. Overstedt
  • 84. nations. Through the war, they wielded more power than our future representatives, hopefully, ever will. No Senator or Representative shall, during the time for And from the value of the prize at stake and the which he was elected, be appointed to any civil office eagerness of the British to keep it, we may suppose that under the authority of the United States, which shall have means other than military force were never considered. been created, or the emoluments whereof shall have been increased during such time; and no person holding any Yet we know through experience, the Congress did not office under the United States shall be a member of either betray the public trust. House during his continuance in office. Is the danger envisioned from the President, the Article I Section 6 [2] of the United States Constitution Senate, or both? How? I do not believe their compensation will, unless all the Representatives are Therefore, the only offices they can attain are those that already corrupted, support such purposes. Nor can their become vacant by ordinary attrition. To suppose such private fortunes. appointments would suffice to corrupt the guardians of Their only means to corrupt will be through the people, elected by the people, is illogical. Friends of appointments. And sometimes we are told that the liberty who make such arguments injure their own cause. President will exhaust this source in trying to seduce the Mankind has enough depravity to require some Senate. Will the other House’s fidelity be the next victim? suspicion and distrust, and other qualities to justify The improbability of a conspiracy between the executive, respect and confidence. More than any other form of legislature, et. al. – each with different Constitutional government, republicanism presupposes that they exist, structures and full accountability to the people – should in quantity. Were the pictures drawn by the politically quiet that fear. jealous accurate likenesses of the human character, And, fortunately, the Constitution provides yet another there would not be enough virtue among us for self- safeguard: rendering members of Congress ineligible for government, and nothing less than tyranny could keep us civil offices that may be created and for pay raises during from destroying and devouring one another. their terms. Publius ––——————————————————————— FEDERALIST No. 56 Membership of the House of Representatives – #2 Hamilton or Madison To the People of the State of New York: SOME CHARGE that the House of Representatives' for the common defense and general welfare of the United membership will be too small to know its constituents’ States; but all duties, imposts and excises shall be uniform throughout the United States; interests. This idea apparently comes from comparing the Article I Section 8 [1] of the United States Constitution proposed House membership with the United States’ No capitation or other direct tax shall be laid, unless in great size, population and diverse interests, without proportion to the census or enumeration hereinbefore considering the unique features that will distinguish directed to be taken. Article I Section 9 [4] of the United States Constitution Congress from other legislatures. So the best retort is a No tax or duty shall be laid on articles exported from any brief explanation of these peculiarities. State. Of course, a representative should be familiar with his Article I Section 9 [5] of the United States Constitution constituents’ interests and circumstances. But the rule applies only to issues related to his authority and ———————————————————————— responsibilities: commerce, taxation, and the militia. In addition, State tax laws, framed by representatives Effectively regulating commerce requires a great deal from every part – will be an accurate information source. of State and local information, but conveying and relating Every State enacts tax regulations that leave little more it to the federal councils would actually require very few for the federal legislature to do than to review and refine informed members. them in one general act. Most taxes will consist of duties on commerce, and One skilled person, using only local codes, could this also requires few representatives. Controlling internal compile many subjects into one tax law for the whole collections requires broad State knowledge, but this, too, Union. Writing internal taxes to cover all the States will can be accumulated and conveyed by a few intelligent demand simple, not complex, information. men elected from its various parts. Divide the largest To fully understand the State codes’ value to federal State into 10 or 12 districts, and none will have unique tax legislation, imagine our State divided into districts, interests unknown to its representative. each with its own legislative authority. When similar State ––––————————————————————————————— laws are called for, the local legislators’ work in framing taxes will cut the task and the number of representatives [D]irect taxes shall be apportioned among the several needed to do it. The Congress will also benefit from its States which may b e included within this Union, according to their respective numbers … members’ service in State assemblies, where local Article I Section 1 [3] of the United States Constitution knowledge and interests are collected for easy The Congress shall have power to lay and collect taxes, conveyance to the United States capital. duties, imposts and excises, to pay the debts and provide ––—–————————————————————————————– The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt age 84 © 1999 Marshall R. Overstedt
  • 85. Industrial and social progress, as years pass, will help To provide for calling forth the militia to execute the laws of unify the States, but not the States’ internal affairs. Today, the Union, suppress insurrections, and repel invasions. few are advanced in the kinds of industry that make a Article I Section 8 [15] of the United States Constitution nation diverse and complex. But these enterprises will To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be ultimately result from their future population growth and employed in the service of the United States, reserving to social progress and will then require more the States respectively the appointment of officers, and the representatives. Accordingly, the convention has tied authority of training the militia according to the discipline membership in the House of Representatives to prescribed by Congress. population growth. Article I Section 8 [16] of the United States Constitution Consider Great Britain’s experience. The populations of England and Scotland exceed eight million, who are –——————————————————————— represented by 558 seats in the House of Commons. Of Our taxation arguments apply even more forcefully to 1 these, /9 are elected by 364 persons and half by 5,723. the militia. However rules of discipline may differ between The half thus elected, who do not even live among the States, they are uniform within them and depend on people at large, cannot add either to the people’s security conditions that can differ little from part to part. The logic against the government or to the legislature’s knowledge that proves the need for a relative few representatives of their circumstances and interests. On the contrary, we supports the argument about the extent of know that they more often speak for the executive class representatives’ knowledge and the time needed to than for popular rights: they do not reside among their acquire it. constituents, are barely connected with them and know Local knowledge is necessary and difficult because of little of their needs. different interstate, not intrastate, laws. Internally, the laws With all these concessions, only 279 persons will and interests are the same, so a few can learn what is protect the safety, interests, and happiness of eight needed to represent them. Given simple, uniform million. That is, one representative will protect and speak interests and affairs, knowing one part is to know all, and for 28,670 constituents – in an assembly under the full one person from any section can ably represent the whole weight of executive influence and with authority overall State. legislative issues in a highly complex nation. Still, freedom But the different States’ laws are very dissimilar and is largely unscathed and British code defects are only interrelated to federal legislative issues, all of which minimally blamed on the legislature’s ignorance of the federal representatives should know and understand. So, people’s needs. while a few representatives from each State may bring From this example, it seems we can trust that one the Congress due knowledge of their own States, each representative for every 30,000 inhabitants will safely and needs to learn a great deal about the others. ably protect our interests. Publius. FEDERALIST No. 57 Will Congress Favor the Few Over the Many? Hamilton or Madison To the People of the State of New York: SOME CHARGE that the House of Representatives conforms to these principles without bias to the rights and will attract members who will sacrifice the many to benefit aspirations of all citizens? the few. Of all objections to the Constitution, this is the most extraordinary. It attacks a pretended oligarchy, but ———————————————————————– strikes at the root of republican government. Representatives and direct taxes shall be apportioned Every constitution aims, or should aim, to empower among the several States which may be included within this Union, according to their respective numbers, which rulers with the most wisdom to discern, and the most shall be determined by adding to the whole number of free virtue to pursue, the society’s common good, and then to persons, including those bound to service for a term of take the most effective measures to keep them virtuous years, and excluding Indians not taxed, three-fifths of all while they hold their public trust. other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of Election of rulers is characteristic of republican the United States, and within every subsequent term of ten government. Its means for preventing their decadence years, in such manner as they shall by law direct. The are many and various; most effective is limiting terms of number of Representatives shall not exceed one for every office to maintain a proper responsibility to the people. thirty thousand, but each State shall have at least one Nothing in the organization of the House violates Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose republican principles or favors the elevation of the few at three; Massachusetts, eight; Rhode Island and Providence the expense of the many? Every particular strictly Plantations, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 85 © 1999 Marshall R. Overstedt
  • 86. Maryland, six; Virginia, ten; North Carolina, five; South What then is the meaning of the “few-at-the-expense- Carolina, five; and Georgia, three. of-many” objection? What can we say to those who Article I Section 2 [3] of the United States Constitution profess zeal for republicanism but impeach its basic ———————————————————————— principle; who pretend to champion the people’s right and Who will elect the federal representatives? The great ability to choose their rulers, but will only support those body of the people of the United States. The same people who will infallibly betray the trust committed to them? who elect all the State legislatures. Were the objection read by one who had not seen the Who will be elected? Any citizen whose merit Constitution’s prescription for electing representatives, he recommends him to his country’s esteem and confidence. could only suppose that it linked some unreasonable No qualification of wealth, birth, religious faith, or civil property qualification to the right of suffrage, or that profession is allowed to hamper the people’s judgment or eligibility was reserved for particular persons, families or frustrate their will. fortunes – or at least that it conflicts with the State If we examine the lives and careers of men likely to constitutions’ election clauses. win their fellow citizens’ votes, we will find reasons to The only real difference between the State and federal assure their fidelity to the electorate. cases is that each United States representative will be First, as they will have been honored by their selection elected by 5,000 or 6,000 citizens; their State 1 to candidacy, we can presume that they display qualities counterparts by /10 as many. Should we pretend this that entitle them to it and reflect a sincere respect for difference justifies preference for the State governments, public service. and abhorrence for the federal? If this is the objectors’ Second, they will enter public service with their point, it deserves to be examined. constituents’ affection. We all respond to symbols of Is it supported by reason? Then the “reason” would be honor, favor, esteem, and confidence which bode that 5,000 or 6,000 citizens are less able to choose a fit grateful, benevolent future service. Moreover, ingratitude representative, or more corruptable by an unfit one, than is unfailingly publicly noticed and discussed. 500 or 600. Reason, in fact, assures us that the greater Third, the honors and distinctions that bind number would most likely find the right candidate and representatives to their constituents would weaken rapidly would also be less likely to be distracted from him by without the pressure of frequent elections. intrigues of the ambitious or bribes from the rich. Fourth, the House of Representatives is designed to Would the result of this idea, if reasonable, be constantly remind members of their dependence on the acceptable? If we say that no more than 500 to 600 can people. Before the thrill of election fades into the routine vote en bloc, shouldn’t we refuse to allow them to choose of wielding power, those frequent elections, unless they their public servants whenever government operations do use it to satisfy the voters’ expectations will force them to not require that many? look ahead to the moment their power will cease. Is it supported by facts? In the British House of Fifth, the House rules will restrain them from Commons, real representation is very near one seat per oppressive measures; i.e., they can make no law that will 30,000 inhabitants. Besides many powerful causes not affect themselves, their friends and all of society. favoring the British elite, a candidate for county This has always been one of the strongest bonds representative must own real estate clearly valued at between rulers and the people. It unites them in a rare £600 sterling per year. To represent a city or borough, communion of interests and sentiments without which requires a £300 estate. Anyone voting for a county government degenerates into tyranny. representative must have a freehold estate with annual If someone asks, what will restrain representatives value, at contemporary rates, of over £20 pounds sterling. from favoring themselves and one class of citizens, I Notwithstanding these requirements and some very answer: the genius of the whole system; the nature of unequal British laws, no one can say our representatives just, constitutional laws; and above all, the vigilant and have elevated the few at the expense of the many. manly spirit which actuates the people of America, a spirit Much nearer to home, the New Hampshire districts in which nourishes freedom, and in return is nourished by it. which senators are directly elected are nearly as large as If this spirit ever tolerates a law not binding on both the her proposed Congressional districts. Massachusetts’ are legislature and the people, the people will be ready to even larger and New York’s bigger still. In New York, tolerate anything but liberty. That will be the heart of the calculating total Congressional seats at 65, Assembly relationship between the House of Representatives and members for New York and Albany cities and counties its constituents. Duty, gratitude, interest and ambition are elected by nearly as many voters as will be entitled to itself are the chords that will bind the elected to the great representatives. In some senatorial districts and counties, mass of the people. representatives are voted for by each voter at once. If the All these restraints may be unable to control men’s same voters can choose four or five representatives at caprice and wickedness. But they are all that government once, they must be able to choose one. will allow and prudence can devise. They are the genuine, Pennsylvania is another example. Some counties, intrinsic means republican government uses to protect the which elect her State representatives, are almost as large people’s liberty and happiness. And they are the means as her federal districts will be. Philadelphia has 50,000 to on which every State government relies to attain these 60,000 souls. It will therefore form nearly two federal ends. districts – though it comprises only one county – where each elector votes for each of its State representatives. An even better example: the whole city actually elects one The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 86 © 1999 Marshall R. Overstedt
  • 87. executive council member, and this is true in all other proved less worthy of their offices than those appointed in counties. other States by small population segments? Do not these facts prove the fallacy being used against But there are stronger cases than any I have noted. In the federal House of Representatives? Have the senators one chamber of the Connecticut legislature, each of New Hampshire, Massachusetts, and New York, or the member is elected by the whole State. So are several executive council of Pennsylvania, or the members of the governors. I challenge any man to show that one of these Assembly in the two last States displayed any peculiar “diffusive” modes of choosing people’s representatives inclination to sacrifice the many to the few, or in any way tends to elevate traitors and undermine liberty. Publius. FEDERALIST No. 58 Congressional Expansion to Meet Population Growth Madison To the People of the State of New York: THE remaining charge against the House supposes In the “People’s chamber,” larger States will have most the number of seats will not rise as population growth weight. The “States’ chamber” will favor the smaller. From may demand. If supported, it would have great weight. this we can infer that larger States will advocate But this paper will show that it reflects a partial view, increasing “their” chamber’s size and weight. discolored by jealousy. It so happens that the total votes of only four of the 1. The objectors forget that, in assuring membership largest States will comprise a majority in the House. growth, the plan complies with the State constitutions. Should the small States’ representatives oppose an The number to prevail at the first session is limited to orderly membership adjustment, a few States could join only three years. Every ten years there will be a census of to overrule them. Such a coalition, notwithstanding inhabitants. The purposes are to adjust the apportionment rivalries and local prejudices that might normally preclude of representatives to the number of inhabitants (with the it, would occur whenever justified by Constitutional exception that each State have at least one seat) and to principles. add members at specified times, with the limitation that Some may believe that like motives might drive the the total shall not exceed one for every 30,000 population. Senate to an opposing coalition, and defeat the House of –——————————————————————— Representatives’ just measures. This is probably the source of the most serious fears of the numerous- The actual enumeration shall be made within three years representation advocates. But it vanishes on close after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such inspection. manner as they shall by law direct. The number of The following reflections, I believe, will conclude Representatives shall not exceed one for every thirty argument on this point. Notwithstanding the two thousand, but each State shall have at least one chambers’ equal legislative authority (except originating Representative … Article I Section 2 [3] of the United States Constitution money bills) the House, when supported by the more powerful States and speaking the true sense of a majority ———————————————————————— of the people, will have the largest number of members. Some State constitutions are silent on this. Others In any question demanding firmness, this will be a major agree with the federal Constitution, that the most effective advantage, which will be strengthened when the protection is a simple, direct provision. Representatives’ arguments are supported by right, 2. Generally speaking, the numbers of State reason and the Constitution. representatives have at least kept pace with population Further, there are several middle-sized States which, growth, and legislatures have been as ready to comply as though likely to align themselves with the smaller the voters have been to call for compliance. delegations, are too small in area and population to lead 3. A feature in the Constitution insures that the people opposition to their legitimate objectives. Hence it is not and their legislators will attend to the need for accurate certain that a majority of votes, even in the Senate, would apportionment: The specification that one house will oppose proper additions in House membership. represent the citizens, the other the States. It is not too early to note that Senators from new States ——————————————————————–– may be won over to the Representatives’ just views by an obvious expedient. As these States’ populations will grow The House of Representatives shall be composed of rapidly for a long time, they will advocate frequent members chosen … by the people of the several States … reapportionment to the number of inhabitants. The large, Article I Section 2 [1] of the United States Constitution powerful States will naturally make reapportionment and ——————————————————————— augmentation conditions of each other, while the fastest- The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 87 © 1999 Marshall R. Overstedt
  • 88. growing States’ Senators will argue for augmentation in fewer the men who actually wield power, and the more support of their interest in reapportionment. passion will overpower reason. Also, the larger the These “checks” seem sufficient to allay all the doubts number, the greater the proportion of members with and fears surrounding the growth issue. But they cannot limited intellect and ability: the characters on which those subdue unjust campaigns by smaller States, or their few activists will exert their eloquence and influence. disproportionate influence in the Senate. Still the larger In ancient republics, where all the people assembled in States have a constitutional advantage that will allow person, one artful orator or statesman could rule with the them to achieve their just goals. The House of authority of a king. On the same principle, the larger a Representatives can refuse, and can alone propose, representative assembly, the more it will take on the funds required to support the government. character weakness of those popular meetings. ———————————————————————————–– Ignorance will be the dupe of cunning, and passion the slave of sophistry and clever oration. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur The people can never err more than in supposing an with amendments as on other bills. over-large popular assembly to prevent a government of a Article I Section 7 [1] of the United States Constitution few. Experience teaches that every redundant member they add works against their interests. The government —————————————–– may seem more democratic, but its animating soul will be more oligarchic. The machine will be bigger, but the They, in short, hold the purse – that powerful power sources will be fewer and often more secret. instrument by which, in the history of the British Some say that more than a majority should be required Constitution, naive and humble representatives of the for a quorum and, in important cases, for a decision. This people gradually expanded their spheres of activity and precaution may, indeed, provide extra protection for some importance and, finally, overpowered all the other vital ends and help prevent hasty, partial measures. But branches’ overgrown prerogatives. This power over the whenever justice or the general good require new laws or purse may, in fact, be the most complete, effective other action, it would reverse the fundamental principle of weapon any constitution can give the people’s free government. The majority that would no longer rule; representatives to redress grievances and enact just, power would shift to the minority. beneficial measures. Were the defensive privilege limited to issues favoring Further, the smaller the number of men in power, and “special” factions, an interested minority might use it to the more permanent and prominent their stations, the screen themselves from fair and just sacrifices for the stronger their personal interests in whatever concerns the general good or, in particular emergencies, to extort government. We credit the British House of Commons’ unreasonable favoritism. continual triumph over the other government branches Lastly, it would aid and abet secessions; a practice whenever it has applied the power of a money bill. In such seen even in States where only a majority is required, that confrontations under our system, neither the Senate or subverts all principles of order and regular government the President can amass enough power to resist a House and leads more directly than any other to public of Representatives supported by constitutional and convulsions and the ruin of popular governments. patriotic principles and the power of the purse. One other observation, I believe, requires attention. In Publius. all legislative assemblies the larger the membership, the FEDERALIST No. 59 Congress’ Power to Regulate its Elections Hamilton To the People of the State of New York: THE PLAN specifies that “The times, places, and No election law can be framed and included in the manner of (electing) senators and representatives shall Constitution that can always apply to every situation. be prescribed in each State by the legislature thereof; but Therefore, I believe that a discretionary power over the Congress may, at any time, by law, make or alter elections should exist somewhere. Others, I presume, such regulations, except as to the places of choosing readily concede that this power can be assigned in only senators.” [Article I Section 4 [1] of the United States Constitution] three ways: (1) wholly in the national legislature, (2) wholly This provision has been criticized by many, yet it is in the State legislatures or (3) primarily in the States and one of the most defensible articles in the plan. After all, ultimately in the federal sphere. every government should contain in itself the means to The convention, with reason, preferred the third option. preserve itself. Even if warranted, we will regret any It assigned regulation of federal elections for the federal departure because any departure could sow the seed of government, first, to the State legislators, which, when no future weakness, perhaps anarchy. improper views prevail, should be most convenient and The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 88 © 1999 Marshall R. Overstedt
  • 89. satisfactory. But it gave Congress a right to intervene in ———————————————————————— extraordinary, hazardous circumstances. The national government has more to fear from the State legislatures’ power over House elections than their It is evident that an exclusive State power to regulate authority to appoint Senators. Senators are to serve for national elections would leave the Union's very existence six years and one-third of the seats will be vacated and entirely at the States’ mercy. They could annihilate it by refilled every two years. No State can have more than two failing to nominate, elect or employ persons to administer Senators. A Senate quorum will consist of sixteen federal affairs. It is pointless to say that this could not members. As a result, it is not possible for a few states – led by, happen. To allow this risk to exist without a remedial say, prominent, ambitious legislators – to conspire to provision would be unpardonable. And there is no reason interfere with Senatorial appointments and thereby annul to incur that risk. or impair the body’s existence. Nor need we fear a If we presume that abuses of power will occur, it is as general, permanent coalition of States arising from public fair to presume them on the State governments’ as on the disaffection because it will either never exist or will general government’s part. And it is more practical to trust proceed from general-government incompetence. the Union with its own care than to any other hands. If The entire House of Representatives will be elected abuses of power are to be hazarded on one side or the every two years. If the State legislatures had sole power other, it is most sensible to hazard them where the power to regulate these elections, and the leaders of a few would naturally reside. important States conspired against it, each would be a Suppose the Constitution empowered the United national crisis that could dissolve the Union. I believe that States to regulate State elections. Would anyone not each State’s need to be federally represented will prevent condemn it as an unwarrantable transfer of power to such abuse. But this security will seem weak to those who deliberately destroy the State governments? It would be recognize the difference between the people’s interests as unjust as subjecting the national government’s and their local rulers’ attachment to their offices’ and existence entirely to the State’s pleasure. As far as power. possible, each should take responsibility for its own ––——————————————————————— preservation. One could argue that the plan for appointing the The House of Representatives shall be composed of national Senate fully incurs the same danger as exclusive members chosen every second year by the people of the State-legislature power over House elections, pointing out several States, and the electors in each State shall have that the States might refuse to appoint Senators and the qualifications requisite for electors of the most numerous branch of the State legislature. thereby kill the Union. So far as this may threaten the Article I Section 2 [1] of the United States Constitution Union, it is an evil, but one we could not avoid without The American people may feel a patriotic empathy with denying the States a national political role. Many would the Union at the same time covetous State officials, see that as a dereliction of duty that would deprive the backed by strong factions, decide to challenge it. We can States of the protection Senate appointments will afford already see such conflicts in some States. them. The scheme of separate confederacies, which would ——————————————————————— be fruitful grounds for ambition, will always attract influential characters in the State administrations who The Senate of the United States shall be composed of two Senators from each State, chosen by the place their own advancement above the public good. legislature thereof for six years; and each Senator Armed with the exclusive power to regulate national shall have one vote. elections, a few of them in important States (where the Article I Section 3 [2] of the United States Constitution temptation is always strongest) might destroy the Union Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may using some casual public dissatisfaction to interrupt be into three classes. The seats of the Senators of the first selection of the federal House of Representatives. class shall be vacated at the expiration of the second year, A firm Union under a strong, efficient government will of the second class at the expiration of the fourth year, and probably inspire jealousy in European nations. Indeed, of the third class at the expiration of the sixth year, so that intrigues to subvert it will sometimes originate or be one-third may be chosen every second year; and if vacancies happen by resignation or otherwise during the supported there. We should commit the Union’s recess of the legislature of any State, the executive thereof preservation to protect those with an immediate interest in may make temporary appointments until the next meeting the faithful and vigilant performance of the trust. of the legislature, which shall then fill the vacancies. Article I Section 3 [2] of the United States Constitution Publius. FEDERALIST No. 60 Congress’ Power to Regulate Elections – #2 Hamilton To the People of the State of New York The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 89 © 1999 Marshall R. Overstedt
  • 90. SOME ALLEGE that the Union might manipulate election, the composition of one would counteract that of elections to benefit some favorite class to the exclusion of the other. others, by confining polling places to places only “friendly” No one could seize control of Senatorial appointments voters could reach. without the State legislatures’ cooperation, which makes We cannot imagine that such violent, extraordinary immaterial the question whether they or the federal conduct could happen in our enlightened national government run the elections. councils. If it did, it would cause an immediate popular But what would be the purpose of planting an elitist revolt, led by the State governments. bias in the federal legislature? Would it be used to Moreover, the major differences between the branches advance one industrial or political sector over the others? of the proposed new government, and the ways in which Would it favor the landed, moneyed, mercantile or each will function, would make it difficult to organize a manufacturing interests? Or, in the language of the conspiracy to “manage” elections. Also, the people’s Constitution’s adversaries, will it elevate “the wealthy and varying wealth, opinions, manners, habits and geographic well-born,” to exclude and debase everyone else? loyalties would create, not special-interest blocs, but a A bias favoring industrialists would pit them against diverse national culture. Governing together will cause both property owners and merchants. Whichever faction these differences to gradually assimilate; still, certain would win, it would certainly take control of the States influences will keep certain biases alive. before seizing the federal government. The inference is —–——————————————————————————– that giving either sector undue control over one or more States is far more dangerous than the influence it could The House of Representatives shall be composed of members chosen every second year by the people of the exert in Congress. several States, and the electors in each State shall have The States, to various degrees, depend on agriculture the qualifications requisite for electors of the most and commerce. In most, if not all, agriculture numerous branch of the State legislature. predominates. But in a few, commerce wields Article I Section 2 [1] of the United States Constitution The Senate of the United States shall be composed of two considerable influence. The proportion in which, say, Senators from each State, chosen by the legislature commerce exerts local influence will be transferred to and thereof for six years; and each Senator shall have one reflected in the makeup of local Congressional vote. delegations. But in Congress, it will be absorbed into a Article 1 Section 3 [1] of the United State Constitution conglomeration of many varied interests, operating in [To elect the President] each State shall appoint, in such manner as the legislature thereof may direct, a number of much more various proportions than in any single State. Electors, equal to the whole number of Senators and Rep- As a result, any special interest’s ability to bully others will resentatives to which the State may be entitled in the be limited – probably nonexistent. Congress … In a country that consists chiefly of farmers and Article 2 Section 1 [2] of the United States Constitution practices equal representation, farmers must dominate ———————————————————————–– the government. As long as farmers prevail in most State But the most important influence will be the dissimilar legislatures, they will maintain correspondent superiority modes of choosing the House of Representatives, the in the national Senate, which will generally copy the Senate and the President. Representatives’ immediate majorities in the farmer-dominated State assemblies. We election by the people, Senators’ appointment by State cannot therefore presume that the Congress will ever legislatures, and the President’s selection by electors favor, say, merchants over agrarians. Nor can we chosen for that purpose by the people would prevent a presume, judging from the condition of the country, that common interest that could unite them behind any the State legislatures can be corrupted by any outside particular voter class. influence. And that presumption, given our population’s heavily-agrarian makeup, applies equally to at least the federal House of Representatives. The times, places, and manner of holding elections for In order to fairly and fully consider the “bias” objection, Senators and Representatives shall be prescribed in each one may ask: Isn’t there also danger that a bias in the State by the legislature thereof; but the Congress may at national government might try to give farmers a monopoly any time by law make or alter such regulations, except as over its operations? My answer is “no,” because, again … to the places of choosing Senators. • It is less likely that any special interest would take Article I Section 4 [1] of the United States Constitution over the Congress than any State legislature. (To elect the President) each State shall appoint, in such manner as the legislature thereof may direct, a number of • There would be no temptation to violate the Electors, equal to the whole number of Senators and Rep- Constitution in favor of farmers as they would naturally resentatives to which the State may be entitled in the enjoy all the “domination” they could want. Congress … • Those who understand the sources of large scale Article II Section 1 [2] of the United States Constitution public prosperity understand too well the value of commerce to inflict on it a wound deep enough to exclude ––——————————————————————— from government those who know best how to manage it. As to the Senate, no choice of “time, place and The importance of commerce, for revenue’s sake alone, manner,” could change individual or collective legislator- will effectively protect it against official enmity. electors’ opinions. Why would the Senate initiate an I only briefly discuss the question of bias between the “enterprise” it could not control? And run such a scheme economic sectors because the objectors envision a in one chamber that cannot apply to the other? After the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 90 © 1999 Marshall R. Overstedt
  • 91. different kind of discrimination. They seem to believe the No person shall be a Senator who shall not have attained beneficiaries of the preference with which they try to to the age of thirty years, and been nine years a citizen of alarm us will be “the wealthy and well-born.” Under the the United States, and who shall not, when elected, be an bias they suppose, this elite will be elevated over all the inhabitant of that State for which he shall be chosen. Article I Section 3 [3] of the United States Constitution rest of us. One of their arguments is that this elevation will No person except a natural-born citizen or citizen of the inevitably result from the smallness of the House. Another United States at the time of the adoption of this is that it will be effected by preventing the people at large Constitution, shall be eligible to the office of President; from voting for representatives. neither shall any person be eligible to that office who shall But by what logic would anyone choose election places not have attained to the age of thirty-five years, and been accessible only to the “correct” voters? Do the wealthy fourteen years a resident within the United States. and well-born only live in one or more particular spots? Article II Section 1 [2] of the United States Constitution No, they are scattered throughout the country. So, obviously a policy of confining election places to certain ———————————————————————— localities would defeat its own purpose. But, for argument’s sake, assume that restricting The only way to guarantee the rich the preference polling places might work and that all the national rulers envisioned is to prescribe property qualifications to could be corrupted to this cause. The enterprise could anyone who may elect or be elected. But the national never be executed without help from an army large government has no such power; its authority would be enough to defeat the great body of people. We have expressly restricted to regulating the times, places and already discussed and demonstrated its improbability, but manner of elections. Candidate and voter qualifications, suppose it should exist. Would the persons commanding as noted in other places, are defined and fixed in the it find time for the ridiculous task of fabricating election Constitution, unalterable by the legislature. laws to secure preference to a preferred class? Would ———————————————————————— they not, rather, use all that power to aggrandize themselves in one decisive act of usurpation? Would they No person shall be a Representative who shall not have not fear that tenacious, freedom-conscious citizens would attained the age of twenty-five years, and have been march to the polls from all corners of their States to seven years a citizen of the United States, and who shall replace the tyrants with men who would avenge the not, when elected, be an inhabitant of that State in which people’s violated majesty? he shall be chosen. Article I Section1 [2] of the United States Constitution Publius FEDERALIST No. 61 Congress’ Power to Regulate Elections – #3 Hamilton To the People of the State of New York: HONEST opponents of the convention’s this question. And, experience teaches, the attitude will be Congressional election proposal sometimes concede its the same whether the distance to the polls is 20 or 20,000 value, with one qualification: to prevent abuses of power, miles. The same argument holds true in most other it should require that candidates may only be elected in States. their home counties. Such a clause would add little or no If you say that defects in the State constitutions are no security against the abuse. As discussed in the two excuse for those in the proposed national plan, I will preceding papers, if liberty ever falls to political ambition, answer that, as no one has ever found the State Congress’ power over elections will not be to blame. documents “inattentive” in protecting freedom, how can The State constitutions’ election language is little you find the same fault in the federal law? “Innocent stricter than the proposed national plan. New York’s, for omissions” in the State constitutions cannot honestly be example, provides only that Assembly members be called unpardonable blemishes in the convention plan. elected in their counties and Senators in their districts. Tell me why the representatives of the people in one Obviously, it would be as easy for the New York State should be more immune to power lust or other legislature as for Congress to defeat the citizens’ suffrage sinister motives than the representatives of the people of with isolated polling places. Should the city of Albany be the United States. If you cannot, you should at least named the county’s and district’s sole election place, prove that it is easier to subvert the liberties of 3 million Albanians alone would elect their Senator and people than of 200,000. You should also convince us that Assemblymen. And to vote for their federal a dominant, ambitious faction in a single State is less Representatives, they would be as willing to journey to likely than representatives of all 13 States – spread over a New York City as Albany. vast territory with diverse local conditions, prejudices and The alarming indifference to elections we see under interests. – to empower a particular class of electors to the Articles of Confederation reveals a ready answer to perpetuate its power. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 91 © 1999 Marshall R. Overstedt
  • 92. As to the proposed uniform time of elections for the conveniently assembling the entire legislature at a stated federal House of Representatives, it may turn out to be an period each year. effective guard against a stagnation of spirit in that body You may ask, “Why, then, is a time not fixed in the and a cure for the diseases of faction. If each State could Constitution? As this State’s most zealous convention- set its own election schedule, there could be at least that plan adversaries are equally zealous admirers of the many elections as months in the year. State election State constitution, I may retort, “Why not in the State times, which are now set for local purposes, range constitution?” There is no better answer than that it can between March and November. On that schedule, we safely be entrusted to legislative discretion and that, if a could never see a total dissolution or renovation of the time had been set, it might, through experience, prove body at one time. If a bad political spirit should inflict the less convenient than some other time. The same answer House, it could infect all new members as they take their applies on the other side. And I might add that, as the seats. The main body of the membership would likely stay supposed danger of gradual change is merely nearly the same, term after term. I believe that three speculative, it would be hardly advisable to establish a times the duration in office, providing that the total body schedule that would deprive the States of the would dissolve at once, might be less dangerous to liberty convenience of having elections for their own and federal than one third the duration with gradual, successive offices on the same day. transitions. Publius. Uniform election times seem required, too, for establishing regular rotations in the Senate and for FEDERALIST No. 62 The Senate Hamilton or Madison To the People of the State of New York: HAVING examined the makeup of the House of ——————————–————————————— Representatives, and answered the worthy objections to it, I will examine the Senate, under the headings: The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature I. Senators’ qualifications. thereof… II. Their appointment by State legislatures. Article I Section 3 [1] of the United States Constitution III. The equality of representation in the Senate. IV. The number of senators, and their terms of ———–––——————————————————–– election. II. Of the available formats for choosing Senators, V. The Senate’s vested powers. appointment by the State legislatures seems most ———————————————————––– agreeable with public opinion. Also, it creates opportunity to select the best-qualified candidates and gives the State No person shall be a Senator who shall not have attained governments a vital role in forming the federal to the age of thirty years, and been nine years a citizen of government that will assure them considerable authority the United States, and who shall not, when elected, be an within it and a strong bond to it. inhabitant of that State for which he shall be chosen. Article I Section 3 [3] of the United States Constitution III. Regarding the “equal representation” feature: If it is correct that every State in the Union should share equally ———————————————————————— in the common councils, it is reasonable that a compound I. As to their qualifications for office, Senators must be government with both a national and federal character at least 30 years old (a Representative, 25) and citizens should combine proportional and equal representation. nine years (versus Representatives’ seven years). The But it is excessive to apply the standard of theory to a part differences are justified because the senatorial trust of the Constitution that everyone agrees is indispensable, requires more knowledge and more stable character and not in theory, but due to our unique, precarious political Senators should have lived long enough to acquire this situation. A common government, with powers equal to its maturity. Moreover, as Senators participate directly in purposes, is called for by the voice of America and still transactions with foreign nations, they should be old more loudly by the crisis at hand. The smaller States are enough to have outgrown prepossessions and habits not likely to accept a government formed to satisfy the derived from foreign birth and education. The nine-year larger States, whose only option would then be a citizenship requirement appears a prudent middle course government between the one we propose and an even between barring appropriately meritorious, talented less satisfactory one. Under this alternative, the prudent adopted citizens and indiscriminately and hastily admitting choice must be the lesser evil; and, rather than speculate them (along with undo foreign influence) into the national on the advantage that might justify the sacrifice. councils. The equal Senate vote the Constitution would allow each State recognizes and preserves its remaining The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 92 © 1999 Marshall R. Overstedt
  • 93. portion of sovereignty. This equality should be as deficient wisdom that urges us to demand a well- acceptable to the large as to the small States, as they are constituted Senate. equally attentive in guarding against improper A good government implies (1) fidelity to its purpose, consolidation into one simple republic. which is the people’s happiness, and (2) knowledge of Another advantage of equal Senate representation is the means to assure it. Some governments lack both that no law or resolution can pass without the agreement, qualities; most lack the first. I assert that American first of a majority of the people (via the House) and then governments have paid too little attention to the last. The of the States (represented by the Senate). This federal Constitution avoids this error and, most notably, complicated legislative check may sometimes hinder as fosters knowledge of ways to secure the people’s well as help. And it creates a peculiar defense favoring happiness in a way that protects the government’s interests shared by the smaller States. But as larger purposes. States will always have the power of numbers to defeat Fourthly. The public councils’ instability from rapid lesser States’ unreasonable applications of this turn-over of members points up the need for some more prerogative, and as excessive law-making seems to be a constant part of government. Every election in the States government disease, this part of the Constitution could be changes half the Representatives. This turnover brings more useful than we suppose. constant changes in philosophies and measures. And ––—————————————————————————— constant change of even good measures contradicts every rule of prudence and every prospect of success. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature This is true in private life and even more so in national thereof for six years; and each Senator shall have one business. vote. Government instability weakens other governments’ .Article I Section 3 [1] of the United States Constitution respect and confidence, and all the advantages of good national character. We see an inconstant person as a ———————————————————————— victim to his own unsteadiness and folly. Friendly IV. In order to accurately assign the correct number of neighbors may pity him, but not connect their fortunes Senators and their proper term of office, we must define with his; many will try to exploit him. One nation is to the Senate’s intrinsic purposes. And in order to assign another what one person is to another, except that the right purposes, we must isolate the problems a nations lacking wisdom and stability may expect to be republic will suffer without it. victimized by wiser neighbors. But America, under the First. In republican governments, though less often Articles of Confederation, is her own best example. Her than in others, administrators may forget their obligations friends disrespect her, she is derided by her enemies to their constituents and neglect their important trust. In and she is prey to every nation interested in speculating this context, a Senate, as a second legislative chamber on her fluctuating leaders and their embarrassed affairs. distinct from but sharing power with the first, must in all Unstable policy is even more ruinous to domestic cases be a useful check on the government. It doubles affairs. It poisons liberty itself. It means little to the the people’s security by requiring that two distinct bodies people that the laws are made by men of their own agree (where only one would otherwise be required) to choice if the laws are too verbose and incoherent to be execute a disloyal conspiracy. I need only add that as read or understood; if they are repealed or amended the improbability of conspiracy occurs in proportion to before they take affect or change so often that no one each body’s unique genius, it is necessary to distinguish who knows the law today can guess what it will be one from the other by every means available. tomorrow. Law is defined as a rule of action, but how can Secondly. The Senate’s existence is necessitated by a little-known, less-fixed rule have potency? the tendency of large, unicameral assemblies (like the Public instability also gives unjust advantages to the House) to yield to sudden, violent passions and be clever, ambitious and moneyed few over the industrious seduced by factious leaders intemperate, ruinous acts. mass of the people. Every new commercial, revenue or There are many examples of this in our and other monetary regulation creates new opportunities for those countries’ history. All I need add is that a body obligated who watch the changes and can trace its results – to correct this weakness should itself be free from it. opportunities created, not by themselves, but by their Consequently, it should have fewer members. And it fellow citizens’ toils and cares. This is a situation wherein should have great firmness and, consequently, hold its laws are made for the few, not for the many. authority for a considerable period. Additionally, lack of confidence in the public councils Thirdly. Another lack the Senate will fill is a due defeats every useful undertaking whose success and familiarity with legislative purposes and principles. We profit depends on constant governance. What prudent cannot expect an assembly of Representatives pulled businessman will hazard his fortunes in any new from private life for so brief a term to laboriously study enterprise when he cannot be assured that his plans the country’s laws, affairs and comprehensive interests may become illegal before he can execute them? without making important legislative errors. No small But the most deplorable effect is the reduction of share of America’s present embarrassments is public attachment and reverence toward a political chargeable to government blunders that have come from system with so many ways to dispel hope. No the authors’ heads, not their hearts. The bad laws that fill government is respected without true respectability, nor and disgrace our voluminous codes are monuments to is truly respectable without order and stability. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 93 © 1999 Marshall R. Overstedt
  • 94. Publius. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 94 © 1999 Marshall R. Overstedt
  • 95. FEDERALIST No. 63 The Senate – #2 Hamilton or Madison To the People of the State of New York: A FIFTH reason to establish a Senate, is the country’s thereof for six years; and each Senator shall have one need for a due sense of national character. Without a vote. Article I Section 33 [1] of the United States Constitution select, stable branch of government, our weak, wavering policies will cost us the respect of foreign powers. ———————————————————————–– Moreover, under the Articles of Confederation, the The remedy is an additional legislative body – a national councils cannot form that sensibility to world Senate – permanent enough to address problems opinion necessary to merit its respect and confidence. requiring continued attention and a train of measures, so –—–––––——————————————————————— that we can justly credit or blame it with success or For the most convenient management of the general failure. interests of the United States, delegates shall be annually Further, a Senate may sometimes be a necessary appointed in such manner as the legislatures of each State defense against the people’s own temporary errors and shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each delusions. As the community’s cool, deliberate sense State to re-call its delegates, or any of them, at any time should always over-power its rulers’ views, there are within the year, and to send others in their stead for the times in public affairs when the people, aroused by remainder of the year. irregular passions, illicit advantage or misrepresentations Article V of the Articles of Confederation of artful politicians may call for action that they later –—–———————————————————————————— lament and condemn. In these critical moments, they will Other nations’ opinions are important because (1) it is welcome intervention by a temperate, respectable body of desirable that they believe our plans and measures are citizens acting to check the misguided campaign and stop based on wise, honorable policies and (2) where our the people from injuring themselves and restore authority national councils may be warped by strong or momentary over the public mind. The Athenians suffered from the passion, they may be our best guide. How many past tyranny of their own passions because their government foreign-policy mistakes could we have avoided by first had no such safeguard. testing our ideas on a group of unbiased foreigners. A people spread over an wide area may not, like But a sense of national character is incompatible with crowded city dwellers, be infected by violent passions or our large, ever-changing present Congress. It can only victimized by unjust laws. I have tried in an earlier paper come to a body small enough that praise and blame for to show that this is a major benefit of a confederated public measures may be shared by each member, or one republic. At the same time, this advantage should not so trusted that the members’ pride and consequence supersede the use of auxiliary precautions. The same combine with the community’s reputation and prosperity extended situation, which will free Americans from some My sixth defect is the lack, in some important cases, of of the dangers in lesser republics, will oblige them to stay a due government responsibility to the people, arising longer under the influence of conspiring men's from too-frequent elections. This remark may seem misrepresentations. paradoxical, but it is as undeniable as it is important. There has never been a long-lived republic which did Responsibility must be limited to ends within the not have a senate. In fact, only Sparta, Rome and responsible party’s reach and related to operations the Carthage can be called “long-lived.” Sparta and Rome people can properly judge. Government purposes may be had senates for life. The makeup of Carthage’s version is divided into: those that (a) can be activated by single, unclear; it was probably similar to the other two. We are direct measures and (b) depend on progressions of well- certain that it had some quality that made it an anchor chosen, well-connected measures operating gradually against popular fluctuations and that a smaller council, and, often, unobserved. An assembly elected so briefly as drawn from the Senate, was appointed not only for life, to be unable to connect more than one or two links in a but itself filled vacancies. These examples, though unfit chain of crucial measures should not be responsible for for imitation and repugnant to Americans, teach us the the final result, any more than an employee of one year need for some institution able to combine stability with should answer for results only achievable over several liberty. years. Nor can the people calculate their annual I am familiar with the differences between ours and assemblies’ shares of influence on events evolving over other popular governments, ancient and modern. Many several years. deficiencies that can only be cured by a senate are –—————–————————————————————– common to large, popularly-elected assemblies (like our present Congress) and to the body politic. Others, which The Senate of the United States shall be composed of two are peculiar to large assemblies, require the control of Senators from each State, chosen by the legislature such an institution. The people never willingly betray their The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 95 © 1999 Marshall R. Overstedt
  • 96. own interests, but their representatives may betray them. whole new body. Without successfully corrupting the And the danger is greater where all legislative power is House of Representatives, that coequal assembly would lodged in one body than where two separate, dissimilar inevitably defeat the enterprise. And without corrupting bodies must agree on in every public act. the people, a succession of new representatives would The most visible difference between the American and quickly restore Constitutional order. Does anyone ancient republics lies in the principle of representation. In seriously believe that the proposed Senate can, by any America, it is the pivot on which government turns; in the possible human means achieve such a goal over all these others it is supposed to have been unknown. formidable obstacles? In the purest Greek democracies, many executive The Maryland constitution gives us a relevant example. functions were performed, not by the people, but by Its Senate, as the federal model will be, is indirectly “representatives” they elected. elected, but for a five-year term. It also has the power to Before the reform of Solon, Athens was governed by fill its own vacancies within its electoral term and, at the nine Archons, annually elected at large. The degree of same time, is not controlled by regular rotation, as the their delegated power is obscure. After that period, we federal Senate would be. Therefore, if the federal Senate find an annually-elected assembly, first of 400 then 600 presented the danger proclaimed, a like danger should members, who partially represented them in legislative have appeared in Maryland. It has not. Indeed, the matters. The senate of Carthage, whatever its powers or Maryland constitution is gaining, from the benefit of its duration in office, appears to have been elected, as were indirectly-elected Senate, a unrivalled reputation. most ancient popular governments. A better example: The British House of Lords. Instead In Sparta we meet the Ephori and in Rome the of being elected for six years and unconfined to Tribunes: two small bodies annually elected by all the “approved” families or fortunes, it is an hereditary people and considered their representatives. The Cosmi assembly of nobles. The House of Commons, instead of of Crete were also annually elected and are considered being for two years by the whole body of the people, analogous to the Spartan and Roman assemblies, with serves seven years, and by a smaller proportion than in one difference: In their elections, only part of the people our proposed plan. Here we should see the aristocratic were allowed to vote. From this history it is clear that the usurpations and tyranny of which our opponents warn us. principle of representation was known to the ancients and In fact, British history reveals the hereditary House of accounted for in their political constitutions. Lords to be unable to defend itself against Commons’ The true difference between the typical senate in encroachments. Indeed, it once lost the King’s support, antiquity and in America today is not that the ancients then was quickly crushed by the weight of the popular excluded the people’s representatives from administrative branch. functions but that in America, the people, collectively, are Ancient examples are also at hand. In Sparta, the excluded from electing Senators. This qualified difference Ephori, the people’s annual representatives, overpowered gives the United States a significant advantage. But to the senate for life and took all power into its own hands. exploit this advantage, we must be careful not to separate The Tribunes of Rome, who also represented the people, it from our other advantage: a large territory. For no form prevailed in almost every contest with the senate for life. of representative government can succeed within the This is remarkable in that every Tribune act required a Greek democracies’ narrow geographic confines. unanimous vote. It proves the irresistible force of the In answer to all these arguments, the jealous branch of free government with the people on its side. I adversary of the Constitution will probably repeat that a might add the example of Carthage, whose senate, senate not elected directly by the people, in office for six Polybius testified, failed to take over power but, at the years, must ultimately become a tyrannical aristocracy. start of the second Punic War, lost almost all of its To this, I reply that liberty may be endangered by abuses original authority. of liberty as well as by abuse of power, of which there are The facts attest that the federal Senate will never be many examples. Also, I would argue that, in the United able to evolve itself into an independent aristocratic body. States, abuse of liberty is the greater threat. And we are justified in believing that if an unexpected But before launching such a revolution, the Senate revolution should occur, the House of Representatives, must first corrupt itself, then the State legislatures, then with the people on its side, will be able to bring back the the House of Representatives and finally the people at Constitution to its original form and principles. Against the large. Obviously, the Senate must be corrupted before it force of the people’s direct representatives, even the can try to institute tyranny. Without corrupting the State Senate’s constitutional power can be overcome. legislatures, it cannot execute the plan because, Publius otherwise, their frequent elections would soon create a FEDERALIST No. 64 Senate Treaty-Making Powers Jay To the People of the State of New York: The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 96 © 1999 Marshall R. Overstedt
  • 97. —–————————————————————————— They will not be deceived by appearances of genius and — patriotism which, like meteors, sometimes mislead as well (‘The President) shall have power, by and with the advice as dazzle. If it is true that wise kings are always served by and consent of the Senate, to make treaties, provided two- able ministers, we can argue, that an assembly of select thirds of the Senators present concur … electors will have, in greater degree than kings, the wide, Article II Section 2 [1] of the United States Constitution accurate knowledge to judge candidates’ character. And we ——————————————————————————— can naturally infer that the President and Senators chosen will always be among those who can best understand our THE TREATY-MAKING power is crucial, especially as it national interests, whether related to the States or to foreign relates to war, peace and commerce. It should be delegated nations, who can best promote those interests, and whose only in a way that will assure it will be exercised by the most reputations for integrity inspires and merits confidence. With qualified officers for the greatest public good. To those such men we can safely lodge the treaty-making power. ends, the convention directed that the President be chosen Everyone knows that systematization is necessary to any by select bodies of electors (collectively called “the Electoral business. Yet the public does not recognize its importance College”) deputed by the people for that purpose. in national affairs. Anyone who would commit Senatorial- level power to a popular assembly with members constantly —–———————————————————— coming and going forgets that such a body is necessarily incapable of attaining those great purposes. Such issues (For the purpose of electing the President), (e)ach State shall must be considered at length and in depth in all their appoint, in such manner as the legislature thereof may direct, a number of Electors, equal to the whole number of Senators consequences and circumstances. They can only be and Representatives to which the State may be entitled in the addressed with talents supported by exact information Congress … applied over enough time to become closely acquainted Article II Section 2 [2] of the United States Constitution with our national concerns and to form and introduce a system to manage them. The term of office it prescribes will –———————————————————————— give them opportunity to extend their political knowledge and make their combined experience more and more And it committed Senators’ appointments to the State beneficial to their country. legislatures. ———————————————————————— Immediately after they shall be assembled in consequence of –———————————————————————— the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class The Senate of the United States shall be composed of two shall be vacated at the expiration of the second year, of the Senators from each State, chosen by the legislature thereof second class at the expiration of the fourth year, and of the for six years; and each Senator shall have one vote. third class at the expiration of the sixth year, so that one-third Article I Section 3 [1] of the United States Constitution may be chosen every second year; and if vacancies happen by resignation or otherwise during the recess of the legislature of any State, the executive thereof may make –———————————————————————— temporary appointments until the next meeting of the This method is superior to direct elections by the people, legislature, which shall then fill the vacancies. typified by party zeal that exploits the apathy, ignorance, Article I Section 3 [2] of the United States Constitution and the hopes and fears of the unwary and “interested,” and often puts men in office by small proportions of the votes. ———————————————————————— As the electoral college that would choose the President, The convention prudently scheduled Senatorial elections and the State legislatures that would appoint the Senators, in a way that prevents the inconvenience of frequently will include the most enlightened and respectable citizens, transferring those great affairs entirely to a new body. we can presume that they will direct their attention and Leaving two-thirds of the Senators in place after each votes to the candidates most distinguished by their abilities election preserves uniformity and order, as well as a and virtue. Further, by excluding citizens under 35 years of constant succession of official information. age from the Presidency and those under 30 from the Few will not agree that we need a carefully formed, Senate, the Constitution confines the electors’ attention to diligently pursued system to regulate affairs of trade and candidates the people have had time to judge. navigation, or that treaties and laws should conform to and ————————————————————————– promote that system. And we must carefully maintain that conformity and promotion, which is a major purpose of No person … shall be eligible to the office of President requiring Senate agreement in all treaties and laws. In … who shall not have attained to the age of thirty-five negotiating treaties, secrecy and speed are often required. years … Secrecy opens opportunities to gain useful intelligence by Article II Section 1 [5] of the United States Constitution relieving knowledgeable parties, whether driven by No person shall be a Senator who shall not have attained to mercenary or sympathetic urges, of fear of discovery. These the age of thirty years … sources would likely rely on the discretion of the President, Article I Section 3 [3] of the United States Constitution but not confide in a large, politically-driven popular Assembly. The convention has done well by requiring the ————————————————————————– President to treat with the Senate’s advice and consent but The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 97 © 1999 Marshall R. Overstedt
  • 98. allowing him to manage the business of intelligence as he land. They insist that treaties should be repealable at sees fit. pleasure. This idea seems to be new and unique to this Human affairs move in “tides,” which are very irregular in country. They should reflect that a treaty is only another duration, strength and direction. “Reading” and profiting by name for a bargain, and no nation would make a bargain with us that would bind them absolutely but us only as long these tides in national affairs is the business of those who as we want to be bound. They who make laws may, without preside over them, and they inform us that often days, even doubt, amend or repeal them; and no one will dispute that hours, are critical. A battle lost, a prince’s death, a minister’s they who make treaties may alter or cancel them. But let us removal, or other events that can turn a favorable tide into a not forget that treaties are made by both contracting parties. disaster. These moments must be seized as they occur, Consequently, as the consent of both is essential to their and whoever “manages” them must be allowed to turn them formation, so must it be to alter or cancel them. The to the nation’s benefit or, at least, minimize damage. So proposed Constitution, therefore, has not extended the often and so painfully have we suffered from the lack of obligation of treaties. They are just as binding and just as secrecy and speed that the Constitution would be useless if far beyond the legislature’s reach now as they will be any the convention had neglected these needs. Matters which in time in the future under any form of government. Some jealous citizens fear that the President and Senate negotiations usually require the most secrecy and the may make treaties that fail to serve all the States’ interests greatest speed are the preparatory and secondary equally. Others suspect that two-thirds will oppress the measures that are otherwise nationally unimportant, but remaining third. They ask whether the Constitution makes facilitate attainment of the goals under discussion. For the treaty-makers' conduct accountable enough; whether, if these, the President will easily provide, and should any they deal corruptly, they can be punished; and how are we issue arise requiring the Senate’s advice and consent, he to get rid of the disadvantageous treaties they make? can convene it at any time. This is why the Constitution As all the States are equally represented in the Senate, provides that treaty negotiations will take advantage, on one by men most able and willing to promote their interests, they hand, of available talents, knowledge, integrity and will have equal influence in that body – especially if each one takes care to appoint proper people to the Senate and deliberate investigations and, on the other, of secrecy and insist on their punctual attendance. As the United States speed. assume a national form and character, the government will But to this plan, as to most, objections are contrived. pay more and more attention to the good of the whole. Some protest that, because treaties are to have the force Indeed, only a very weak government would forget that the of law, they must be made only by the legislature. They good of the whole can be promoted only by advancing the seem to forget that the judgments of our State courts and good of all of its parts. The President and Senate will not the governor’s constitutional commissions are as valid and have the power to make treaties that will not bind and affect binding on us all as laws passed by our legislature. All themselves, their families and estates, along with the rest of constitutional executive and judicial acts have as much legal the community. And, having no private interests apart from the nation’s, they will not be tempted to neglect its interests. validity as legislation and, therefore, whatever we name the As to corruption, it is unthinkable that the President and treaty power, or however obligatory treaties may be, the two-thirds of the Senate will ever be capable of unworthy people may confidently commit it to a distinct legislative, treaty-making conduct. But if it should ever happen, the executive or judicial body. It does not follow that, because treaty so obtained would, like all other fraudulent contracts, we give the legislative power to make laws that we should be null and void by the law of nations. give it power to do every act by which the citizens will be With respect to the Senators’ responsibility, it is difficult bound. to conceive how it could be increased. All influences over human conduct – honor, oath, reputation, conscience, love —–———————————————————– of country and family – guard their loyalty. As the Constitution takes care that Senators shall be talented, This Constitution, and the laws of the United States which honest citizens, we have reason to believe the treaties to shall be made in pursuance thereof, and all treaties made, or which they will advise and consent will be as advantageous which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every as possible. If not, the fear of punishment and disgrace is State shall be bound thereby, anything in the Constitution or amply afforded by the article on impeachments. laws of any State to the contrary notwithstanding. Article VI [2] of the United States Constitution Publius. Others, who agree that treaties should be made in the way proposed, oppose their being the supreme laws of the FEDERALIST No. 65 Senate Impeachment Powers Hamilton To the People of the State of New York: THE remaining powers that the convention plan executive in office appointments and (2) operation as a trial distinctly allots to the Senate are (1) participation with the court for impeachments. In the appointment process, the The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 98 © 1999 Marshall R. Overstedt
  • 99. executive will be the principal agent; we will discuss the between the accused and the accusers, who are the relevant provisions in our examination of that branch. people’s representatives. ———————————————————————— I doubt that even the Supreme Court Justices would always have the fortitude for so difficult a task or the The Senate shall have the sole power to try all prestige and authority to reconcile the people to a decision impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United contradicting an accusation brought by their direct States is tried, the Chief Justice shall preside; and no person representatives. A lack fortitude would be fatal to the shall be convicted without the concurrence of two-thirds of accused; a lack of prestige would undermine the decision's the members present. acceptability and thereby endanger public order. We can Article I Section 3 [6] of the United States Constitution Judgment in cases of impeachment shall not extend further only avoid both hazards by expanding the Supreme Court than to removal from office, and disqualification to hold and beyond its true value to the country. The nature of the enjoy any office or honor, trust or profit under the United proceeding also dictates the need for a large impeachment States; but the party convicted shall, nevertheless, be liable court. An impeachment trial cannot be tied down by the and subject to indictment, trial, judgment, and punishment, strict rules for the prosecution’s presentation of charges or according to law. Article I Section 3 [7] of the United States Constitution the judges’ construction of them we apply in common cases. There would be no jury between the judges who ———————————————————————— pronounce the sentence and the party to suffer it. The Establishing a well-constituted impeachment court is impeachment court must have the discretion to acquit or difficult in a wholly-elected government. Its jurisdiction condemn the country’s most distinguished citizens. This covers offenses involving public misconduct (i.e. abuse or forbids committing the trust to a small number of people. violation of some public trust), which are basically political These considerations alone justify the conclusion that the in nature, as they relate mainly to direct injuries to society Supreme Court would been an improper substitute for the itself. Prosecuting them, therefore, invariably agitates Senate. community passions for or against the accused. Often Furthermore, the sentence resulting from a Senate prosecution will connect itself with current public issues and conviction will not end the impeached offender’s will, on one side or the other, unleash animosity, prejudice, punishment. After having been sentenced to perpetual influence and interest. The greatest danger is that verdicts ostracism from the nation’s esteem and confidence, and will depend more by the parties’ relative political strength the honors and rewards of public office, he will still be liable than on determination of innocence or guilt. to prosecution and punishment in the ordinary course of The delicacy and magnitude of this trust concerns the law. Should those who had, in one trial, taken away his political reputation and existence of everyone engaged in fame and his most valuable rights as a citizen take away, in public administration. It is easy to understand the difficulty another for the same offense, his life and fortune? Would of assigning it to the correct agency, considering that the there not be reason to fear that an error in the first most conspicuous characters in it will often be the leaders sentence would beget another in the second? The strong or tools of the shrewdest or largest faction – a force no one bias of one decision would likely overrule the influence of expects to be neutral. any new arguments that might affect the complexion of The convention thought the Senate the best repository another decision. Those who understand human nature will of this important trust. Those who discern the issue’s agree and immediately see that by making the same intrinsic difficulty will support that decision and allow due persons judges in both cases would deprive the defendant weight to the arguments that may have influenced it. of the intended double security of a double trial. The loss of Essentially, impeachment is a method of national life and wealth would often be virtually included in a investigation into the conduct of public men. Therefore, the sentence which added nothing more than dismissal and nation's most proper inquisitors are its representatives. It is disqualification from office. agreed that we should lodge the power to originate the It may be said that, in the second trial, the addition of a inquiry – in other words, to “refer the impeachment” – to jury would obviate the danger. But juries are often one house of the legislature. For the same reasons, the influenced by judges’ opinions and induced to find verdicts House of Representatives should join the inquiry. that refer the main question back to the court for a decision. ———–————————————————————— Who would stake his life and estate on the verdict of a jury acting under judges who had predetermined his guilt? The House of Representatives … shall have the sole power of impeachment. Would the plan have been better if it joined the Supreme Article I Section 3 [5] of the United States Constitution Court and the Senate in an impeachment court? This would The model for this institution was borrowed from the have created several advantages, which would have been British Parliament, where the House of Commons refers offset by the disadvantage of possibly trying the defendant impeachments and the House of Lords hears the evidence twice by the same judges. To an extent, the union's and renders the verdict. Several State constitutions follow benefits will arise from making the Chief Justice the the example. The British and State constitutions – rightly – president of the impeachment court, as is proposed in the regard impeachments as a tool with which the legislature convention plan, which avoids the inconveniences of can check and balance the executive. incorporating the two branches. As a tribunal, only the Senate can be sufficiently ———————————————————————— dignified and independent. No other body would feel When the President of the United States is tried, the Chief confident enough to preserve the necessary neutrality Justice shall preside … The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 99 © 1999 Marshall R. Overstedt
  • 100. Article I Section 3 [6] of the United States Constitution faithful attention to duty might expose them to persecution from an intemperate or designing majority in the House of ———————————————————————— Or should the convention have formed the impeachment Representatives. Though this last supposition may seem court of people wholly independent of the Senate or the harsh, and may not often be verified, we should remember Supreme Court? There are arguments for and against this that faction, at times, afflicts all large bodies. idea. Some will object that it could increase the complexity But that some other idea might seem preferable to the of the political machine and give the government a dubious convention’s impeachment plan does not mean that the new aspect. An equally worthy objection is that such a court Constitution should be rejected. If people were to reject would incur heavy expense and/or create a variety of every government until every part of it meets the most problems. It must consist either of (a) permanent officers, exact standard of perfection, society would soon become a stationed at the seat of government and entitled to regular scene of anarchy, and the world a desert. Where will we salaries or (b) certain State officials to be summoned find that standard of perfection? Who will undertake to unite whenever an impeachment was pending. As the court the community’s discordant opinions in agreement to it and should be large, “(a)” will be protested by everyone who convince one conceited objector to renounce his “infallible” compares the size of public wants with the means to fill standard for the “fallible” standard of his more conceited them, while "(b)" will be suspected by those who seriously neighbor? To answer their purpose, the Constitution’s consider the difficulty of recruiting men from all over the adversaries should have to prove, not merely that particular Union, the injury to these innocent functionaries from provisions are not the best imaginable, but that the whole charges they might face years later, the advantage to the plan is bad and dangerous. guilty from opportunities to delay the proceedings, the Publius. States’ loss from prolonged inactivity of men whose firm, The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 100 © 1999 Marshall R. Overstedt
  • 101. FEDERALIST No. 66 Objections to Senate Impeachment Power Hamilton To the People of the State of New York: AN HONEST REVIEW of the main objections against decide where best to assign it? This would give us a the proposed impeachment-trial court should eradicate any clearer, if not to more definite, answer. remaining unfavorable attitudes toward this institution. Our remarks on Senators’ terms of office, along with –————————————————————— examples from history, show that every republic’s most popular branch (in ours, the House of Representatives), by The Senate shall have the sole power to try all virtue of its election by the people, will have power to at impeachments. When sitting for that purpose, they shall be least balance every other branch. on oath or affirmation. When the President of the United But, to secure the equilibrium of the national House of States is tried, the Chief Justice shall preside; and no person Representatives, the convention plan gives it several shall be convicted without the concurrence of two-thirds of the members present. important ways to counterbalance the Senate’s power, Article I Section 3 [6] of the United States Constitution namely the sole right to: • originate money bills; ––––—————————————————————————— • institute impeachments; and — • “umpire” all Presidential elections that fail to achieve The first objection is that the provision mixes legislative majorities – the possibility of which will give it major and judiciary powers in the same body, violating the influence. requirement for separation between the different branches. We have already shown this maxim to be compatible with a partial mixture of branches for special purposes, keeping [The President] … shall appoint ambassadors, other public them, in the main, unconnected. Indeed, this partial ministers blending is sometimes proper and necessary to the various and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not branches’ defense against each other. Able political herein otherwise provided for, and which shall be scientists confirm that an absolute or qualified check by established by law; but the Congress may by law vest the one branch against the others is an indispensable barrier appointment of such inferior officers, as they think proper, in against encroachment. Dividing the impeachment-trial the President alone, in the courts of law, or in the heads of departments. power between the two houses of Congress – making one Article II Section 2 [2] of the United States Constitution the accuser and the other the judge – avoids the problem of making the same persons both accusers and judges. It ——————————————————————————— also guards against persecution of dissenters by a A third objection to the Senate’s impeachment power prevalent faction in either House. As a two-thirds Senate relates to its appointment function. Objectors imagine it agreement will be required for conviction, the protection of would judge the candidates’ and appointees’ conduct too innocence will be as complete as can be. strictly. It is just as believable to allege that Senate It is curious to observe the vehemence with which men favoritism would always protect officeholders’ misbehavior. who say they admire our (New York) State constitution But that would presume that the Senators’ interest in and attack this part of the plan. New York makes the Senate, responsibility for the appointees' fitness will always inspire with the chancellor and the Supreme Court, not only an them to expel those whose conduct proves them unworthy impeachment court but its highest civil and criminal of their trusts. This presumption, if true, would destroy the tribunal. The numerical proportion of the chancellor and supposition that a Senate that would merely “rubber-stamp” judges to the senators is so insignificant that the New York the Executive’s choices and even ignore evidence of guilt judicial authority, in the last resort, may be said to reside in so extraordinary as to compel the people’s representatives its Senate. If the convention is guilty of departing from the to bring it forward. separation maxim, how much more culpable must be our If we need further arguments to show the improbability State constitution? of such a bias, we should watch the way the Senate will A second objection to the Senate as an impeachment participate in the appointment process. court is that it gives the body undue power, tending to make It will be the President's task to nominate and, with the government too aristocratic. The Senate is to share the Senate advice and consent, to appoint. The Senate may treaty-making and appointment authority with the President. not present candidates; it can only ratify or reject the If, say the objectors, we add the prerogative of deciding all President’s choice, then oblige him to make another. impeachment cases, it will give the Senate a decided The Senators might prefer someone else while predominance. To such an imprecise objection it is difficult approving the one proposed, because there is no to frame a precise answer. By what standard can we constitutional way for them to oppose him. And they could determine whether the Senate has too much, too little or not be sure that a rejected nominee would be replaced with exactly the correct amount of power? Will it not be safer, their own favorite or someone they believe more and simpler, to examine each power on its own merits to meritorious. This means that a Senate majority could hardly The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 101 © 1999 Marshall R. Overstedt
  • 102. have any opinion, preference or bias toward an appointee could a majority in the House of Representatives impeach beyond the evidence presented of his merit and ability. itself? No better, obviously, than two-thirds of the Senate A fourth objection to the Senate as a court of might try themselves. And yet should either escape impeachments comes from its union with the President in punishment for corruption or disloyalty? The truth is, in all the treaty-making power. Should the Senators enact a such cases, it is essential to a legislature’s freedom and treaty in a corrupt or perfidious way, say objectors, the necessary independence that its members should be Constitution would make them their own judges. After exempt from punishment for collective acts. Moreover, the conspiring with the Executive in a treasonous, ruinous nation’s security depends on the care taken to place this treaty, how could we punish the Senators if they alone had trust in proper hands, to make it the legislators' interest to the power to try their own impeachments. execute it with fidelity, and to make it as difficult as possible This objection, honest and sincere as it is, rests on an for them to conspire against the public good. erroneous foundation. The Constitution intends that the Concerning an Executive perversion of the Senate’s numbers and good character of the treaty makers will instructions or contravention of its views, we need not fear protect against corruption and treachery. The joint action of a lack of that body's will to punish abuses of its trust or the President and two-thirds of the body chosen by the vindicate its own authority. Our experience demonstrates State legislatures is designed to bond those two parties in a that we can rely on Congressional pride, if not its virtue. pledge of fidelity. The convention might have justly And concerning corruption of leading Senators, who might considered punishing the Executive for deviating from the seduce the majority into odious measures: Given Senate’s instructions or a lack of integrity during satisfactory proof of that corruption, we will naturally negotiations. It might also have discussed punishing a few conclude that there would normally be an abundance of Senate leaders for prostituting their influence to foreign enthusiasm for diverting public resentment from itself by corruption. But it could no more have contemplated sacrificing the authors of their mismanagement and impeaching and punishing two-thirds of the Senate for disgrace. consenting to an improper treaty than of a majority of the Publius. House for approving an unconstitutional law. How, in fact, FEDERALIST No. 67 The Executive Branch Hamilton To the People of the State of New York: NO PART of the new system has been more difficult to The convention plan empowers the President “to organize than the Executive. And none has been criticized nominate, and by and with the advice and consent of the less candidly or intelligently. Senate, to appoint certain important officers." ———————————————————————— ———————————————————————— The executive power shall be vested in a President of the He … shall appoint ambassadors, other public ministers and United States. He shall hold his office during the term of four consuls, judges of the Supreme Court, and all other officers years, and together with the Vice-President, chosen for the of the United States whose appointments are not herein same term … otherwise provided for, and which shall be established by Article II Section 1 [1] of the United States Constitution law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President ———————————————————————— alone, in the courts of law, or in the heads of departments. Article II Section 2 [2] of the United States Constitution Adversaries have tried to use Americans' hatred for the ———————————————————————— British monarchy against the intended Presidency of the United States, portraying the office as its direct descendant. And it authorizes the President to make appointments To make the connection, they fictitiously magnify executive on his own when the Senate is in recess. This is the powers beyond royal prerogatives. They decorate the “source” of that “power” to appoint Senators. President with attributes superior in dignity and splendor to ———————————————————————— the King’s. They show him with the crown sparkling on his brow and the imperial purple flowing in his train. They seat The President shall have power to fill up all vacancies that him on a throne surrounded with minions and mistresses, may happen during the recess of the Senate, by granting giving audience to envoys of foreign potentates with commissions which shall expire at the end of their next supercilious pomp. They teach us to tremble at the terrible session. scowls of murdering henchmen, and to blush at the Article II Section 2 [3] of the United States Constitution unveiled mysteries of a future harem. We must defeat such attempts to transform the office. One example of the critics’ audacity gives the President ———————————————————————— of the United States a power the Constitution expressly The first of these two clauses only provides a way to reserves for the governors of the States: Filling casual appoint officers, “whose appointments are not otherwise vacancies in the Senate. provided for in the Constitution, and which shall be established by law.” It cannot include appointments of The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 102 © 1999 Marshall R. Overstedt
  • 103. Senators, which are established and provided for also extend the temporary Senators’ terms to the elsewhere (Article I Section 3) in the Constitution. next legislative session of the States the vacancies The second clause cannot be construed to establish a affect, instead of at the end of the ensuing national Presidential power to fill Senate vacancies, because: Senate session. The status of the body authorized A. Its relation to Art. I Sec. 2 [2], establishes it as a to ratify permanent appointments would, of course, mere supplement to the same, providing an auxiliary govern use of a power relating to temporary appointment method when the general method is appointments. The United States Senate is the only not available. The ordinary appointment power body so empowered. (applying, for example, to cabinet officers and ————————————————————————————– Supreme Court Justices) is shared by the President and Senate and can therefore only be exercised The Senate of the United States shall be composed of two when the Senate is in session. But the Senate Senators from each State, chosen by the legislature thereof cannot properly be obliged to stay in session “in for six years; and each Senator shall have one vote. case” an appointment will be needed – and there will Article I Section 3 [1] of the United States Constitution be times when they will be required post haste … if vacancies happen by resignation or otherwise during during recesses. So Art. I Sec. 2 [2] was written to the recess of the legislature of any State, the executive authorize the President, alone, to make temporary thereof may make temporary appointments until the next appointments which will expire at the end of the next meeting of the legislature, which shall then fill the vacancies. Senate session. Article I Section 3 [2] of the United States Constitution B. If we consider this clause supplementary to the one before, the subject of vacancies we must ———————————————————————— construe it to relate to the “officers” described thee; and this, we have seen, excludes Senators. C. The period when the power is to operate – D. The above clauses destroy the pretext for “during the recess of the Senate” – and that misconception. Here an express power is clearly confining the appointments “to the end of the next given to the State governors to temporarily fill casual session" clarify the provision’s real purpose. If it Senate vacancies, which invalidates the supposition were to apply to Senators, it would naturally refer the that Art. II Sec.2 [2] could be intended to give that temporary appointment power to recesses of the power to the President. It also proves this State legislatures, which are to make the permanent supposition must be intended to deceive the people. appointments – not to recesses of the national Publius. Senate, which is to have no part in them. It would FEDERALIST NO. 68 Electing the President and Vice President Hamilton To the People of the State of New York: I VENTURE that if the system for appointing the Chief House of Representatives shall immediately choose by ballot Magistrate of the United States is not perfect, it is at least one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in excellent. It combines all the advantages we could wish for. like manner choose the President. But in choosing the ——–—————————————————————————— President the votes shall be taken by States, the representation from each State having one vote; a quorum The executive power shall be vested in a President of the for this purpose shall consist of a member or members from United States. He shall hold his office during the term of four two-thirds of the States, and a majority of all the States shall years, and together with the Vice-President, chosen for the be necessary to a choice. In every case, after the choice of same term, be elected as follows: the President, the person having the greatest number of Article II Section 1 [1] of the United States Constitution votes of the Electors shall be the Vice-President. But if there Each State shall appoint, in such manner as the legislature should remain two or more who have equal votes, the thereof may direct, a number of Electors, equal to the whole Senate shall choose from them by ballot the Vice-President. number of Senators and Representatives to which the State Article II Section 1 [3] of the United States Constitution may be entitled in the Congress; but no Senator or The Congress may determine the time of choosing the Representative, or person holding an office of trust or profit Electors and the day on which they shall give their votes, under the United States shall be appointed an Elector. which day shall be the same throughout the United States. Article II Section 1 [3] of the United States Constitution Article II Section 1 [4] of the United States Constitution The Electors shall meet in their respective States and vote by ballot for two persons, of whom one at least shall not be ————————————————————————————— an inhabitant of the same State with themselves. And they The convention determined to: shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and 1. Involve the sense of the people in the choice of the certify, and transmit sealed to the seat of the government of person who will hold this trust. To that end, it committed the the United States, directed to the President of the Senate. right to make the choice, not to an existing body, but to The President of the Senate shall, in the presence of the men chosen by the people and composed into an “Electoral Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person College” for that specific purpose at that specific time. having the greatest number of votes shall be the President, if 2. Ensure that the direct election would be made by men such number be a majority of the whole number of Electors best qualified to analyze the qualities the office requires, appointed; and if there be more than one who have such acting in circumstances favoring deliberation, supported by majority, and have an equal number of votes, then the logic and incentives that fit the task. A few persons, elected The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 103 © 1999 Marshall R. Overstedt
  • 104. by the citizens, will most likely have the knowledge and number of votes, the man the members believe best judgment such complicated inquiries require. qualified for the office. 3. That there will be as little opportunity as possible for This proposed election process assures us that the the kinds of tumult and disorder justifiably feared in the Presidency will never fall to an unqualified candidate. While election of the most important officer in the United States a talent for non-controversy and popularity alone may government. And the precautions written into the suffice to elect a man to, say, the governorship of a State, convention plan promise to alleviate this fear. Electing an elevation to the Presidency of the United States will require intermediate body of electors will be much less likely to other talents and a different kind of merit. convulse the community than using the entire electorate to The Vice-President will be chosen in the same way as elect one central figure. And as the electors will vote in the the President, except that, in the event there is no Electoral States that choose them – instead of gathering in one place College majority, the Senate, rather than the House of – they will be much less exposed to passion and ferment. Representatives, will select the victor. 4. To purge the system of special interests, conspiracy ———————————————————————— and corruption. Many expect these enemies of republican The Vice-President of the United States shall be President of government to appear from many quarters, mainly from the Senate, but shall have no vote, unless they be equally foreign powers trying to influence our government by, for divided. example, elevating their own candidate to the Presidency. Article I Section 3 [4] of the United States Constitution The Senate shall choose their own officers and also a The convention prudently and judiciously shielded us President pro tempore in the absence of the Vice-President, from this sort of danger by not making the Presidential or when he shall exercise the office of the President of the election dependent on a preexisting body with established United States. Article I Section 3 [5] of the United States Constitution members that might be tampered with before the vote. In case of the removal of the President from office, or of his Rather, it entrusted the decision, first, to a direct vote of the death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice- American people, cast, not for the candidates, but to President … appoint the electors. Moreover, it excluded those Article II Section 1 [6] o the United States Constitution (Senators, Representatives and all others holding —————————————————————————— government power) who might be overly devoted to the sitting President. This means the Electoral College The appointment of an outstanding citizen as Vice- members will enter and complete the process without President has been called superfluous, if not mischievous. prejudice or diversion. Some would prefer that the Senate elect one of its own Corrupting a large, diverse body requires time and members to that office. But two considerations seem to means. It would be difficult, in the time between its election justify the ideas of the convention in this respect. and the vote for President, to combine it in causes that, One is that, to ensure a definite resolution on an election though not truly corrupt, might distract from its duty. or any question, the President of the Senate – who will also An equally important requirement of the convention: The be the Vice-President of the United States – must be able, Executive should depend for re-election only on the people. if necessary, to cast the deciding vote. To transfer a Otherwise, he might be tempted to sacrifice his duty to Senator of any State to the Senate Presidency would those whose support would assure continuance in office. deprive the State from which he came a constant The Electoral College also secures this advantage. contingent vote. All these advantages are gathered in the proposed The other consideration is that the Vice-President may Constitution, which specifies that the people of each State occasionally substitute for (or replace) the President. will choose a body of electors equal in number to the total Therefore, the Vice-President should have all the same of its national Senatorial and House members, which will qualifications as the President. assemble within the State and vote for some fit person as It is remarkable that on this issue, as on others, the President. Their votes will be transmitted to the seat of the objection is against our State constitution. We have a national government and the person for whom the majority Lieutenant-Governor, chosen by the people at large, who of the whole number of votes is cast will be the President. presides in the Senate and is the constitutional substitute But it is possible that one candidate will not gain a for the Governor in circumstances similar to those that majority of Electoral College votes, and it might be unsafe would authorize the Vice-President to assume the to permit only a plurality to be decisive. So the Constitution President’s powers and duties. provides, in such a case, that the House of Representatives will choose from the five candidates with the highest Publius. FEDERALIST No. 69 The Real Character of the Executive Hamilton To the People of the State of New York: THERE IS CONCERN that the Constitution gives the Great Britain, the Grand Seignior, the khan of Tartary or the Executive too much power. But, compared to the King of Man of the Seven Mountains, his power is greatly limited. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 104 © 1999 Marshall R. Overstedt
  • 105. His authority is better related to that of the governor of New which it shall likewise be considered, and if approved by two- York. thirds of that House it shall become a law. … Article I Section 7 [2] of the United States Constitution —–——————————————————————— ————–———————————————————–– The executive power shall be vested in a President of the United States. He shall hold his office during the term of four The king of Great Britain, for his part, has absolute veto years … together with the Vice-President, chosen for the power over acts of both houses of Parliament. Disusing same term … that power, no matter for how long, will not affect that Article II Section 2 [1] of the United States Constitution authority. It is “justified” wholly by the sovereign’s ability to substitute influence for authority, or to gain and maintain a ————————————————————— majority in one or both houses. And changing it would require considerable national agitation. The President is to be elected for four years and may be The President’s qualified veto differs widely from the re-elected as many times as the American people think him king’s, and matches exactly the revisionary authority of worth of their confidence. New York State’s council of revision, of which the governor ————————————————————— is a member. In this respect the President’s power would exceed our governor’s. This is because the President alone would have authority the governor must share with the No person shall be elected to the office of President more than twice, and no person who has held the office of chancellor and judges. But it would be precisely the same President, or acted as President, for more than two years of as the veto power of the governor of Massachusetts, from a term to which some other person was elected President whose constitution this article seems to have been copied. shall be elected to the office of President more than once … The President is to be the “commander-in-chief of the Amendment XII of the United States Constitution, Adopted 2/26/1951 United States army, navy and the States’ militia when On this count, there is no similarity whatever between called into actual national service (See Art II Sec. 2 [1]). him and the king – an hereditary monarch who “owns” the He is to have power to grant reprieves and pardons for crown and may pass it to his heirs. But there is a similarity offenses against the United States, except in cases of to a governor of New York, who is elected for three years impeachment (See Art II Sec. 2 [1]) and to recommend to and has unlimited re-electability. If we consider how much Congress’ consideration measures he believes necessary less time it would take to establish a dangerous influence in and expedient. one State than throughout the United States, we must ———————————————————————— conclude that a four-year Presidential term of office is less to be feared. He shall from time to time give to the Congress information “The President, (as well as the) Vice-President and all of the state of the Union, and recommend to their civil officers of the United States shall be removed from consideration such measures as he shall judge necessary and expedient… office on impeachment for and conviction of treason, Article II Section 3 or the Constitution of the United States. bribery, or other high crimes and misdemeanors.” Art. II Sec. 4 ——–—————————————————————————— “Judgment in cases of impeachment shall not extend On extraordinary occasions, the President may convene further than to removal from office, and disqualification to either or both houses of Congress and, in case they hold and enjoy any office or honor, trust or profit under the disagree on a time to adjourn, to adjourn them to a time he deems to be proper (Art. II Sec.3]. United States; but the party convicted shall, nevertheless, He is also entrusted to take care that the laws are be liable and subject to indictment, trial, judgment, and faithfully executed and to commission all officers of the punishment, according to law.” Art. I Sec. 3 [7] United States Art. II Sec.3]. The person of the king of Great Britain is inviolable and, Most of these powers resemble those of the king and without a national revolution, subject to no constitutional the governor of New York. The most significant differences tribunal or punishment. On this delicate and important are: question, the President is no more invulnerable than a First. The President will only occasionally command governor of New York and less so than the governors of whatever part of the militia the Congress may call into Maryland and Delaware. service. The British king and the governor of New York at The President of the United States is to have power to all times command all the militia in their jurisdictions. return a bill, passed by both houses of Congress, for Secondly. The President is to be commander-in-chief of reconsideration. The vetoed bill can still become law if the United States army and navy – authority superficially passed by two-thirds of both houses. the same as the king’s, but actually inferior to it. It would —–——————————————————————— amount to no more than the supreme command and Every bill which shall have passed the House of direction of military forces, while the king may declare war Representatives and the Senate shall, before it becomes and raise and regulate of fleets and armies – all of which law, be presented to the President of the United States; if he the Constitution assigns to the Congress. The governor of approves he shall sign it, but if not he shall return it, with his New York, on the other hand, is the constitutional objections, to the House in which it shall have originated, who shall enter the objections at large on their journal and commander of its militia and navy. But the constitutions of proceed to reconsider it. If after such reconsideration two- several other States expressly declare their governors thirds of that House shall agree to pass the bill, it shall be commanders-in-chief of the army and navy, and New sent, together with the objections, to the other House, by Hampshire and Massachusetts, in particular, award their governors more powers than a President can claim. The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 105 © 1999 Marshall R. Overstedt
  • 106. Thirdly. The President’s pardoning power would cover all treaties. But this parliamentary interposition derives from a cases except impeachments. Our governor may pardon all different cause: the necessity to adjust an artificial, intricate crimes (including impeachments) except treason and system of revenue and commercial laws to changes murder. Clearly, the governor’s pardoning authority necessary to make a treaty work and to add new provisions exceeds the President’s? Through pardoning, conspiracies and precautions to keep the machine from running into and plots against the government that grow into actual trouble. So there is no comparison between the President’s treason may be screened from all punishment. If a intended power and the actual power of the king. What the governor of New York were to lead such a plot he could, king can do alone, the President can do only with the until actual hostility occurred, insure his accomplices and Senate’s agreement. On the other hand, the federal adherents complete impunity. But a President could not Executive’s power still would exceed that of any State shelter any offender from impeachment and conviction. governor. But this arises naturally from the sovereign power It seems that the possibility of total protection from the that relates to treaties. If the Union were to dissolve, it first steps of prosecution would be a greater temptation to would become a question whether the governors would undertake and carry out a plot against public liberty than possess this sensitive, vital prerogative. the mere prospect, should the enterprise miscarry, of ———————————————————————— exemption from death and confiscation. That expectation would lose its influence if the person able to exempt might (The President) shall … receive ambassadors and other public ministers … himself be implicated and therefore unable to deliver Article II Section 3 of the United States Constitution impunity? The best way to judge this issue is to bear in mind that ————————————————————————– the proposed Constitution confines treason “to levying war The President’s authority to receive ambassadors and upon the United States, and adhering to their enemies, other public ministers, often declaimed, is more a matter of giving them aid and comfort.” ceremony than of authority. It will have no effect on the ———————————————————————— administration of the government. It was so written because Treason against the United States shall consist only in it is more convenient to arrange visitations this way than to levying war against them, or in adhering to their enemies, convene Congress on the arrival of every foreign minister. giving them aid and comfort. No person shall be convicted of The President is to nominate, and, with the advice and treason unless on the testimony of two witnesses to the consent of the senate, appoint ambassadors and other same overt act, or on confession in open court. Article III Section 3 [1] of the United States Constitution public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, ————————————————————— and whose appointments are not otherwise provided for by Fourthly. The President can adjourn the Congress only the Constitution. (Article II Section 2 [2] of the United States in the event of disagreement about the time of Constitution) The king of Great Britain appoints to all offices adjournment. The British king may discontinue, postpone or and can even create offices. He can confer titles of nobility even dissolve the Parliament. Our governor may also at pleasure and may appoint and promote Church of discontinue the legislature for a limited time for very England officials. Compared to that, the President’s important purposes. appointment power is inferior; in fact, the governor of New –———————————————————————— York has more appointment authority. He uses it as a member of a council, with four Senators chosen by the State Assembly. The governor frequently nominates, and is [The President] shall have power, by and with the advice and entitled to a tie-breaking vote for nominees. In the national consent of the Senate, to make treaties, provided two-thirds of the Senators present concur … government, if the Senate should be tied, no appointment Article II Section 2 [2] of the United States Constitution could be made. In New York, the governor can confirm his own nomination. If we compare the publicity which must attend ————–———————————————————— appointments by the President and an entire House of Congress with the privacy in the New York process – with The President can make treaties if two-thirds of the governor closeted in a secret apartment with at most Senators present agree. The king is Britain’s absolute four and often two persons – and if we also consider how representative in all foreign transactions: treaties of peace, much easier it must be to influence those few council commerce, alliance and for every other purpose. Some members, there is no doubt the governor’s power insinuate that his treaty-making authority is not conclusive outweighs the President’s. and that his agreements with foreign powers are subject to So it seems that, except for his treaty-making power, it the revision and ratification of Parliament. But I believe this would be difficult to determine whether the President or our doctrine arose only recently. Every British jurist, and governor would have more power. There is no question the everyone else acquainted with its Constitution, knows that British king has far more authority and the contrast is more treaty power resides in the crown in great abundance and striking in this light: that compacts entered by royal authority are completely, • The President of the United States would be elected perfectly valid and untouchable by any other sanction. True, for four years; the king is a perpetual, hereditary the Parliament sometimes alters existing laws to conform prince. to stipulations of a new treaty, and this may incite some to imagine that its cooperation is necessary to execute The Federalist Papers … In Other Words • Paraphrased by Marshall Overstedt • Page 106 © 1999 Marshall R. Overstedt
  • 107. • The President would be subject to personal • The President can prescribe no rules concerning punishment and disgrace; the king’s person is sacred national commerce or currency; the king is in many and inviolable. ways the arbiter of commerce, and can establish • The President would have a qualified veto over Acts of markets and fairs, regulate weights and measures, lay Congress; the king’s veto is absolute. embargoes, coin money, authorize or prohibit • The President would command the national army and circulation of foreign coin. navy; so does the king, who can also declare war and • The President has no religious authority; the king is the raise and regulate fleets and armies. supreme head and governor of the national church. • The President would share treaty-making power with How shall we answer those who claim that things so the Senate; the king alone has that power. unlike resemble each other? The same way as those who • The President would also share authority to appoint