1787-1788 2025
This is an AI modernization of The Federalist Papers into contemporary English. The original text is from Project Gutenberg. The translation was done using Claude.
To the People of the State of New York:
After our clear experience with the failures of the current federal government, you're now being asked to consider a new Constitution for the United States of America. The importance of this decision speaks for itself -- what's at stake is nothing less than the survival of the Union, the safety and well-being of every state in it, and the future of a nation that is, in many ways, the most remarkable in the world. People have often observed that it seems to have fallen to the citizens of this country, through their actions and their example, to settle a crucial question: whether people are actually capable of creating good government through reason and free choice, or whether they're forever doomed to have their political systems shaped by accident and force. If there's any truth to that observation, then the crisis we've arrived at may rightly be seen as the moment when that question gets answered -- and if we choose wrong, it may well deserve to be considered a disaster for all of humanity.
That thought should add a sense of duty to all people -- not just as patriots, but as human beings -- and deepen the concern that every thoughtful, decent person must feel about the outcome. It would be wonderful if our choice were guided by a clear-eyed assessment of our true interests, free from confusion and bias, and focused entirely on the public good. But that's more of a hope than a realistic expectation. The plan being put before us touches too many private interests and shakes up too many established local institutions not to drag in a whole range of issues that have nothing to do with its actual merits -- along with all kinds of personal agendas, passions, and prejudices that don't exactly help us find the truth.
Among the most serious obstacles the new Constitution will face, you can easily spot the obvious self-interest of a certain class of people in every state who will resist any change that might reduce the power, pay, and prestige of the offices they currently hold under state governments. Then there's the warped ambition of another class of people who either hope to gain power from the chaos in the country, or who figure they'll have better chances of rising to the top if the nation splits into several smaller confederacies rather than uniting under one government.
Now, I don't intend to dwell on these kinds of observations. I'm well aware that it would be unfair to dismiss anyone's opposition as purely self-interested or power-hungry just because their situation might make them look suspicious. Honesty requires us to admit that even people in those positions may be acting with genuinely good intentions. And there's no question that much of the opposition that has already appeared -- or will appear -- comes from perfectly innocent sources, maybe even admirable ones: honest mistakes by people whose judgment has been thrown off by deep-seated suspicions and fears. The forces that can distort our judgment are so numerous and so powerful that, time and again, we see wise and good people landing on the wrong side of questions that matter enormously to society. If we take that seriously, it should teach us some humility -- even when we're absolutely convinced we're right. And here's another reason for caution: we can't always be sure that the people arguing for the truth are motivated by nobler principles than their opponents. Ambition, greed, personal grudges, partisan loyalty, and plenty of other less-than-admirable motives are just as likely to drive the people on the right side of an issue as those on the wrong side. Even setting all that aside, nothing is more foolish than the kind of intolerance that has always defined political factions. In politics, just as in religion, it's equally absurd to try to win converts by force. You rarely stamp out dissent through persecution.
And yet, no matter how reasonable all of this sounds, we already have plenty of signs that this debate will play out like every other major national argument. A flood of angry, toxic passions will be unleashed. Judging by how both sides have already been behaving, we can expect each of them to try to prove they're right and win people over through sheer volume and vicious attacks. Genuine enthusiasm for a strong and effective government will be branded as a love of tyranny and a hostility to freedom. Meanwhile, an excessive suspicion about threats to the people's rights -- which is usually more a failure of the head than of the heart -- will be dismissed as pure theater, a tired trick to win popularity at the expense of the public good. On one side, people will forget that suspicion is the natural companion of love, and that a noble passion for liberty can easily become infected with a narrow, mean-spirited distrust. On the other side, people will just as easily forget that a strong government is essential to protecting liberty -- that in the eyes of any informed and thoughtful person, the two can never truly be separated -- and that dangerous ambition more often hides behind an appealing mask of concern for the people's rights than behind open support for strong government. History teaches us that the former has been a far more reliable path to tyranny than the latter, and that most of the people who have destroyed the freedoms of republics started their careers by sucking up to the masses -- beginning as demagogues and ending as tyrants.
In making all of these observations, my fellow citizens, my goal has been to put you on your guard against any attempt -- from any direction -- to sway your decision on a matter of the highest importance to your well-being through anything other than the evidence of truth. At the same time, you've no doubt picked up from the general drift of what I've been saying that I'm not hostile to the new Constitution. Yes, my countrymen, I'll be straight with you: after giving it careful thought, I'm clearly of the opinion that adopting it is in your best interest. I'm convinced that this is the safest path for your liberty, your dignity, and your happiness. I'm not going to fake uncertainty that I don't feel. I'm not going to pretend I'm still deliberating when I've already made up my mind. I'll openly share my convictions with you, and I'll freely lay out the reasons behind them. When you know your intentions are good, you don't hide behind vague language. I won't go on and on about my own sincerity, though. My motives can stay in my own heart. My arguments will be out in the open for everyone to see and judge. They will at least be offered in a spirit that does justice to the cause of truth.
I plan, in a series of papers, to discuss the following important topics:
How the UNION benefits your political well-being -- why the current Confederation isn't strong enough to hold the Union together -- why we need a government at least as energetic as the one being proposed -- how the proposed Constitution lines up with the true principles of republican government -- how it compares to your own state constitutions -- and finally, how adopting it will provide additional protection for republican government, for liberty, and for property.
As this discussion unfolds, I'll do my best to give a thorough answer to every objection that comes up and seems to deserve your attention.
It might seem unnecessary to argue for the value of the Union -- a principle that is, no doubt, deeply held by the vast majority of people in every state, and one that might appear to have no opponents. But the fact is, we're already hearing whispers in the private circles of those who oppose the new Constitution that the thirteen states are simply too large for any single national system, and that we'll inevitably need to break into separate regional confederacies.[1] This idea will, in all likelihood, gradually spread until it has enough supporters to be stated openly. Because for anyone who can see the big picture, it's obvious that the real choice is between adopting the new Constitution or watching the Union fall apart. It will therefore be useful to start by examining the advantages of the Union, the certain harms and the likely dangers that every state would face if it dissolves. That will be the subject of my next paper.
PUBLIUS
[1] This same idea -- following its arguments to their logical conclusions -- has appeared in several recent publications opposing the new Constitution.
To the People of the State of New York:
When the people of America stop to think that they're now being asked to decide a question that will prove to be one of the most important they've ever faced, the wisdom of taking a very thorough and very serious look at it should be obvious.
Nothing is more certain than the absolute necessity of government, and it's equally undeniable that whenever and however a government is set up, the people have to give up some of their natural rights in order to grant it the powers it needs. So it's well worth considering: would it better serve the interests of the American people to be, for all major purposes, one nation under one federal government? Or should they divide themselves into separate confederacies, giving to the leader of each the same kind of powers they're now being advised to place in a single national government?
Until recently, it was a widely accepted and unquestioned belief that the prosperity of the American people depended on staying firmly united, and the hopes, prayers, and efforts of our best and wisest citizens have always been directed toward that goal. But now politicians are emerging who insist this belief is wrong -- that instead of looking for safety and happiness in union, we should seek it by splitting the states into separate confederacies or independent nations. However strange this new idea may seem, it does have its supporters, and certain prominent figures who were once strongly opposed to it have now come around to it. Whatever the arguments or incentives that caused this change of heart, it certainly wouldn't be wise for the general public to adopt these new political theories without being fully convinced that they're grounded in truth and sound policy.
It's often given me pleasure to notice that independent America wasn't made up of scattered and distant territories, but that one connected, fertile, wide-spreading country was the inheritance of our western sons of liberty. Providence has especially blessed this land with diverse soils and resources, and watered it with countless rivers and streams, for the benefit and comfort of its people. A series of navigable waterways forms a kind of chain around its borders, as if to bind it all together, while some of the noblest rivers in the world, running at convenient distances, serve as natural highways for the easy exchange of friendly help and the transportation and trade of various goods.
With equal pleasure, I've just as often noticed that Providence was good enough to give this one connected country to one united people -- a people descended from the same ancestors, speaking the same language, practicing the same religion, committed to the same principles of government, very similar in their customs and traditions, and who, through their shared planning, fighting, and effort, standing side by side throughout a long and bloody war, nobly won their collective liberty and independence.
This country and this people seem to have been made for each other, and it looks as though Providence intended that a homeland so perfectly suited for a band of brothers, united by the strongest bonds, should never be split into a collection of hostile, suspicious, and foreign-feeling separate nations.
These same sentiments have so far been shared by people of every background and group among us. For all major purposes, we've consistently been one people, with every individual citizen everywhere enjoying the same national rights, privileges, and protections. As a nation, we've made peace and war. As a nation, we've defeated our common enemies. As a nation, we've formed alliances, signed treaties, and entered into various agreements and compacts with foreign states.
A deep appreciation for the value and blessings of union led the people, very early on, to establish a federal government to preserve and sustain it. They created it almost as soon as they had a political existence at all -- in fact, at a time when their homes were going up in flames, when many of their fellow citizens were bleeding, and when the advance of war and destruction left little room for the kind of calm, careful thinking that must always come before creating a wise and well-balanced government for a free people. It shouldn't be surprising, then, that a government put together in such difficult times turned out, in practice, to be seriously flawed and inadequate for the job it was supposed to do.
This intelligent people recognized and regretted those flaws. Still just as devoted to union as they were passionate about liberty, they saw the danger that immediately threatened the former and, down the road, the latter too. Convinced that real security for both could only be found in a more wisely designed national government, they spoke with one voice and called the recent convention in Philadelphia to take up this critical subject.
This convention -- made up of men who had the confidence of the people, many of whom had earned great distinction for their patriotism, character, and wisdom during times that tested the minds and hearts of everyone -- took on this enormous task. In the calm of peacetime, with their minds free from other pressing concerns, they spent many months in cool, uninterrupted, daily deliberation. And finally, without being intimidated by any power or swayed by any passion other than love for their country, they presented and recommended to the people the plan that emerged from their united and remarkably unanimous deliberations.
Keep in mind -- because it's a fact -- that this plan is only recommended, not imposed. But let's also remember that it's not being recommended for blind approval, nor for blind rejection. It's being recommended for the kind of thoughtful, fair-minded consideration that the size and importance of the subject demands, and that it certainly deserves to receive. But as was pointed out in the previous paper, this kind of careful examination is more to be wished for than expected. Past experience teaches us not to be too optimistic about such hopes. We haven't forgotten that well-founded fears of imminent danger led the American people to form the landmark Continental Congress of 1774. That body recommended certain measures to the people, and events proved them wise. Yet it's still fresh in our memories how quickly the press began churning out pamphlets and newspaper articles attacking those very measures. Not only government officials acting out of personal self-interest, but others too -- some who misjudged the consequences, some swayed by old loyalties, and some whose ambitions pointed toward goals that didn't align with the public good -- worked tirelessly to persuade the people to reject the advice of that patriotic Congress. Many were indeed fooled and misled, but the great majority of the people reasoned things out and decided wisely -- and they're glad, looking back, that they did.
The people recognized that the Congress was made up of many wise and experienced leaders. That, having come together from different parts of the country, they brought with them and shared a wealth of useful knowledge. That, through the time they spent together investigating and debating the true interests of their country, they must have developed a very thorough understanding of the issues. That they were personally invested in the public's liberty and well-being, and therefore that it was as much their desire as their duty to recommend only those measures that, after the most careful deliberation, they genuinely believed were wise and sound.
These and similar considerations led the people to place great trust in the judgment and integrity of the Congress, and they followed its advice despite the various tricks and efforts used to discourage them. But if the general public had good reason to trust the members of that Congress -- few of whom had been fully tested or were widely known -- they have even greater reason now to respect the judgment and advice of the convention. After all, it's well known that some of the most distinguished members of that original Congress, who have since proven themselves and been justly recognized for their patriotism and ability, and who have spent years gaining deep political knowledge, were also members of this convention, bringing with them all their accumulated wisdom and experience.
It's worth noting that not only the first Congress, but every Congress since then, as well as the recent convention, have consistently agreed with the people that America's prosperity depends on its Union. Preserving and sustaining the Union was the great goal of the people in calling that convention, and it's also the great goal of the plan the convention has recommended they adopt. So with what justification, or for what good reason, are some people now trying at this particular moment to play down the importance of the Union? And why is it being suggested that three or four confederacies would be better than one? I'm personally convinced that the people have always been right on this subject, and that their universal and consistent commitment to the cause of the Union rests on powerful and compelling reasons, which I'll work to develop and explain in the papers that follow. Those who promote the idea of replacing the convention's plan with a number of separate confederacies clearly seem to understand that rejecting it would put the survival of the Union in extreme jeopardy. That would certainly be the case, and I sincerely hope that every good citizen can see just as clearly that whenever the dissolution of the Union comes, America will have reason to cry out, in the words of the poet: "Farewell! A long farewell to all my greatness."
PUBLIUS
To the People of the State of New York:
It's hardly a new observation that the people of any country -- if, like the Americans, they're intelligent and well-informed -- rarely adopt and stick with a mistaken belief about their own interests for many years. That fact naturally leads us to have great respect for the strong opinion that the American people have held so long and so consistently: that it's vitally important for them to remain firmly united under one federal government, with enough power to handle all national concerns.
The more carefully I examine the reasons behind this belief, the more convinced I become that they're strong and decisive.
Among the many concerns that a wise and free people find it necessary to focus on, providing for their safety seems to come first. The safety of the people obviously relates to a wide range of circumstances and considerations, which gives plenty of room to those who want to define it precisely and thoroughly.
For now, I only mean to consider safety as it relates to keeping the peace -- both against dangers from foreign military power and influence, and against similar dangers arising from domestic causes. Since the foreign threat comes first in order, it makes sense to discuss it first. So let's examine whether the people are right in their belief that a strong Union, under an effective national government, gives them the best possible security against hostility from abroad.
The number of wars that have happened -- or will happen -- in the world will always be proportional to the number and weight of the causes, whether real or made up, that provoke or invite them. If that's true, then it's worth asking whether a united America is likely to give as many legitimate reasons for war as a disunited America. Because if it turns out that a united America would probably give fewer such reasons, then it follows that the Union is most likely to keep the people at peace with other nations.
Legitimate causes of war mostly arise from either the violation of treaties or from direct acts of violence. America has already signed treaties with no fewer than six foreign nations, and all of them except Prussia are naval powers -- meaning they're capable of threatening and harming us. America also has extensive trade with Portugal, Spain, and Britain, and with the latter two, we have the added factor of being neighbors.
It's extremely important for the peace of America that we respect the laws of nations in our dealings with all these powers, and it seems clear to me that this will be done more consistently and reliably by one national government than it could be by thirteen separate states or by three or four distinct confederacies.
First, because once an effective national government is established, the best people in the country won't just agree to serve in it -- they'll generally be the ones appointed to run it. While local influence or narrow interests may get people placed in state assemblies, senates, courts, or executive departments, a broader and more established reputation for talent and qualifications will be needed for positions in the national government -- especially since it will have the widest pool of candidates to choose from, and won't experience the shortage of qualified people that's not uncommon in some of the states. The result is that the administration, the policy decisions, and the judicial rulings of the national government will be wiser, more systematic, and more sound than those of individual states -- and therefore more satisfactory to other nations, as well as safer for us.
Second, because under the national government, treaties and the laws of nations will always be interpreted in one consistent way and carried out in the same manner. Under thirteen states or three or four confederacies, however, rulings on the same issues wouldn't always agree or be consistent -- partly because of the variety of independent courts and judges appointed by different and independent governments, and partly because of the different local laws and interests that might affect their decisions. The wisdom of the convention in assigning such questions to courts appointed by and answerable to one national government can't be praised enough.
Third, because the prospect of immediate loss or gain may often tempt the ruling party in one or two states to stray from good faith and justice. But those temptations, not affecting the other states and therefore having little or no influence on the national government, would be kept in check, and good faith and justice would be preserved. The case of the peace treaty with Britain is a powerful example of this point.
Fourth, because even if the ruling party in a state wanted to resist such temptations, those temptations often arise from circumstances unique to that state and may affect a large number of its residents. So the state government may not always be able -- even if willing -- to prevent the injustice being planned, or to punish the offenders. But the national government, not being affected by those local circumstances, would neither be tempted to commit the wrong itself nor lack the power or the desire to prevent or punish others who do.
So, to the extent that either intentional or accidental violations of treaties and the laws of nations give legitimate causes for war, those violations are less likely under one general government than under several smaller ones. In that regard, a single government best protects the safety of the people.
As for legitimate causes of war that come from direct and unlawful violence, it seems equally clear to me that one good national government provides vastly more security against such dangers than any other arrangement.
This is because such acts of violence are more often caused by the passions and interests of a part rather than the whole -- of one or two states rather than the Union. Not a single conflict with Native American nations has yet been caused by the actions of the current federal government, weak as it is. But there are several cases where hostilities with Native Americans were provoked by the irresponsible behavior of individual states that were either unable or unwilling to restrain or punish offenders, leading to the deaths of many innocent people.
The fact that Spanish and British territories border some states but not others naturally means that causes for conflict tend to affect the border states most directly. Those border states, if any, are the ones most likely -- driven by sudden anger and a sharp sense of being wronged -- to provoke war with these nations through direct acts of violence. And nothing can prevent that danger as effectively as a national government, whose wisdom and restraint won't be clouded by the passions driving the states most directly involved.
But the national government won't just give fewer legitimate causes for war -- it will also be better positioned to resolve disputes peacefully. It will be more level-headed and cool, and in that respect, as well as others, better able to act carefully than the offending state. The pride of states, like the pride of individuals, naturally leads them to justify all their actions and resist admitting, correcting, or making amends for their mistakes and offenses. The national government, in such cases, won't be affected by this pride, but will proceed with restraint and fairness to consider and decide on the best way to extract itself from the difficulties that threaten.
Beyond that, it's well known that apologies, explanations, and compensation are often accepted as satisfactory when they come from a strong, united nation -- but would be rejected as inadequate if offered by a state or confederacy of little standing or power.
In 1685, the city-state of Genoa offended King Louis XIV of France and tried to make amends. He demanded that they send their Doge -- their chief leader -- along with four of their senators, to France to beg his pardon and accept his terms. They had no choice but to comply, for the sake of peace. But would he ever have demanded or received such a humiliating submission from Spain, or Britain, or any other powerful nation?
PUBLIUS
To the People of the State of New York:
My last paper laid out several reasons why the safety of the people would be best secured by union against the danger posed by legitimate causes of war given to other nations. Those reasons showed that such causes would not only come up less often, but would also be more easily resolved, by a national government than by either the state governments or the proposed small confederacies.
But the safety of the American people against foreign threats doesn't depend only on avoiding legitimate causes of war with other nations. It also depends on putting and keeping ourselves in a position that doesn't invite hostility or aggression -- because it hardly needs pointing out that there are trumped-up causes of war as well as legitimate ones.
It's an unfortunate truth -- however disgraceful to human nature -- that nations will generally make war whenever they see a chance of gaining something from it. In fact, absolute monarchs will often make war even when their nations have nothing to gain, pursuing purely personal goals like a thirst for military glory, revenge for personal insults, ambition, or private deals to elevate or support their own families or allies. These and a variety of other motives, which only affect the mind of the ruler, often lead him into wars that have no basis in justice and no connection to the voice or interests of his people. But aside from these triggers for war -- which are more common under absolute monarchies, though they certainly deserve our attention -- there are others that affect nations as often as kings. And some of them, as we'll see, grow directly out of our own situation and circumstances.
With France and Britain, we're rivals in the fishing industry, and we can supply their markets more cheaply than they can themselves, no matter how hard they try to prevent it through subsidies for their own fishermen or tariffs on foreign fish.
With them and with most other European nations, we're rivals in shipping and the carrying trade. We'd be fooling ourselves if we thought any of them would be happy to see our shipping industry thrive, because our carrying trade can't grow without cutting into theirs to some degree. It's more in their interest, and it will be their policy, to restrict it rather than encourage it.
In the trade with China and India, we're stepping on the toes of more than one nation, since it allows us to share in advantages they had essentially monopolized and to supply ourselves with goods we used to buy from them.
The expansion of our own trade in our own ships can't please any nation that holds territory on or near this continent, because the low cost and high quality of our products, combined with our geographic proximity and the skill and resourcefulness of our merchants and sailors, will give us a larger share of the profits from those territories than their rulers would like.
Spain finds it useful to block us from the Mississippi on one side, and Britain shuts us out of the Saint Lawrence on the other. Neither of them will allow the waterways between us and them to become channels for trade and communication.
From these and similar considerations -- which could, if it were wise to do so, be laid out in much greater detail -- it's easy to see that suspicions and anxieties may gradually take hold in the minds and governments of other nations. We shouldn't expect them to watch our growing unity, power, and standing on land and sea with calm indifference.
The American people understand that these circumstances, along with others not yet obvious, could give other nations reasons to go to war with us -- and that whenever those motives find the right time and opportunity, there will be no shortage of excuses to justify them. Wisely, then, the people see union and a strong national government as essential to putting and keeping themselves in a position that discourages war rather than inviting it. That position depends on having the best possible state of defense, which in turn depends on the government, the military, and the resources of the country.
Since the safety of the whole is in the interest of the whole, and can't be provided for without government of some kind, let's ask whether one good government isn't better suited to this task than any other number.
One government can draw on the talents and experience of the most capable people, wherever in the Union they may be found. It can operate on consistent principles of policy. It can coordinate, unify, and protect the various parts and members of the nation, extending the benefits of its planning and precautions to each one. In making treaties, it will keep in mind the interests of the whole, and see the particular interests of the parts as connected to the whole. It can direct the resources and power of the entire nation to the defense of any particular part -- and do so more easily and quickly than state governments or separate confederacies could, since they'd lack the coordination and unity of a single system. It can place the militia under one plan of training and discipline, and by putting their officers in a proper chain of command under the Commander in Chief, effectively unite them into one fighting force -- making them far more effective than if they were divided into thirteen, or three or four, separate and independent units.
What would the British military look like if the English militia answered to the government of England, the Scottish militia to the government of Scotland, and the Welsh militia to the government of Wales? Imagine an invasion: would those three governments -- even if they could agree at all -- be able to coordinate their forces against the enemy as effectively as the single government of Great Britain?
We've heard a lot about Britain's fleets, and the time may come, if we're wise, when America's fleets will command the same attention. But if one national government hadn't regulated British shipping in a way that built up a steady supply of trained sailors -- if one national government hadn't marshaled all the nation's resources and materials for building fleets -- their naval power and reputation would never have been achieved. Let England have its own navy, let Scotland have its own navy, let Wales have its own navy, let Ireland have its own navy -- let those four parts of the British empire operate under four independent governments, and it's easy to see how quickly each would shrink into comparative insignificance.
Now apply these facts to our own situation. Leave America divided into thirteen, or if you prefer, three or four independent governments -- what armies could they raise and pay? What fleets could they ever hope to have? If one was attacked, would the others rush to its aid, spending their blood and money in its defense? Wouldn't there be a danger of them being sweet-talked into neutrality by appealing promises, or seduced by an excessive love of peace into refusing to risk their own comfort and safety for the sake of neighbors they may have been suspicious of, and whose decline in importance they're content to watch? Though such behavior wouldn't be wise, it would, unfortunately, be natural. The history of the Greek city-states, and of other countries, is full of such examples, and it's not unlikely that what has happened so often before would, under similar circumstances, happen again.
But suppose they were willing to help the invaded state or confederacy. How, when, and in what proportion would the contributions of soldiers and money be made? Who would command the combined armies, and from which government would they take orders? Who would negotiate the terms of peace, and in case of disagreements, what referee would settle disputes and enforce compliance? All kinds of difficulties and problems would be inseparable from such a situation. But one government, watching over the general and common interests and combining and directing the powers and resources of the whole, would be free from all these headaches and would do far more to keep the people safe.
But whatever our situation may be -- whether firmly united under one national government or split into a number of confederacies -- foreign nations will know exactly what it is and see it clearly, and they'll act toward us accordingly. If they see that our national government is effective and well run, our trade wisely regulated, our militia properly organized and trained, our finances responsibly managed, our credit restored, and our people free, content, and united, they'll be much more inclined to seek our friendship than to provoke our anger. If, on the other hand, they find us without an effective government -- each state doing whatever its leaders find convenient, right or wrong -- or split into three or four independent and probably quarreling republics or confederacies, one leaning toward Britain, another toward France, and a third toward Spain, and perhaps all being played off against each other by those three powers -- what a poor, pathetic figure America would cut in their eyes! How quickly would we become a target not just for their scorn but for their aggression, and how soon would painful experience prove that when a people or a family divides against itself, it never fails to be their own undoing.
PUBLIUS
To the People of the State of New York:
Queen Anne, in her letter of July 1, 1706, to the Scottish Parliament, made some observations on the importance of the union then being formed between England and Scotland that deserve our attention. I'll share an extract or two with the public: "A complete and perfect union will be the solid foundation of lasting peace. It will protect your religion, liberty, and property, and remove the hostilities among yourselves and the suspicions and disagreements between our two kingdoms. It will increase your strength, wealth, and trade; and by this union, the whole island -- joined in mutual loyalty and free from all fears of conflicting interests -- will be able to resist all its enemies." "We most earnestly urge you toward calmness and unanimity in this great and weighty matter, so that the union may be brought to a happy conclusion, as it is the only effective way to secure our present and future happiness and to defeat the plans of our shared enemies, who will no doubt use every effort to prevent or delay this union."
As I pointed out in the previous paper, weakness and division at home invite dangers from abroad, and nothing would do more to protect us from those dangers than union, strength, and good government within our own borders. This is a rich subject, and one that can't easily be exhausted.
The history of Great Britain is the one most of us know best, and it offers many useful lessons. We can learn from their experience without paying the price they paid. Although it seems like common sense that the people of an island nation should form one country, we find that for centuries they were divided into three, and that those three were almost constantly caught up in quarrels and wars with one another. Despite the fact that their true interest in relation to the continental nations of Europe was really the same, the schemes and policies and maneuvers of those nations kept their mutual suspicions constantly inflamed. For a long stretch of years, they were far more of a burden and a problem to each other than they were a help.
If the American people divided themselves into three or four nations, wouldn't the same thing happen? Wouldn't similar suspicions arise and be encouraged in the same way? Instead of being "joined in affection" and free from any fear of conflicting interests, envy and distrust would soon destroy confidence and goodwill. The narrow interests of each confederacy, rather than the broad interests of all America, would become the only focus of their policies and ambitions. And so, like most neighboring nations throughout history, they would always be either involved in disputes and war or living in constant fear of them.
Even the most optimistic supporters of three or four confederacies can't reasonably assume they would stay on equal footing in terms of strength for very long, even if it were possible to start them out that way. But even granting that it could be done -- what human plan could guarantee that such equality would last? Setting aside the local circumstances that naturally build up power in one region while holding it back in another, we'd also have to account for the effects of better leadership and management, which would likely set one government above the rest and destroy whatever balance of strength and standing they once had. We simply can't expect the same level of sound policy, good judgment, and foresight to be consistently maintained by each of these confederacies over many years.
Whenever it happened -- and it would happen, for one reason or another -- that one of these nations or confederacies rose significantly above its neighbors on the scale of political importance, those neighbors would immediately look at it with envy and fear. Both emotions would lead them to support, if not actively promote, anything that might reduce its importance, while holding back from any steps that could advance or even protect its prosperity. It wouldn't take long for that rising nation to notice these hostile attitudes. It would soon begin not only to lose trust in its neighbors but to develop equally unfriendly feelings toward them. Distrust naturally breeds distrust, and nothing destroys goodwill and neighborly relations more quickly than spiteful suspicions and unfair accusations, whether spoken or implied.
The North is generally the region of strength, and many local factors make it likely that the most northern of the proposed confederacies would, before long, be clearly more powerful than any of the others. The moment that became obvious, this "northern hive" would stir up the same ideas and anxieties in the southern parts of America that it once did in the southern parts of Europe. And it doesn't seem like a stretch to guess that its young swarms might often be tempted to gather honey in the greener fields and milder climates of their wealthier and more comfortable southern neighbors.
Anyone who studies the history of similar divisions and confederacies will find plenty of reason to expect that the ones being proposed would be neighbors in name only -- really just border states. They wouldn't love or trust one another. On the contrary, they'd be plagued by conflict, suspicion, and mutual harm. In short, they would put us in exactly the position that certain foreign nations would no doubt love to see us in: a threat only to each other.
From these observations, it's clear that those who assume offensive and defensive alliances could be formed among these confederacies -- alliances that would produce the kind of combined will, military coordination, and pooled resources needed to maintain a strong defense against foreign enemies -- are seriously mistaken.
When did the independent states that Britain and Spain were once divided into ever form such alliances or unite their forces against a foreign enemy? The proposed confederacies would be separate nations. Each would negotiate its own trade agreements with foreign countries through separate treaties. And since their products and goods would be different and suited to different markets, those treaties would be fundamentally different. Different trade interests would inevitably create different political interests, and therefore different degrees of attachment and connection to different foreign powers. So it might well happen -- and probably would -- that the foreign nation the southern confederacy was at war with would be the very one the northern confederacy most wanted to keep as a friend. An alliance that ran so directly against their immediate interests wouldn't be easy to form, and even if formed, it wouldn't be honored with real good faith.
In fact, it's far more likely that in America, just as in Europe, neighboring nations driven by opposing interests and unfriendly passions would frequently end up on different sides. Given our distance from Europe, it would be more natural for these confederacies to see each other as a greater threat than distant nations -- and therefore for each to seek protection from the others through foreign alliances rather than banding together against foreign dangers. And let's not forget how much easier it is to invite foreign fleets into our ports and foreign armies into our country than it is to persuade or force them to leave. How many conquests did the Romans and others make while posing as allies? And what changes did they impose on the governments of the nations they claimed to be protecting?
Let fair-minded people judge, then, whether dividing America into any number of independent nations would tend to protect us against the hostility and meddling of foreign powers.
PUBLIUS
To the People of the State of New York:
The last three papers in this series have been dedicated to listing the dangers we'd face, in a state of disunion, from the military force and cunning schemes of foreign nations. I'll now move on to outline dangers of a different and perhaps even more alarming kind — those that would almost certainly arise from conflicts between the states themselves, and from domestic political upheavals. These have already been touched on briefly, but they deserve a closer and more thorough examination.
Anyone who seriously doubts that these states, if completely separated or only partially united in smaller alliances, would have frequent and violent conflicts with each other has drifted far into wishful thinking. To assume there'd be no motives for such conflicts, and use that assumption as proof they wouldn't happen, would be to forget that people are ambitious, vengeful, and greedy. To expect lasting harmony between a number of independent, unconnected nations sharing the same neighborhood would be to ignore the entire course of human history and defy the accumulated experience of the ages.
The causes of hostility among nations are countless. Some operate broadly and almost constantly on societies as a whole. In this category: the love of power, or the desire for dominance and control — and the suspicion of power, or the desire for equality and safety. Others have a narrower but equally potent influence within their own spheres. These include the rivalries and competitions of trade between commercial nations. And still others, no less numerous than either of the first two categories, originate entirely in personal passions — in the loyalties, grudges, interests, hopes, and fears of the leading individuals in their communities. People in this class, whether favorites of a king or of the public, have in too many cases abused the trust placed in them. Using some public cause as a cover, they haven't hesitated to sacrifice their nation's peace for personal advantage or personal satisfaction.
The celebrated Pericles, giving in to the resentment of a lover [1], and at the cost of much of his countrymen's blood and treasure, attacked, conquered, and destroyed the city of the Samians. The same man — driven by a personal grudge against the Megarians [2], another Greek nation, or trying to dodge a prosecution threatening him as an accomplice in an alleged theft by the sculptor Phidias [3], or trying to escape charges being prepared against him for wasting public funds to buy popularity [4], or from some combination of all these motives — was the original author of that famous and fatal conflict known in Greek history as the Peloponnesian War. After many twists, pauses, and resumptions, it ended in the ruin of the Athenian republic.
The ambitious Cardinal Wolsey, who was prime minister to Henry VIII, let his vanity aspire to the papal crown [5]. He entertained hopes of winning that splendid prize through the influence of the Emperor Charles V. To secure the favor and support of this ambitious and powerful monarch, he rushed England into a war with France — contrary to the clearest dictates of good policy, and at the risk of the safety and independence of the kingdom he effectively ruled, as well as of Europe as a whole. For if there was ever a ruler who seemed poised to achieve universal domination, it was the Emperor Charles V, whose schemes Wolsey served as both instrument and fool.
The influence that the religious bigotry of one woman [6], the petulance of another [7], and the political scheming of a third [8] had on the policies, upheavals, and peace settlements of a large part of Europe — these are topics that have been discussed too often to be unfamiliar.
To pile up more examples of how personal motives have produced major national events, whether in foreign or domestic affairs, would be a waste of time. Those with even a passing familiarity with history will recall plenty of examples on their own. And those with a reasonable understanding of human nature won't need such illustrations to form an opinion about how real and how extensive this influence is. Perhaps, though, it's worth pointing to one case that recently happened right here among us. If Shays hadn't been a desperate debtor, it's very doubtful that Massachusetts would have been plunged into a civil war.
But despite all the consistent testimony of experience on this point, there are still dreamers and manipulators out there who are ready to push the fantasy of perpetual peace between the states, even if they were broken apart and cut off from each other. The genius of republics, they say, is peaceful. The spirit of commerce tends to soften people's behavior and put out those volatile passions that have so often erupted into wars. Commercial republics like ours, they claim, will never be willing to exhaust themselves in destructive conflicts with each other. They'll be governed by mutual interest and will cultivate a spirit of mutual friendship and harmony.
Can't we ask these political dreamers: Isn't it in the true interest of all nations to cultivate this same generous and philosophical spirit? If this is their true interest, have they actually pursued it? Hasn't it, on the contrary, always been the case that short-term passions and immediate self-interest exert a more powerful and commanding control over human behavior than long-term considerations of policy, practicality, or justice? Have republics in practice been any less prone to war than monarchies? Aren't republics run by human beings, just like monarchies? Aren't there hatreds, favoritism, rivalries, and desires for unjust gains that affect nations just as much as kings? Aren't popular assemblies frequently subject to impulses of rage, resentment, suspicion, greed, and other irrational and violent tendencies? Isn't it well known that their decisions are often controlled by a few individuals they trust — and are therefore likely to be colored by those individuals' passions and agendas? Has commerce so far done anything more than change what nations fight over? Isn't the love of wealth just as dominating and ambitious a passion as the love of power or glory? Haven't there been just as many wars driven by commercial motives, since commerce became the dominant system among nations, as there were previously caused by the hunger for territory or dominion? Hasn't the spirit of commerce, in many cases, actually created new incentives for both kinds of appetite? Let experience — the most reliable guide for human judgment — be the one to answer these questions.
Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, were the commercial kind. Yet they were just as often engaged in wars, both offensive and defensive, as the neighboring monarchies of their time. Sparta was little better than a well-organized military camp, and Rome was never satisfied with carnage and conquest.
Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her armies into the heart of Italy and to the gates of Rome before Scipio, in turn, defeated him on Carthaginian soil and conquered the republic.
Venice, in later centuries, played a part in more than one war of ambition — until, becoming a target for the other Italian states, Pope Julius II managed to assemble that formidable alliance [9] which dealt a deadly blow to the power and pride of this arrogant republic.
The provinces of Holland, until they were overwhelmed by debts and taxes, took a leading and prominent role in Europe's wars. They had fierce contests with England for control of the seas and were among the most persistent and unrelenting opponents of Louis XIV.
In Britain's government, the representatives of the people make up one branch of the national legislature. Commerce has been the dominant pursuit of that country for centuries. Yet few nations have been more frequently involved in war — and the wars Britain has fought have, in many cases, been driven by the people themselves.
There have been, if I can put it this way, almost as many popular wars as royal ones. The demands of the public and the pressure of their representatives have, on various occasions, dragged their monarchs into war, or kept them in it, against those monarchs' own wishes — and sometimes against the real interests of the nation. In that famous struggle for dominance between the rival houses of Austria and Bourbon, which kept Europe ablaze for so long, it's well known that English hatred of the French — fueling the ambition, or rather the greed, of a favorite military leader [10] — prolonged the war beyond any reasonable bounds of sound policy, and for a considerable time against the wishes of the crown.
The wars between Britain and France have largely grown out of commercial competition — the desire to replace each other in particular branches of trade, or in the general advantages of commerce and shipping, and sometimes even the less defensible desire to muscle in on other nations' trade without their consent.
The second-to-last war between Britain and Spain grew out of British merchants' attempts to conduct illegal trade with Spain's American colonies. These unjustifiable practices on their part provoked harsh treatment from the Spanish toward British subjects — treatment that was equally unjustifiable, because it went beyond fair retaliation and crossed into inhumanity and cruelty. Many of the English who were captured on the Spanish coast were sent to work in the mines of Potosi. And through the usual escalation of resentment, the innocent were eventually lumped together with the guilty in indiscriminate punishment. The merchants' complaints ignited a fierce outrage across the nation, which soon erupted in the House of Commons and spread from there to the government. Letters of reprisal were issued, and a war followed — a war whose consequences destroyed all the alliances that had been formed just twenty years earlier with high hopes for mutual benefit.
From this survey of what's happened in other countries whose situations most closely resembled our own, what reason do we have to trust in the fantasies that would lure us into expecting peace and goodwill between the members of our current confederacy, if they were separated? Haven't we already seen enough of the foolishness and absurdity of those idle theories that have entertained us with promises that we'd somehow be exempt from the flaws, weaknesses, and problems that affect every form of society? Isn't it time to wake up from the deceptive dream of a golden age and adopt as a practical principle for guiding our political decisions that we, like every other people on earth, are still far from the happy realm of perfect wisdom and perfect virtue?
Let the extreme low point to which our national dignity and credit have sunk — let the problems felt everywhere from weak and poorly run government — let the revolt of part of the state of North Carolina, the recent threatening disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts speak for themselves!
The general understanding of humankind is so far from agreeing with those who try to lull us into ignoring the threat of conflict and hostility between the states in the event of disunion, that it has actually become something of a political axiom — drawn from long observation of how societies develop — that neighboring nations are natural enemies of each other. A perceptive writer puts it this way: "Neighboring nations are naturally enemies of each other unless their common weakness forces them to unite in a confederate republic, and their constitution prevents the disputes that proximity creates, extinguishing that hidden suspicion which leads all states to expand at their neighbors' expense." [11] This passage simultaneously identifies the problem and suggests the solution.
PUBLIUS
[1] Aspasia; see Plutarch's "Life of Pericles." [2] Ibid. [3] Ibid. [4] Ibid. Phidias was believed to have stolen public gold, with Pericles' knowledge, to decorate the statue of Minerva. [5] The papal crown, worn by the popes. [6] Madame de Maintenon (Louis XIV's secretly married second wife, a devout Catholic who influenced his religious persecution). [7] The Duchess of Marlborough (a powerful figure in Queen Anne's court). [8] Madame de Pompadour (the influential mistress of Louis XV of France). [9] The League of Cambrai, which included the Holy Roman Emperor, the King of France, the King of Aragon, and most of the Italian princes and states. [10] The Duke of Marlborough (Britain's leading general in the War of the Spanish Succession). [11] See "Principes des Negociations" by the Abbe de Mably.
To the People of the State of New York:
People sometimes ask, with an air of smug triumph, what reasons the states could possibly have, if separated, to make war on each other. A complete answer to that question would be: exactly the same reasons that have, at various times, drenched every nation on earth in blood. But unfortunately for us, the question has a more specific answer than that. There are causes of conflict right in front of us — and even under the restraints of our current federal constitution, we've had enough experience with them to know what would happen if those restraints were removed.
Territorial disputes have always been one of the most fertile sources of hostility among nations. Perhaps the majority of wars that have devastated the earth have sprung from this source. This cause would exist among us in full force. We have a vast expanse of unsettled territory within the boundaries of the United States. There are still unresolved and contested claims between several states, and dissolving the Union would create the basis for similar claims between all of them. It's well known that the states have already had serious and heated debates over rights to the lands that were unoccupied at the time of the Revolution — what were usually called "crown lands." The states within whose colonial boundaries these lands fell have claimed them as their own property. The other states have argued that the crown's rights to these lands passed to the Union — especially all that Western territory which, either through actual possession or through agreements with Native American leaders, had been under the jurisdiction of the king of Great Britain until it was given up in the peace treaty. This, it's been argued, was in any case something acquired by the Confederacy through an agreement with a foreign power. Congress has wisely tried to settle this dispute by persuading the states to give up their claims to the United States for the benefit of everyone. This has progressed far enough that, as long as the Union continues, there's a clear prospect of resolving the matter peacefully. But breaking up the Confederacy would revive this dispute and create new ones on the same subject. Right now, a large part of the vacant Western territory is, through these transfers at least — if not by any prior right — the shared property of the Union. If the Union ended, the states that made those transfers as part of a federal compromise would naturally want to reclaim the lands once the reason for the transfer no longer existed. The other states would no doubt insist on their share, based on the principle of proportional representation. Their argument would be that a grant, once made, can't be taken back, and that the fairness of sharing in territory acquired or secured through the joint efforts of the Confederacy remained unchanged. Even if, against all odds, every state agreed that each had a right to a share of this common property, there would still be the problem of how to divide it up. Different states would propose different rules for this purpose, and since these rules would affect the competing interests of the parties involved, they wouldn't be easy to settle peacefully.
In the vast field of Western territory, then, we can see an enormous arena for hostile claims, with no referee or common judge to step in between the competing parties. Judging from the past, we have good reason to expect that the sword would sometimes be turned to as the final arbiter of their disputes. The dispute between Connecticut and Pennsylvania over the land at Wyoming warns us not to be too optimistic about easily settling such differences. The Articles of Confederation required the parties to submit the matter to a federal court. They did, and the court ruled in favor of Pennsylvania. But Connecticut showed clear signs of dissatisfaction with the ruling, and didn't appear fully resigned to it until, through negotiation and deal-making, something like compensation was found for the loss she felt she'd suffered. Nothing I'm saying here is meant as the slightest criticism of Connecticut's conduct. She no doubt sincerely believed she'd been wronged by the decision — and states, like individuals, accept rulings against them with great reluctance.
Those who had the chance to see the behind-the-scenes dealings in the dispute between New York and the district of Vermont can confirm the opposition we faced — from states with no stake in the claim as well as those that did have one — and can attest to the danger the Confederacy's peace would have been exposed to if New York had tried to assert its rights by force. Two motives drove that opposition: first, a suspicion of New York's future power; and second, the self-interest of certain influential individuals in neighboring states who had obtained land grants under Vermont's existing government. Even the states that brought forward claims contradicting ours seemed more eager to carve up New York than to establish their own claims. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, at every opportunity, showed a strong enthusiasm for Vermont's independence. And Maryland, until it became alarmed by the possibility of a connection between Canada and Vermont, was deeply invested in the same position. These being small states, they viewed the prospect of New York's growing power with an unfriendly eye. Looking back over all these dealings, we can trace some of the causes that would be likely to set the states against each other if their unfortunate destiny were to become disunited.
Competition over trade would be another rich source of conflict. States in less favorable positions would want to escape the disadvantages of their location and share in the advantages of their more fortunate neighbors. Each state, or separate alliance, would pursue its own commercial policy. This would create special treatment, preferences, and exclusions that would breed resentment. The habits of free exchange we've been accustomed to since the earliest days of this country, based on equal privileges, would make those resentments even sharper than they'd naturally be otherwise. We'd be quick to call things "injuries" that were actually the legitimate actions of independent nations looking out for their own interests. The enterprising spirit that defines commercial America has never let an opportunity go to waste. It's very unlikely that this unrestrained spirit would show much respect for the trade regulations that particular states might set up to secure exclusive benefits for their own citizens. Violations of these regulations on one side, and efforts to prevent and retaliate against them on the other, would naturally lead to provocations — and those to reprisals and wars.
The ability of some states to effectively make other states pay tribute through commercial regulations would not be patiently tolerated by the states being squeezed. The situation of New York, Connecticut, and New Jersey is a perfect example. New York, needing revenue, would have to impose duties on its imports. A large share of those duties would effectively be paid by the residents of the other two states, since they're consumers of what we import. New York would be neither willing nor able to give up this advantage. Its citizens wouldn't agree that a duty they pay should be waived for their neighbors' citizens, and even without that obstacle, there'd be no practical way to distinguish between our own customers and theirs in our markets. Would Connecticut and New Jersey put up with being taxed by New York for New York's exclusive benefit for very long? Would we be allowed to keep quietly enjoying a commercial capital whose advantages were so resented by our neighbors, and in their view so oppressive? Could we hold onto it against the pressure of Connecticut on one side and New Jersey pushing from the other? Only recklessness would answer yes.
The national debt would be yet another cause of friction between separate states or alliances. Dividing it up in the first place, and then gradually paying it off afterward, would both produce bad blood and resentment. How would it be possible to agree on a formula for dividing the debt that everyone found fair? There's hardly any approach that's entirely free from real objections — and these, as usual, would be blown out of proportion by the competing interests of the parties involved. There are already different views among the states about the basic principle of paying off the national debt. Some of them, either less impressed with the importance of national credit or because their citizens have little personal stake in the question, feel indifference or even hostility toward paying the domestic debt at any price. These would be inclined to exaggerate the difficulties of distributing the burden. Others, whose citizens are creditors of the government far out of proportion to their state's share of the total national debt, would push hard for some fair and effective repayment plan. The foot-dragging of the first group would provoke the anger of the second. Agreeing on a formula would, in the meantime, be delayed by genuine disagreements and deliberate stalling. The citizens of the creditor states would protest loudly. Foreign powers would press for payment of their legitimate claims, and the peace of the states would be threatened by the twin dangers of foreign invasion and internal conflict.
Suppose the difficulties of agreeing on a formula were overcome and the debt was divided. There would still be plenty of reason to expect that the formula, once put into practice, would prove harder on some states than others. Those bearing the heavier burden would naturally seek relief. The others would naturally resist any revision likely to increase their own share. That refusal would give the complaining states a plausible excuse to withhold their payments — an excuse too convenient not to be eagerly seized upon. And the failure of those states to meet their obligations would become a source of bitter argument and recrimination. Even if the formula were perfectly fair in principle, some states would still fall behind in their payments for a variety of other reasons: genuine lack of resources, mismanagement of their finances, accidental problems in running their governments — and on top of all that, the natural reluctance people have to part with money for purposes that have outlived the emergencies that created them and compete with more immediate needs. Late payments, whatever their cause, would produce complaints, accusations, and quarrels. There's perhaps nothing more likely to disrupt the peace between nations than being obligated to make shared payments toward some common purpose that doesn't benefit everyone equally. Because it's an observation as true as it is old: there's nothing people disagree about more readily than money.
Laws that violate private contracts, since they amount to attacks on the rights of states whose citizens are harmed by them, can be considered another likely source of hostility. We have no reason to expect that a more fair-minded or equitable spirit would govern the legislation of individual states in the future, without additional checks, than what we've already seen too many examples of disgracing their law books. We've seen the desire for retaliation stirred up in Connecticut in response to the outrageous actions of Rhode Island's legislature. And we can reasonably conclude that, in similar cases under different circumstances, the result would be a war — not of legal documents, but of the sword — to punish such appalling violations of moral duty and basic justice.
The likelihood of conflicting alliances between different states or groups of states and different foreign powers, and what that situation would mean for everyone's peace, has been thoroughly laid out in earlier papers. From the picture they've painted of this aspect of the subject, the conclusion to draw is this: if America were not connected at all, or connected only by the weak thread of a simple defensive alliance, the tangle of conflicting foreign alliances would gradually drag us into all the destructive labyrinths of European politics and wars. And the ruinous conflicts between the parts we'd been divided into would likely make us prey to the schemes and manipulations of foreign powers that are equally hostile to all of us. "Divide and conquer" [1] would have to be the motto of every nation that hates or fears us. [2]
PUBLIUS
[1] "Divide et impera" — divide and command. [2] In order to get the full series of these papers before the public as quickly as possible, the plan is to publish them four times a week — on Tuesday in the New York Packet and on Thursday in the Daily Advertiser.
To the People of the State of New York:
Taking it as an established truth that the individual states, if the Union broke apart — or whatever combinations might form from the wreckage of the general Confederacy — would be subject to the same cycles of peace and war, friendship and hostility with each other that have fallen to every group of neighboring nations not united under one government, let's look at some of the consequences that would follow from such a situation.
War between the states, in the early period of their separate existence, would bring far greater suffering than is common in countries where professional standing armies have long been established. The trained armies permanently maintained across continental Europe, though they pose a real threat to liberty and to the economy, have nevertheless produced one important benefit: they've made sudden conquests nearly impossible and prevented the kind of rapid devastation that used to mark the progress of war before their introduction. The science of fortification has contributed to the same result. The nations of Europe are ringed with chains of fortified positions that block each other's invasions. Entire military campaigns are spent capturing two or three border fortresses just to gain entry into an enemy's country. Similar obstacles arise at every step, draining an invader's strength and slowing their progress. In earlier times, an invading army could penetrate into the heart of a neighboring country almost before word of its approach had arrived. But now, a relatively small force of trained troops on defense, aided by fortifications, can slow down and ultimately defeat the efforts of a much larger force. The history of war in that part of the world is no longer a story of nations conquered and empires overthrown, but of towns taken and retaken, battles that decide nothing, retreats more beneficial than victories — a great deal of effort and very little gain.
In this country, the situation would be completely reversed. Our distrust of military establishments would delay creating them as long as possible. The lack of fortifications, leaving the borders of one state open to another, would make invasions easy. The more populous states would, without much difficulty, overrun their less populous neighbors. Conquests would be as easy to make as they'd be hard to hold onto. War would therefore be scattered and predatory. Looting and devastation always follow in the wake of irregular forces. The suffering of ordinary people would be the defining feature of our military adventures.
This picture isn't an exaggeration — though I'll admit it wouldn't remain accurate for long. The need for safety from external danger is the most powerful force shaping how nations behave. Even a passionate love of liberty will, after a time, give way to that need. The violent destruction of life and property that comes with war, the constant effort and anxiety that come with ongoing danger, will force even the most liberty-loving nations to turn for security and stability to institutions that tend to destroy their civil and political rights. To be safer, they eventually become willing to risk being less free.
The institutions I'm mainly referring to are standing armies and all the associated machinery of military establishments. Standing armies, some argue, aren't specifically prohibited by the new Constitution — and therefore they could exist under it. [1] Their existence, however, is at most an uncertain possibility under the proposed system. But standing armies, I'd reply, would inevitably result from the breakup of the Confederacy. Frequent wars and constant fear, which demand constant readiness, would unfailingly produce them. The weaker states or alliances would be the first to adopt them, to put themselves on equal footing with their more powerful neighbors. They'd try to make up for their smaller populations and fewer resources with a more professional and effective defense system — with trained troops and fortifications. At the same time, they'd be forced to strengthen the executive branch of their governments, and in doing so, their political systems would drift steadily toward monarchy. It's in the nature of war to increase executive power at the expense of legislative authority.
The measures I've just described would soon give the states or alliances that adopted them an advantage over their neighbors. Small states, or states with less natural strength, under strong governments and with the help of professional armies, have often triumphed over large states or naturally stronger states that lacked these advantages. Neither the pride nor the security of the more powerful states or alliances would let them submit for long to this humiliating and artificial superiority. They'd quickly adopt the same methods that had been used against them, to reclaim their lost dominance. And so, in a short time, we'd see established in every part of this country the same engines of tyranny that have been the curse of the Old World. This, at the very least, is the natural course of events — and our reasoning is more likely to be right the more closely it follows this pattern.
These aren't vague guesses drawn from hypothetical flaws in a Constitution whose entire power rests in the hands of the people or their representatives. These are solid conclusions drawn from the natural and inevitable course of human affairs.
It might be asked, as an objection, why didn't standing armies emerge from the conflicts that so often tore apart the ancient republics of Greece? Several equally good answers can be given. The industrious habits of today's people, absorbed in making money and devoted to improving agriculture and commerce, are incompatible with being a nation of soldiers — which was the actual condition of the people in those Greek republics. The methods of raising revenue, which have multiplied enormously with the growth of gold and silver supplies and the development of industry, combined with the modern science of public finance and the habits of nations, have produced a complete revolution in how war is conducted. Professional armies, separate from the civilian population, have become the inseparable companions of frequent conflict.
There's also a crucial difference between military establishments in a country that's rarely threatened by invasion because of its geographic position, and one that's constantly subject to and worried about such threats. The rulers of the first kind of country have no good excuse — even if they're inclined — to maintain armies as large as must necessarily be kept in the second. Since these armies are rarely, if ever, called into action for domestic defense, the people face no danger of being trained into military obedience. The laws don't get relaxed to accommodate military emergencies. The civilian government remains strong, neither corrupted nor blurred with military values. The army's small size means the community's natural strength can easily overpower it. And the citizens, not used to looking to the military for protection or submitting to its demands, neither love nor fear the soldiers. They view them with a wary tolerance as a necessary evil and stand ready to resist any power they suspect might be used against their rights.
Under these circumstances, the army can usefully help the government put down a small faction, an occasional riot, or an insurrection. But it won't be able to impose abuses of power against the united resistance of the people as a whole.
In a country facing the second kind of situation, the opposite of all this happens. The constant threat of danger forces the government to always be ready to fight back. Its armies must be large enough for immediate defense. The ongoing need for their services raises the importance of the soldier and correspondingly lowers the status of the citizen. The military comes to be elevated above civilian society. The residents of areas that are frequently battlegrounds inevitably suffer repeated violations of their rights, which gradually weaken their awareness of those rights. Step by step, the people come to see soldiers not just as their protectors but as their superiors. The transition from viewing them as superiors to accepting them as masters isn't a big or difficult leap. But it's very hard to convince a people conditioned by this experience to mount a bold or effective resistance against abuses of power backed by military force.
The kingdom of Great Britain fits the first description. Its island position, combined with a powerful navy that largely shields it from the possibility of foreign invasion, eliminates the need for a large army within the country. A force sufficient to hold off a sudden attack until the militia could organize and assemble is all that's been considered necessary. No concern of national policy has required, and public opinion would not have tolerated, a larger number of troops on home soil. For a long time, there's been little room for the other forces I've described as consequences of internal war. This fortunate geographic situation has played a major role in preserving the liberty that country still enjoys today, despite the widespread corruption in its politics. If, on the other hand, Britain had been located on the European continent and had been forced, as it would have been, to maintain military forces matching those of Europe's other great powers, it would, like them, almost certainly be under the absolute rule of a single person today. It's possible, though not easy, for the people of that island to be enslaved by other means — but it can't happen through the strength of an army as small as the one that's typically been maintained within the kingdom.
If we're wise enough to preserve the Union, we can enjoy for generations an advantage similar to Britain's island position. Europe is far away from us. Its colonies in our neighborhood will likely remain too weak to pose any serious threat. Large military establishments won't be necessary for our security in this position. But if we break apart, and the pieces either stay separate or — more likely — are thrown together into two or three alliances, we'd find ourselves, in short order, in the same situation as the continental powers of Europe. Our liberties would fall victim to the very means we'd need to defend ourselves against each other's ambition and suspicion.
This isn't a shallow or trivial idea. It's a serious and weighty one. It deserves the most careful and thoughtful consideration of every sensible and honest person, regardless of political affiliation. If such people will take a firm and solemn pause, and think dispassionately about how important this idea really is — if they'll examine it from every angle and trace it to all its consequences — they won't hesitate to set aside minor objections to a Constitution whose rejection would, in all likelihood, permanently end the Union. The airy phantoms haunting the fevered imaginations of some of its opponents would quickly give way to the more substantial shapes of dangers that are real, certain, and formidable.
PUBLIUS
[1] This objection will be fully examined in its proper place, and it will be shown that the only reasonable precaution that could have been taken on this subject has been taken — and a much better one than is found in any constitution previously written in America, most of which contain no safeguard on this subject at all.
To the People of the State of New York:
A strong Union will be absolutely critical to the peace and liberty of the states, as a barrier against domestic faction and insurrection. It's impossible to read the history of the small republics of Greece and Italy without feeling horror and disgust at the chaos that constantly rocked them, and at the rapid succession of revolutions that kept them swinging endlessly between the extremes of tyranny and anarchy. If they show occasional moments of calm, these only serve as brief contrast to the violent storms that follow. If now and then a window of happiness opens up, we see it with a kind of sadness, knowing that the pleasant scene before us will soon be swallowed by the crashing waves of rebellion and partisan rage. If momentary flashes of glory break through the darkness, they dazzle us with a brief and fleeting brilliance — while at the same time reminding us to mourn that bad government could warp and tarnish the extraordinary talents and gifts for which the fortunate lands that produced them have been so rightly celebrated.
From the disorders that scar the historical record of those republics, the advocates of tyranny have drawn arguments not just against the forms of republican government, but against the very principles of civil liberty. They've dismissed all free government as incompatible with an orderly society and have indulged in gleeful celebration over the setbacks of its supporters. Fortunately for humanity, magnificent structures built on the foundation of liberty, which have endured for generations, have in a few glorious cases refuted their pessimistic arguments. And I trust that America will become the broad and solid foundation for other structures, equally grand, that will stand as permanent monuments to how wrong those critics were.
But we can't deny that the portraits they've painted of republican government were, in many cases, accurate copies of the originals. If it had proved impossible to design better models, the thoughtful friends of liberty would have been forced to give up on this form of government as indefensible. The science of politics, however, like most other fields, has made great progress. We now understand the value of various principles that were either completely unknown or only dimly understood by the ancients. The separation of power into distinct branches of government. The introduction of legislative checks and balances. The creation of courts staffed by judges who serve during good behavior. The representation of the people in the legislature through deputies of their own choosing. These are either entirely new innovations or have made their greatest strides toward perfection in modern times. They are tools — powerful tools — by which the strengths of republican government can be preserved and its weaknesses reduced or eliminated. To this list of developments that improve popular systems of government, I'll venture to add one more, however surprising it may seem to some — one based on a principle that has actually been used as an objection to the new Constitution. I mean expanding the scale on which these systems operate, whether by increasing the size of a single state or by combining several smaller states into one great Confederacy. The latter is what directly concerns us here. It will be useful, however, to examine the principle as it applies to a single state, which I'll address in another paper.
The value of a Confederacy — both for suppressing faction and maintaining internal peace, and for increasing external strength and security — is actually not a new idea. It's been practiced in different countries and different eras, and has been endorsed by the most respected political writers. The opponents of the proposed plan have eagerly cited and circulated the French philosopher Montesquieu's argument about the necessity of a small territory for a republican government. But they seem unaware of what that great thinker said in another part of his work, and they haven't thought through the implications of the principle they've so readily embraced.
When Montesquieu recommended a small territory for republics, the sizes he had in mind were far smaller than almost every one of these states. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any measure be compared to the examples he was reasoning from and that his description applies to. So if we take his ideas on this point as the standard of truth, we're driven to one of two alternatives: either we take refuge in monarchy, or we split ourselves into an endless number of tiny, suspicious, squabbling, chaotic little republics — miserable breeding grounds for constant conflict and objects of universal pity or contempt. Some writers on the other side of this debate seem to have recognized the dilemma and have even been bold enough to suggest that breaking up the larger states would be a good thing. Such a deluded policy, such a desperate measure, might serve the interests of small-time operators who lack the talent to extend their influence beyond narrow circles of personal scheming — but it could never promote the greatness or happiness of the American people.
Setting aside a fuller examination of this principle for another paper, as I've already mentioned, it's enough to point out here that, in the view of the very author who's been most enthusiastically quoted on this subject, it would only call for reducing the size of the larger members of the Union — it would not argue against their all being included in one confederate government. And that's the real question we're debating right now.
Far from opposing a general Union of the states, Montesquieu explicitly discusses a confederate republic as the solution for expanding the reach of popular government while combining the advantages of monarchy with those of republicanism.
"It is very probable," he writes [1], "that mankind would have been forced to live permanently under the rule of a single person, if they hadn't invented a kind of government that has all the internal advantages of a republic along with the external strength of a monarchy. I mean a confederate republic."
"This form of government is an agreement by which several smaller states consent to become members of a larger one that they intend to create. It is a kind of union of societies that forms a new one, capable of growing through new additions until it reaches a level of power sufficient to provide for the security of the whole."
"A republic of this kind, able to resist external force, can sustain itself without any internal corruption. The very structure of this society prevents all kinds of problems."
"If a single leader tried to seize supreme power, he couldn't be expected to have equal authority and influence in all the confederate states. If he gained too much influence in one, the others would be alarmed. If he conquered part of them, the parts still free could oppose him with forces independent of the ones he'd seized, and overpower him before he could consolidate his grip."
"If a popular uprising happened in one of the confederate states, the others could suppress it. If corruption crept into one part, the healthy parts could reform it. One part of the system might be damaged without destroying the rest. The confederacy might be shaken, but the individual states would keep their sovereignty."
"Because this government is made up of small republics, it enjoys the internal happiness of each one. And in terms of its external position, through the power of the association, it has all the advantages of large monarchies."
I've thought it right to quote these passages at length because they contain a brilliant summary of the main arguments in favor of the Union and should effectively dispel the false impressions created by misapplying other parts of Montesquieu's work. They also have a direct connection to the more immediate purpose of this paper, which is to show the Union's power to prevent domestic faction and insurrection.
A distinction has been drawn — more clever than accurate — between a confederacy and a consolidation of the states. The defining feature of a confederacy, it's claimed, is that its authority is limited to the member states acting as units, without reaching the individuals who make them up. It's argued that the national government should have nothing to do with any matter of internal administration. Perfect equality of voting power among the members has also been insisted upon as a key feature of a confederate government. These positions are, for the most part, arbitrary. They're supported by neither principle nor historical precedent. It's true that governments of this kind have generally operated the way this distinction assumes is inherent in their nature. But in most of them, there have been major exceptions to this pattern — which prove, as far as examples can, that there's no absolute rule on the subject. And it will be clearly shown in the course of this analysis that wherever this principle has prevailed, it has been the cause of hopeless dysfunction and weakness in the government.
The definition of a confederate republic seems to be simply "a union of societies" — an association of two or more states into one state. The scope, structure, and purposes of the federal authority are matters of choice. As long as the separate organization of the member states isn't abolished — as long as it continues to exist, by constitutional design, for local purposes — even if it's fully subordinate to the general authority of the Union, it would still be, in both fact and theory, an association of states, or a confederacy. The proposed Constitution, far from abolishing the state governments, makes them essential parts of the national system by giving them direct representation in the Senate, and leaves them in possession of certain exclusive and very important areas of sovereign power. This fully corresponds, in every reasonable sense of the terms, with the concept of a federal government.
In the Lycian confederacy, which consisted of twenty-three cities or republics, the largest were entitled to three votes in the common council, the mid-sized ones to two, and the smallest to one. The common council appointed all the judges and officials of the individual cities. This was certainly the most sensitive kind of involvement in their internal affairs — because if anything seems to belong exclusively to local government, it's the appointment of their own officers. Yet Montesquieu, speaking of this confederation, says: "If I were to design a model of an excellent confederate republic, it would be that of Lycia." So we can see that the rigid distinctions being insisted upon weren't part of this great thinker's vision at all. And we're led to conclude that they're the misguided inventions of a flawed theory.
PUBLIUS
[1] Montesquieu, "The Spirit of the Laws," Book IX, Chapter 1.
To the People of the State of New York:
Among the many advantages promised by a well-designed Union, none deserves to be more carefully examined than its ability to break and control the violence of faction. No one who supports popular government finds himself more alarmed for its reputation and survival than when he considers its tendency toward this dangerous problem. He'll naturally place great value on any plan that, without violating the principles he holds dear, provides a real cure for it. The instability, injustice, and confusion that have infected our public decision-making have, in truth, been the fatal diseases that have killed popular governments everywhere — and they remain the favorite and most fruitful topics from which the enemies of liberty draw their most persuasive attacks. The valuable improvements that the American constitutions have made on earlier models of popular government, both ancient and modern, certainly can't be admired enough. But it would be an unjustified bias to claim that they've as effectively guarded against this danger as we'd hoped and expected. Complaints are heard everywhere from our most thoughtful and principled citizens — people equally committed to public trust and private rights, to public and personal liberty — that our governments are too unstable, that the public good gets lost in the battles between rival parties, and that decisions are too often made not according to the rules of justice and the rights of the minority, but by the brute force of a self-interested and domineering majority. However much we might wish these complaints had no basis, the evidence of well-known facts won't let us deny that they're at least partly true. Looking honestly at our situation, we'll find that some of the problems we're suffering from have been wrongly blamed on how our governments operate. But we'll also find that other causes alone can't account for many of our worst troubles — and particularly for the growing distrust of public commitments and the alarm over private rights that echo from one end of the continent to the other. These must be mainly, if not entirely, the effects of the instability and injustice that a spirit of faction has injected into our public institutions.
By a faction, I mean a group of citizens — whether a majority or a minority — who are united and driven by some shared passion or interest that goes against the rights of other citizens or against the long-term interests of the community as a whole.
There are two ways to cure the problems caused by faction: one, by removing its causes; the other, by controlling its effects.
There are, in turn, two ways to remove the causes of faction: one, by destroying the liberty that's essential to its existence; the other, by giving every citizen the same opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire — the fuel without which it instantly dies out. But it would be just as foolish to abolish liberty, which is essential to political life, because it feeds faction, as it would be to wish for the elimination of air, which is essential to animal life, because it gives fire its destructive power.
The second approach is as impractical as the first would be unwise. As long as human reason remains fallible and people are free to use it, different opinions will be formed. As long as there's a connection between a person's reason and their self-interest, their opinions and their passions will influence each other — and people will become attached to their opinions. The diversity in people's abilities, from which the rights of property originate, is no less of an insurmountable barrier to a uniformity of interests. Protecting these different abilities is the first purpose of government. From the protection of different and unequal abilities to acquire property, different degrees and kinds of property immediately result. And from the influence of these differences on the views and attitudes of their owners, society divides into different interests and parties.
The underlying causes of faction are thus planted in human nature itself. And we see them brought to life in different degrees everywhere, depending on the circumstances of society. A passion for different opinions about religion, about government, and many other subjects both theoretical and practical; an attachment to different leaders ambitiously competing for power and influence; or to other kinds of people whose fortunes have captured public attention — these have, in turn, divided people into opposing camps, inflamed them with mutual hostility, and made them far more inclined to harass and oppress each other than to cooperate for their common good. This tendency of human beings to fall into mutual hostility is so powerful that where no real reason for conflict exists, the most trivial and imaginary differences have been enough to ignite their hostile passions and trigger their most violent clashes. But the most common and enduring source of factions has been the uneven distribution of property. Those who have property and those who don't have always formed distinct interests in society. Creditors and debtors fall into a similar divide. A farming interest, a manufacturing interest, a commercial interest, a financial interest, along with many smaller interests, inevitably develop in civilized nations and divide them into different classes, driven by different views and goals. Regulating these various and competing interests is the central task of modern lawmaking — and it inevitably involves the spirit of party and faction in the necessary, everyday work of government.
No one is allowed to be a judge in their own case, because their self-interest would certainly bias their judgment and quite possibly corrupt their integrity. With equal — no, with even greater — reason, a group of people are unfit to be both judges and parties at the same time. Yet what are many of the most important acts of legislation but judicial decisions — not about the rights of individuals, but about the rights of large groups of citizens? And what are the different factions of legislators but advocates and interested parties in the very cases they're deciding? Is a law proposed about private debts? It's a question where creditors are on one side and debtors on the other. Justice should hold the balance between them. Yet the parties themselves are, and must be, the judges — and the larger party, or in other words the more powerful faction, is expected to prevail. Should domestic manufacturing be encouraged, and how much, through restrictions on foreign goods? These are questions that would be decided differently by the farming and manufacturing interests, and probably by neither with a sole concern for justice and the public good. The division of taxes among different types of property is an action that seems to demand the strictest impartiality. Yet there's perhaps no legislative act that gives a dominant party a greater opportunity and temptation to trample on the rules of justice. Every dollar they overcharge the weaker side is a dollar saved in their own pockets.
It's pointless to say that enlightened statesmen will be able to balance these clashing interests and make them all serve the public good. Enlightened statesmen will not always be at the helm. And in many cases, no such balancing act is even possible without considering indirect and long-term factors that will rarely outweigh the immediate advantage one party finds in ignoring the rights of another or the good of the whole.
The conclusion we're driven to is this: the causes of faction can't be removed, and relief can only be found in the means of controlling its effects.
If a faction consists of less than a majority, the republican principle provides the remedy: it lets the majority defeat the faction's harmful agenda through regular voting. Such a faction may slow down the government and shake up society, but it won't be able to carry out its plans of violence under the forms of the Constitution. When a majority is itself part of a faction, on the other hand, the mechanisms of popular government enable it to sacrifice both the public good and the rights of other citizens to its ruling passion or interest. To protect the public good and private rights against the danger of such a majority faction, while at the same time preserving the spirit and the form of popular government — that's the great challenge we're trying to solve. Let me add that it's the breakthrough that would rescue this form of government from the disgrace it's long suffered under and make it worthy of the respect and adoption of humanity.
How can this be achieved? Clearly, only in one of two ways. Either we must prevent the same passion or interest from forming in a majority at the same time, or the majority that shares such a passion or interest must be made unable — by their numbers and geographic spread — to coordinate and carry out plans of oppression. If the impulse and the opportunity are allowed to come together, we know perfectly well that neither moral nor religious restraints can be relied on as adequate controls. They aren't effective enough against the injustice and violence of individuals, and they lose their power in proportion to the number of people acting together — that is, they become weakest exactly when they're needed most.
From this analysis, we can conclude that a pure democracy — by which I mean a society of a small number of citizens who assemble and run the government in person — offers no cure for the problems of faction. A shared passion or interest will, in almost every case, be felt by a majority. Communication and coordination flow naturally from the structure of the government itself. And there's nothing to restrain the urge to sacrifice the weaker party or an unpopular individual. This is why such democracies have always been scenes of turbulence and conflict, have always been incompatible with personal security or the rights of property, and have in general been as short in their lives as they have been violent in their deaths. Political theorists who have championed this form of government have mistakenly assumed that by making people perfectly equal in their political rights, they would at the same time make them perfectly equal in their possessions, their opinions, and their passions.
A republic — by which I mean a government that uses the principle of representation — opens up a different possibility and promises the cure we're looking for. Let's examine the ways it differs from pure democracy, and we'll understand both the nature of the cure and the power it draws from the Union.
The two key differences between a democracy and a republic are: first, in a republic, the government is delegated to a small number of citizens elected by the rest; second, a republic can extend over a far greater number of citizens and a far larger territory.
The effect of the first difference is, on one hand, to refine and broaden the public's views by filtering them through a chosen group of citizens whose wisdom is best suited to identify the true interests of their country, and whose patriotism and love of justice make them least likely to sacrifice those interests for temporary or narrow considerations. Under this system, it may well happen that the public voice, as expressed by the people's representatives, will align more closely with the public good than if the people themselves had gathered to decide. On the other hand, the effect could be reversed. People with factional agendas, local prejudices, or dishonest intentions may, through scheming, corruption, or other means, first win elections and then betray the interests of the people. The question that follows is whether small or large republics are more likely to produce good representatives who will serve the public interest — and the answer clearly favors the larger republic, for two obvious reasons.
First, no matter how small a republic is, the representatives must reach a certain minimum number to guard against the plots of a few. And no matter how large the republic, they must be limited to a certain maximum to prevent the confusion of a crowd. Since the number of representatives in both cases doesn't scale proportionally with the population — and is proportionally larger in the small republic — it follows that if the share of qualified candidates is no smaller in the large republic than in the small one, the large republic will offer a bigger pool to choose from, and therefore a better chance of making a good choice.
Second, since each representative in a large republic is chosen by a greater number of voters than in a small one, it will be harder for unworthy candidates to succeed through the corrupt tactics that too often win elections. And since the people's votes will be more freely cast, they'll be more likely to center on candidates with the most genuine merit and the most widely recognized reputations.
I'll admit that in this, as in most things, there's a sweet spot — with problems on either side. If you make the voting districts too large, representatives become too unfamiliar with their constituents' local situations and smaller concerns. If you make them too small, representatives become too focused on local matters and unable to grasp and pursue the great national interests. The federal Constitution strikes a happy balance here: the great national interests are handled at the federal level, while local and particular matters are left to the state legislatures.
The other key difference is the far greater number of citizens and extent of territory that a republic can encompass compared to a democracy — and it's this feature, above all, that makes dangerous factional alliances less of a threat in a republic than in a democracy. The smaller the society, the fewer the distinct parties and interests it's likely to contain. The fewer the distinct parties and interests, the more likely it is that a single party will form a majority. And the smaller the number of people making up that majority, and the smaller the area they're concentrated in, the easier it will be for them to coordinate and carry out their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests. You make it less likely that a majority will share a common motive to violate the rights of other citizens. Or if such a common motive does exist, it will be harder for everyone who shares it to recognize their collective strength and act together. Beyond these obstacles, it's worth noting that where people are aware they're pursuing unjust or dishonorable goals, communication is always inhibited by distrust — and that distrust grows in proportion to the number of people whose cooperation is needed.
From all this, it clearly follows that the same advantage a republic has over a democracy in controlling the effects of faction is enjoyed by a large republic over a small one — and is enjoyed by the Union over the individual states composing it. Does the advantage lie in having representatives whose informed views and principled commitments make them superior to local prejudices and schemes of injustice? The Union's representation will most likely possess these qualities. Does it lie in the greater security provided by a wider variety of parties against the danger of any one party outnumbering and oppressing the rest? The Union's increased variety of parties increases this security in equal measure. Does it, finally, lie in the greater obstacles to the coordination and execution of a self-interested majority's secret plans? Here, again, the extent of the Union gives it the clearest advantage.
The influence of factional leaders may start a fire within their own states, but won't be able to spread a general blaze across the others. A religious group may degenerate into a political faction in one part of the Confederacy, but the variety of religious groups spread across the whole of it will protect the national government against any danger from that source. A craze for paper money, for canceling debts, for an equal division of property, or for any other reckless or harmful scheme will be less likely to infect the entire Union than a single member of it — just as such a disease is more likely to strike a single county or district than an entire state.
In the extent and proper structure of the Union, therefore, we see a republican remedy for the diseases most common to republican government. And in proportion to the pleasure and pride we feel in being republicans, so should be our commitment to cherishing the spirit and upholding the character of Federalists.
PUBLIUS
To the People of the State of New York:
The importance of the Union when it comes to trade is one of those points where there's the least room for disagreement, and which has, in fact, earned the widest agreement among people who know anything about the subject. This applies equally to our dealings with foreign countries and to our dealings with each other.
There are signs suggesting that the adventurous spirit that defines America's commercial character has already made several of Europe's maritime powers nervous. They seem worried about us cutting too far into the carrying trade -- the shipping business that supports their naval power and keeps their fleets afloat. Those European nations with colonies in America look at what this country is capable of becoming with real anxiety. They can see the dangers that might threaten their American territories from neighboring states that have every desire -- and would have every means -- to build a powerful navy. These kinds of concerns will naturally lead those powers to encourage divisions among us and to keep us, as much as possible, out of active international trade conducted in our own ships. That would serve three purposes at once: preventing our competition in their shipping lanes, monopolizing the profits of our trade, and clipping the wings that might let us soar to a level of greatness they'd find threatening. If discretion didn't prevent me from going into detail, it wouldn't be hard to trace this policy, with evidence, right back to the offices of European government ministers.
If we stay united, we can push back against this hostile policy in a number of ways. Through trade regulations that apply uniformly across all the states, we could force foreign nations to bid against each other for access to our markets. This might sound too good to be true, but it won't seem that way to anyone who can appreciate what it means for a manufacturing nation to have access to a market of three million people -- a market that's growing rapidly, made up almost entirely of agricultural consumers, and likely to stay that way due to local conditions. Think about the enormous difference it would make for such a nation between trading directly with us in its own ships versus having to route its products through the ships of some other country. Suppose, for example, we had a government strong enough to shut Great Britain (with whom we currently have no trade agreement) out of all our ports. What effect would that have on British policy? Wouldn't it give us the best possible leverage to negotiate for valuable and extensive trade privileges throughout the British Empire? When these questions have come up before, they've gotten a plausible answer -- but not a solid or satisfying one. People have said that our trade restrictions wouldn't change Britain's behavior, because she could just conduct her trade with us through the Dutch, who would serve as middlemen and handle the goods our markets needed. But wouldn't Britain's shipping industry be seriously damaged by losing the advantage of carrying that trade herself? Wouldn't the Dutch intercept most of the profits as payment for their role as middlemen and for the risk involved? Wouldn't the shipping costs alone eat into the margins? Wouldn't such a roundabout arrangement actually help Britain's competitors by driving up the price of British goods in our markets and putting the management of this important trade into other hands?
A careful look at the points raised by these questions should convince you that the real disadvantages to Britain from such a situation -- combined with the strong pro-American trade sentiment among much of the British public, and pressure from the West Indian islands -- would force a change in their current policies. It would open up valuable trade privileges for us in British island markets and elsewhere, delivering substantial benefits to our commerce. And if we won those concessions from Britain (which wouldn't come without us offering equivalent access to our own markets), it would likely have a ripple effect on other nations, who wouldn't want to see themselves completely shut out of our trade.
There's another tool we could use to shape how European nations treat us: a federal navy. There's no doubt that if the Union continues under an effective government, we'd have the ability, before too long, to build a navy that -- even if it couldn't match the great maritime powers -- would carry enough weight to tip the scales if thrown behind one side in a conflict between two rivals. This would be especially true in the West Indies. A few warships, sent at the right moment to reinforce one side or the other, could be enough to decide the outcome of a campaign where enormous stakes were on the line. Our geographic position gives us tremendous strategic advantage in this regard. And when you add in the value of American supplies for supporting military operations in the West Indies, it's easy to see that such a favorable position would let us bargain for major trade concessions. Not only our friendship, but our neutrality would come with a price tag. By holding firm to the Union, we can hope, before long, to become the decisive power in the Americas -- able to tilt the balance of European rivalries in this part of the world however our interests require.
But flip this picture around, and you'll see that the rivalries between individual states would cancel each other out, throwing away all the incredible advantages that nature has placed within our reach. If we're divided and insignificant, our trade would become the prey of every warring nation's interference. Having nothing to fear from us, they'd show little hesitation in raiding our property to supply their own needs whenever the opportunity arose. The rights of neutrality are only respected when they're backed by real power. A nation that's pathetically weak forfeits even the right to be neutral.
Under a strong national government, the country's natural strength and resources, directed toward a common purpose, would defeat every European scheme to hold back our growth. In fact, this kind of strength would eliminate the motivation for such schemes in the first place, by making success impossible. An active trade, a thriving shipping industry, and a flourishing navy would then be the natural and inevitable result. We could laugh at the petty tricks of petty politicians trying to control or alter the unstoppable course of nature.
But in a state of disunion, those European schemes could exist and succeed. The maritime powers, taking advantage of our total helplessness, would be able to dictate the terms of our political survival. And since they all share an interest in being our shippers -- and an even stronger interest in making sure we never become theirs -- they'd almost certainly team up to cripple our shipping in ways that would effectively destroy it, trapping us in a passive role where we only sell our goods at whatever price others choose to pay. We'd be forced to accept rock-bottom prices for our products and watch the profits of our trade get snatched away to enrich our enemies and oppressors. That unmatched spirit of enterprise that defines the genius of American merchants and sailors -- an inexhaustible source of national wealth in its own right -- would be crushed and lost. Poverty and disgrace would spread across a country that, with a little wisdom, could have made itself the admiration and envy of the world.
There are trade rights of enormous importance to America that belong to the Union specifically -- I'm talking about the fisheries, navigation on the Great Lakes, and navigation of the Mississippi. Breaking up the Confederacy would raise thorny questions about the future of these rights -- questions that more powerful neighbors would almost certainly resolve at our expense. Spain's attitude toward the Mississippi needs no explanation. France and Britain both have interests in the fisheries alongside us, and they consider them vital to their maritime power. Naturally, they wouldn't sit back for long and let us maintain the dominance we've demonstrated in this valuable industry -- a dominance that lets us undersell those nations in their own markets. What could be more predictable than them moving to push out such dangerous competitors?
This branch of trade shouldn't be viewed as benefiting only a few states. All the seafaring states can share in its advantages to varying degrees, and with the expansion of commercial capital, they'd be even more likely to do so. As a training ground for sailors, the fisheries already serve -- or soon will serve, as the different states develop more similar maritime capabilities -- as a national resource. For building a navy, they're absolutely essential.
And speaking of that great national project -- a navy -- the Union would contribute to it in many ways. Every institution grows and thrives in proportion to the resources focused on building and supporting it. A navy of the United States, drawing on the resources of all the states, is a far more realistic goal than a navy belonging to any single state or regional alliance, which could only draw on a fraction of those resources. As it happens, different parts of America each bring their own particular advantage to this effort. The southern states produce abundant naval supplies -- tar, pitch, and turpentine. Their wood for shipbuilding is also harder and more durable. The difference in how long ships would last if built primarily from southern timber would be hugely significant, whether you're thinking about naval power or about saving money. Some of the southern and middle states produce more iron, and of better quality. Sailors would mainly come from the northern states. The point that overseas trade needs naval protection, and that such trade in turn supports a strong navy -- well, that doesn't need much explanation.
Free trade between the states themselves would boost each state's economy by exchanging their different products -- not just to meet each other's domestic needs, but for export to foreign markets. The flow of commerce throughout the country would strengthen and accelerate with the free circulation of goods from every region. Commercial enterprise would have much wider scope thanks to the diversity of what different states produce. When one state's main crop fails due to a bad harvest, it can rely on another state's. The variety of products available for export -- not just their value -- drives foreign trade. Trade works on much better terms when you have many different goods to offer rather than just a few, even if the total value is the same -- because of the competition between buyers and the ups and downs of markets. Some products might be in huge demand at certain times and completely unsalable at others; but with a wide variety of products, it's almost impossible for them all to be in a slump at once. That keeps commercial operations from grinding to a halt. Any experienced trader will immediately see the force of these points, and will agree that the overall trade balance of the United States would be far stronger than that of thirteen separate states or a patchwork of regional alliances.
Someone might respond to all this by saying that whether the states are united or separated, there would still be close trade between them that would achieve the same results. But that trade would be restricted, disrupted, and narrowed by a host of factors that I've already described at length in these papers. A unified commercial policy, just like a unified political system, can only come from a unified government.
There are other angles I could take on this subject -- striking and inspiring ones. But they'd lead us too far into speculation about the future and into topics not suited for a newspaper debate. I'll just briefly note that our position practically invites us -- and our interests push us -- to aim for a leading role in the affairs of the Americas. The world can be divided, politically as well as geographically, into four parts, each with its own distinct interests. Unfortunately for the other three, Europe -- through both military force and diplomatic cunning, through both coercion and deception -- has extended its dominion over all of them to varying degrees. Africa, Asia, and America have all felt Europe's domination. The superiority Europe has maintained for so long has led it to congratulate itself as the master of the world and to treat the rest of humanity as existing for its benefit. Thinkers celebrated as profound philosophers have openly claimed that Europeans are physically superior and have seriously argued that all animals, including humans, degenerate in America -- that even dogs stop barking after breathing our air for a while. [1] For too long, the facts have seemed to support these arrogant European claims. It's up to us to stand up for the dignity of the human race and to teach our presumptuous European brother some humility. Union will make that possible. Disunion will just add another victim to Europe's list of conquests. Let Americans refuse to be the tools of European greatness! Let the thirteen states, bound together in a tight and unbreakable Union, join in building one great American system -- superior to the control of any overseas power or influence, and able to dictate the terms of the relationship between the old world and the new!
PUBLIUS
[1] "Recherches philosophiques sur les Americains" ("Philosophical Researches on the Americans").
To the People of the State of New York:
The effects of the Union on the commercial prosperity of the states have been laid out thoroughly enough. Now let's turn to how Union would promote the interests of revenue.
Every informed statesman now recognizes that thriving commerce is the most useful and most productive source of national wealth, and it has accordingly become a top priority for their policy efforts. By multiplying the ways people can earn and spend, by promoting the flow of money -- that ever-attractive object of human ambition and enterprise -- commerce energizes the channels of industry and makes them flow with greater activity and abundance. The dedicated merchant, the hard-working farmer, the skilled tradesman, and the industrious manufacturer -- people of every class -- all look forward eagerly and with growing enthusiasm to the rewards of their labor. The long-debated question about whether agriculture or commerce matters more has been settled by undeniable experience, silencing the old rivalry between them and proving, to everyone's satisfaction, that their interests are deeply intertwined. It's been shown, in country after country, that as commerce flourishes, land values rise. And how could it be otherwise? How could the thing that creates better markets for the products of the earth -- that gives new incentives for farming, that does more than anything else to increase the money supply -- how could something that is, in every way, the faithful partner of labor and industry fail to boost the value of land, which is the source of so much of what labor and industry work on? It's astonishing that such a simple truth ever had any critics. And it's one more proof of how easily a spirit of ill-informed suspicion, or too much abstract theorizing, can lead people away from the plainest truths.
A country's ability to pay taxes will always be closely tied to how much money is in circulation and how fast it moves. Commerce, which contributes to both, naturally makes it easier to pay taxes and keeps the treasury supplied. Consider the hereditary territories of the Emperor of Germany -- a vast stretch of fertile, well-developed, and densely populated land, much of it in mild and productive climates. Some parts of this territory contain the best gold and silver mines in Europe. And yet, for lack of thriving commerce, the emperor can claim only meager revenues. He has been forced, more than once, to rely on the financial assistance of other nations to protect his basic interests, and he can't sustain a long war on his own resources alone.
But the Union's contribution to revenue goes beyond just boosting commerce. There are other ways its impact would be more direct and decisive. Given the current state of the country, the habits of the people, and the experience we already have on this point, it's clearly impractical to raise any significant money through direct taxation. Tax laws have been multiplied over and over; new methods of enforcing collection have been tried again and again; the public has been consistently disappointed; and state treasuries have stayed empty. The decentralized administration that comes with democratic government, combined with the real shortage of money caused by our weak and damaged trade, has so far defeated every attempt at broad tax collection and has finally taught the various state legislatures how futile it is to keep trying.
Anyone familiar with how things work in other countries won't be surprised by this. In a nation as wealthy as Britain, where direct taxes are much more bearable thanks to greater wealth and much more enforceable thanks to a stronger government, the vast majority of national revenue still comes from indirect taxes -- from import duties and excise taxes. Duties on imported goods make up a large part of this.
In America, it's clear that we'll need to rely mainly on these kinds of import duties for revenue for a long time to come. In most parts of the country, excise taxes can only be applied in very limited ways. The American people won't put up with the intrusive and heavy-handed enforcement that excise laws require. Farmers, meanwhile, will grudgingly produce only small amounts of revenue through taxes on their homes and land. And personal property is too hard to track and too easy to hide to be taxed in any way other than through the invisible mechanism of consumption taxes.
If all of this is true, then the situation that best enables us to develop and expand this crucial revenue source is the situation best suited to our political well-being. And there can be no serious doubt that this situation must rest on the foundation of a general Union. To the extent that Union would promote commerce, it would extend the revenue we can draw from it. To the extent that it would make collecting import duties simpler and more efficient, it would make the same tax rates more productive and give the government room to raise rates without hurting trade.
Consider the geography of these states: the number of rivers running through them, the bays along their coasts, how easy communication is in every direction, their shared language and customs, their regular dealings with each other -- all of these factors would make illegal cross-border trade extremely easy and would guarantee constant evasion of each other's trade regulations. Separate states or regional confederacies, driven by mutual suspicion, would be forced to keep their duties low to avoid creating incentives for smuggling. The character of our governments, for a long time to come, wouldn't allow the kind of harsh enforcement measures that European nations use to guard their borders by both land and sea -- measures that even there aren't enough to stop the clever schemes of determined smugglers.
In France, there's an army of border patrols -- that's literally what they're called -- constantly employed to enforce tax regulations against smuggling. The French finance minister Necker estimates their number at over twenty thousand. This shows the enormous difficulty of preventing smuggling wherever there's an inland border, and it highlights the problems that collecting import duties in this country would face if disunion put the states in a position relative to each other like that of France relative to its neighbors. The heavy-handed and invasive powers these patrols necessarily carry would be intolerable in a free country.
But if, on the other hand, a single government covers all the states, then for the main part of our commerce, there would be only one border to guard: the Atlantic coast. Ships arriving directly from foreign countries, loaded with valuable cargo, would rarely risk the complicated and dangerous business of trying to unload before reaching port. They'd face the danger of the coastline itself and the risk of getting caught, both before and after arriving at their final destination. A reasonable level of vigilance would be enough to prevent any serious violations of the revenue laws. A few armed vessels, strategically positioned at the entrances to our ports, could serve as effective and inexpensive guardians of the law. And since the government would have the same interest in preventing violations everywhere, the coordination of its enforcement efforts across states would make them far more effective. Here again, the Union would let us take advantage of something nature has given us -- an advantage we'd throw away through separation. The United States sits at a great distance from Europe and a considerable distance from every other trading partner. The kind of quick cross-border smuggling that happens between France and Britain, or between other neighboring nations -- where goods can be moved in a few hours or a single night -- would be impossible here. This is a huge natural defense against direct smuggling from foreign countries. But indirect smuggling through one state into another would be both easy and safe. The difference between importing goods directly from overseas versus sneaking them in through a neighboring state -- in small quantities, at opportune moments, with all the advantages of inland routes -- should be obvious to anyone with any sense.
It's therefore clear that a single national government could extend import duties far beyond what would be possible for the states individually, or for any regional alliance, and at much less expense. Up to this point, I believe it's safe to say that these duties haven't averaged more than three percent in any state. In France, they're estimated at about fifteen percent, and in Britain they're even higher. [1] There seems to be no reason we couldn't raise ours to at least triple their current level. The single item of hard liquor, under federal regulation, could be made to produce substantial revenue. Based on the rate of importation into this state, the total quantity imported into the United States can be estimated at four million gallons. At a shilling per gallon, that would produce two hundred thousand pounds. This product could easily bear that level of taxation -- and if it happened to reduce consumption, that would be equally good for agriculture, for the economy, for public morals, and for public health. There's perhaps nothing the nation wastes more money on than hard liquor.
What happens if we can't take full advantage of this revenue source? A nation can't survive long without revenue. Without this essential support, it must surrender its independence and sink into the degraded condition of a province. No government will willingly accept that fate. Revenue, therefore, must be secured at all costs. In this country, if the bulk of it doesn't come from commerce, it'll fall with crushing weight on landowners. I've already pointed out that excise taxes, in the true sense, are too out of step with the feelings of the American people to be used on any large scale. And in states where agriculture is virtually the only occupation, there aren't enough taxable goods to allow for significant excise collections anyway. Personal property, as I've noted before, is too hard to track to be taxed heavily by any means other than consumption taxes. In major cities, personal wealth might be guessable enough to result in the oppression of individuals without much benefit to the state. But beyond city limits, it largely escapes the eye and the hand of the tax collector. Since the government's needs must be met one way or another, the shortage of other revenue sources would dump the main burden of public expenses onto landowners. And since the government's needs can never be fully met unless all sources of revenue are open to it, the nation's finances, under these constraints, can't be put on a footing consistent with either its respectability or its security. So we wouldn't even have the consolation of a full treasury to make up for the burden on that valuable class of citizens who work the land. Instead, public and private hardship would march in lockstep, united in cursing the foolish decisions that led to disunion.
PUBLIUS
[1] If I remember correctly, they amount to twenty percent.
To the People of the State of New York:
Closely connected to the subject of revenue is the question of government spending. Money saved in one area can be put to good use in another, and that means less has to be pulled from the people's pockets. If the states are united under one government, there will be only one national payroll to support. If they're divided into several confederacies, there will be as many separate national payrolls to fund -- and each of them, when it comes to the major departments, would need to be just as large as what a single government covering the whole nation would require. The idea of splitting the states into thirteen completely independent countries is too extreme and too dangerous to attract many supporters. The people who speculate about breaking up the nation generally envision three confederacies: one made up of the four northern states, another of the four middle states, and a third of the five southern states. There probably wouldn't be more than that. Under this arrangement, each confederacy would cover a territory larger than the kingdom of Great Britain. No well-informed person would think that the affairs of such a confederacy could be properly managed by a government any less comprehensive in its institutions than the one proposed by the Convention. Once a nation reaches a certain size, it needs the same level of governmental energy and the same administrative structures as one that's much larger. This idea doesn't lend itself to exact proof, because there's no formula for calculating how much governmental power is needed to govern a given number of people. But when you consider that the island of Britain, roughly equal in size to each of these proposed confederacies, has about eight million people -- and when you think about how much authority is needed to direct the passions of such a large society toward the common good -- there's no reason to doubt that a similar amount of power would be enough to do the same job in a society far larger in population. Governmental power, when properly organized and applied, can extend its reach across a very large area. Through a smart system of local and regional offices, it can essentially reproduce itself in every part of a great nation.
The assumption that each confederacy the states would likely form would need a government just as comprehensive as the one proposed gets even stronger when you consider a more probable scenario than the three-confederacy option. If we look carefully at geography and trade, along with the habits and biases of the different states, we'd have to conclude that in the event of disunion, they'd most naturally divide into two groups. The four New England states, for all the reasons that create bonds of national sympathy and connection, would almost certainly unite. New York, given its position, would never be foolish enough to leave its flank exposed and unsupported against the weight of that confederacy. There are other obvious reasons that would pull New York in as well. New Jersey is too small to stand alone as a frontier state against this even more powerful combination, and there seem to be no obstacles to its joining either. Even Pennsylvania would have strong reasons to join the northern alliance. An active foreign trade based on her own shipping industry is her natural policy, and it matches the opinions and preferences of her citizens. The more southern states, for various reasons, may not be as interested in promoting shipping. They might prefer a system that gives all nations unlimited freedom to be both the buyers and the shippers of their goods. Pennsylvania may not want to tie her interests to a southern arrangement so contrary to her own policy. Since she'd be a border state no matter what, she might decide it's safer to have her exposed side face the weaker power of the South rather than the stronger power of the North. That would give her the best chance of avoiding the fate of becoming America's version of Flanders -- that is, the constant battleground between rival powers. Whatever Pennsylvania decides, if the northern confederacy includes New Jersey, there's no realistic chance of more than one confederacy forming south of that state.
Nothing can be more obvious than this: the thirteen states together can support a national government more easily than half of them, or a third, or any smaller number. This point should carry enormous weight in answering the objection to the proposed plan that's based on cost. That objection, however, falls apart completely once you look at it closely.
Think about it. If you add up the cost of multiple government payrolls, plus the border guards who would inevitably be needed to police illegal trade between the different confederacies (personnel that the demands of revenue would unavoidably produce over time), plus the military establishments that would inevitably result from the suspicions and conflicts between the several nations the states would become -- it becomes perfectly clear that separation would be just as damaging to the economy as it would be to the peace, the commerce, the revenue, and the liberty of every part of the country.
PUBLIUS
To the People of the State of New York:
We've seen why the Union is necessary -- as our shield against foreign danger, as the keeper of peace among ourselves, as the guardian of our commerce and other shared interests, as the only alternative to the standing armies that have destroyed liberty in the Old World, and as the proper remedy for the disease of faction, which has proved fatal to other democratic governments and whose alarming symptoms we've already seen in our own. All that remains, in this branch of our inquiry, is to address an objection that might be drawn from the great size of the territory the Union covers. A few observations on this subject are particularly appropriate, since the opponents of the new Constitution are exploiting a widespread misconception about the practical limits of republican government in order to manufacture imaginary difficulties where they've failed to find real ones.
The mistake of thinking republican government can only work in a small territory has been exposed and refuted in earlier papers. I'll only note here that this error seems to have originated mainly from confusing a republic with a democracy and then applying reasoning about the latter to the former. The true distinction between these two forms has also been addressed before. In a democracy, the people meet and exercise the government in person. In a republic, they assemble and govern through their representatives and agents. A democracy, therefore, will be limited to a small area. A republic can extend over a large region.
Adding to this innocent source of confusion is the deliberate effort of certain celebrated authors whose writings have heavily shaped modern political thought. Being subjects of either absolute or limited monarchies, they tried to exaggerate the advantages -- or downplay the problems -- of those systems by highlighting the flaws and failures of republics, using the turbulent democracies of ancient Greece and modern Italy as their examples. Under this confusion of terms, it was easy to take observations that apply only to democracies and paste them onto republics -- including the claim that republican government can only be established among a small number of people living in a small territory.
This logical error may have been harder to spot because most of the popular governments of ancient times were, in fact, democracies. And even in modern Europe, which gave us the great principle of representation, there's no example of a government that's both fully popular and fully built on that principle. If Europe deserves credit for discovering this powerful mechanism in government -- the simple device by which the will of even the largest political community can be focused and its power directed toward any goal the public good requires -- then America can claim the credit for making that discovery the foundation of large-scale, purely republican governments. It's only unfortunate that some of her own citizens would want to deny her the additional credit of demonstrating its full potential in the comprehensive system now being considered.
The natural limit of a democracy is the distance from the center that still allows the most remote citizens to assemble as often as their public duties require, and that includes no more people than can participate in those functions. The natural limit of a republic, by the same logic, is the distance from the center that still allows representatives to meet as often as necessary for managing public affairs. Can anyone say that the United States exceeds this limit? Not if they remember that the Atlantic coast is the longest side of the Union; that for thirteen years, the representatives of the states have been meeting almost continuously; and that the delegates from the most distant states haven't missed more sessions than those from states close to Congress.
To get a more accurate picture of this important question, let's look at the actual dimensions of the Union. The boundaries, as set by the peace treaty, are: on the east, the Atlantic; on the south, the latitude of thirty-one degrees; on the west, the Mississippi; and on the north, an irregular line that in some places extends beyond the forty-fifth degree and in others drops as low as the forty-second. The southern shore of Lake Erie lies below that latitude. The distance between the thirty-first and forty-fifth degrees comes to nine hundred and seventy-three miles. From the thirty-first to the forty-second, it's seven hundred and sixty-four and a half miles. The average distance comes to eight hundred and sixty-eight and three-quarter miles. The average distance from the Atlantic to the Mississippi probably doesn't exceed seven hundred and fifty miles. When we compare this area with that of several European countries, the practicability of making our system work across this territory becomes clear. It's not much larger than Germany, which has a continuously sitting legislature representing the whole empire, or than Poland before its recent partition, where a national legislature held supreme power. Looking past France and Spain, we find that in Great Britain -- smaller though it may be -- the representatives from the northern tip of the island have to travel as far to the national legislature as the most distant members of our Union would have to travel.
Favorable as this picture is, a few more points will make it even more convincing.
First, remember that the national government isn't meant to hold all the power of making and enforcing laws. Its authority is limited to specific listed responsibilities that affect all members of the republic but can't be handled by individual states acting alone. The state governments, which can handle everything else, will retain their rightful authority and activity. If the proposed plan were designed to abolish the state governments, its critics would have some basis for their objection -- though it wouldn't be hard to show that even if state governments were abolished, the national government would be forced, out of sheer self-preservation, to reinstate them within their proper sphere.
Second, the immediate purpose of the federal Constitution is to secure the union of the original thirteen states, which we know is achievable, and to welcome new states that may emerge from within or alongside them, which is equally achievable. The arrangements needed for the remote corners and fragments of our territory along the northwestern frontier can be left to the people that future exploration and experience will make better equipped for the task.
Third, travel and communication throughout the Union will be improved by new developments. Roads will be shortened and better maintained everywhere. Accommodations for travelers will be multiplied and improved. An inland waterway system along our eastern coast will be opened across nearly the whole extent of the thirteen states. Communication between the western and Atlantic regions, and between different parts of each, will be made easier and easier by the many natural waterways that crisscross our country -- waterways that human effort can readily connect and complete.
Fourth -- and most important -- since nearly every state will border a foreign power on one side or another, each will have a safety-based reason to make sacrifices for the general defense. At the same time, the states farthest from the heart of the Union, which may benefit least from the everyday advantages of belonging to it, will also be the ones right next to foreign nations and therefore most in need of the Union's strength and resources when danger arises. It may be inconvenient for Georgia, or the states on our western or northeastern borders, to send their representatives to the seat of government. But they'd find it far more inconvenient to fight off an invading enemy alone or to bear the full cost of the military precautions that the constant proximity of danger demands. If they gain less from the Union in some respects than states closer to the center, they'll gain more in other respects -- and so the proper balance will be maintained.
I submit these considerations to you, my fellow citizens, with full confidence that the good sense that has so often guided your decisions will give them the weight they deserve -- and that you'll never allow difficulties, no matter how intimidating they appear or how fashionable the misconception behind them, to drive you into the dark and dangerous place where the advocates of disunion would lead you. Don't listen to the unnatural voice that tells you the people of America, bound together as they are by so many ties of affection, can no longer live together as members of the same family -- can no longer serve as the mutual guardians of each other's happiness -- can no longer be fellow citizens of one great, respected, and flourishing nation. Don't listen to the voice that petulantly tells you the form of government being recommended for your adoption is something entirely new in the political world, that it has never appeared even in the wildest theories, that it rashly attempts what can't be done. No, my countrymen -- shut your ears against this poisonous language. Shut your hearts against the venom it carries. The shared blood that flows in the veins of American citizens, the blood they've shed together in defense of their sacred rights -- these things consecrate their Union and make the very idea of becoming aliens, rivals, and enemies horrifying. And if novelty is something to be feared, believe me: the most alarming novelty, the wildest project, the most reckless attempt of all is tearing us apart in order to preserve our freedoms and promote our happiness. But why should the experiment of an extended republic be rejected simply because it's new? Is it not the glory of the people of America that, while they've paid decent respect to the wisdom of earlier times and other nations, they haven't let a blind worship of tradition, custom, or famous names override the promptings of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this bold spirit, future generations will owe their freedoms, and the world will owe the example of the many innovations put on display on the American stage in favor of individual rights and public happiness. Had the leaders of the Revolution taken no important step without a precedent to point to, had they established no government without an exact model to copy, the people of the United States might today be counted among the sad victims of misguided policies -- or at best be laboring under the weight of one of those forms of government that have crushed liberty everywhere else. Happily for America -- and happily, we trust, for the entire human race -- they chose a new and nobler path. They accomplished a revolution without parallel in the history of human society. They built governments with no model anywhere on the face of the earth. They conceived the design of a great Confederacy, which it falls to their successors to improve and sustain. If their work shows imperfections, the wonder is how few there are. If they made their biggest mistakes in the structure of the Union, that was the hardest task of all. It's the task that has now been redesigned by the act of your Convention -- and it's that act on which you must now deliberate and decide.
PUBLIUS
To the People of the State of New York:
In the course of the preceding papers, my fellow citizens, I've tried to lay before you, clearly and convincingly, how important the Union is to your political safety and happiness. I've shown you the web of dangers you'd be exposed to if you let that sacred bond connecting the people of America be cut or dissolved -- whether by ambition, greed, suspicion, or misrepresentation. In the rest of this inquiry, which I intend to walk you through, the truths I've been making the case for will be confirmed by new facts and arguments. If the road you still have to travel sometimes seems tedious or tiresome, remember: you're seeking answers on the most important subject that can occupy the attention of a free people. The territory you have to cover is vast, and the journey has been made unnecessarily difficult by the maze of misleading arguments that opponents have thrown in the way. My goal will be to clear the obstacles from your path as efficiently as I can, without sacrificing thoroughness for speed.
Following the plan I've laid out for this discussion, the next point to examine is the "insufficiency of the present Confederation to preserve the Union." You might ask: why bother proving a point that nobody disputes or doubts -- one that people of every class acknowledge in their heads and their hearts, and that the opponents of the new Constitution essentially admit just as much as its supporters? It has to be acknowledged that, however much these sides disagree on other matters, they generally agree on at least this much: there are serious flaws in our national system, and something needs to be done to rescue us from approaching chaos. The facts backing up this view are no longer matters of speculation. They've forced themselves on the awareness of the general public and have finally wrung even from those whose misguided policies played the biggest role in bringing us to this crisis a reluctant confession of the reality of these defects -- defects in our federal government that the Union's intelligent supporters have long been pointing out and lamenting.
We can fairly say we've reached almost the last stage of national humiliation. There's scarcely any form of disgrace that can wound the pride or degrade the standing of an independent nation that we haven't experienced. Do we have commitments that we're bound by every principle of honor to fulfill? They're being constantly and shamelessly violated. Do we owe debts to foreigners and to our own citizens, debts taken on during a time of extreme danger to preserve our very political existence? They remain unpaid, with no adequate plan for settling them. Do we have valuable territories and important outposts held by a foreign power that, by the clear terms of our treaty, should have been handed over long ago? They're still being kept from us, damaging our interests no less than our rights. Are we in any position to fight back against this aggression? We have no army, no treasury, and no real government. [1] Are we even in a position to protest with dignity? Our own failures to uphold the same treaty would need to be addressed first. Are we entitled, by nature and by agreement, to free navigation of the Mississippi? Spain is blocking us. Is public credit an essential resource in times of national danger? We seem to have given up on it as a lost cause. Is commerce important to national wealth? Ours has hit rock bottom. Is being respected by foreign powers a safeguard against foreign aggression? The weakness of our government actually discourages them from even negotiating with us. Our ambassadors abroad are nothing more than stage props of pretend sovereignty. Is a sharp, unnatural decline in land values a sign of national distress? The price of developed land in most of the country is far lower than the amount of available land on the market can account for -- it can only be fully explained by the collapse of private and public confidence, which is alarmingly widespread across all levels of society and which directly drives down the value of property of every kind. Is private credit the friend and supporter of industry? The most useful kind -- borrowing and lending -- has been squeezed into the narrowest limits, and even that is due more to a sense of insecurity than to an actual shortage of money. To cut short a list of specifics that brings neither pleasure nor instruction: name any sign of national disorder, poverty, or insignificance that could befall a community as naturally blessed as ours -- and you'll find it in the grim catalog of our public misfortunes.
This is the dismal situation we've been brought to by the very same principles and policies that would now discourage us from adopting the proposed Constitution -- principles that, not satisfied with having led us to the edge of a cliff, seem determined to push us into the abyss waiting below. Here, my countrymen -- driven by every consideration that should move an enlightened people -- let us make a firm stand for our safety, our peace, our dignity, and our reputation. Let us finally break the deadly spell that has for too long seduced us away from the path of happiness and prosperity.
It's true, as I've noted before, that the facts -- too stubborn to be denied -- have produced a general agreement with the abstract idea that there are serious defects in our national system. But this concession is rendered useless by the opponents of reform, who put up fierce resistance to any remedy based on the only principles that could actually work. While they admit that the government of the United States lacks the power to function, they argue against giving it the very powers it needs. They still seem to want things that are contradictory and irreconcilable: more federal authority without less state authority; sovereignty in the Union alongside complete independence in each member state. They still cling, with blind devotion, to the political monster of an imperium in imperio -- a government within a government. This makes it necessary to lay out the principal defects of the Confederation in full, to show that the problems we're experiencing don't come from minor or partial flaws but from fundamental errors in the structure of the building itself -- errors that can't be fixed without changing the first principles and main pillars of the whole framework.
The great and fundamental flaw in the design of the existing Confederation is this: it legislates for states and governments in their collective capacity, rather than for the individual people who make them up. While this principle doesn't apply to every power given to the Union, it dominates the ones that all the others depend on. Except for rules about how representatives are apportioned, the United States has unlimited authority to request men and money from the states. But it has no authority to raise either one by making laws that apply directly to individual American citizens. The result is that, while in theory the Confederation's decisions on these matters are legally binding laws, in practice they're nothing more than suggestions that the states can follow or ignore as they choose.
It's a strange quirk of human nature that, after everything experience has taught us on this point, there are still people who object to the new Constitution for abandoning a principle that has been the ruin of the old one -- a principle that is obviously incompatible with the very idea of government. In short, it's a principle that, if enforced at all, must replace the gentle authority of the law with the violent and bloody force of the sword.
There's nothing absurd or impractical about a league or alliance between independent nations for specific, clearly defined purposes -- spelled out in a treaty that covers all the details of time, place, circumstances, and quantities, leaves nothing to future judgment, and depends for its enforcement on the good faith of the parties involved. Agreements like this exist among all civilized nations, subject to the usual ups and downs of peace and war, compliance and noncompliance, as the interests or passions of the parties dictate. In the early part of this century, there was a craze in Europe for this kind of agreement, and politicians at the time hoped it would deliver benefits that never materialized. In an effort to establish a balance of power and lasting peace, every diplomatic tool was exhausted, and triple and quadruple alliances were formed. But they'd barely been signed before they were broken, teaching humanity an instructive but depressing lesson: how little you can count on treaties that have no enforcement mechanism beyond good faith, and that pit abstract principles of peace and justice against the pull of immediate interests and passions.
If the individual states in this country want to stand in a similar relationship to each other -- dropping the idea of a general government with real authority -- the arrangement would certainly be destructive and would inflict on us all the disasters I described earlier. But it would at least have the virtue of being consistent and workable. Giving up on a confederate government entirely, we'd be reduced to a simple offensive and defensive alliance -- in a position to be alternating friends and enemies of each other, as our mutual suspicions and rivalries, fueled by the intrigues of foreign nations, might dictate.
But if we're not willing to accept that dangerous position -- if we still want a national government, or what amounts to the same thing, a central authority under the direction of a common council -- then we have to build into our plan the features that mark the essential difference between a mere league and a real government. We must extend the authority of the Union to individual citizens -- the only proper subjects of government.
Government implies the power to make laws. It's fundamental to the concept of a law that it come with a consequence -- a penalty or punishment for disobedience. If there's no penalty for disobedience, then what claims to be a law is really nothing more than advice or a suggestion. That penalty, whatever it is, can only be enforced in two ways: through the courts and the justice system, or through military force -- through the power of law enforcement, or through the power of arms. The first kind can obviously apply only to individuals. The second kind must, by necessity, be used against political bodies -- against communities or states. It's clear that no court process can ultimately enforce obedience from a state. Rulings can be issued against states for violating their obligations, but those rulings can only be carried out by the sword. In any association where the central authority applies only to the member communities as a whole, every violation of the law amounts to an act of war, and military force becomes the only tool of civil compliance. A system like that certainly doesn't deserve to be called a government, and no sensible person would want to entrust their well-being to it.
There was a time when we were told that the states wouldn't be expected to violate the federal government's rules -- that a sense of shared interest would guide the behavior of each member and produce full compliance with everything the Union required. Talk like that, today, would sound as absurd as much of what we now hear from the same camp will sound once we've received a few more lessons from experience, that best teacher of wisdom. It always reflected an ignorance of the real forces that drive human behavior and contradicted the very reasons for establishing government in the first place. Why was government created at all? Because human passions won't conform to the demands of reason and justice without being forced to. Has experience shown that groups of people act more uprightly or selflessly than individuals? Every careful observer of human behavior has concluded the opposite -- and for obvious reasons. Concern for reputation has less influence when the shame of a bad action gets spread among many people than when it falls on one person alone. A factional spirit, which tends to poison the deliberations of any group, will often drive its members into rash and excessive behavior that they'd be ashamed of as private individuals.
On top of all this, there is, in the very nature of sovereign power, a resistance to being controlled -- a tendency in those who hold it to view any external attempt to restrain or direct them with hostility. Because of this, in every political association formed on the principle of uniting a number of smaller sovereignties around a common interest, you'll find a kind of centrifugal force in the subordinate parts -- a constant pull in each to fly away from the center. This tendency isn't hard to explain. It originates in the love of power. Power that is checked or limited is almost always the rival and enemy of the power that checks or limits it. This simple truth tells us how little reason there is to expect that the officials running the affairs of individual states in a confederacy will always be cheerfully ready, with perfect good humor and an unbiased concern for the public good, to carry out the decisions of the central authority. The opposite is what human nature produces.
If, therefore, the Confederation's decisions can't be carried out without going through the state governments, there's little chance they'll be carried out at all. The leaders of the individual states -- whether or not they have the constitutional right to do so -- will take it upon themselves to judge whether the measures are appropriate. They'll weigh how the proposed action lines up with their immediate interests and goals, and the momentary advantages or disadvantages of going along with it. All of this will be done in a spirit of self-interested and suspicious scrutiny, without the knowledge of national circumstances and strategic considerations that proper judgment requires, and with the strong bias toward local concerns that can hardly fail to distort the decision. This same process repeats in every member state. The execution of plans made by the councils of the whole will always be at the mercy of the uninformed and biased opinions of each individual part. Anyone who's watched the proceedings of popular assemblies -- who's seen how hard it is, even without outside pressure, to bring them to agreement on important matters -- can easily imagine how impossible it must be to get a number of such assemblies, deliberating far apart from each other, at different times, and under different circumstances, to cooperate on the same goals for any length of time.
In our case, the agreement of thirteen separate sovereign wills is required, under the Confederation, for the full execution of every important measure the Union undertakes. And what has happened is exactly what anyone should have predicted. The Union's decisions haven't been carried out. The states' failures to comply have escalated, step by step, to a point that has now brought the entire national government to a grinding halt. Congress currently barely has the means to maintain even the appearance of a functioning administration while the states take their time agreeing on a more substantial replacement for what is currently just the shadow of a federal government. Things didn't reach this desperate point all at once. The causes I've described initially produced only uneven and disproportionate levels of compliance with the Union's requests. The larger failures of some states gave the others both the excuse and the incentive to fall behind as well. "Why should we contribute more, proportionally, than those who are in the same boat with us? Why should we agree to carry more than our fair share of the common burden?" These were arguments that human selfishness couldn't resist, and that even forward-thinking people who considered the long-term consequences couldn't easily counter. One by one, each state -- yielding to the persuasive voice of short-term interest and convenience -- has withdrawn its support, until the frail and crumbling structure seems ready to collapse on our heads and crush us beneath its ruins.
PUBLIUS
[1] "I mean for the Union."
To the People of the State of New York:
The tendency of a system that legislates for states -- rather than for individual citizens -- has been demonstrated by our own experience, and it's equally confirmed by the history of every other confederacy we know about, in direct proportion to how much they relied on that same principle. The details of that evidence deserve a separate and thorough examination. For now, I'll simply note that of all the ancient confederacies history has passed down to us, the Lycian and Achaean leagues appear to have been the most free from the grip of that misguided principle -- and accordingly, they're the ones that have most deserved, and most generously received, the praise of political writers.
This flawed principle can be called, accurately and emphatically, the parent of anarchy. As we've seen, violations by member states are its natural and inevitable offspring. And whenever those violations happen, the only constitutional remedy is force -- and the immediate result of using force is civil war.
So the question remains: how well would this odious tool of government actually work if applied to us? If the national government didn't have a large standing army at its disposal, it either couldn't use force at all, or when it did, it would amount to a war between different parts of the Confederacy over violations of their agreement -- and the strongest coalition would most likely win, regardless of whether it was the side upholding or resisting federal authority. It would rarely happen that the violation to be corrected was confined to a single state. If more than one state had neglected its duty, their shared situation would naturally push them to band together for mutual defense. Beyond that instinct for solidarity, if a large and influential state happened to be the offending party, it would usually have enough clout with its neighbors to recruit some of them to its cause. Convincing-sounding arguments about threats to everyone's liberty could easily be manufactured. Plausible excuses for the offending party's failures could be invented without difficulty -- designed to raise alarm, inflame passions, and win over even those states that hadn't done anything wrong. This would be even more likely when the larger states' violations came from deliberate power grabs by their leaders, aimed at throwing off any external check on their personal ambitions -- and to make that easier, those leaders would presumably work behind the scenes with influential people in neighboring states ahead of time. If allies couldn't be found at home, they'd turn to foreign powers, who would rarely pass up the chance to encourage divisions in a Confederacy whose firm union they had so much reason to fear. Once the sword is drawn, human passions respect no limits. Wounded pride and burning resentment would drive the states targeted by the Union's military action to whatever extreme was necessary to avenge the insult or avoid the humiliation of surrender. The first war of this kind would probably end in the dissolution of the Union.
That would be the violent death of the Confederacy. Its more natural death is what we seem to be on the verge of experiencing right now, unless the federal system is quickly rebuilt on a stronger foundation. Given the character of this country, it's unlikely that the compliant states would often be willing to enforce the Union's authority by going to war against the noncompliant ones. They'd always be more inclined to take the easier route: putting themselves on equal footing with the delinquent states by following their bad example. And the guilt of all would become the security of all. Our past experience has shown this dynamic playing out in full. In fact, there would be an insurmountable difficulty in even determining when force could properly be used. When it comes to financial contributions -- which would be the most common source of noncompliance -- it would often be impossible to tell whether a state had failed to pay out of unwillingness or genuine inability. The excuse of inability would always be ready at hand. And the situation would have to be extremely obvious before its falseness could be exposed with enough certainty to justify the harsh step of compulsion. It's easy to see how this problem alone, every time it came up, would open a wide field for bias, favoritism, and oppression by whatever majority happened to control the national legislature.
It shouldn't take much effort to prove that the states would not want a national Constitution that could only function through the constant use of a large standing army to enforce the government's ordinary decisions and requirements. And yet that's exactly the alternative implied by those who want to deny the government the power to act directly on individuals. Such a scheme, if it were even possible, would instantly degenerate into a military dictatorship -- but in any case, it would prove completely impractical. The Union's resources wouldn't be enough to maintain an army large enough to keep the bigger states in line, and the means of creating such an army wouldn't exist in the first place. Anyone who considers the population and strength of several of these states right now, and looks ahead to what they'll become even just fifty years from now, will immediately dismiss as foolish and unrealistic any plan that tries to regulate their behavior through laws aimed at them collectively -- enforced by coercion applied to them in the same collective way. A project like that is about as realistic as the monster-taming spirit attributed to the mythical heroes and demigods of ancient legend.
Even in confederacies made up of members smaller than many of our counties, the principle of legislating for sovereign states -- backed by military force -- has never actually worked. It's rarely even been attempted except against the weakest members. And in most cases, attempts to coerce the defiant and disobedient have been the trigger for bloody wars, with one half of the confederacy raising its banner against the other.
The conclusion any thoughtful person must draw from all this is clear: if it's possible to build a federal government capable of managing our shared interests and maintaining the general peace, it must be founded on the opposite of the principle championed by the opponents of the proposed Constitution. It must extend its authority directly to individual citizens. It must need no intermediary legislation from the states. Instead, it must be empowered to use the ordinary courts and officials to carry out its own laws. The authority of the national government must be felt through the courts of justice. The government of the Union, like that of each state, must be able to appeal directly to the hopes and fears of individuals -- and to win the support of the passions that have the strongest hold on the human heart. In short, it must possess all the tools and have the right to use all the methods of enforcing its powers that the state governments possess and use.
To this argument, someone might object that if any state were hostile to the Union's authority, it could always obstruct the enforcement of its laws and bring things to the same point of armed conflict that critics use to attack the alternative plan.
But this objection loses its force the moment you consider the essential difference between mere noncompliance and direct, active resistance. If the state legislatures are needed to make a federal measure take effect, all they have to do is nothing -- or act evasively -- and the measure is defeated. This kind of neglect can be disguised behind meaningless half-measures, so it doesn't even look like obstruction, and therefore doesn't alarm the public about the safety of the Constitution. State leaders can even take credit for their sneaky undermining of it, pointing to some temporary convenience, exemption, or advantage they've secured.
But if the national government's laws don't require state legislatures to implement them -- if they operate directly on individual citizens -- then state governments couldn't block them without an open and violent exercise of unconstitutional power. No omissions or evasions would do the trick. They'd be forced to act, and in a way that would leave no doubt they were encroaching on national authority. Such an attempt would always be risky in the face of a Constitution that has any ability to defend itself, and of a people informed enough to tell the difference between a lawful exercise and an illegal seizure of power. Success would require not just a rebellious majority in the legislature, but the cooperation of the courts and of the general public. If the judges weren't part of a conspiracy with the legislature, they'd declare such resolutions unconstitutional and void. If the people weren't infected with the same spirit as their state representatives, they -- as the natural guardians of the Constitution -- would throw their weight behind the national government and give it a decisive advantage in the contest. Attempts like this wouldn't be made casually or recklessly, because they'd rarely be safe for the people behind them -- unless the federal government was exercising its authority in a truly tyrannical way.
If opposition to the national government came from the disorderly conduct of defiant or seditious individuals, it could be dealt with using the same methods that state governments use against that kind of problem every day. Law enforcement officials, serving equally as officers of both national and state law, would no doubt be just as ready to protect national rules from private lawlessness as they are to protect local ones. As for the small-scale disturbances and uprisings that occasionally shake a community -- caused by the scheming of minor factions or by sudden bursts of public anger that don't infect the population at large -- the national government could bring far greater resources to suppress them than any single state could. And as for those catastrophic conflicts that, under certain circumstances, can set an entire nation ablaze -- whether caused by serious grievances against the government or by the contagion of some violent popular frenzy -- those fall outside any normal rules of prediction. When they happen, they typically amount to revolutions and the breakup of nations. No form of government can always prevent or control them. It's pointless to try to guard against events too powerful for human foresight or preparation, and it would be absurd to reject a government because it can't do the impossible.
PUBLIUS
To the People of the State of New York:
A different kind of objection from the one I addressed in my last paper may also be raised against the principle of federal legislation that acts directly on individual citizens. It might be argued that this would make the Union's government too powerful and enable it to swallow up the remaining powers that should properly be left with the states for local purposes. But even granting the most extreme love of power that any reasonable person could imagine, I confess I'm at a loss to see what temptation the people running the national government would ever have to strip the states of that kind of authority. Managing a state's internal affairs doesn't exactly hold much appeal for ambitious minds. Commerce, finance, diplomacy, and war -- those are the things that captivate people driven by ambition, and all the powers needed for those purposes should, first and foremost, be placed in the hands of the national government. Administering local justice between citizens of the same state, overseeing agriculture and similar concerns -- in short, all the things that should properly be handled by local government -- would never be desirable responsibilities for a national government. It's therefore unlikely that the federal government would have any desire to seize powers it has no use for, because trying to exercise them would be as burdensome as it would be pointless -- and possessing them would add nothing to the dignity, importance, or prestige of the national government.
But let's grant, for the sake of argument, that a sheer lust for domination would be enough to create that desire. Even so, it's safe to say that the will of the people themselves -- the voters who make up the national representatives' constituencies, or in other words, the people of the several states -- would keep such an outrageous appetite in check. It will always be far easier for state governments to encroach on national authority than for the national government to encroach on state authority. The proof of this rests on the greater degree of influence that state governments will generally have over the people, assuming they manage their affairs with integrity and good judgment. This same fact teaches us something important: there's an inherent weakness built into all federal constitutions, and we can't take too much care in designing them to give them all the strength that's compatible with the principles of liberty.
The states' advantage in influence over their citizens would come partly from the sprawling structure of the national government, but mainly from the nature of the issues that state governments deal with.
It's a well-known fact of human nature that our loyalties weaken the further away or more abstract the object becomes. On the same principle that a person is more attached to their family than to their neighborhood, and to their neighborhood than to the community at large, the people of each state would naturally feel a stronger pull toward their state governments than toward the government of the Union -- unless that tendency were overcome by significantly better performance from the national government.
This deep-rooted tendency of the human heart would find powerful reinforcement in the kinds of things state governments handle.
The countless smaller interests that will naturally fall under state supervision -- forming so many streams of influence flowing through every part of society -- can't be listed without getting into a level of detail too tedious to be worth the effort.
But there's one overriding advantage that belongs to state governments, and it alone is enough to settle the question: I mean the everyday administration of criminal and civil justice. This is, more than anything else, the most powerful, most universal, and most compelling source of public loyalty and attachment. It's the immediate and visible protector of life and property. Its rewards and punishments are constantly on display before the public eye. It regulates all those personal interests and everyday concerns that people are most sensitive about. More than any other factor, it shapes the way people feel about their government -- building the affection, respect, and trust that bind citizens to it. This great glue of society, flowing almost entirely through the channels of state government, independent of all other sources of influence, would give the states such firm authority over their citizens as to make them a reliable counterweight to the national government -- and, not infrequently, dangerous rivals to its power.
The operations of the national government, on the other hand, falling less directly under ordinary citizens' notice, would have their benefits appreciated mainly by more analytical minds. Because they deal with broader, more general interests, they'd be less likely to feel personally relevant to most people -- and proportionally less likely to inspire a deep sense of obligation or active loyalty.
The reasoning I've just laid out has been abundantly confirmed by the experience of every federal constitution we know about, and by every other system that bears any resemblance to one.
Although the ancient feudal systems weren't confederacies in the strict sense, they shared key features with that kind of arrangement. There was a common head -- a chieftain or sovereign -- whose authority extended over the whole nation, and a number of subordinate vassals, or feudal lords, who controlled large tracts of land and had numerous lesser vassals and tenants who worked that land in exchange for loyalty and obedience. Each major vassal was essentially a king within his own territory. The result was constant opposition to the sovereign's authority and frequent wars among the great barons themselves. The national leader's power was usually too weak either to keep the peace or to protect ordinary people from the oppression of their local lords. This era of European history is pointedly called by historians the age of feudal anarchy.
When the sovereign happened to be a man of energy, military skill, and superior ability, he could build up enough personal authority and influence to serve, for a time, the purpose of a more established system. But in general, the barons' power prevailed over the monarch's, and in many cases his control was thrown off entirely, with the great estates becoming independent states in their own right. In the cases where the monarch did ultimately win out over his vassals, his success was largely due to the vassals' own tyranny over their subjects. The barons -- equally the enemies of the king and the oppressors of ordinary people -- were feared and hated by both. Eventually, the shared danger and shared interest of the king and the people produced an alliance that proved fatal to the power of the aristocracy. If the nobles had treated their followers with fairness and justice, preserving their loyalty and devotion, the contests between the nobles and the monarch would almost always have ended in the nobles' favor, leading to the reduction or overthrow of royal authority.
This isn't just speculation. Among other examples that could be cited, Scotland provides a compelling case. The spirit of clan loyalty that was introduced early into that kingdom -- binding nobles and their followers with ties as strong as family bonds -- made the aristocracy a permanent overmatch for the monarch's power. It wasn't until Scotland's union with England tamed that fierce and ungovernable spirit and brought it under the more orderly rules of a more rational and effective system of government that had already been established in England.
The separate state governments in a confederacy can be aptly compared to these feudal estates -- with an advantage on their side, since, for the reasons I've already explained, they'll generally have the confidence and goodwill of the people. With that crucial support, they'll be able to effectively resist any overreach by the national government. In fact, it'll be a good thing if they're not able to undermine its legitimate and necessary authority as well. The parallel between the two situations lies in the rivalry for power that applies to both, and in the concentration of significant portions of the community's strength in particular hands -- in one case, private individuals; in the other, political bodies.
A brief review of the history of actual confederacies will further illustrate this important principle -- a principle whose neglect has been the great source of our political mistakes and has directed our suspicion in the wrong direction. That review will be the subject of the papers that follow.
PUBLIUS
To the People of the State of New York:
Among the confederacies of the ancient world, the most significant was the association of Greek republics under the Amphictyonic council. From the best accounts that have come down to us about this celebrated institution, it bore a very instructive resemblance to the present Confederation of the American states.
The member states kept their status as independent and sovereign entities and had equal votes in the federal council. This council had the general authority to propose and decide whatever it judged necessary for the common welfare of Greece: to declare and wage war, to settle all disputes between member states as a court of last resort, to fine an aggressor, to use the full force of the confederacy against any disobedient member, and to admit new members. The Amphictyons were also the guardians of the Greek religion and of the immense wealth belonging to the temple at Delphi, where they had jurisdiction over disputes between the local inhabitants and the visitors who came to consult the oracle. As a further safeguard for the effectiveness of these federal powers, the members took an oath to mutually defend and protect the united cities, to punish anyone who violated this oath, and to inflict vengeance on anyone who looted the temple.
On paper, this arrangement of powers looks more than sufficient for all general purposes. In several important respects, these powers actually exceeded those listed in our own Articles of Confederation. The Amphictyons had religious superstition on their side -- one of the principal tools by which governments were maintained in that era. They had an explicit authority to use coercion against defiant cities, and they were bound by oath to exercise that authority whenever necessary.
But the reality turned out to be very different from the theory. The powers, like those of our current Congress, were exercised by representatives appointed entirely by the cities in their political capacities -- and enforced against those cities in the same capacities. The result was weakness, disorder, and ultimately the destruction of the confederacy. Instead of being kept in check, the more powerful members took turns dominating all the rest. Athens, as we learn from the orator Demosthenes, was the dominant power in Greece for seventy-three years. The Spartans governed next for twenty-nine years. Later, after the Battle of Leuctra, the Thebans had their turn at the top.
As Plutarch tells us, it happened all too often that the representatives of the strongest cities intimidated and bribed those of the weaker ones, so that decisions consistently favored the most powerful party.
Even in the middle of dangerous defensive wars against Persia and Macedon, the members never managed to act together. Some of them were always the pawns or the paid agents of the common enemy. The intervals between foreign wars were filled with domestic upheaval, violence, and bloodshed.
After the war against the Persian king Xerxes ended, the Spartans demanded that several cities be expelled from the confederacy for their disloyal conduct during the war. The Athenians, realizing that the Spartans would lose fewer allies than they would under such a measure -- and would become the dominant voice in federal deliberations -- vigorously opposed and defeated the attempt. This episode alone demonstrates the ineffectiveness of the union, the ambition and rivalry of its most powerful members, and the dependent, degraded condition of the rest. The smaller members, though theoretically entitled to orbit in equal pride and dignity around the common center, had in practice become mere satellites of the major powers.
As the Abbe Milot observed, if the Greeks had been as wise as they were brave, their experience would have taught them the necessity of a closer union, and they would have used the peace that followed their victory over Persia to carry out that reform. Instead, Athens and Sparta, swollen with pride from their victories and the glory they'd won, became first rivals and then enemies -- and ended up doing each other far more harm than Xerxes had ever inflicted on them. Their mutual suspicions, fears, hatreds, and attacks culminated in the famous Peloponnesian War, which itself ended in the ruin and enslavement of the Athenians who had started it.
A weak government, when it's not at war, is always torn apart by internal conflicts -- and those conflicts never fail to invite fresh disasters from abroad. The Phocians, having plowed up some consecrated ground belonging to the temple of Apollo, were fined by the Amphictyonic council, in keeping with the religious beliefs of the age. The Phocians, backed by Athens and Sparta, refused to comply with the decree. The Thebans, along with other cities, undertook to uphold the Amphictyons' authority and avenge the violated god. The weaker side in this dispute invited the help of Philip of Macedon, who had been secretly encouraging the conflict all along. Philip eagerly seized the opportunity to carry out the designs he'd long been planning against Greek liberty. Through his scheming and bribery, he won over the popular leaders of several cities. Through their influence and votes, he gained admission to the Amphictyonic council. And through a combination of political manipulation and military force, he made himself master of the confederacy.
Such were the consequences of the flawed principle on which this fascinating institution was founded. As one thoughtful observer of Greece's fate put it: if Greece had been united by a tighter confederation and had held that union together, she would never have worn the chains of Macedon -- and might have stood as a barrier against the vast ambitions of Rome.
The Achaean league was another association of Greek republics that offers us valuable lessons.
The union here was far more tightly knit, and its organization much wiser, than in the previous case. Accordingly, although it met a similar fate, it by no means equally deserved it.
The cities in this league kept their local self-government, appointed their own officials, and enjoyed perfect equality. The senate, in which they were all represented, had the sole and exclusive power over war and peace, sending and receiving ambassadors, entering into treaties and alliances, and appointing a chief executive called the praetor, who commanded their armies. With the advice and consent of ten senators, the praetor not only ran the government when the senate wasn't in session but also played a major role in its deliberations when it was. Under the original constitution, there were two praetors sharing power, but experience showed that having a single one worked better.
It appears that all the cities shared the same laws and customs, the same weights and measures, and the same currency. But how much of this uniformity came from the authority of the federal council isn't entirely clear. We're told only that the cities were essentially required to adopt the same laws and practices. When Sparta was brought into the league by the general Philopoemen, it involved abolishing the ancient laws of the Spartan lawgiver Lycurgus and adopting the Achaean system instead. The Amphictyonic confederacy, of which Sparta had previously been a member, had left her completely free to keep her own government and laws. This difference alone reveals a fundamental distinction between the two systems.
It's a real shame that such incomplete records survive of this remarkable political experiment. If we could fully understand its internal structure and day-to-day workings, it would probably shed more light on the science of federal government than any other comparable example we know of.
One important fact does seem to be confirmed by every historian who discusses the Achaean league: both after its revival under the statesman Aratus and before its destruction by Macedonian scheming, there was far more moderation and justice in the administration of its government -- and far less violence and unrest among the people -- than could be found in any of the cities exercising full sovereignty on their own. As the Abbe Mably notes in his study of Greece, popular government, which was so turbulent everywhere else, caused no disorders among the members of the Achaean republic, because it was there tempered by the general authority and laws of the confederacy.
We shouldn't be too quick to conclude, however, that political faction didn't stir up trouble in individual cities to some degree, much less that proper order and harmony prevailed throughout the system as a whole. The opposite is made clear enough by the confederacy's turbulent history and ultimate fate.
While the Amphictyonic confederacy still existed, the Achaean league -- which included only the less important cities -- played a minor role on the Greek stage. When the former fell victim to Macedon, the latter was spared by the calculated policy of Philip and Alexander. Under their successors, however, a different policy took hold. Divide-and-conquer tactics were used against the Achaeans. Each city was lured into pursuing its own separate interests. The union dissolved. Some cities fell under the control of Macedonian military garrisons; others under the rule of local tyrants who rose out of the resulting chaos. But before long, shame and oppression reawakened their love of liberty. A few cities reunited. Others followed their example as opportunities arose to overthrow their tyrants. The league soon encompassed almost the entire Peloponnese. Macedon watched its growth but was too weakened by its own internal conflicts to stop it. All of Greece caught the enthusiasm and seemed ready to unite in a single confederacy -- when the suspicion and envy of Sparta and Athens toward the Achaeans' rising power dealt the effort a fatal blow. Fear of Macedon led the league to seek alliances with the kings of Egypt and Syria, who, as successors of Alexander, were rivals of the Macedonian king. This strategy was undermined by Cleomenes, king of Sparta, whose ambition drove him to launch an unprovoked attack on his neighbors, the Achaeans. As an enemy of Macedon, Cleomenes had enough influence with the Egyptian and Syrian rulers to break their commitments to the league.
The Achaeans were now trapped in a dilemma: submit to Cleomenes, or beg for help from Macedon -- their former oppressor. They chose the latter. The quarrels of the Greeks always gave that powerful neighbor a welcome excuse to meddle in their affairs. A Macedonian army arrived quickly. Cleomenes was defeated. But the Achaeans soon discovered, as so often happens, that a powerful, victorious ally is just another word for a master. The best their most abject cooperation could get them was permission to keep using their own laws. Philip, now on the Macedonian throne, soon provoked new coalitions among the Greeks through his tyranny. The Achaeans, though weakened by internal divisions and the defection of Messene, joined forces with the Aetolians and Athenians and raised the banner of resistance. Finding themselves still outmatched even with these allies, they once again resorted to the dangerous strategy of calling in foreign military help. The Romans, who received the invitation, eagerly accepted. Philip was defeated. Macedon was conquered. But a new crisis followed for the league. Disagreements erupted among its members. The Romans deliberately encouraged these divisions. Callicrates and other popular leaders became paid tools for manipulating their fellow countrymen. To more effectively breed discord and disorder, the Romans -- to the astonishment of those who had trusted their sincerity -- proclaimed universal liberty[1] throughout Greece. With the same deceptive motives, they then lured individual members away from the league by flattering their pride and suggesting that the league violated their sovereignty. Through these tactics, this union -- the last hope of Greece, the last hope of ancient liberty -- was torn to pieces. Such weakness and chaos were introduced that Rome's armies had little trouble finishing what their political manipulation had started. The Achaeans were slaughtered, and Greece was loaded with chains under which it groaned for generations.
I thought it worth giving the outlines of this important chapter of history, both because it teaches more than one lesson, and because, as a supplement to the outline of the Achaean constitution, it powerfully illustrates the tendency of federal systems toward anarchy among the members rather than tyranny from the center.
PUBLIUS
[1] This was really just a more appealing name for the independence of member states from the federal authority.
To the People of the State of New York:
The examples of ancient confederacies I discussed in my last paper haven't exhausted the lessons that real-world experience has to teach us on this subject. There are existing institutions, built on a similar principle, that deserve special attention. The first to consider is the Germanic Empire.
In the early centuries of Christianity, Germany was occupied by seven distinct nations with no common leader. The Franks, one of these nations, conquered Gaul and established the kingdom that took their name. In the ninth century, their warlike king Charlemagne carried his conquering armies in every direction, and Germany became part of his vast domains. When his empire was divided among his sons, the German portion was set up as a separate and independent empire. Charlemagne and his immediate successors held the reality of imperial power, not just its titles and symbols. But the major vassals -- whose lands had become hereditary, and who made up the national assemblies that Charlemagne hadn't abolished -- gradually threw off the yoke and advanced to full sovereign independence. Imperial authority wasn't strong enough to restrain such powerful subjects or to preserve the unity and peace of the empire. The most brutal private wars, accompanied by every kind of calamity, raged between the different princes and states. The emperor's authority, unable to maintain public order, declined by degrees until it was nearly extinct during the long period of anarchy between the death of the last Swabian emperor and the rise of the first Austrian one. In the eleventh century, the emperors enjoyed full sovereignty. By the fifteenth century, they had little more than the symbols and decorations of power.
Out of this feudal system -- which itself had many of the important features of a confederacy -- grew the federal system that constitutes the Germanic Empire. Its powers are divided among three bodies: a diet representing the member states of the confederacy; the emperor, who serves as the chief executive with the power to veto the diet's decisions; and two supreme judicial bodies -- the imperial chamber and the aulic council -- which have final jurisdiction over disputes involving the empire or between its members.
The diet has the general power to legislate for the empire, to make war and peace, to form alliances, to set each member's required contribution of troops and money, to build fortresses, to regulate the currency, to admit new members, and to place disobedient members under the ban of the empire -- which strips them of their sovereign rights and confiscates their possessions. The members are explicitly prohibited from making agreements harmful to the empire, from imposing tolls and duties on trade with other members without the consent of the emperor and diet, from altering the value of their currency, from wronging one another, or from sheltering anyone who disturbs the public peace. The ban is pronounced against any member who violates these rules. In their official capacity as members of the diet, they are subject to judgment by the emperor and diet; in their private affairs, by the aulic council and imperial chamber.
The emperor's powers are extensive. The most important include: the exclusive right to propose matters to the diet, to veto its resolutions, to appoint ambassadors, to confer titles and honors, to fill vacant electorates, to found universities, to grant privileges that don't harm the member states, to receive and spend public revenues, and generally to oversee public safety. In some cases, the electors form an advisory council to him. As emperor, he holds no territory within the empire and receives no revenue to support that office. But his income and lands in his other roles make him one of the most powerful rulers in Europe.
Given this impressive display of constitutional powers granted to the representatives and head of this confederacy, you'd naturally expect it to be an exception to the pattern that characterizes similar systems. Nothing could be further from the truth. The fundamental principle on which it rests -- that the empire is a community of sovereigns, that the diet represents sovereigns, and that the laws are directed at sovereigns -- makes the empire a powerless body, unable to regulate its own members, insecure against external threats, and constantly torn apart by internal turmoil.
The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the strong running wild and the weak being crushed; of foreign invasions and foreign scheming; of requests for troops and money being ignored or only partially fulfilled; of attempts to enforce those requests that were either complete failures or were carried out with the slaughter and devastation of civil war, punishing the innocent along with the guilty; of general weakness, chaos, and suffering.
In the sixteenth century, the emperor, with one part of the empire behind him, was at war against the other princes and states. In one of these conflicts, the emperor himself was put to flight and nearly captured by the Elector of Saxony. The late King of Prussia was more than once pitted against his own emperor -- and usually proved more than a match for him. Wars and disputes among the members themselves have been so common that the German historical record is crowded with bloody pages describing them. Before the Peace of Westphalia, Germany was devastated by a war lasting thirty years, in which the emperor and half the empire fought on one side, and Sweden with the other half fought on the other. Peace was eventually negotiated and largely dictated by foreign powers, and the terms of that peace -- in which foreign nations are formal parties -- became a fundamental part of the German constitution.
If the nation happens to be more united on some emergency by the need for self-defense, its situation is still pitiful. Military preparations must be preceded by so many tedious deliberations -- arising from the suspicion, pride, competing interests, and conflicting claims of sovereign bodies -- that by the time the diet can settle the arrangements, the enemy is already in the field. And before the federal troops are ready to take the field themselves, the enemy is retiring to winter quarters.
The small body of national troops maintained in peacetime is poorly kept up, badly paid, infected with local biases, and supported by irregular and disproportionate contributions to the treasury.
The impossibility of maintaining order and enforcing justice among these sovereign members led to the experiment of dividing the empire into nine or ten districts, giving each district its own internal organization, and charging them with the military enforcement of laws against defiant members. This experiment only served to demonstrate more fully the fundamental flaw of the constitution. Each district is a miniature picture of the larger system's problems. They either fail to carry out their assignments, or they carry them out with all the devastation and bloodshed of civil war. Sometimes entire districts default on their duties, adding to the very problems they were created to solve.
We can get a sense of how this military enforcement scheme works from an example given by the historian Thuanus. In Donawerth, a free imperial city in the Swabian district, the Abbe de St. Croix enjoyed certain privileges that had been reserved for him. When he tried to exercise these privileges on some public occasions, he was attacked by the townspeople. The result was that the city was placed under the ban of the empire, and the Duke of Bavaria -- though he was director of a different district -- got himself appointed to enforce it. He soon appeared before the city with ten thousand troops and, finding it a convenient opportunity (as he had secretly intended from the start) to revive an old territorial claim -- on the grounds that his ancestors had allowed the city to be separated from his lands[1] -- he seized the city in his own name, disarmed and punished the inhabitants, and annexed the city to his own domains.
You might ask: what has kept this broken-down machine from falling completely apart for so long? The answer is obvious. The weakness of most of the smaller members, who don't want to expose themselves to the mercy of foreign powers. The weakness of most of the major members, compared with the formidable powers surrounding them on all sides. The enormous influence the emperor draws from his separate hereditary territories. And his personal interest in preserving a system that's tied to his family's prestige and that makes him the foremost ruler in Europe. These factors hold together a feeble and precarious Union -- while the repelling force that naturally comes with sovereignty, growing stronger over time, prevents any meaningful reform based on proper consolidation. And even if that obstacle could be overcome, the neighboring powers would never allow a transformation that would give the empire the strength and prominence it's entitled to. Foreign nations have long seen themselves as having a stake in the changes that events have made to this constitution, and on various occasions have shown their strategy of keeping Germany in a permanent state of anarchy and weakness.
If more direct examples were needed, Poland -- as a government over local sovereigns -- deserves mention. No more striking proof could be given of the disasters that flow from such institutions. Equally unfit for self-government and self-defense, it has long been at the mercy of its powerful neighbors, who recently had the "mercy" to relieve it of one-third of its people and territory.
The connection among the Swiss cantons barely qualifies as a confederacy, though it's sometimes cited as an example of the stability of such arrangements.
The Swiss have no common treasury, no common army even in wartime, no common currency, no common judiciary, and no other common mark of sovereignty.
They're held together by the peculiarities of their mountainous geography; by the individual weakness and insignificance of each canton; by their fear of the powerful neighbors to whom some of them were once subject; by the few sources of conflict among a people with such simple and similar customs; by their shared interest in their dependent territories; by the mutual assistance they need for suppressing uprisings and rebellions -- an obligation explicitly written into their agreements and frequently called upon; and by the necessity of some regular, permanent process for resolving disputes among the cantons. That process requires each side in a dispute to choose four judges from the neutral cantons, and if those judges can't agree, they choose an umpire. This court, sworn to impartiality, issues a final verdict that all cantons are bound to enforce. How effective this system really is can be gauged by a clause in their 1683 treaty with Victor Amadeus of Savoy, in which he committed himself to act as mediator in disputes between the cantons -- and to use force, if necessary, against any canton that refused to comply.
To the extent that Switzerland's unique situation allows comparison with the United States, it only confirms the principle we've been establishing. Whatever effectiveness the union may have had in ordinary circumstances, the moment a serious issue arose that put it to the test, it failed. The religious conflicts -- which on three occasions ignited violent and bloody wars -- effectively split the league apart. The Protestant and Catholic cantons have since held their own separate assemblies, where all the most important business is conducted, leaving the general assembly with little to do beyond managing the shared dependent territories.
That split had another consequence worth noting. It led to opposing alliances with foreign powers: Berne, leading the Protestant group, allied with the Dutch Republic; and Lucerne, leading the Catholic group, allied with France.
PUBLIUS
[1] Pfeffel, in his chronological history of Germany, says the actual pretext was to reimburse himself for the cost of the expedition.
To the People of the State of New York:
The United Netherlands are a confederacy of republics -- or, more accurately, of aristocracies -- with a very unusual structure, yet they confirm all the lessons we've drawn from the examples we've already examined.
The union is made up of seven equal and sovereign states, and each state or province is itself composed of equal and independent cities. In all important matters, not only the provinces but also the individual cities must agree unanimously.
The sovereignty of the Union is represented by the States-General, which usually consists of about fifty deputies appointed by the provinces. They hold their seats under varying terms -- some for life, some for six, three, or one year. Deputies from two provinces serve at their appointing province's pleasure.
The States-General have the authority to enter into treaties and alliances, to make war and peace, to raise armies and equip fleets, to set contribution quotas and demand payments. In all these matters, however, unanimity and the approval of their home provinces are required. They also have the authority to appoint and receive ambassadors, to carry out existing treaties and alliances, to collect duties on imports and exports, to regulate the mint (while respecting provincial rights), and to govern the dependent territories as sovereign rulers. The provinces are prohibited -- without the general consent -- from making foreign treaties, from imposing trade barriers harmful to other provinces, or from charging their neighbors higher duties than their own citizens pay. A council of state, a chamber of accounts, and five admiralty colleges assist and support the federal administration.
The chief executive of the union is the stadtholder, who is now a hereditary prince. His main weight and influence in the republic come from this independent title, from his vast family estates, from his family connections with some of Europe's leading rulers, and -- more than anything, perhaps -- from the fact that he serves as stadtholder in each of the individual provinces as well as for the union as a whole. In that provincial role, he appoints town officials (under certain rules), carries out provincial decisions, presides over provincial courts whenever he chooses, and holds the power of pardon throughout.
As stadtholder of the union, he also has considerable powers.
In his political role, he has the authority to settle disputes between provinces when other methods fail, to attend the deliberations of the States-General and their special sessions, to receive foreign ambassadors, and to maintain agents for his personal affairs at foreign courts.
In his military role, he commands the federal troops, manages garrisons, and generally oversees military affairs. He controls all military appointments, from colonels down to the lowest officers, as well as the governorships of fortified towns.
In his naval role, he is admiral-general, superintending and directing everything related to naval forces and maritime affairs. He presides over the admiralties in person or through a representative, appoints vice-admirals and other officers, and convenes courts martial whose sentences can't be carried out without his approval.
His official income, on top of his private wealth, amounts to three hundred thousand florins. The standing army under his command consists of about forty thousand men.
That's the nature of the celebrated Dutch confederacy as it looks on paper. What does it look like in practice? Weakness in the government. Discord among the provinces. Foreign interference and humiliation. A precarious existence in peacetime and devastating consequences in war.
It was observed long ago by the great legal scholar Grotius that nothing but his countrymen's hatred of the Spanish Habsburgs kept them from being destroyed by the flaws in their constitution.
The Union of Utrecht, says another respected writer, gives the States-General powers that seem sufficient to ensure harmony, but each province's suspicion of the others makes the practice very different from the theory.
The same document, says yet another writer, requires each province to pay certain contributions -- but this provision never has been, and probably never will be, enforced, because the inland provinces, which have little trade, can't pay an equal share.
When it comes to contributions, the constitutional rules are routinely ignored in practice. The urgency of the situation forces the provinces that are willing to pay to cover their own shares without waiting for the others -- and then try to get reimbursed from the delinquent provinces through special delegations (which happen frequently) or other means. The enormous wealth and influence of the province of Holland enable it to drive both of these processes.
On more than one occasion, overdue contributions have ultimately had to be collected at the point of a bayonet -- something that's possible, though terrible, in a confederacy where one member is more powerful than all the rest, and where several members are too small to even consider resisting. But it would be utterly impossible in a confederacy made up of members that are roughly equal in strength and resources, each capable of putting up a determined defense on its own.
Foreign diplomats, says Sir William Temple -- who was himself a foreign diplomat -- get around measures referred back to provincial capitals by working behind the scenes with the provinces and cities directly. In 1726, the Treaty of Hanover was delayed an entire year by these tactics. Examples of this kind are numerous and well-known.
In critical emergencies, the States-General are often forced to go beyond their constitutional authority. In 1688, they concluded a treaty on their own, risking their lives in the process. The Treaty of Westphalia in 1648, which formally and finally recognized Dutch independence, was concluded without the consent of the province of Zealand. Even as recently as the last peace treaty with Great Britain, the constitutional requirement of unanimity was set aside. A weak constitution must inevitably end in one of two ways: dissolution, for lack of adequate powers, or the unauthorized seizure of powers needed for the public safety. Whether such a seizure, once begun, will stop at a healthy point or go dangerously far depends on the circumstances of the moment. Tyranny has perhaps more often grown out of power grabs made necessary by a defective constitution during a crisis than out of the full exercise of the broadest constitutional authority.
Despite all the problems caused by the stadtholdership, it's been argued that without the stadtholder's influence in the individual provinces, the forces of anarchy evident in the confederacy would have torn it apart long ago. "Under such a government," says the Abbe Mably, "the Union could never have survived if the provinces hadn't had a force within themselves capable of shaking them out of their slowness and compelling them to act together. That force is the stadtholder." Sir William Temple observed that "during the periods when there was no stadtholder, Holland, through her wealth and authority -- which pulled the others into a kind of dependence -- filled the gap."
These aren't the only forces that have held back the slide toward anarchy and dissolution. The surrounding powers make unity necessary to a certain degree, even as their scheming feeds the constitutional weaknesses that keep the republic perpetually at their mercy.
True Dutch patriots have long lamented these fatal flaws, and they've made no fewer than four formal attempts -- through special assemblies convened for exactly this purpose -- to fix them. Each time, their admirable determination found it impossible to unite the political leadership behind reforms to the acknowledged, well-known, and fatal defects of the existing constitution. Let us pause, my fellow citizens, for just a moment over this heartbreaking and cautionary lesson of history. And as we shed a tear for the disasters that humanity has brought upon itself through stubborn disagreements and selfish passions, let our gratitude send up a prayer to Heaven for the fortunate harmony that has characterized the deliberations shaping our own political future.
A plan was also proposed to establish a general tax administered by the federal government. This too met with opposition and failed.
This unhappy people now seem to be suffering from popular upheaval, divisions among the states, and actual foreign invasion -- the crisis of their destiny. Every nation has its eyes fixed on this awful spectacle. The first wish that human compassion inspires is that this severe ordeal may lead to a revolution in their government that will strengthen their union and make it the source of peace, freedom, and happiness. The second is that the refuge we trust will soon secure the enjoyment of these blessings in our own country may welcome and comfort them in the catastrophe of theirs.
I make no apology for spending so long examining these historical examples of failed confederacies. Experience is the oracle of truth, and when its lessons are unmistakable, they should be treated as final and sacred. The great truth that experience unmistakably declares in this case is that a sovereignty over sovereigns, a government over governments, a system of legislation for communities rather than for individuals, is as absurd in theory as it is destructive in practice -- replacing law with violence, and the gentle authority of the courts with the brutal coercion of the sword.
PUBLIUS
To the People of the State of New York:
In the last three papers, I gave a summary review of the key events and characteristics that shaped the fate of other confederate governments. Now I'll move on to listing the most important defects that have undermined our own system so far. To figure out the right cure, we absolutely need to understand how extensive and serious the disease really is.
The next most obvious defect of the current Confederation is the complete lack of any enforcement mechanism for its laws. The United States, as currently organized, has no power to demand obedience or punish disobedience — whether through financial penalties, suspension of privileges, or any other constitutional method. There's no explicit authority granted to use force against states that don't comply. And if you tried to argue that such a right naturally belongs to the federal government as part of the compact between states, you'd have to rely on implication and creative interpretation — directly in the face of the second article, which declares "that each State shall retain every power, jurisdiction, and right not expressly delegated to the United States in Congress assembled." There's obviously something absurd about claiming this right doesn't exist, but we're stuck in a dilemma: either we accept that absurd conclusion, or we have to contradict or explain away a provision that the opponents of the new Constitution have repeatedly praised — and whose absence from the proposed plan has been the target of much seemingly reasonable criticism and harsh attacks. If we're unwilling to undermine the force of this celebrated provision, we're forced to conclude that the United States presents the extraordinary spectacle of a government that lacks even the shadow of constitutional power to enforce its own laws. As the examples I've cited show, the American Confederacy stands apart from every other similar institution in this regard, presenting something entirely new and unprecedented in the political world.
The lack of a mutual guarantee of state governments is another major flaw in the federal plan. Nothing of this kind appears in the Articles of Confederation. And to imply a tacit guarantee based on practical considerations would be an even more blatant departure from the clause I just mentioned than implying a tacit power of coercion on similar grounds. The lack of a guarantee, while it could eventually endanger the Union, doesn't threaten its existence as immediately as the lack of constitutional enforcement power for its laws.
Without a guarantee, we'd have to give up any hope of the Union stepping in to repel the domestic dangers that might sometimes threaten state constitutions. Tyrants could rise up in any state and trample on the people's liberties, while the national government could legally do nothing but watch with outrage and regret. A successful faction could build a tyranny on the ruins of law and order, while the Union couldn't constitutionally offer any help to the supporters of legitimate government. The turbulent situation that Massachusetts has barely emerged from proves these dangers aren't just theoretical. Who can say what might have happened during those recent upheavals if the rebels had been led by a Caesar or a Cromwell? Who can predict what effect a dictatorship established in Massachusetts would have had on the liberties of New Hampshire, Rhode Island, Connecticut, or New York?
The excessive pride some states take in their own importance has led some people to object to the principle of a federal guarantee, seeing it as meddlesome interference in the domestic affairs of member states. But this kind of scruple would deprive us of one of the main advantages we should expect from Union, and it can only come from a misunderstanding of what such a guarantee actually involves. It wouldn't be any obstacle to reforming a state constitution through a legal, peaceful process supported by a majority of the people. That right would remain completely intact. The guarantee would only apply against changes imposed by violence. When it comes to preventing disasters of that kind, you can't have too many safeguards. The peace of society and the stability of government depend entirely on the effectiveness of the precautions taken on this front. Where all governmental power rests with the people, there's less justification for using violent remedies for occasional problems in a state. The natural cure for bad leadership in a popular or representative government is to vote in new leaders. A guarantee by the national authority would protect just as much against power grabs by rulers as against the chaos and violence of faction and rebellion among the public.
The practice of requiring states to contribute to the common treasury based on quotas is another fundamental error of the Confederation. Its inability to adequately fund national needs has already been pointed out and has been proven clearly enough through experience. I'm bringing it up now solely in terms of fairness among the states. Anyone who has studied what creates national wealth knows there's no common standard or measure by which it can be accurately assessed. Neither the value of land nor population numbers — the two methods that have been proposed as the basis for state contributions — can claim to be a fair measure. Compare the wealth of the United Netherlands with that of Russia, Germany, or even France: if you also compare the total land value and population of that small territory with the total land value and population of any of those three vast countries, you'll immediately see that there's no correlation between either land value or population and the relative wealth of those nations. Run the same comparison between several American states and you'll get similar results. Compare Virginia with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and you'll see that these states' actual abilities to generate revenue bear little or no relationship to their relative amounts of land or population. The same point could just as easily be demonstrated by comparing counties within a single state. Anyone familiar with New York State knows that the productive wealth of King's County is proportionally far greater than Montgomery County's — much more so than either their land values or populations would suggest!
A nation's wealth depends on an enormous variety of factors. Location, soil, climate, what's produced there, the nature of its government, the character of its citizens, their level of education, the state of trade, industry, and craftsmanship — these factors and many more, too complex, minor, or unpredictable to list individually, create differences in the relative wealth of different countries that are hard to even imagine. The clear conclusion is that there can be no common measure of national wealth and, therefore, no fixed rule for determining a state's ability to pay taxes. Any attempt to regulate the contributions of states in a confederacy by such a rule will inevitably produce glaring inequality and extreme oppression.
This inequality alone would be enough to eventually destroy the Union, if there were any way to actually enforce the required contributions. States getting the short end of the stick wouldn't put up for long with an arrangement that distributes public burdens so unevenly — one designed to impoverish and oppress citizens of some states, while citizens of others would barely notice the small share they had to carry. But this evil is inseparable from any system of quotas and requisitions.
The only way to avoid this problem is to authorize the national government to raise its own revenue in its own way. Import duties, excise taxes, and taxes on consumer goods in general can be compared to a fluid that, over time, finds its own level based on people's ability to pay. How much each citizen contributes will largely be their own choice and can be adjusted based on their means. The wealthy can spend lavishly, and the poor can be frugal; oppressive taxation can always be avoided by carefully choosing which goods to tax. If inequalities arise in some states from duties on certain products, they'll most likely be offset by corresponding inequalities in other states from duties on different products. Over time, a balance — as much as is possible in such a complicated matter — will establish itself everywhere. And even if some inequalities remain, they wouldn't be as large, as uniform in their effects, or as offensive as those that would inevitably result from quotas, no matter how the formula was designed.
It's a major advantage of consumption taxes that they contain a built-in safeguard against excess. They set their own limit, which can't be exceeded without defeating the whole purpose — that is, without actually reducing revenue. When it comes to these taxes, the saying is as true as it is clever: "in political math, two and two don't always make four." If duties are too high, people buy less; collection drops off; and the government actually takes in less than it would with reasonable, moderate rates. This creates a natural barrier against any serious oppression of citizens through this type of tax, and it acts as a built-in limit on the power to impose them.
Taxes of this kind usually fall under the category of indirect taxes, and they'll need to be the main source of revenue raised in this country for a long time. Direct taxes — primarily on land and buildings — can be distributed according to a set formula. Either land value or population can serve as the standard. The state of agriculture and how populated a country is have been considered closely linked. And as a rule, for this purpose, population numbers are preferable for their simplicity and certainty. In every country, getting an accurate valuation of land is a monumental task; in a country that's still being settled and constantly improving, the difficulties become nearly impossible to overcome. The expense of an accurate valuation is, in any situation, a serious objection. In a type of taxation where the nature of things sets no limits on government discretion, establishing a fixed rule — even if not perfect for the purpose — may create fewer problems than leaving that discretion completely open-ended.
PUBLIUS
To the People of the State of New York:
In addition to the defects I've already listed in our current federal system, there are others just as important that together make it completely unfit for managing the affairs of the Union.
Everyone agrees that the lack of power to regulate commerce is one of them. The usefulness of such a power was discussed earlier in these papers, and given how universally recognized this problem is, little needs to be added here. It's obvious, even on the most basic examination, that there's nothing — whether in terms of trade or finances — that more urgently demands federal oversight. This gap has already prevented us from forming beneficial treaties with foreign powers and has created friction between the states. No nation that understands how our political system works would be foolish enough to make agreements with the United States that grant us any meaningful advantages, knowing that the Union's commitments could be violated by any of its members at any time — and knowing from experience that they could enjoy every benefit they wanted in our markets without giving us anything in return beyond whatever suited their short-term convenience. It's no surprise, then, that Mr. Jenkinson, when introducing a bill in the House of Commons to regulate temporary trade between Britain and America, prefaced it by declaring that similar provisions in earlier bills had served every purpose for British commerce, and that it would be wise to stick with this approach until it became clear whether the American government was likely to develop any real stability. [1]
Several states have tried, through their own separate prohibitions, restrictions, and trade barriers, to influence Britain's behavior on this front. But the lack of coordination — caused by the lack of a central authority and by the conflicting, incompatible policies of different states — has defeated every such attempt so far and will continue to do so as long as these obstacles to unified action persist.
The intrusive and hostile trade regulations some states have adopted, contrary to the true spirit of the Union, have in various cases given other states legitimate grounds for resentment and complaint. It's fair to worry that examples like these, if not checked by national authority, would multiply and spread until they became serious sources of hostility and conflict — not to mention harmful barriers to commerce between different parts of the Confederacy. "The commerce of the German empire [2] is constantly hampered by the many duties that the various princes and states impose on goods passing through their territories, which render the fine rivers and navigable waterways that Germany is so fortunately blessed with nearly useless." While the character of the American people might never allow things to get quite that bad here, we can reasonably expect that the escalating conflicts between state regulations would eventually lead citizens of each state to be treated by the others as little better than foreigners and strangers.
The power to raise armies, under the most straightforward reading of the Articles of Confederation, is really just the power to request quotas of men from the states. During the recent war, this system proved full of obstacles to an effective and affordable defense. It created a bidding war between states — a kind of auction for soldiers. To fill the quotas required of them, states outbid each other until enlistment bounties grew to enormous and unsustainable levels. The hope of even higher bonuses gave potential soldiers an incentive to delay enlisting and discouraged them from signing up for any substantial length of time. The result: slow and inadequate recruitment during the most critical moments of our struggle; short enlistments at unprecedented cost; constant turnover in the troops, which wrecked their discipline and repeatedly left public safety hanging by a thread with a disbanded army. The result was also those oppressive methods of conscription that were resorted to on several occasions — measures that nothing but the passion for liberty would have made the people willing to endure.
This method of raising troops is no friendlier to efficiency and strength than it is to a fair distribution of the burden. States near the fighting, driven by self-preservation, made efforts to fill their quotas that even exceeded their abilities, while those far from the danger were mostly as neglectful as the others were diligent. The immediate sting of this inequality couldn't be eased, as with money contributions, by the hope of a future settlement of accounts. States that didn't pay their share of money could at least be charged for their shortfalls, but there was no way to calculate the shortfalls in manpower. We shouldn't feel too bad about losing that hope, though, when we consider how little chance there is that the most delinquent states will ever be able to make up for their financial failures. The system of quotas and requisitions, whether applied to men or money, is in every respect a system of weakness for the Union and of inequality and injustice among its members.
The equal voting power of all states is another objectionable feature of the Confederation. Every concept of proportionality and every principle of fair representation condemns a system that gives Rhode Island the same weight as Massachusetts, Connecticut, or New York — and Delaware the same voice in national decisions as Pennsylvania, Virginia, or North Carolina. In practice, this contradicts the fundamental principle of republican government: that the will of the majority should prevail. Clever arguments might claim that sovereign states are equal and that a majority of state votes equals a majority of confederated America. But this kind of logical sleight-of-hand will never overcome the plain demands of justice and common sense. It's possible for a majority of states to represent only a small minority of the American people. [3] Two-thirds of the people of America couldn't be persuaded for long, based on artificial distinctions and fancy logic, to let their interests be managed and controlled by the remaining one-third. The larger states would eventually rebel against taking their orders from the smaller ones. To accept such a diminished role in the political system wouldn't just mean being indifferent to power — it would mean giving up on the very idea of equality. It's neither reasonable to expect the first nor fair to demand the second. The smaller states, considering how much their safety and wellbeing depend on the Union, should be willing to give up a claim that, if not abandoned, would prove fatal to the Union's survival.
It might be argued that the most important resolutions require not seven but nine states — two-thirds of the total — and that nine states would always represent a majority of the Union. But this doesn't fix the fundamental problem of equal votes for states of vastly different sizes and populations. And the inference isn't even factually accurate: we can list nine states that contain less than a majority of the people. [4] It's constitutionally possible for those nine states to cast the deciding vote. Besides, there are matters of considerable importance that can be decided by a bare majority, and there are other matters where it's debatable whether seven votes are enough — which, if interpreted that way, would extend this rule to issues of the highest importance. On top of that, the number of states is likely to grow, with no provision for a proportional increase in the voting ratio.
But that's not all: what looks like a remedy at first glance is actually a poison. Giving a minority a veto over the majority — which is always the case when more than a simple majority is required for a decision — tends to let the smaller group override the larger one. Congress, because of the frequent absence of a few states, has often been in the same situation as the old Polish parliament, where a single vote could bring all proceedings to a halt. A sixtieth of the Union — roughly the proportion represented by Delaware and Rhode Island — has on several occasions been able to completely block the nation's business. This is one of those refinements that works the exact opposite of how it's supposed to work in theory. The requirement of unanimity (or something close to it) in public bodies has been based on the idea that it would promote security. But what it actually does is paralyze the government, destroy its effectiveness, and hand over control to the whims, schemes, or corruption of an insignificant, disruptive, or dishonest faction — replacing the orderly deliberations and decisions of a responsible majority. In national emergencies — exactly when the quality of government matters most — there's typically a need for action. The public's business has to move forward one way or another. If a stubborn minority can overrule the majority on the best course of action, the majority, in order to get anything done at all, has to cave to the minority's demands. The will of the smaller group ends up dictating to the larger one and setting the tone for national policy. The results: endless delays, constant backroom dealing and scheming, pathetic compromises of the public good. And yet, in such a system, we should actually count ourselves lucky when compromises can be reached — because sometimes issues simply can't be compromised on, and then government action must be either harmfully delayed or fatally defeated. The government is often left paralyzed by the impossibility of getting enough votes. Its position must always seem weak, and sometimes borders on anarchy.
It's not hard to see that this kind of system opens the door wider to foreign corruption and domestic faction than one that simply lets the majority decide — even though the opposite has been assumed. The mistake comes from not paying enough attention to the damage that can be done by blocking government action at critical moments. When the Constitution requires a large supermajority for any national action, we tend to feel safe because nothing improper is likely to be done. But we forget how much good can be prevented, and how much harm can result, from the power to block necessary action and keep things stuck in a bad situation.
Imagine, for example, that we were fighting a war alongside one foreign nation against another. Suppose our situation demanded peace, but our ally's interests or ambitions pushed them to continue the war for reasons that would justify us in negotiating a separate peace. In that scenario, our ally would obviously find it much easier — through bribes and back-channel dealings — to prevent our government from making peace when two-thirds of the votes were required, versus when a simple majority would do the job. In the first case, he'd need to corrupt fewer people; in the second, more. By the same logic, an enemy nation could much more easily throw our deliberations into chaos and undermine our war effort. And in trade matters, we'd face similar disadvantages. A nation we had a trade agreement with could far more easily prevent us from forming a deal with their commercial rival — even if that deal would be enormously beneficial to us.
These dangers shouldn't be dismissed as imaginary. One of the weaknesses of republics — among their many strengths — is that they're too vulnerable to foreign corruption. A hereditary monarch, while often willing to sacrifice his subjects to his ambition, has such a personal stake in the government and the nation's prestige that it's hard for a foreign power to offer him enough to make betraying his country worthwhile. History has accordingly produced few examples of this kind of royal treachery, though it's seen plenty of every other kind.
In republics, people who are elevated from the general public by the votes of their fellow citizens to positions of great prominence and power may find rewards for betraying their trust that — to anyone not guided by exceptional virtue — seem to outweigh their personal stake in the common good and override their sense of duty. That's why history gives us so many depressing examples of foreign corruption in republican governments. How much this contributed to the downfall of the ancient republics has already been discussed. It's well known that representatives of the United Provinces of the Netherlands were, on various occasions, bribed by agents of neighboring kingdoms. The Earl of Chesterfield, if I remember correctly, suggested in a letter to his own government that his success in an important negotiation depended on securing a military commission for one of those representatives. And in Sweden, political parties were alternately bought off by France and England in such a brazen and notorious manner that it disgusted the entire nation — and was a major reason why the most constitutionally limited monarch in Europe, in a single day, without riots, violence, or opposition, became one of the most absolute and unchecked rulers on the continent.
One final defect crowns all the others in the Confederation and still needs to be mentioned: the lack of a judicial branch. Laws are dead letters without courts to interpret and define their true meaning and application. The treaties of the United States, to have any force at all, must be treated as part of the law of the land. Their real meaning, as it affects individuals, must — like all other laws — be determined through judicial decisions. To produce consistency in these decisions, they need to be appealed, as a last resort, to one supreme court. And this court must be established under the same authority that creates the treaties themselves. Both of these elements are essential. If each state has its own court of final appeal, there could be as many different final rulings on the same legal question as there are courts. People's legal opinions vary endlessly. We often see not just different courts but judges on the same court disagreeing with each other. To avoid the chaos that would inevitably result from contradictory rulings by a collection of independent courts, every nation has found it necessary to establish one supreme court above the rest — one with general oversight authority and the power to settle and declare, as a final ruling, a uniform standard of justice.
This is even more necessary when the structure of government is compound — where the laws of the whole are at risk of being contradicted by the laws of the parts. In such cases, if local courts have the power of final judgment, besides the disagreements that naturally arise from differences of opinion, there's a lot to fear from the bias of local perspectives and prejudices, and from interference by local regulations. Whenever such interference occurred, there'd be reason to expect that local laws would be favored over national laws — because nothing is more natural for people in office than to show special loyalty to the authority that gave them their positions.
Under the current Constitution, the treaties of the United States are vulnerable to violations by thirteen different state legislatures and as many different courts of final jurisdiction, all operating under the authority of those legislatures. The trust, the reputation, and the peace of the entire Union are constantly at the mercy of the prejudices, passions, and self-interest of every member state. Can foreign nations be expected to respect or trust such a government? Will the people of America continue to stake their honor, their happiness, and their safety on such a shaky foundation?
In this review of the Confederation, I've limited myself to highlighting its most significant defects, passing over those flaws in its details that have rendered much of the power it was supposed to have essentially useless. It must be obvious by now to all thoughtful people who can set aside their preconceptions that this is a system so fundamentally flawed and unsound that it can't be fixed with amendments — only by a complete overhaul of its core design.
The organization of Congress itself is entirely unsuited for exercising the powers that need to be given to the Union. A single legislative body might be an adequate home for the limited — really, shackled — powers that have been given to the federal government until now. But it would violate every principle of good government to entrust it with the additional powers that even the more moderate and reasonable opponents of the proposed Constitution admit should belong to the United States. If the proposed plan isn't adopted, and if the need for Union manages to survive the ambitious schemes of those who dream of personal glory from its breakup, what would probably happen is this: we'd end up trying to pile additional powers onto Congress as it's currently structured. Either the machine, because of the inherent weakness of its design, would crumble to pieces despite our misguided efforts to prop it up — or, through gradual increases in its power and authority as necessity demanded, we'd end up concentrating all the most important powers of government in a single body, saddling future generations with one of the most terrible forms of government that human foolishness has ever devised. In that way, we'd create the very tyranny that opponents of the new Constitution either genuinely fear or pretend to want to prevent.
It has contributed significantly to the weaknesses of the current federal system that it was never ratified by the people. Resting on nothing stronger than the consent of state legislatures, it has been subject to frequent and complicated challenges to the legitimacy of its powers and has, in some cases, given rise to the outrageous doctrine that state legislatures have the right to repeal it. Since it owes its ratification to state law, people have argued that the same authority could repeal the law that ratified it. However outrageous it may be to claim that a party to an agreement has the right to unilaterally revoke that agreement, the doctrine has had serious defenders. The mere possibility of this kind of challenge proves the necessity of building our national government on a deeper foundation than the mere approval of delegated authorities. The foundation of the American republic ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow directly from that pure, original fountain of all legitimate authority.
PUBLIUS
[1] This, as nearly as I can recall, was the substance of his speech when introducing the most recent bill.
[2] Encyclopedia, article "Empire."
[3] New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the states, but they contain less than one-third of the population.
[4] Add New York and Connecticut to those seven states, and they still represent less than a majority of the population.
To the People of the State of New York:
We've now arrived at the point where we need to examine whether a Constitution at least as energetic as the one proposed is necessary for preserving the Union.
This inquiry naturally divides into three branches: the goals that the federal government needs to accomplish, the amount of power needed to achieve those goals, and the people that power should apply to. How that power should be distributed and organized will be addressed later.
The main purposes that Union is meant to serve are these: the common defense of all the members; preserving public peace against both internal upheaval and external attack; regulating commerce with other nations and between the states; and managing our political and commercial relations with foreign countries.
The powers essential to the common defense are these: to raise armies; to build and equip navies; to establish rules governing both; to direct their operations; and to provide for their support. These powers must exist without limitation, because it's impossible to predict or define the range and variety of national emergencies, or the corresponding range and variety of means that may be necessary to deal with them. The threats to a nation's safety are infinite, and for that reason, no constitutional restrictions can wisely be placed on the power responsible for addressing them. This power must be equal to every possible combination of such threats, and it must be directed by the same leaders who are charged with overseeing the common defense.
This is one of those truths that, to a fair and unbiased mind, carries its own proof. It can be obscured but not made any clearer by argument or reasoning. It rests on principles as simple as they are universal: the means must be proportioned to the end. The people who are expected to achieve a goal must possess the means to achieve it.
Whether there should be a federal government responsible for the common defense is a question that's open for debate in the first place. But the moment that question is decided in favor, it follows that the government must be given all the powers needed to fully carry out that responsibility. Unless it can be shown that the threats to public safety can be confined within certain fixed limits — unless the opposite of this claim can be fairly and rationally argued — it must be accepted, as a necessary consequence, that there can be no limit on the authority responsible for defense and protection of the community in any way essential to its effectiveness. That means no limits on anything essential to the creation, command, or support of the national military forces.
Defective as the current Confederation has proven to be, this principle seems to have been fully recognized by its framers — even though they didn't make proper or adequate provisions for putting it into practice. Congress has unlimited authority to demand men and money, to govern the army and navy, and to direct their operations. Since these demands are constitutionally binding on the states, who are under the most solemn obligations to supply what's required, the clear intention was that the United States should command whatever resources were judged necessary for the "common defense and general welfare." It was assumed that the states' own sense of their true interests, along with their commitment to good faith, would be sufficient guarantees of prompt compliance.
Experience, however, has proven that this expectation was misguided and illusory. The observations in the previous papers should have been enough to convince any fair-minded person that a complete change in the system's basic principles is absolutely necessary. If we're serious about giving the Union energy and durability, we have to abandon the futile idea of legislating for states as collective units. We have to extend federal law directly to the individual citizens of America. We have to scrap the deceptive scheme of quotas and requisitions as equally impractical and unjust. The conclusion from all this is that the Union should be given full power to raise troops, build and equip navies, and collect the revenues needed to create and maintain an army and navy — using the standard methods practiced by other governments.
If the circumstances of our country require a compound government rather than a simple one — a confederate system rather than a centralized one — the key issue left to resolve will be dividing up the responsibilities, as far as possible, between the different levels of government, and giving each one the fullest authority to handle the duties assigned to it. Is the Union to be the guardian of our common safety? Are armies, navies, and revenues necessary for that purpose? Then the government of the Union must have the power to pass all laws and make all regulations related to them. The same applies to commerce and every other matter within its jurisdiction. Is administering justice between citizens of the same state the proper role of local governments? Then those governments must have all the authority connected to that role and to every other responsibility assigned to them. Failing to grant each level of government power equal to its responsibilities would violate the most basic rules of prudence and good judgment, and would recklessly entrust the nation's greatest interests to hands that are unable to manage them effectively.
Who is more likely to provide properly for the public defense than the body charged with protecting public safety — the body that, as the center of information, will best understand the scope and urgency of the threats we face; that, as the representative of the whole nation, will feel most deeply invested in preserving every part of it; that, given the responsibility assigned to it, will feel the strongest urgency to act; and that, through its authority extending across all the states, can alone ensure uniformity and coordination in the plans and measures for securing our common safety? Isn't there an obvious contradiction in giving the federal government responsibility for the general defense while leaving the actual power to provide for it in the hands of the state governments? Isn't a lack of cooperation the inevitable result of such a system? And wouldn't weakness, disorder, unfair distribution of the costs and suffering of war, and an unnecessary and unbearable increase in expense be its natural and unavoidable consequences? Haven't we already seen exactly these effects during the Revolution we just fought?
Every way we look at this subject, as honest seekers of truth, will convince us that it's both unwise and dangerous to deny the federal government full authority over everything entrusted to its management. It will certainly require the people's most vigilant and careful attention to make sure the government is designed in a way that allows these powers to be safely granted. If any plan that has been or may be presented doesn't meet this standard on careful, impartial inspection, it should be rejected. A government whose structure makes it unfit to be trusted with all the powers that a free people should delegate to any government would be an unsafe and inappropriate guardian of our national interests. Wherever those interests can properly be entrusted, the necessary powers should go along with them. This is the true conclusion of all sound reasoning on the subject. The opponents of the plan proposed by the Convention should have limited themselves to showing that the proposed government's internal structure made it unworthy of the people's confidence. They shouldn't have strayed into inflammatory rants and meaningless objections about the extent of its powers. Those powers are not too great for the purposes of federal administration — in other words, for managing our national interests — and no convincing argument can be made that they are excessive. If it's true, as some writers on the other side have implied, that the difficulty comes from the nature of the thing itself — that the country is simply too large for a government with such broad powers — then that would prove we need to scale back our ambitions and resort to separate confederacies operating in more manageable spheres. Because the absurdity would constantly stare us in the face of giving a government responsibility for the most essential national interests while not daring to trust it with the authority needed to manage them properly and effectively. Let's not try to reconcile contradictions, but instead firmly choose a rational alternative.
I'm confident, however, that the impracticality of one national system can't be demonstrated. I'd be very surprised if anything substantial has been put forward to that effect. And I believe that the arguments made in the course of these papers have placed the opposite position in as clear a light as anything still awaiting the test of time and experience can be. At the very least, this much must be obvious: the very difficulty posed by the country's size is the strongest argument in favor of an energetic government, because nothing less could possibly hold together a Union this large. If we adopt the views of those who oppose the proposed Constitution as our political creed, we'll inevitably prove true the gloomy predictions that a national system spanning the full extent of the present Confederacy is impossible.
PUBLIUS
To the People of the State of New York:
Regarding the powers proposed for the federal government over the creation and command of national military forces, I've encountered only one specific objection. If I understand it correctly, it's this: that the Constitution doesn't include a proper provision against standing armies in time of peace. I'll now try to show that this objection rests on weak and flimsy foundations.
The objection has been raised in the vaguest and most general terms, supported only by bold assertions with no real argument behind them — without even the backing of political theory, in contradiction to the practice of other free nations, and against the general consensus in America as expressed in most of the existing state constitutions. The truth of this observation will become clear the moment you remember that the objection in question depends on the supposed need to restrict the national legislature's power over military matters — a principle that's virtually unheard of, appearing in only one or two of our state constitutions and rejected by all the rest.
A foreigner unfamiliar with our politics, reading our newspapers right now without having first looked at the plan from the Convention, would naturally reach one of two conclusions: either the Constitution positively requires that standing armies be maintained in peacetime, or it gives the executive branch sole power to raise troops with no legislative oversight whatsoever.
If this person then actually read the plan itself, they'd be surprised to find that neither was the case. The entire power to raise armies is placed in the legislature, not the executive. This legislature is a popularly elected body made up of the people's representatives, chosen through regular elections. And instead of the pro-military provision they had expected, they'd find, on this very subject, an important check even on legislative discretion: the clause that forbids funding an army for more than two years at a time — a safeguard that, on closer examination, turns out to be a significant and practical protection against keeping troops without clear necessity.
Disappointed in their first guess, our hypothetical observer would probably take their investigation further. They'd naturally think to themselves: "It's impossible that all this passionate outrage can have no plausible basis. Surely these people, so protective of their liberties, must have included the most precise and strict safeguards on this point in all the previous constitutions they've established. The fact that these safeguards are missing from the new plan must be what's causing all this alarm and uproar."
With this assumption, if they went on to review the various state constitutions, how great would be their disappointment to find that only two of them [1] contained a prohibition against standing armies in peacetime — that the other eleven had either said absolutely nothing on the subject or had explicitly acknowledged the legislature's right to authorize them.
Still, our observer would be convinced there must be some plausible basis for all this outcry. They'd never be able to believe, while there was still anything left to investigate, that it was nothing more than a test of public gullibility — driven either by a deliberate intent to deceive or by the excesses of a zeal too extreme to be honest. It would probably occur to them that they might find the safeguards they were looking for in the original compact between the states. Here, at last, they'd expect to solve the mystery. "No doubt," they'd think, "the existing Confederation must contain the most explicit provisions against military forces in peacetime, and departing from this model on such an important point must be what's upsetting these political crusaders."
If they then applied themselves to a careful and thorough examination of the Articles of Confederation, their astonishment would not only increase but would turn to outrage at the unexpected discovery that these Articles — instead of containing the prohibition they were looking for, and despite having carefully restricted the state legislatures on this very point — had placed not a single restraint on the United States Congress. If our observer happened to have a quick temper, they could no longer keep from viewing all these protests as the dishonest tactics of an unprincipled opposition to a plan that deserved, at the very least, a fair and honest examination from everyone who sincerely cares about their country! How else, they'd ask, could the critics have been tempted to launch such loud attacks on a plan that actually conforms to the general consensus in America as expressed in its various forms of government — and that has even added a new and powerful safeguard that none of those governments included? If, on the other hand, our observer happened to be calm and even-tempered, they'd sigh at the weakness of human nature and lament that, on a matter so vital to the happiness of millions, the real merits of the question should be obscured and tangled up by tactics so hostile to fair and honest judgment. Even such a person could hardly help noticing that this kind of behavior looks far too much like an attempt to manipulate the people by inflaming their emotions rather than persuading them with arguments that appeal to their reason.
But however little support this objection finds — even among our own precedents — it may be worth taking a closer look at its actual merits. On careful examination, it will become clear that restrictions on the legislature's discretion regarding military forces in peacetime would be inappropriate to impose and, even if imposed, would be unlikely to be followed given the necessities of society.
Though a wide ocean separates the United States from Europe, there are various reasons to warn us against being too confident about our security. On one side of us, stretching deep into our interior, are growing settlements under British control. On the other side, extending to meet the British territories, are colonies and outposts under Spanish control. This situation, along with the proximity of the West Indian islands belonging to these two powers, creates a shared interest between them regarding their American possessions and their relationship with us. The Native tribes on our western frontier should be considered our natural enemies and their natural allies, because they have the most to fear from us and the most to gain from them. Advances in navigation have effectively made distant nations our neighbors in terms of how easily they can reach us. Britain and Spain are among the leading naval powers of Europe. A future alliance between them shouldn't be considered unlikely. The family ties between France and Spain are growing weaker with each passing generation. And political thinkers have always recognized, with good reason, that bonds of blood are fragile and unreliable links in political alliances. All of these factors together warn us not to be too confident that we're completely beyond the reach of danger.
Before the Revolution, and ever since the peace, there has been a constant need for maintaining small garrisons on our western frontier. No one can doubt that these will continue to be essential, if only to protect against raids and attacks by Native peoples. These garrisons must be supplied either by temporary deployments of militia or by permanent forces on the government payroll. The first option is impractical — and even if it were practical, it would be harmful. The militia wouldn't tolerate being dragged away from their jobs and families to serve in such an unpleasant duty during peacetime, at least not for long, if at all. And even if they could be persuaded or forced to do it, the increased cost of constantly rotating troops and the lost productivity and disruption to citizens' livelihoods would be decisive arguments against the plan. It would be as burdensome and harmful to the public as it would be ruinous to private citizens. The alternative — permanent forces on the government payroll — amounts to a standing army in peacetime. A small one, certainly, but no less real for being small. This straightforward view of the situation shows us at once why a constitutional ban on such forces would be unwise, and why the matter needs to be left to the discretion and judgment of the legislature.
As we grow stronger, it's probable — in fact, it's virtually certain — that Britain and Spain would increase their military presence near our borders. If we didn't want to be left exposed and defenseless against their provocations and encroachments, we'd find it necessary to expand our frontier garrisons in proportion to the forces that could threaten our western settlements. There are, and will be, strategic posts whose control would give command over large stretches of territory and make future invasions of the rest much easier. Some of these posts will also be keys to trade with the Native nations. Can anyone think it would be wise to leave such posts vulnerable to seizure at any moment by one or the other of two neighboring and powerful nations? To do so would be to abandon every common-sense principle of prudence and strategy.
If we intend to be a commercial nation — or even just to be secure on our Atlantic coast — we need to develop a navy as soon as possible. That requires dockyards and arsenals, and to defend those, fortifications and probably garrisons. When a nation has become powerful enough at sea to protect its dockyards with its fleet, garrisons for that purpose become unnecessary. But while naval capabilities are still in their early stages, modest garrisons will almost certainly be an essential safeguard against enemy raids aimed at destroying the arsenals, the dockyards, and sometimes the fleet itself.
PUBLIUS
[1] This account is based on the printed collection of state constitutions. Pennsylvania and North Carolina are the two that contain the restriction, in these words: "As standing armies in time of peace are dangerous to liberty, they ought not to be kept up." This is, in fact, more of a caution than a prohibition. New Hampshire, Massachusetts, Delaware, and Maryland each include a clause in their bills of rights to this effect: "Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature" — which is a formal acknowledgment of the legislature's authority. New York has no bill of rights, and its constitution says nothing about the matter. No bills of rights appear attached to the constitutions of the other states besides those mentioned, and their constitutions are equally silent. I'm told, however, that one or two states have bills of rights that don't appear in this collection, but that those also recognize the legislature's authority on this point.
To the People of the State of New York:
It might be argued that the defense needs outlined in the previous paper should be handled by the state governments under the Union's direction. But this would actually flip the fundamental principle of our political system on its head, effectively transferring responsibility for the common defense from the federal government to the individual states — a plan that would be oppressive to some states, dangerous to all, and ruinous to the Confederacy.
The territories of Britain, Spain, and the Native nations in our region don't border on just a few particular states — they encircle the Union from Maine to Georgia. The danger, though it varies in degree, is therefore shared by all. And the means of guarding against it should likewise be the responsibility of a common government and funded by a common treasury. It happens that some states, because of their location, are more directly exposed. New York is one of them. Under a plan of separate state provisions, New York would have to bear the full cost of the military forces needed for its own immediate defense and for the protection of its neighbors near and far. This would be neither fair to New York nor safe for the other states. Such a system would create all kinds of problems. The states that happened to be responsible for maintaining these forces would be as unable as they would be unwilling, for a long time to come, to bear the cost of adequate defenses. The security of all would be at the mercy of the stinginess, short-sightedness, or inability of a few. If those states' resources grew more abundant and their military forces expanded accordingly, the other states would quickly become alarmed at seeing the Union's entire military power concentrated in the hands of two or three members — probably the most powerful ones. Each of the other states would want some counterbalance of its own, and excuses for building up their forces could easily be invented. In this situation, military establishments fueled by mutual suspicion would tend to grow beyond their natural or appropriate size. And since they'd be under the separate control of individual states, they'd become tools for undermining or destroying the national government's authority.
I've already given reasons to expect that state governments will naturally tend toward rivalry with the Union — a rivalry rooted in the love of power — and that in any contest between the federal government and a state, the people will usually side with their local government. If, on top of this enormous advantage, the states' ambitions were further stimulated by their own separate and independent control of military forces, it would create too strong a temptation and too easy an opportunity for them to challenge and ultimately overthrow the constitutional authority of the Union. On the other hand, the people's liberty would actually be less safe with military forces scattered among the states than with them in the hands of the national government. If we think of an army as a potentially dangerous instrument of power, it's better for it to be in the hands of those the people are most likely to watch with suspicion than in the hands of those they're least likely to suspect. Because it's a truth confirmed by the experience of centuries that the people are always most in danger when the means to violate their rights are held by those they least distrust.
The framers of the existing Confederation, fully aware of the danger to the Union from states controlling their own military forces, explicitly prohibited states from maintaining either ships or troops without the consent of Congress. The truth is that the existence of a federal government and state-controlled military forces are just as incompatible with each other as an adequately funded federal treasury and the system of quotas and requisitions.
There are other angles beyond those already discussed from which the folly of restricting the national legislature's discretion will be equally clear. The goal of the objection I've been addressing is to prevent standing armies in peacetime — though we've never been told exactly how far this prohibition is supposed to go. Does it ban raising armies, or only keeping them up once they exist? If it's limited to the latter, the restriction would have no clear meaning and would be useless for its intended purpose. Once armies have been raised, what exactly counts as "keeping them up" in violation of the Constitution? How much time must pass before a violation is established? A week? A month? A year? Or should we say armies may be kept as long as the danger that prompted raising them continues? But that would mean admitting they could be maintained in peacetime against threatening or looming danger — which would immediately depart from the literal meaning of the prohibition and open the door to extremely broad interpretation. And who gets to decide whether the danger continues? That would have to be left to the national government, and the matter would then come down to this: the national government, in order to prepare for anticipated danger, could initially raise troops and then keep them as long as it believed the community's peace or safety was in any degree at risk. It's easy to see that this kind of unlimited discretion would provide plenty of room to get around the restriction entirely.
The supposed value of this kind of provision can only be based on the supposed likelihood — or at least the possibility — of a conspiracy between the executive and legislative branches in some scheme to seize power. If that ever happened, how easy would it be to manufacture threats of approaching danger! Native raids instigated by Spain or Britain would always be ready-made excuses. Provocations could even be engineered with some foreign power and then smoothed over with timely concessions. If we can reasonably assume such a conspiracy has been formed and the plotters have good enough prospects of success, then an army, once raised for whatever reason or on whatever excuse, could be turned to carry out the scheme.
If, to avoid this outcome, the prohibition were extended to cover raising armies in peacetime at all, the United States would then present the most extraordinary spectacle the world has ever seen: a nation constitutionally incapable of preparing for its own defense before it was actually invaded. Since formal declarations of war have largely fallen out of practice, we'd have to wait for an enemy to appear within our borders as the legal trigger for the government to start recruiting soldiers to protect the country. We'd have to take the blow before we could even begin preparing to strike back. All the kind of strategic planning by which nations anticipate distant dangers and prepare for gathering storms would have to be abandoned as contrary to the principles of a free government. We'd have to leave our property and liberty at the mercy of foreign invaders, practically inviting them through our weakness to seize us as easy, defenseless prey — all because we were afraid that leaders chosen by us, dependent on our will, might abuse the very tools needed to preserve our liberty.
At this point, I expect we'll be told that the country's militia is its natural defense force and would always be up to the task of national defense. This doctrine nearly cost us our independence. It cost the United States millions that could have been saved. The facts from our own recent experience are too fresh to let us fall for that argument again. Sustained military operations against a professional, disciplined army can only be successfully conducted by a force of the same kind. Considerations of cost, no less than of stability and effectiveness, confirm this. The American militia, during the recent war, proved their courage on countless occasions and built an enduring legacy of glory. But the bravest among them know that the liberty of their country could not have been won by their efforts alone, however great and valuable those efforts were. War, like most other things, is a skill that must be learned and mastered through training, persistence, time, and practice.
Any policy that goes against the natural and proven course of human affairs defeats itself. Pennsylvania offers a perfect example of this right now. That state's Bill of Rights declares that standing armies are dangerous to liberty and ought not to be maintained in peacetime. Yet Pennsylvania, in a time of total peace, because of limited disturbances in one or two of its counties, has decided to raise troops — and will in all probability keep them as long as there's any sign of danger to public order. Massachusetts provides a lesson on the same subject, though under different circumstances. That state, without even waiting for Congress's approval as the Articles of Confederation require, was forced to raise troops to put down a domestic rebellion, and it still keeps forces on the payroll to prevent the rebellious spirit from returning. Massachusetts's own constitution posed no obstacle to this, but the example still teaches us that situations are likely to arise under our government, just as under those of other nations, where maintaining military forces in peacetime is essential to society's security — and that it's therefore unwise to restrict the legislature's discretion on this matter. It also teaches us, applied to the United States, how little a weak government's authority is respected even by its own members. And it teaches us one more thing: how utterly inadequate words on paper are when matched against the force of public necessity.
It was a fundamental rule of the Spartan republic that the same person couldn't be appointed admiral twice. When the Peloponnesian allies suffered a devastating naval defeat at the hands of the Athenians, they demanded that Lysander — who had previously served with great success in that role — be given command of the combined fleet. The Spartans, wanting to satisfy their allies while still maintaining the appearance of following their ancient rules, resorted to the flimsy workaround of giving Lysander the real power of admiral under the nominal title of vice-admiral. I've chosen this example from the many that could be cited to confirm the truth I've already laid out and illustrated with our own domestic examples: nations pay little regard to rules and principles that are designed to run counter to the necessities of society. Wise leaders will be cautious about burdening the government with restrictions that can't be followed, because they know that every breach of fundamental law — even one dictated by necessity — weakens the sacred respect that rulers should maintain toward a country's constitution, and sets a precedent for other violations where the same plea of necessity doesn't exist at all, or is far less urgent and compelling.
PUBLIUS
To the People of the State of New York:
It was hardly to be expected that during a popular revolution, people would find that perfect balance between government power and individual rights — the sweet spot that combines an energetic government with the security of personal liberty. Our failure to hit that mark is the main source of the problems we're experiencing now. And if we're not careful to avoid repeating this mistake as we try to fix and improve our system, we'll bounce from one impractical scheme to another. We may try change after change, but we'll never make any real improvement.
The idea of restricting Congress's authority when it comes to providing for national defense is one of those supposed improvements born from a passion for liberty that's more intense than it is well-informed. As we've seen, though, this idea hasn't gained widespread support. Even in this country, where the concept first appeared, Pennsylvania and North Carolina are the only two states that have embraced it to any degree. All the other states have refused to give it the slightest endorsement — wisely recognizing that trust has to be placed somewhere, that the very act of delegating power implies the need to trust those you delegate it to, and that it's better to risk the abuse of that trust than to handcuff the government and endanger public safety through unwise restrictions on the legislature. The opponents of the proposed Constitution are fighting against the general consensus of America on this point. Instead of learning from experience that we should correct any extremes we've fallen into, they seem determined to push us into dangers that are even worse and more extreme. As if our government has been too strong or too rigid, the ideas they're promoting are designed to weaken or loosen it through methods that have already been tried and rejected. It can be said without being unfair that if the principles they're pushing on various points became the prevailing public opinion, they would make the people of this country completely unfit for any kind of government at all. But this kind of danger isn't really something to worry about. The citizens of America have too much good judgment to be talked into anarchy. And I'd be very surprised if experience hasn't already created a deep and serious conviction in the public mind that a more energetic government is essential to our welfare and prosperity.
It's worth briefly tracing the origin and development of this idea of banning military forces during peacetime. While it may arise in theoretical minds from studying the nature and tendencies of such institutions — reinforced by events in other times and places — as a national sentiment, it has to be traced back to the thinking habits we inherited from England, the nation most of our inhabitants originally came from.
In England, for a long time after the Norman Conquest, the monarch's power was almost unlimited. Gradual inroads were made against royal authority in favor of liberty — first by the barons, and later by the people — until most of the crown's most formidable claims to power were eliminated. But English liberty didn't fully triumph until the Glorious Revolution of 1688, which put William of Orange on the throne of Great Britain. Because the power to make war was an acknowledged royal authority, Charles II had used his own power to maintain a peacetime force of 5,000 regular troops. James II then increased this number to 30,000, paid out of his personal budget. During the revolution, to abolish this dangerous authority, the English Bill of Rights declared that "the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of Parliament, was against law."
So even in England, when the spirit of liberty was at its peak, the only safeguard deemed necessary against standing armies was a ban on the executive raising or maintaining them without legislative approval. The patriots who carried out that landmark revolution were too levelheaded and too well-informed to think of restricting the legislature's judgment on this matter. They understood that some number of troops for guards and garrisons was essential, that no precise limits could be set on national emergencies, that the power to meet every possible crisis had to exist somewhere in the government, and that by placing that power in the legislature's hands, they had reached the ultimate level of precaution consistent with public safety.
From this same source, Americans can be said to have inherited a deep-seated fear of standing armies during peacetime. The circumstances of our own revolution heightened public sensitivity on everything connected to popular rights, and in some cases pushed our enthusiasm beyond what was healthy for the body politic. The attempts by two states to restrict the legislature's authority regarding military forces are examples of this excess. The principles that rightly taught us to be suspicious of a hereditary monarch's power were, through misguided overreach, extended to the people's own elected representatives in their legislatures. Even in some states where this error wasn't formally adopted, we find unnecessary declarations that standing armies shouldn't be maintained in peacetime "without the consent of the legislature." I call them unnecessary because the reasoning behind the similar provision in the English Bill of Rights doesn't apply to any of our state constitutions. Under those constitutions, the power to raise armies can't possibly be interpreted as belonging anywhere other than to the legislatures themselves. It was pointless — if not absurd — to declare that something couldn't be done without the consent of a body that was the only one with the power to do it in the first place. Accordingly, in some of these constitutions — including New York's, which has been rightly celebrated in both Europe and America as one of the best forms of government established in this country — there's complete silence on the subject.
It's worth noting that even in the two states that tried to ban peacetime military forces, the language they used was cautionary rather than truly prohibitive. They didn't say that standing armies "shall not" be kept up — they said they "ought not" to be kept up in peacetime. This ambiguity seems to have resulted from a conflict between suspicion and common sense — between the desire to ban such forces entirely and the recognition that an absolute ban would be unwise and unsafe.
Can anyone doubt that whenever public circumstances seemed to require departing from such a provision, the legislature would treat it as merely advisory and bend it to meet the state's needs — real or perceived? Just look at what already happened in Pennsylvania. So what's the point of such a provision if it stops working the moment anyone feels like ignoring it?
Let's compare the effectiveness of this kind of provision with what's in the new Constitution: the requirement that military funding be limited to two-year appropriations. The former, by aiming at too much, accomplishes nothing. The latter, by avoiding an impractical extreme and being fully compatible with meeting the nation's genuine needs, will have a beneficial and powerful effect.
Under this provision, the United States legislature will be required, at least once every two years, to deliberate on whether to keep a military force in existence — to reach a new decision on the matter and formally declare their judgment through a public vote in front of their constituents. They won't have the option of giving the executive branch permanent funding for an army, even if they were careless enough to want to place that kind of improper trust in it. Since the spirit of partisanship will inevitably infect all political bodies to some degree, there will certainly be members of Congress eager to criticize the majority's policies and question their motives. Military funding will always be a popular topic for political speeches. Every time the question comes up, the opposition party will draw public attention to the issue. If the majority is genuinely inclined to overstep proper limits, the public will be warned of the danger and have the chance to take action against it. Beyond the parties within Congress itself, every time this debate comes around, the state legislatures — who will always be not just watchful but suspicious and vigilant guardians of citizens' rights against federal overreach — will keep a close eye on the national government's conduct. They'll be ready, if anything improper appears, to sound the alarm to the people, and to serve not only as the voice but, if necessary, the arm of public discontent.
Schemes to overthrow the liberties of a great nation take time to develop. An army large enough to seriously threaten those liberties could only be built through gradual increases — which would require not just a temporary alliance between the legislature and the executive, but an ongoing conspiracy sustained over years. Is it likely such an alliance would even exist? Is it likely it would persist through all the changes in a representative body that elections every two years would naturally produce in both chambers? Is it really believable that every single person, the moment they took their seat in the Senate or House of Representatives, would become a traitor to their constituents and their country? Can we really suppose that not one person would be sharp enough to detect such a monstrous conspiracy, or brave and honest enough to warn their constituents? If you can actually make those assumptions, then we should just give up on representative government entirely. The people should take back every power they've delegated, divide themselves into as many tiny states as there are counties, and try to manage everything themselves.
Even if such wild assumptions could somehow be justified, the conspiracy still couldn't be kept secret for long. It would be exposed by the very act of expanding the army to such an enormous size during peacetime. What plausible reason could be given, in a country like ours, for such massive military buildup? It's impossible that the people could be fooled for long. The scheme — and the schemers — would be quickly destroyed once the truth came out.
Some have argued that limiting military funding to two-year appropriations would be useless, because once the Executive controlled a force large enough to intimidate the people into submission, he could use that very force to operate without legislative funding. But the question comes right back: on what basis could a president acquire a force of that size during peacetime? If we assume such a force was created because of a domestic uprising or foreign war, then we're outside the scope of this objection — since the objection is specifically about maintaining troops during peace. Few people are so unrealistic as to seriously argue that military forces shouldn't be raised to put down a rebellion or repel an invasion. And if defending the nation in such circumstances required an army so large that it threatened liberty, that's a catastrophe that no form of government could prevent. It could even result from a simple military alliance, if the allies needed to form a joint army for mutual defense.
But this danger is infinitely less likely in a united nation than in a divided one. In fact, it can be safely said that it's an evil altogether unlikely to occur if we remain united. It's hard to imagine threats so severe against the whole Union as to require a force large enough to put our liberties at even the slightest risk — especially when you factor in the militia, which should always be counted on as a valuable and powerful supplement. But in a disunited state — as has been fully demonstrated elsewhere — the opposite would become not just probable but almost inevitable.
PUBLIUS
To the People of the State of New York:
It's been argued in various ways that a Constitution like the one proposed by the convention can't function without military force to enforce its laws. But this claim, like most of what's been thrown around by the other side, rests on vague generalizations with no clear or specific reasoning behind it. As far as I can figure out the hidden meaning of the objectors, it seems to come from an assumption that the people will resist any exercise of federal authority over their internal affairs. Setting aside any objections to how loosely the distinction between "internal" and "external" matters has been drawn, let's ask: what basis is there for assuming the people would feel this resistance? Unless we also assume that the federal government will be run worse than the state governments, there's no reason to expect hostility, dissatisfaction, or opposition from the public. I believe it can be established as a general rule that people's trust in and obedience to a government will typically match how well or poorly it's administered. There are certainly exceptions to this rule, but those exceptions depend entirely on random circumstances and have nothing to do with the actual strengths or weaknesses of a constitution. Those can only be evaluated by general principles.
Throughout these papers, we've offered several reasons to expect that the federal government will be better administered than state governments. The main reasons are these: the broader scope of elections will give the people a wider range of candidates to choose from; because state legislatures — themselves select bodies — will appoint members of the national Senate, there's reason to expect that branch will generally be assembled with particular care and judgment; these factors promise greater expertise and broader knowledge in the national government; and it will be less susceptible to factional thinking and more insulated from those temporary bad moods, passing prejudices, and impulsive tendencies that, in smaller communities, frequently poison public decision-making, breed injustice and oppression against parts of the population, and produce schemes that may satisfy a momentary desire but end in widespread hardship, dissatisfaction, and disgust. Several additional strong reasons supporting this conclusion will come up when we take a closer look at the internal structure of the government we're being invited to build. For now, it's enough to say this: until someone can offer convincing reasons to believe the federal government will be run so badly that the people find it hateful or contemptible, there's no reasonable basis for assuming that federal laws will face any more resistance — or need any stronger enforcement methods — than the laws of the individual states.
The hope of getting away with something is a powerful incentive for rebellion; the fear of punishment is an equally powerful deterrent. Won't the government of the Union — which, if given adequate power, can draw on the combined resources of the entire nation — be better positioned to discourage the first impulse and reinforce the second than any single state, which can only rely on its own resources? A disruptive faction within a state might easily convince itself it can take on that state's government. But it can hardly be so deluded as to think it's a match for the combined strength of the Union. If this reasoning is sound, then there's less danger of organized resistance to the authority of the Union than to that of any individual state.
I'll venture an observation here that's no less true for being, to some, unfamiliar: the more the operations of the national government are woven into the everyday workings of governance — the more citizens encounter it in their ordinary political lives, the more familiar it becomes to their eyes and their feelings, the more it touches the things that matter most to people and stirs the deepest motivations of the human heart — the more likely it is to earn the respect and loyalty of the public. Human beings are very much creatures of habit. Something that rarely touches our senses will generally have little impact on our minds. A government that remains distant and out of sight can hardly be expected to engage people's attention. The conclusion is that the Union's authority, and the citizens' attachment to it, will be strengthened — not weakened — by extending it to matters of internal concern. And it will have less reason to resort to force the more familiar and comprehensive its presence becomes. The more it flows through the same channels where people's interests and passions naturally run, the less it will need the dangerous and extreme tools of compulsion.
One thing, at the very least, has to be obvious: a government like the one proposed would be far better positioned to avoid using force than the kind of loose confederation that most of its opponents prefer — one whose authority would only apply to states as political entities, not to individual citizens. It's already been shown that in such a confederation, laws can only be enforced through force; that the very structure of such a government naturally produces frequent noncompliance by its members; and that whenever this happens, the only possible remedy — if there is one at all — is war and violence.
The convention's plan, by extending federal authority to the individual citizens of each state, will enable the government to use the ordinary courts and officials of each state to carry out its laws. It's easy to see that this will tend to erase, in the public mind, any sharp distinction between where the laws come from. It will give the federal government the same advantage in securing compliance that each state government already enjoys — plus the additional influence that comes from having the power to call on the resources of the entire Union. It deserves special attention here that the laws of the Union, regarding its properly listed and legitimate areas of authority, will become the supreme law of the land. All officials — legislative, executive, and judicial — in every state will be bound by oath to uphold them. This means the legislatures, courts, and officials of each state will be incorporated into the operations of the national government, as far as its rightful constitutional authority extends, and will serve as instruments for enforcing its laws. [1] Anyone who thinks through the implications of this arrangement will see there's good reason to expect the regular and peaceful execution of federal law, as long as the government exercises reasonable prudence. If we insist on assuming the worst, we can draw any conclusion we want from that assumption — because it's certainly possible, through irresponsible use of authority, to push the people of even the best-governed nation into the wildest extremes. But even if the opponents of the proposed Constitution assume that the national leaders will be deaf to the public good and blind to their duty, I would still ask them: how exactly would ambitious schemes or power grabs be advanced by such conduct?
PUBLIUS
[1] The false arguments used to claim this will destroy the state governments will be thoroughly exposed in the appropriate place.
To the People of the State of New York:
There may be situations where the national government is forced to use force. That can't be denied. Our own experience has confirmed what the histories of other nations teach: that emergencies like this will sometimes arise in all societies, no matter how they're organized. Rebellions and insurrections are, unfortunately, as inseparable from the body politic as tumors and infections are from the human body. The notion that a republic can be governed at all times purely by the force of law — which we've been told is the only acceptable principle of republican government — exists only in the fantasies of those political theorists whose supposed wisdom ignores the lessons of real-world experience.
If such emergencies should ever occur under the national government, there would be no remedy but force. The response would have to be proportional to the scale of the problem. If it's a minor disturbance in a small part of a state, the militia from the rest of the state would be enough to suppress it — and the natural assumption is they'd be willing to do their duty. Any insurrection, whatever its immediate cause, ultimately threatens all government. Concern for public peace — if not loyalty to the Union itself — would rally those citizens unaffected by the trouble to oppose the rebels. And if the national government proved in practice to promote the prosperity and well-being of the people, it would be irrational to think they'd refuse to support it.
If, on the other hand, the insurrection spread across an entire state or a major part of one, a different kind of force might become unavoidable. We've seen that Massachusetts found it necessary to raise troops to put down disorders within its borders, and that Pennsylvania, from the mere fear of unrest among some of its citizens, thought it wise to do the same. Suppose New York had wanted to reassert its lost authority over the people of Vermont — could it have hoped to succeed using militia alone? Wouldn't it have been forced to raise and maintain a more professional force to carry out its plan? If we have to admit that even state governments sometimes need forces beyond the militia in extraordinary situations, why should the possibility that the national government might face the same need in similar crises be used as an argument against its very existence? Isn't it remarkable that people who claim to support the Union in principle would raise an objection against the proposed Constitution that applies ten times more forcefully to the loose confederation they prefer — and that, to whatever extent it's valid, is an unavoidable consequence of any large-scale civil society? Who wouldn't prefer that possibility over the endless turmoil and frequent revolutions that are the constant plagues of small republics?
Let's look at this from another angle. Suppose instead of one national system, we formed two, three, or even four confederacies. Wouldn't the same problem apply to each of them? Wouldn't each face the same risks? And when those risks materialized, wouldn't each be forced to use the same tools to maintain its authority — the very tools being criticized in a government for all the states? Would the militia, in that scenario, be any more willing or able to support federal authority than under a single Union? All honest and thoughtful people must, on reflection, acknowledge that the principle behind this objection applies equally to both cases. Whether we have one government for all the states, separate governments for different groups of states, or even a complete breakup of the Union, there would still sometimes be a need for forces beyond the militia to keep the peace and uphold the legitimate authority of the law against violent challenges that amount to insurrections and rebellions.
Setting aside all other arguments on this subject, there's one complete answer to those demanding stronger prohibitions against military forces in peacetime: the entire power of the proposed government will be in the hands of the people's representatives. This is the essential — and ultimately the only effective — safeguard for the rights and liberties of the people that's achievable in any civil society. [1]
If the people's representatives betray their constituents, then the only recourse left is the exercise of that fundamental right of self-defense that stands above all formal systems of government. Against the overreach of national leaders, this right can be exercised with infinitely better chances of success than against the leaders of an individual state. In a single state, if those entrusted with supreme power become tyrants, the various regions and districts within it — having no separate governments of their own — can't organize any systematic defense. The citizens would have to rush to arms in a disorganized panic — without coordination, without a plan, without resources — relying on nothing but their courage and desperation. The tyrants, wearing the cloak of legal authority, could often crush the resistance before it even gets started. The smaller the territory, the harder it is for the people to form an organized plan of opposition, and the easier it is to defeat their early efforts. Intelligence about their preparations and movements can be gathered more quickly, and the military forces under the tyrants' control can be directed more rapidly against wherever resistance has begun. In that situation, success for the people's resistance would require a very unusual combination of circumstances.
The obstacles to tyranny and the opportunities for resistance grow as the size of the state increases — provided the citizens understand their rights and are willing to defend them. In a large community, the natural strength of the people relative to the government's institutional power is greater than in a small one, and therefore more capable of resisting attempts to impose tyranny. But in a confederacy, the people can honestly be said to be entirely the masters of their own fate. Because power is almost always the rival of power, the national government will always stand ready to check the overreach of state governments, and the states will have the same inclination toward the national government. The people, by throwing their weight to either side, will inevitably tip the balance. If their rights are violated by one level of government, they can use the other as a tool to set things right. How wise it will be for them, by supporting the Union, to preserve an advantage that can never be valued too highly!
It can safely be taken as a fundamental principle of our political system that the state governments will, in every conceivable situation, provide complete protection against violations of public liberty by the national government. Schemes of tyranny can't be disguised under pretexts likely to fool the state legislatures the way they might fool the general public. The legislatures will have better access to information. They can spot danger from a distance. And possessing all the tools of civil authority along with the people's trust, they can immediately organize a systematic plan of opposition, combining all the resources of their communities. They can easily communicate with each other across states and unite their forces to protect their shared liberty.
The sheer size of the country is an additional safeguard. We've already seen its value against the attacks of a foreign power. And it would have exactly the same effect against the ambitions of overreaching national leaders. If the federal army managed to crush resistance in one state, the distant states would be in a position to mount a counterattack with fresh forces. Gains made in one place would have to be abandoned to deal with opposition elsewhere. And the moment a region that had been forced into submission was left to itself, its resistance would spring back to life.
We should remember that the size of any military force must always be limited by the country's resources. For a long time to come, maintaining a large army won't even be possible. And as the means to do so grow, so will the population and natural strength of the people. When will the time come that the federal government could raise and maintain an army capable of establishing a tyranny over the vast population of an immense nation — a people who, through their state governments, can organize their own defense with all the speed, structure, and coordination of independent nations? The fear of this happening is more like a disease for which no argument or reason can provide a cure.
PUBLIUS
[1] Its full effectiveness will be examined later.
To the People of the State of New York:
The power to regulate the militia and to call on its services during insurrections and invasions is a natural extension of the duties of overseeing national defense and maintaining the internal peace of the Union.
You don't need to be a military expert to see that having uniform organization and discipline across the militia would produce enormous benefits whenever they were called into service for the national defense. It would enable them to carry out the duties of camp and field with shared understanding and coordination — a huge advantage in military operations — and would help them reach the level of proficiency essential to their usefulness much more quickly. This kind of uniformity can only be achieved by putting the regulation of the militia under national authority. It's therefore entirely logical that the convention's plan proposes to empower the Union "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 the officers, and the authority of training the militia according to the discipline prescribed by Congress."
Of all the objections raised against the convention's plan, none was less expected — or less defensible — than the attack on this particular provision. If a well-regulated militia is the most natural defense of a free country, it should certainly be under the regulation and control of the body charged with guarding national security. If standing armies are dangerous to liberty, then an effective power over the militia, held by the body responsible for protecting the nation, should — as much as possible — eliminate both the incentive and the excuse for maintaining such forces. If the federal government can call on the militia in emergencies that require military support for civil authority, it can more easily do without a different kind of military force. If it can't use the militia, it will be forced to resort to a standing army. Making a standing army unnecessary will be a far more reliable way to prevent one from existing than a thousand paper prohibitions.
To cast suspicion on the power to call out the militia to enforce federal laws, critics have pointed out that the proposed Constitution contains no provision for calling out the posse comitatus (the traditional power of a sheriff to summon ordinary citizens to help enforce the law). From this, they've concluded that military force was intended to be the government's only tool. The contradictions in these objections are striking — and sometimes come from the very same people, which doesn't exactly inspire confidence in their sincerity or fairness. The same voices that tell us in one breath that the federal government's powers will be despotic and unlimited inform us in the next that it won't even have the authority to summon a posse comitatus. The latter claim falls as far short of the truth as the former overshoots it. It would be as absurd to doubt that the right to pass all laws "necessary and proper" for executing its declared powers would include requiring citizens to assist the officers enforcing those laws, as it would be to believe that the right to enact tax laws would include the power to change inheritance rules, alter property law, or abolish jury trials in property cases. Since the claim that the government lacks the power to call on the posse comitatus is clearly groundless, it follows that the conclusion drawn from it — about the government's authority over the militia — is as dishonest as it is illogical. What reason was there to infer that force was meant to be the only instrument of authority, simply because there's a power to use it when necessary? What should we think of the motives that could lead intelligent people to reason this way? How do we reconcile good faith with what the evidence shows?
Through a strange twist of republican suspicion, we're even told to fear the militia itself when it's in the hands of the federal government. The concern is that select units could be formed from the young and ambitious and turned into tools of arbitrary power. What specific plan for the militia the national government might pursue is impossible to predict. But far from sharing the alarm of those who view select units as dangerous, if the Constitution were ratified and I were advising a member of Congress from this state on how to set up the militia, I would say, in substance, the following:
"The idea of training every member of the militia in the entire United States is as impractical as it would be harmful, even if it could be carried out. Developing a reasonable level of military skill takes time and practice. It's not something you can achieve in a day, or even a week. To require the great mass of farmers and other working citizens to take up arms and go through military drills and exercises as often as necessary to reach the level of a truly well-regulated militia would be a genuine burden on the people and a serious drag on the economy. It would take an annual bite out of the country's productive labor that, based on current population numbers, would come close to the entire cost of running all the state governments combined. Trying to accomplish something that would cut into the nation's labor force to that extent would be unwise — and the experiment, if attempted, couldn't succeed, because the people simply wouldn't put up with it for long. Realistically, when it comes to the general population, the most we can aim for is to have them properly armed and equipped. To make sure this doesn't get neglected, it will be necessary to assemble them once or twice a year.
"But even though the idea of training the entire nation has to be abandoned as either harmful or impractical, it's absolutely critical that a well-designed plan be adopted as soon as possible for properly organizing the militia. The government should focus particularly on forming a select corps of moderate size, trained on principles that will genuinely prepare them for service when needed. By narrowing the plan this way, it will be possible to maintain an excellent body of well-trained militia, ready to take the field whenever the nation's defense requires it. This will not only reduce the need for standing armies, but if circumstances should ever force the government to raise a large army, that army can never threaten the people's liberties as long as there's a large body of citizens — little, if at all, inferior to the army in training and skill with weapons — who stand ready to defend their own rights and those of their fellow citizens. This seems to me the only viable substitute for a standing army, and the best possible safeguard against one, should it ever come to exist."
That's how I would reason about this subject — the exact opposite of the Constitution's opponents, drawing arguments for safety from the very sources they portray as fraught with danger and destruction. But how the national legislature may actually approach the question is something neither they nor I can predict.
The idea that the militia could be a threat to liberty is so far-fetched and so outrageous that you're not sure whether to treat it seriously or with mockery — whether to see it as a mere intellectual exercise, like a debater's paradox; as a cynical trick to plant prejudice at any cost; or as the genuine product of political fanaticism. In the name of common sense, where are our fears supposed to end if we can't trust our own sons, our brothers, our neighbors, our fellow citizens? What conceivable danger can come from people who mix with the rest of the population every day and share the same feelings, values, habits, and interests? What reasonable fear can be drawn from giving the Union the power to set regulations for the militia and call on its services when necessary — while the individual states retain the sole and exclusive power to appoint the officers? If anyone could seriously entertain suspicions about the militia under any conceivable federal arrangement, the fact that the officers are appointed by the states should instantly put those fears to rest. There can be no doubt that this will always give the states a dominant influence over the militia.
Reading many of the publications against the Constitution, you'd think you were reading some badly written fantasy novel — one that instead of natural and pleasant scenes, fills the mind with nothing but frightening and grotesque images:
"Gorgons, hydras, and chimeras dire" —
distorting and disfiguring everything it depicts, and turning everything it touches into a monster.
Here's a sample of this kind of thinking, taken from the wild and improbable claims made about the power to call up the militia. New Hampshire's militia is supposedly going to be marched to Georgia, Georgia's to New Hampshire, New York's to Kentucky, and Kentucky's to Lake Champlain. Why, the debts owed to the French and Dutch are to be paid in militiamen instead of gold coins! One moment there's going to be a massive army crushing the people's liberties; the next, Virginia's militia is being dragged from their homes five or six hundred miles to tame the supposed republican stubbornness of Massachusetts, while Massachusetts's militia is shipped the same distance to subdue the supposed aristocratic arrogance of Virginia. Do the people who rant like this really think their cleverness or their eloquence can sell such nonsense and absurdities to the American people as gospel truth?
If there's going to be an army used as a tool of tyranny, what do you need the militia for? And if there's no army, where would the militia go — a militia furious at being called up for some distant and hopeless mission to enslave their own countrymen? They'd march straight to the seat of the tyrants who dreamed up such a foolish and wicked plan, crush them in their supposed strongholds of power, and make an example of them as the just punishment of an outraged and betrayed people. Is this how tyrants seize control of a large and informed nation? Do they start by provoking hatred from the very people they plan to use as their instruments? Do they usually begin their rise to power with pointless and disgusting acts of authority designed to accomplish nothing except to bring universal hatred and condemnation down on themselves? Are fantasies like these the sober warnings of thoughtful patriots to an intelligent public? Or are they the inflammatory ravings of agitators and political fanatics? Even if we assumed the national leaders were driven by the most uncontrollable ambition, it's impossible to believe they'd use such absurd methods to achieve their goals.
During insurrections or invasions, it would be natural and proper for the militia of a neighboring state to be sent into another — to fight a common enemy or protect the republic from the violence of faction or rebellion. This happened frequently during the Revolutionary War when facing foreign enemies, and this kind of mutual aid is, in fact, one of the main purposes of our political union. If the power to coordinate this assistance is placed under the direction of the Union, there won't be any danger of a lazy and inattentive response to a neighbor's peril — waiting until the threat is right at your doorstep before self-preservation finally kicks in to supplement the weaker impulses of duty and compassion.
PUBLIUS
To the People of the State of New York:
As we've already discussed, the federal government needs the power to fund national defense — which includes the costs of raising troops, building and equipping fleets, and all other expenses connected to military operations. But defense isn't the only thing the Union needs revenue for. There must also be funding for the national government's operating costs, for paying off debts already incurred or yet to be incurred, and in general for everything that requires spending from the national treasury. The conclusion is inescapable: woven into the very framework of the government, there must be a general power of taxation in one form or another.
Money is rightly considered the lifeblood of government — the thing that sustains its existence and enables it to perform its most essential functions. A complete power to secure a regular and adequate supply of it, to the full extent the country's resources allow, must be regarded as an indispensable feature of every constitution. Without it, one of two evils must follow: either the people will be subjected to constant plunder as a substitute for a proper system of funding public needs, or the government will waste away and, in short order, die.
In the Ottoman Empire, the sultan — though in other respects the absolute master of his subjects' lives and fortunes — has no right to impose new taxes. The result is that he lets his provincial governors plunder the people without restraint, and then squeezes from those governors the money he needs for his own expenses and those of the state. In America, from a similar cause, the government of the Union has gradually decayed to the point of near collapse. Who can doubt that the people in both countries would be better off if the proper authorities had adequate power to raise the revenue that public needs require?
The current Confederation was intended to give the United States unlimited power to provide for the Union's financial needs. But it went about it on a flawed principle, in a way that has completely defeated the purpose. Under the Articles of Confederation, as has already been noted, Congress is authorized to determine and request whatever sums of money it considers necessary for the service of the United States. These requisitions, if they follow the apportionment rules, are constitutionally binding on the states. The states have no right to question whether the demand is justified — their only role is to figure out how to come up with the money. But even though this is technically the case — even though claiming otherwise would violate the Articles of the Union, and even though such a claim has rarely if ever been openly made — in practice, states have constantly exercised that supposed right, and will keep doing so as long as the Union's revenues depend on the states as middlemen. What this system has produced is known to everyone with even the slightest familiarity with our public affairs, and has been thoroughly laid out in earlier papers. This is what has mainly brought us to a situation that gives us every reason for shame and gives our enemies every reason to gloat.
What's the remedy for this situation, if not changing the system that created it — changing the disastrous and deceptive system of quotas and requisitions? What substitute can be imagined for this financial will-o'-the-wisp — this false light leading us astray — other than letting the national government raise its own revenue through the ordinary methods of taxation that every well-ordered government uses? Clever people can make a plausible case for anything. But no amount of human ingenuity can point to any other solution that will rescue us from the problems and embarrassments that naturally result from an inadequately funded treasury.
The more thoughtful opponents of the new Constitution acknowledge the force of this reasoning, but they try to split the difference. They draw a line between what they call "internal" and "external" taxation. Internal taxes, they say, should be reserved for the state governments. External taxes — which they define as tariffs and duties on imported goods — they're willing to grant to the federal government. This distinction, however, violates the basic principle of good policy that says every power should match its responsibilities. It would still leave the national government dependent on the state governments in a way that's incompatible with any notion of strength or effectiveness. Who can seriously claim that import duties alone are — or ever would be — enough to meet the Union's present and future needs? Factor in the existing debt, both foreign and domestic, along with any reasonable plan for paying it off that someone who cares about public integrity and credit could approve, plus the government functions that everyone agrees are necessary — and we couldn't realistically expect that this single revenue source, even at its most productive, would be enough for present needs alone. As for future needs, they can't be calculated or capped. And based on the principle we've already discussed, the power to meet those needs as they arise should be equally unlimited. I believe it can be stated as a truth confirmed by the history of the human race that, in the normal course of events, a nation's needs at every stage of its existence will be found at least equal to its resources.
To say that any shortfalls can be covered by requisitions on the states is, on one hand, to admit that this system can't be relied on, and on the other, to depend on it for everything beyond a certain limit. Anyone who has paid close attention to the system's flaws and failures — whether revealed by experience or laid out in these papers — must feel an overwhelming reluctance to trust the national interest to its operation in any degree. Its inevitable tendency, whenever it's put to use, is to weaken the Union and sow the seeds of conflict between the federal government and its member states, and among the states themselves. Can we expect the shortfalls to be better supplied this way than the Union's total funding needs have been supplied by the same method up to now? It's also worth remembering that if less is being asked of the states, they'll have proportionally less ability to provide it. If the views of those pushing this distinction were taken as truth, you'd have to conclude that there's some known, fixed point in national finances where it's safe to stop and say: "This far we'll fund the government to promote public well-being, and everything beyond that isn't worth our concern." How is it possible for a government that's half-funded and perpetually strapped for cash to fulfill its purpose — to provide for national security, promote prosperity, or maintain the nation's reputation? How can it ever have energy or stability, dignity or credibility, confidence at home or respect abroad? How can its administration be anything other than a series of stopgap measures — weak, floundering, and embarrassing? How can it avoid constantly sacrificing its long-term commitments to short-term emergencies? How can it undertake or carry out any ambitious plans for the public good?
Let's consider what would happen in the very first war we got into. We'll assume, for the sake of argument, that the revenue from import duties is enough to cover the national debt and peacetime government. Now a war breaks out. What would the government probably do in such an emergency? Having learned from experience that requisitions can't be counted on, unable on its own authority to tap new resources, and pressed by the dangers facing the nation — wouldn't it be driven to divert funds already earmarked for other purposes toward national defense? It's hard to see how this could be avoided. And if it happened, it would obviously destroy public credit at the very moment it was becoming essential to public safety. To imagine that credit could be dispensed with in such a crisis would be the height of delusion. In modern warfare, even the wealthiest nations must resort to large-scale borrowing. A country as modestly resourced as ours would feel this need even more acutely. But who would lend to a government that kicked off its borrowing campaign with an act proving that it couldn't be trusted to keep its financial commitments? Whatever loans it could secure would be limited in size and harsh in terms. They'd be made on the same principles that loan sharks use when lending to bankrupt and dishonest debtors — grudgingly and at outrageous interest rates.
You might think that the country's limited resources would force the government to divert established funds even if it had unrestricted taxing power. But two considerations should put that worry to rest. First, we can be confident that the full resources of the nation would be mobilized for the Union's benefit. Second, whatever shortfalls remain could be easily covered through loans.
The power to create new revenue streams from new sources of taxation, on its own authority, would enable the national government to borrow as much as its needs required. Foreign investors, as well as American citizens, could then reasonably trust in the government's commitments. But depending on a government that must itself depend on thirteen other governments for the means to keep its promises — once the situation is clearly understood — would require a level of gullibility rarely found in the financial dealings of the real world, and hard to square with the usual sharp-eyed suspicion of investors.
Reflections like these may carry little weight with people who expect to see America become some kind of golden age utopia from poetry and myth. But for those who believe we're likely to experience our fair share of the hardships and disasters that have befallen other nations, these considerations deserve serious attention. Such people must look at our country's current situation with deep concern, and dread the harm that ambition or revenge might, all too easily, inflict upon it.
PUBLIUS
To the People of the State of New York:
IN EVERY kind of inquiry, there are certain basic truths — first principles — that all further reasoning has to build on. These truths carry their own internal evidence: before you even think about them or connect them to other ideas, your mind just accepts them. When someone doesn't accept them, it's either because something's off with their perception, or because they're being swayed by some strong interest, passion, or prejudice. This is the nature of the basic axioms in geometry: "the whole is greater than its parts; things equal to the same thing are equal to each other; two straight lines can't enclose a space; and all right angles are equal." And it's also the nature of these axioms in ethics and politics: there can't be an effect without a cause; the means should be proportional to the goal; every power should match the scope of what it's responsible for; and there should be no limit on a power that's meant to achieve a purpose that is itself unlimited. There are other truths in ethics and politics that, while they can't quite claim the status of axioms, are such obvious conclusions from them — and so clearly in line with the natural, unsophisticated judgments of common sense — that they command the agreement of any sound and unbiased mind with almost equal force.
The subjects of geometry are so completely removed from the kinds of pursuits that stir up the unruly passions of the human heart that people have no trouble accepting not only the simpler theorems but even those mind-bending paradoxes that, however well they can be demonstrated, clash with what common sense would naturally suggest. The infinite divisibility of matter — in other words, the infinite divisibility of a finite thing, right down to the smallest atom — is something geometers all agree on, even though it's no less incomprehensible to common sense than any of those religious mysteries that skeptics have attacked so relentlessly.
But in the fields of morality and politics, people are far less agreeable. To a point, that's actually right and useful. Caution and careful investigation are necessary defenses against error and deception. But this stubbornness can be taken too far and can slide into obstinacy, perverseness, or intellectual dishonesty. While we can't claim that the principles of moral and political knowledge carry the same certainty as mathematics, they deserve far more respect than the way people actually behave would suggest. More often than not, the confusion lies in the passions and prejudices of the thinker rather than in the subject itself. People, far too often, don't give their own understanding a fair chance. Instead, they give in to some unhelpful bias and end up tangling themselves in words and losing themselves in pointless subtleties.
How else could it happen — if we assume the opponents are sincere in their opposition — that positions as clear as those establishing the necessity of a general power of taxation in the Union's government would face any opposition from people of intelligence? Though these positions have been fully laid out elsewhere, it won't hurt to summarize them here as an introduction to examining the objections raised against them. In essence, they are as follows:
A government should contain every power necessary for fully accomplishing the responsibilities entrusted to it and for completely carrying out the duties it's charged with — free from any outside control except respect for the public good and the will of the people.
Since the duties of overseeing national defense and keeping the public peace safe from foreign or domestic violence involve preparing for dangers and emergencies that can't possibly be predicted or limited, the power to make those preparations should have no bounds other than the nation's needs and the community's resources.
Since revenue is the essential engine for obtaining the means to meet national needs, the power to raise revenue in its full extent must necessarily be included in the power to provide for those needs.
Since both theory and experience prove that the power to raise revenue is useless when exercised over the states as collective bodies, the federal government must necessarily be given an unrestricted power of taxation through the ordinary methods.
If experience didn't prove otherwise, you'd naturally conclude that the case for a general power of taxation in the national government could safely rest on these propositions alone, without any additional arguments. But we find that the opponents of the proposed Constitution, far from accepting their truth, seem to make their strongest and most passionate effort against this very part of the plan. So it may be worth analyzing the arguments they use to fight it.
The most detailed arguments they've put forward seem to boil down to this: "Just because the Union's needs can't be limited doesn't mean its power to levy taxes should be unlimited. Revenue is just as essential for state governments as for the Union, and state functions are at least as important to the people's happiness. It's therefore just as necessary that state governments be able to fund their own needs as it is for the national government to have the same ability regarding the Union's needs. But an unlimited power of taxation in the national government might — and probably would, over time — strip the states of their ability to provide for themselves, leaving them entirely at the mercy of the national legislature. Since the laws of the Union are to become the supreme law of the land, and since it's to have power to pass all laws that may be necessary for carrying out its authorities, the national government could at any time abolish taxes imposed for state purposes on the claim that they interfere with its own. It could argue that doing this was necessary to make the national revenues effective. And so all sources of tax revenue could gradually become a federal monopoly, completely shutting out and destroying the state governments."
This line of reasoning sometimes seems to be based on the assumption that the national government will abuse its power. Other times, it seems intended only as a logical consequence of the Constitution's intended operation. It's only in this second sense that it deserves to be taken seriously. The moment we start speculating about power grabs by the federal government, we fall into a bottomless pit and put ourselves beyond the reach of all rational argument. Imagination can wander freely until it gets lost in the maze of some enchanted castle, unable to find its way out of the confusion it's recklessly wandered into. Whatever the limits or modifications of the Union's powers might be, it's easy to imagine an endless parade of possible dangers. By indulging in excessive suspicion and timidity, we can talk ourselves into a state of total skepticism and paralysis. I'll repeat here what I've said elsewhere in substance: all concerns about power grabs should be directed at the structure and composition of the government, not at the nature or extent of its powers. The state governments, under their original constitutions, have complete sovereignty. What protects us from power grabs on their part? Obviously, the way they're structured and the accountability of their officials to the people. If the proposed federal government, on fair examination, turns out to provide the same kind of security to a reasonable degree, then all fears of federal overreach should be set aside.
We also shouldn't forget that the state governments are just as likely to encroach on the rights of the Union as the Union is to encroach on the rights of the states. Which side would be likely to win in such a conflict would depend on the tools each side could use to secure success. Since in republics, power always rests with the people, and since there are strong reasons to believe the state governments will generally have more influence over them, the natural conclusion is that such contests would most likely end to the Union's disadvantage — and that there's a greater chance of the states encroaching on the federal government than the other way around. But it's clear that all speculation of this kind is extremely vague and unreliable. By far the safest course is to set it all aside and focus entirely on the nature and extent of powers as they're laid out in the Constitution. Everything beyond that must be left to the wisdom and determination of the people, who — since they'll hold the balance in their own hands — will hopefully always take care to maintain the constitutional balance between the national and state governments. On this basis, which is clearly the right one, it won't be hard to answer the objections that have been raised against an unlimited power of taxation in the United States.
PUBLIUS
To the People of the State of New York:
ALTHOUGH I personally believe there's no real danger of the consequences that people seem to fear the state governments would suffer from giving the Union the power to control their tax collection — because I'm convinced that public opinion, the extreme risk of provoking the states' anger, and the obvious usefulness and necessity of local governments for local purposes would be a complete safeguard against the oppressive use of such a power — I'm still willing to fully accept the argument that the individual states should have an independent and uncontrollable authority to raise their own revenues for their own needs. And having made that concession, I assert that (with the sole exception of duties on imports and exports) they would, under the convention's plan, keep that authority in the most absolute and unrestricted sense — and that any attempt by the national government to cut back on it would be a blatant power grab, unauthorized by any article or clause of its Constitution.
A complete consolidation of the states into a single national government would mean the total subordination of the parts. Whatever powers they might keep would depend entirely on the national government's will. But since the convention's plan aims at only a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty they had before, except those that were exclusively delegated to the United States by that act. This exclusive delegation — or rather, this transfer — of state sovereignty would only happen in three situations: where the Constitution expressly granted exclusive authority to the Union; where it granted authority to the Union in one clause and prohibited the states from exercising the same authority in another; and where it granted authority to the Union that would be absolutely and totally contradictory and incompatible with a similar authority in the states. I use these terms to distinguish this last situation from another that might look similar but is actually very different — namely, where the exercise of a shared jurisdiction might occasionally cause friction in some area of policy but wouldn't involve any direct constitutional contradiction. These three cases of exclusive federal jurisdiction can be illustrated with the following examples: The second-to-last clause in Section 8 of Article I expressly says that Congress shall exercise "exclusive legislation" over the district designated as the seat of government. That's the first case. The first clause of that same section empowers Congress "to lay and collect taxes, duties, imposts and excises," and the second clause of Section 10 of the same article says that "no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws." This would create an exclusive federal power to lay duties on imports and exports, with that specific exception. But this power is further limited by another clause saying no tax or duty shall be laid on articles exported from any state — which means it now only extends to duties on imports. That's the second case. The third is found in the clause giving Congress the power "to establish a uniform rule of naturalization throughout the United States." This must necessarily be exclusive, because if each state could set a different rule, there couldn't be a uniform rule.
A case that might seem similar to the last one, but is actually very different, directly affects the question we're considering: the power to impose taxes on everything other than exports and imports. I maintain that this is clearly a shared and equal authority belonging to both the United States and the individual states. There's plainly no language in the taxing clause that makes this power exclusive to the Union. There's no separate clause that prohibits the states from exercising it. In fact, the opposite is true: a clear and conclusive argument for this comes from the restriction placed on the states regarding duties on imports and exports. This restriction is an implied admission that, if it hadn't been included, the states would have the power it takes away. And it further implies that, for all other taxes, the states' authority remains untouched. Any other reading would make the restriction both unnecessary and dangerous. It would be unnecessary because, if granting the Union the power to lay such duties automatically excluded the states or even made them subordinate in this area, there'd be no need for such a restriction. It would be dangerous because it leads directly to the conclusion I've just mentioned — one the opponents couldn't have intended — that the states, in all cases where the restriction doesn't apply, would have a shared power of taxation with the Union. The restriction in question amounts to what lawyers call a "negative pregnant" — that is, a denial of one thing and an affirmation of another. It denies the states' authority to impose taxes on imports and exports, and it affirms their authority to impose them on everything else. It would be pure sophistry to argue that it was meant to completely exclude the states from taxing imports and exports while leaving them free to levy other taxes only subject to control by the national legislature. The restrictive clause only says they can't lay such duties without the consent of Congress. And if we interpret this in the way I just described, the Constitution would be introducing a formal provision for an absurd result: that the states, with Congress's consent, could tax imports and exports, but could only tax anything else unless Congress stopped them. If that were the intention, why not just leave it to what's claimed to be the natural effect of the original clause granting a general power of taxation to the Union? Clearly, this couldn't have been the intention, and the clause won't support that kind of interpretation.
As for the idea that there's some inherent conflict between the states' and the Union's power to tax, that argument can't be sustained in a way that would exclude the states. Sure, it's possible that a state tax on a particular item might make it unwise for the Union to pile on an additional tax on the same item — but it wouldn't mean the Union was constitutionally unable to do so. How much to tax and whether it's wise to increase taxes on either side would be practical questions of judgment, but there would be no direct conflict of power. The specific tax policies of the national and state systems might not always align perfectly and might require some mutual accommodation. But it's not a mere possibility of inconvenience in using their powers that can take away a pre-existing right of sovereignty — it takes an actual, immediate constitutional conflict.
The need for shared jurisdiction in certain cases flows naturally from the division of sovereign power. And the rule that all powers not explicitly taken from the states in favor of the Union remain fully with the states is not just a theoretical consequence of that division — it's clearly confirmed by the entire substance of the proposed Constitution itself. We find that, despite the broad grants of general authority, the framers took the most deliberate care, wherever they thought it was inappropriate for the states to hold similar authority, to insert specific clauses prohibiting the states from exercising those powers. Section 10 of Article I consists entirely of such provisions. This fact is a clear sign of what the convention intended, and it provides a rule of interpretation drawn from the document itself — one that supports the position I've laid out and refutes every argument to the contrary.
PUBLIUS
To the People of the State of New York:
THE rest of the argument against the Constitution's taxation provisions is built on the following clauses. The last clause of Section 8, Article I of the proposed plan authorizes the national legislature "to make all laws which shall be necessary and proper for carrying into execution the powers" vested by the Constitution in the United States government, or in any of its departments or officers. And the second clause of Article VI declares "that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding."
These two clauses have inspired a flood of vicious attacks and petty rants against the proposed Constitution. They've been held up to the people in every exaggerated color of misrepresentation — painted as the destructive engines that would obliterate local governments and wipe out their liberties, as a hideous monster whose devouring jaws would spare no one, regardless of age, sex, or status. And yet, strange as it may seem, after all this hysteria, those who haven't been looking at these clauses through the lens of fear can be told with perfect confidence: the constitutional operation of the proposed government would be exactly the same if these clauses were deleted entirely as it would be if they were repeated in every single article. They simply declare a truth that would have followed inevitably from the very act of creating a federal government and giving it certain specific powers. This is so obvious a point that even a moderate person can barely listen to the attacks against this part of the plan without feeling disturbed.
What is a power, if not the ability to do something? What is the ability to do something, if not the power to use the means necessary to get it done? What is a legislative power, if not the power to make laws? What are the means to exercise a legislative power, if not laws? What is the power to lay and collect taxes, if not a legislative power — a power to make laws to lay and collect taxes? And what are the proper means of carrying out that power, if not necessary and proper laws?
This simple chain of reasoning gives us a straightforward test for judging the real nature of the clause in question. It leads us to an obvious truth: a power to lay and collect taxes must include the power to pass all laws necessary and proper for carrying out that power. And what does the unfortunate, much-maligned provision actually do? Nothing more than declare that same truth — namely, that the national legislature, which already had the power to lay and collect taxes, could pass all necessary and proper laws to carry it into effect. I've focused these points specifically on the power of taxation because it's the immediate subject and the most important of the authorities proposed for the Union. But the same logic leads to the same result for every other power in the Constitution. And it's expressly to carry out these powers that the so-called "sweeping clause" authorizes the national legislature to pass all necessary and proper laws. If there's anything to object to, it has to be found in the specific powers that this general declaration builds upon. The declaration itself, though it might be accused of being repetitive or redundant, is at the very least completely harmless.
But suspicion may ask: then why was it included? The answer is that it could only have been added as an extra precaution — a guard against all the clever, hair-splitting arguments that future opponents might use to try to cut back the Union's legitimate authority. The convention probably foresaw what these papers have been working to drive home: that the greatest threat to our political well-being is that the state governments will eventually undermine the foundations of the Union. So the framers may have thought it necessary, on such a critical point, to leave nothing open to interpretation. Whatever their reasons, the wisdom of this precaution is obvious from the very outcry raised against it — since that outcry reveals exactly the kind of impulse to question the great and essential truth that the provision was clearly meant to establish.
But the question may come up again: who gets to judge whether the laws passed to execute the Union's powers are truly necessary and proper? My first answer is that this question comes up just as much from the simple grant of those powers as from the declaratory clause. My second answer is that the national government, like every other government, must be the initial judge of how to properly use its own powers — and the people are the final judge. If the federal government were to overstep the rightful limits of its authority and use its powers tyrannically, the people — whose creation it is — would have to look to the standard they've established and take whatever steps to remedy the constitutional violation that the situation demands and prudence allows. Whether a law is constitutional must always be judged by the nature of the powers it's based on. Suppose, through some far-fetched interpretation of its authority (which is honestly hard to imagine), the federal legislature tried to change the inheritance laws in any state. Wouldn't it be obvious that, in making such an attempt, it had exceeded its jurisdiction and invaded the state's domain? Suppose, again, that on the claim of interference with its revenues, it tried to strike down a land tax imposed by a state. Wouldn't it be equally obvious that this was an invasion of the shared jurisdiction over this type of tax — a jurisdiction that the Constitution clearly assumes the state governments possess? If there's ever any doubt on this point, the blame will fall entirely on those critics who, in their reckless hostility to the convention's plan, have worked to wrap it in a fog designed to obscure the plainest and simplest truths.
But we're told that the laws of the Union are to be the "supreme law of the land." Well, what conclusion can you draw from this, and what would those laws amount to if they weren't supreme? Obviously, they'd amount to nothing. A law, by its very definition, carries supremacy. It's a rule that everyone it applies to is bound to follow. This is a basic feature of any political association. If individuals form a society, that society's laws must be the supreme guide for their behavior. If a number of political societies form a larger political society, the laws that the larger society passes — under the powers granted by its constitution — must necessarily be supreme over those smaller societies and the individuals who make them up. Otherwise, it wouldn't be a government at all — it would be a mere treaty, dependent on the parties' good faith. And government is really just another word for political power and authority. But it doesn't follow from this that acts of the larger society that go beyond its constitutional powers — that invade the remaining authority of the smaller societies — will become the supreme law of the land. Those would simply be acts of power-grabbing and should be treated as such. So we can see that the clause declaring the supremacy of Union law, like the one we just discussed, merely states a truth that flows directly and inevitably from the creation of a federal government. You'll also notice that it expressly limits this supremacy to laws made "pursuant to the Constitution" — which I mention merely as an example of the convention's caution, since that limitation would have been understood even if it hadn't been spelled out.
So while a law levying a tax for the United States would be supreme by nature and couldn't be legally challenged or blocked, a law designed to abolish or prevent the collection of a state tax (unless it was on imports and exports) would not be the supreme law of the land — it would be an unauthorized power grab. To the extent that piling too many taxes on the same item might make collection difficult or unreliable, that would be a mutual inconvenience — not caused by one side having more power than the other, but by one or both sides using their power poorly, in a way that hurts them both equally. Hopefully, though, mutual interest would lead to cooperation that avoids any serious inconvenience. The bottom line from all of this is that the individual states, under the proposed Constitution, would keep an independent and uncontrollable authority to raise revenue to whatever extent they need, through every kind of tax except duties on imports and exports. It will be shown in the next paper that this shared jurisdiction over taxation was the only workable alternative to completely subordinating the states' taxing power to the Union's.
PUBLIUS
To the People of the State of New York:
I BELIEVE I clearly showed in my last paper that the individual states, under the proposed Constitution, would have equal authority with the Union in the area of revenue, except for duties on imports. Since this leaves the states access to by far the largest share of the community's resources, there's no basis for claiming they wouldn't have more than enough means to fund their own needs, independent of any outside control. How wide this field actually is will become even clearer when we get to the remarkably small share of public expenses that the state governments will need to cover.
To argue in the abstract that this shared authority can't exist is to pit theory and speculation against fact and reality. However valid such reasoning might be for showing that something shouldn't exist, it's completely worthless when used to prove that something doesn't exist — when the facts say otherwise. It's well known that in the Roman Republic, the ultimate legislative authority rested for centuries in two different political bodies — not as branches of the same legislature, but as separate and independent legislatures, each dominated by an opposing interest: the patricians [the aristocratic class] in one, the plebeians [the common people] in the other. Plenty of arguments could have been made to prove how unworkable it was to have two seemingly contradictory authorities, each with the power to cancel or repeal the other's acts. But anyone who tried to argue in Rome that these bodies didn't actually exist would have been considered insane. I'm referring to the comitia centuriata and the comitia tributa [Rome's two main legislative assemblies]. In the first, where people voted by centuries, the system was arranged to give the patrician interest the advantage. In the second, where sheer numbers prevailed, the plebeian interest dominated completely. And yet these two legislatures coexisted for centuries, and the Roman Republic reached the highest peak of human greatness.
In the case we're actually discussing, there's no such contradiction as in the Roman example — neither side has the power to cancel the other's acts. And in practice, there's little reason to expect any real problems, because in a short time the states' needs will naturally shrink to a very small scope. In the meantime, the United States will most likely find it convenient to stay entirely away from the revenue sources that the individual states would naturally use.
To get a more precise sense of this question's real merits, let's look at the proportion between the things that will require federal funding and those that will require state funding. We'll find that the federal needs are completely unlimited, while the state needs are confined within very modest bounds. In examining this, we have to keep in mind that we shouldn't limit our view to the present moment — we need to look far into the future. Constitutions aren't meant to be designed around today's needs alone but around a combination of current needs and the likely needs of future generations, based on the natural and proven course of human events. Nothing could be more misleading, then, than to gauge how much power the national government should have based on what it needs right now. There has to be the capacity to provide for future emergencies as they arise. And since those emergencies are unlimited by nature, it's impossible to safely limit that capacity. Maybe a calculation could be made with enough accuracy to estimate the revenue needed to pay off the Union's current debts and to maintain the institutions that would be sufficient in peacetime for a while. But would it be wise — or wouldn't it be the height of foolishness — to stop there and leave the government responsible for national defense completely unable to protect the country against future threats to public peace from foreign wars or domestic upheavals? If, on the other hand, we should go beyond that point, where can we stop short of an unlimited power to deal with emergencies as they come? While it's easy to claim in general terms that you could make a reasonable estimate of what's needed to handle likely dangers, I challenge anyone making that claim to produce their data. It would turn out to be as vague and uncertain as trying to predict how long the world will last. Estimates focused only on the possibility of internal threats don't deserve much weight — though even those can't be calculated reliably. But if we mean to be a commercial nation, it has to be part of our policy to eventually be able to defend that commerce. The cost of maintaining a navy and fighting naval wars would involve expenses that would defy all attempts at prediction.
Even granting the absurd idea that we should try the novel experiment of preventing the government from waging offensive war based on national strategy, we certainly shouldn't prevent it from defending the country against the ambition or hostility of other nations. A storm cloud has been gathering over Europe for some time. If it breaks, who can guarantee that some of its fury won't be directed at us? No reasonable person would rush to say we're entirely out of its reach. Or if the combustible materials now building up were to fizzle out, or if a conflict were to erupt without reaching us, what guarantee do we have that our peace won't eventually be disturbed by some other cause or from some other direction? Let's remember that peace or war won't always be our choice. However moderate or unambitious we might be, we can't count on the moderation of others or hope to extinguish their ambitions. Who would have imagined, at the end of the last war, that France and Britain — both weary and exhausted — would so soon be looking at each other with such hostility again? If we judge from the history of humanity, we're forced to conclude that the fierce and destructive passions of war hold far more powerful sway over the human heart than the gentle feelings of peace — and that designing our political systems around dreams of lasting tranquility means betting on the weakest tendencies of human nature.
What are the main sources of expense in every government? What has caused the enormous buildup of debt that burdens several European nations? The answer is obvious: wars and rebellions — and the cost of maintaining the institutions needed to protect the nation against these two deadliest diseases of society. The expenses that come from institutions related to a state's domestic affairs — its legislative, executive, and judicial departments with their various branches, and the promotion of agriculture and manufacturing (which covers almost everything states spend money on) — are insignificant compared to what goes to national defense.
In Great Britain, where all the lavish trappings of monarchy have to be funded, no more than a fifteenth of the nation's annual income goes to this latter category of expenses. The other fourteen-fifteenths are swallowed up by interest payments on debts from wars the country has fought, plus maintaining its fleets and armies. If it's argued on the one hand that the costs of a monarchy's ambitious projects and vainglorious pursuits aren't a fair standard for what a republic might need, it should be pointed out on the other hand that there should be just as great a gap between the extravagance of a wealthy kingdom's domestic spending and the frugality that should define the modest simplicity of a republican government. If we balance a reasonable deduction from one side against what should be deducted from the other, the proportion still holds.
But let's look at the enormous debt we ourselves racked up in a single war, and let's just assume we'll face our fair share of the conflicts that disturb the peace of nations. We'll instantly see — without needing any elaborate explanation — that there will always be a huge gap between what the federal and state governments need to spend. It's true that several states are currently burdened with significant debts left over from the recent war. But that can't happen again if the proposed system is adopted. And once those debts are paid off, the only significant revenue the state governments will need is for the basic support of their civil operations — which, even including all possible extras, should fall well below two hundred thousand pounds in every state.
When we're building a government for future generations as well as ourselves, we should base permanent provisions on permanent causes of expense, not temporary ones. If this principle is right, our focus should be on ensuring the state governments have enough for an annual budget of about two hundred thousand pounds — while the Union's needs could stretch beyond any imaginable limit. Given this, what logic supports the argument that state governments should permanently control an exclusive source of revenue beyond what they'd need for two hundred thousand pounds? Extending that exclusive power further — while shutting out the Union's authority — would mean taking resources out of the hands that need them for the public welfare and putting them into hands that have no good reason to have them.
Now suppose the convention had tried to divide up revenue sources between the Union and its members in proportion to their respective needs. What specific fund could they have picked for the states that wouldn't have been either too much or too little — too little for their current needs, too much for their future ones? As for drawing the line between external and internal taxes: this would leave the states, by rough estimate, control of two-thirds of the community's resources to cover between a tenth and a twentieth of its expenses — and the Union just one-third of the resources to cover between nine-tenths and nineteen-twentieths of expenses. If we abandon that boundary and settle for giving the states exclusive power over property taxes on houses and land, there would still be a huge mismatch between the means and the goal: possession of a third of the resources to cover, at most, a tenth of the expenses. If any fund could have been chosen that perfectly matched the need — not too much, not too little — it still would have been insufficient to pay off the existing debts of the individual states, leaving them dependent on the Union for that purpose.
This whole train of reasoning justifies the position I've stated before: "A shared jurisdiction in the area of taxation was the only workable alternative to completely subordinating the states' taxing power to the Union's." Any division of revenue sources they could have come up with would have sacrificed the great interests of the Union to the power of the individual states. The convention chose shared jurisdiction over that subordination, and it clearly has the advantage of reconciling an unlimited constitutional power of taxation in the federal government with an adequate and independent power in the states to provide for their own needs. There are still a few more angles from which this important subject of taxation deserves further examination.
PUBLIUS
To the People of the State of New York:
BEFORE we move on to other objections to giving the Union unlimited power of taxation, let me make one general point: if the national government's revenue authority were restricted to specific sources, it would naturally cause an unfair share of the tax burden to fall on those sources. Two problems would come from this: oppression of particular industries, and an unequal distribution of taxes — both among the different states and among the citizens of each state.
Suppose, as some have argued, that the federal taxing power were limited to import duties. It's obvious that the government, unable to tap other resources, would frequently be tempted to push these duties to harmful extremes. Some people think import duties can never be too high, claiming that the higher they are, the more they'll discourage excessive consumption, create a favorable trade balance, and boost domestic manufacturing. But all extremes are harmful in one way or another. Excessively high duties on imported goods would encourage a widespread culture of smuggling — which always hurts the honest merchant and ultimately the government's revenue too. They tend to make other parts of society unfairly dependent on the manufacturing class, which gets a premature monopoly on markets. They sometimes push industry out of its natural channels and into less productive ones. And finally, they oppress the merchant, who often has to absorb the cost himself without being able to pass it on to the consumer. When demand matches the supply of goods on the market, the consumer generally pays the duty. But when markets are oversaturated, a large share of the duty falls on the merchant — sometimes not only wiping out his profits but eating into his capital. I think a split of the duty between seller and buyer happens more often than people realize. It's not always possible to raise a product's price by the exact amount of every new tax added to it. The merchant, especially in a country with limited commercial capital, often has to keep prices down to make quicker sales.
The principle that the consumer ultimately pays the tax is true far more often than not, which is why it makes more sense for import duties to go into a shared national fund rather than benefiting only the states where goods are imported. But it's not so universally true that import duties should be the only national revenue source. When the merchant pays the duty, it acts as an extra tax on the importing state, whose citizens are already paying their share as consumers. This creates inequality among the states — an inequality that would only grow as duties increased. Relying on import duties as the nation's sole revenue would also create a different kind of inequality: between manufacturing and non-manufacturing states. States that can largely supply their own needs through their own manufacturing won't consume as many imported goods relative to their population or wealth as states that can't. So under a system based only on import duties, they wouldn't contribute to the national treasury in proportion to their ability. To make them pay their fair share, you'd need to turn to excise taxes — taxes on specific types of manufactured goods. New York has more at stake in these considerations than those of its citizens who argue for limiting the Union's power to external taxes may realize. New York is an importing state and isn't likely to become a major manufacturing state anytime soon. It would therefore get hit twice by restricting the Union's tax authority to just commercial duties.
Now, to the extent these observations suggest that import duties might be pushed to harmful levels, it should be noted — as I've pointed out elsewhere in these papers — that the government's own interest in protecting its revenue would guard against such extremes. I readily admit that would be true, as long as other revenue sources were available. But if those other avenues were closed off, desperation would drive experimental policies backed by harsh enforcement and extra penalties. For a while, these might work as intended — until people had time to figure out how to get around the new rules. Early success would tend to create false confidence, which might take a long period of painful experience to correct. Desperation, especially in politics, often leads to false hopes, flawed reasoning, and a whole system of misguided policies. But even if this excessive taxation didn't result from limiting the federal taxing power, the inequalities I've described would still follow, though perhaps not as severely, from the other causes I've mentioned. Let's now return to examining the objections.
One objection that seems to be the favorite, judging by how often it's repeated, is that the House of Representatives isn't large enough to include members from all the different classes of citizens — and that this is necessary to combine the interests and feelings of every part of the community and create genuine sympathy between the representatives and their constituents. This argument sounds impressive and appealing on the surface, and it's well designed to play on the prejudices of its audience. But when we take it apart carefully, it turns out to be nothing but nice-sounding words. The goal it claims to pursue is, first of all, impossible to achieve — and in the way it's being argued for, it's also unnecessary. I'll save the question of whether the House has enough members for a later discussion. For now, I'll just examine the specific way this argument has been used in relation to the topic at hand.
The idea of literally having every class of people represented by members of that same class is a complete fantasy. Unless the Constitution specifically required that each occupation send one or more of its own members, it would never actually happen. Workers and manufacturers will almost always prefer to vote for merchants rather than people from their own trades. These perceptive citizens understand that the mechanical and manufacturing trades provide the raw materials for commercial enterprise and industry. Many of them are, in fact, directly involved in commerce. They know the merchant is their natural ally and advocate. And they recognize that, however justified their confidence in their own good judgment might be, their interests are better served by the merchant than by one of their own. They're aware that their way of life hasn't given them the skills that are essential for being effective in a deliberative body — skills without which even the greatest natural talent is mostly useless. And they know that the merchant's influence, reputation, and superior education make the merchant better equipped to push back against any forces in government that might be hostile to manufacturing and trade interests. These considerations, along with many others, prove — and experience confirms — that workers and manufacturers will generally choose to give their votes to merchants and those merchants recommend. We should therefore think of merchants as the natural representatives of all these working classes.
As for the learned professions — lawyers, doctors, clergy, and the like — there's not much to say. They don't really form a distinct interest group in society. Based on their circumstances and abilities, they'll earn the trust and votes of each other and of other parts of the community without any clear pattern.
That leaves only the landed interest — and on this subject, especially when it comes to taxes, I believe that interest is perfectly united, from the wealthiest landowner down to the poorest tenant. No tax can be placed on land that won't affect the owner of millions of acres just as much as the owner of a single acre. Every landowner therefore has a shared interest in keeping land taxes as low as possible — and a shared interest is always the most reliable basis for common feeling. But even if we could imagine a difference in interest between the wealthy landowner and the average farmer, what reason is there to think the wealthy one would be more likely to get elected to the national legislature than the average one? If we look at the facts and examine our own state senate and assembly, we find that moderate landowners dominate both — and this is no less true in the senate, which has fewer members, than in the assembly, which has more. When the voters all have the same qualifications, whether they're choosing a small group or a large one, they'll vote for the people they trust most — whether those people happen to be very wealthy, moderately well-off, or not property owners at all.
Some say it's necessary for all classes of citizens to have members of their own class in the representative body, so their feelings and interests will be properly understood and looked after. But as we've seen, this will never happen under any system that leaves people free to vote as they choose. When votes are free, the representative body — with too few exceptions to affect the government's character — will be made up of landowners, merchants, and members of the learned professions. But where's the danger that the interests and feelings of the different classes won't be understood or attended to by these three types of representatives? Won't the landowner know and feel whatever promotes or protects the interests of landed property? And won't his own stake in that property make him naturally inclined to resist every attempt to harm or burden it? Won't the merchant understand and work to advance, as far as is appropriate, the interests of the working and manufacturing classes, whose trades are so closely tied to his own commerce? Won't the professional — who feels no personal stake in the rivalries between different industries — be likely to serve as an impartial referee among them, ready to support whichever one seems to serve society's overall interests?
And if we factor in the shifting moods and attitudes that may arise in different parts of society — things that any wise government will pay attention to — is a representative whose position gives him access to wide-ranging information less likely to be a good judge of these sentiments than someone whose view doesn't extend beyond his own neighborhood? Isn't it natural that a candidate who depends on his fellow citizens' votes to stay in office would take care to learn about their views and preferences — and would be willing to let those preferences properly influence his decisions? This dependence on voters, combined with the fact that the representative and his descendants will be bound by the same laws he votes for, are the true and powerful bonds of sympathy between the representative and the people.
There's no part of governing that requires more extensive knowledge and a deeper understanding of political economy than the business of taxation. The person who best understands those principles will be least likely to use oppressive methods or sacrifice any particular class of citizens to raise revenue. In fact, the most productive tax system will always be the least burdensome. There can be no doubt that wisely exercising the power of taxation requires a person who understands the general character, habits, and ways of thinking of the people at large, as well as the country's resources. And this is all that can reasonably be meant by "knowing the interests and feelings of the people." In any other sense, the proposition is either meaningless or absurd. And in this sense, let every thoughtful citizen judge for themselves where that qualification is most likely to be found.
PUBLIUS
To the People of the State of New York:
We've seen that the main takeaway from the previous paper is this: due to the natural workings of different interests and viewpoints among the various classes of society, whether the number of representatives is larger or smaller, Congress will consist almost entirely of landowners, merchants, and members of the educated professions -- and these people will genuinely represent all those different interests and viewpoints. If someone objects that we've seen other kinds of people in the state legislatures, I'd answer that yes, there are exceptions to the rule, but not enough to change the general character of the government. There are talented minds in every walk of life that will rise above the disadvantages of their circumstances and earn the respect they deserve -- not only from the classes they belong to, but from society as a whole. The door should be equally open to everyone, and I'm hopeful enough about human nature to trust that we'll see examples of these remarkable individuals flourishing in federal government just as they do in state government. But occasional exceptions like these don't invalidate reasoning based on how things generally work.
This subject could be examined from several other angles, and they'd all lead to the same conclusion. For example, you could ask: What greater connection or shared interest exists between a carpenter and a blacksmith, on the one hand, and a linen manufacturer or a stocking weaver, on the other, than between a merchant and either of them? It's well known that rivalries between different branches of trades and manufacturing are often just as fierce as those between any other types of work. So unless the legislature were to be far more numerous than would be consistent with any kind of orderly or wise deliberation, it's impossible that the spirit of the objection we've been considering could ever be realized in practice. But I'll stop dwelling on a point that has so far been too vaguely stated to even be properly examined.
There's another objection that's somewhat more specific and deserves our attention. It's been argued that a power of internal taxation in the national legislature could never be used effectively -- both because of insufficient knowledge of local conditions and because of conflicts between Union and state revenue laws. The claim about insufficient knowledge seems entirely unfounded. If a question comes up in a state legislature about one of its counties that requires knowledge of local details, how is that knowledge obtained? Obviously, from the representatives of that county. Can't the same kind of knowledge be obtained in the national legislature from the representatives of each state? And isn't it reasonable to assume that the people generally sent to Congress will be capable enough to communicate that information? Does knowledge of local conditions, as it relates to taxation, mean a detailed familiarity with every mountain, river, stream, highway, and back road in each state? Or does it mean a general understanding of each state's situation and resources -- its agriculture, commerce, and manufacturing; the nature of its products and consumption; and the different types and amounts of its wealth, property, and industry?
Nations in general, even those with more democratic governments, usually entrust the management of their finances to individuals or small boards who develop and prepare tax plans, which are then enacted by the legislature or sovereign authority.
Knowledgeable and informed statesmen are considered everywhere to be the best qualified to select the right subjects for taxation -- which is a clear sign, as far as the collective wisdom of humanity can settle the question, of just what kind of local knowledge is actually needed for tax purposes.
The taxes generally referred to as "internal taxes" can be divided into two categories: direct taxes and indirect taxes. While the objection is raised against both, the reasoning behind it seems focused on direct taxes. As for indirect taxes -- meaning duties and excise taxes on consumer goods -- it's hard to imagine what the supposed difficulties could be. The knowledge needed for these taxes will either be obvious from the nature of the goods themselves or can be easily obtained from any well-informed person, especially someone in the business community. The differences in how a particular good is handled from one state to another will be few, simple, and easy to understand. The main thing to watch for would be avoiding taxes on goods that a particular state has already claimed for its own revenue purposes -- and figuring out each state's revenue system wouldn't be difficult at all. That information could always be found in the states' own legal codes, as well as from the representatives of each state.
The objection, when applied to real property -- houses and land -- seems at first glance to have a stronger basis, but even here it doesn't hold up under close examination. Land taxes are typically imposed in one of two ways: either through actual property valuations, whether permanent or periodic, or through occasional assessments made at the discretion or best judgment of designated officers. In either case, the actual execution of the work -- which is the only part that requires knowledge of local details -- must be delegated to qualified people serving as commissioners or assessors, either elected by the people or appointed by the government. All the law itself can do is name those people or prescribe how they're chosen, set their numbers and qualifications, and outline their general powers and duties. And what is there in all of this that a national legislature couldn't do just as well as a state legislature? Either one can only deal with general principles; local details, as I've already noted, must be left to the people carrying out the plan.
But there's an even simpler way to look at this that should settle the matter completely. The national legislature can simply use each state's own tax system within that state. The method of imposing and collecting these taxes in each state can be adopted and used by the federal government in every detail.
Let's also remember that the proportion of these taxes isn't left to the national legislature's discretion -- it's determined by the population of each state, as described in the second section of the first article. An actual census of the people must provide the rule, a provision that effectively shuts the door on favoritism or oppression. The potential for abuse of this taxing power seems to have been guarded against with great care. In addition to the safeguard I just mentioned, there's the provision that "all duties, imposts, and excises shall be uniform throughout the United States."
Supporters of the Constitution have rightly pointed out that if the Union's exercise of internal taxation turns out to be genuinely impractical, the federal government can simply stop using it and go back to making requests to the states instead. In response, opponents have triumphantly asked: Why not just leave out that questionable power in the first place and rely on state contributions from the start? There are two solid answers to this. First, if the power turns out to be practical, exercising it will be preferable because it'll be more effective -- and you can't prove in theory, without actually trying it, that it won't work. If anything, the evidence suggests it probably will. Second, having this power in the Constitution will put strong pressure on states to comply with requests for funds. When the states know that the Union can collect taxes on its own without needing their help, that'll be a powerful motivator for them to cooperate.
As for conflicts between Union and state revenue laws, we've already seen that there can be no actual clash of legal authority. The laws therefore can't interfere with each other in any legal sense, and it's far from impossible to avoid conflicts even in their practical application. An effective approach would be for each side to simply stay away from revenue sources the other has already claimed. Since neither can control the other, each will have an obvious and practical interest in this mutual restraint. And where there's a clear shared interest, we can safely count on it to work. Once the states have paid off their individual debts and their expenses shrink to their natural size, the possibility of conflict will practically disappear. A small land tax will meet the states' needs and will be their simplest and most appropriate revenue source.
Opponents have conjured up all sorts of scary scenarios from this power of internal taxation to frighten the public: double sets of tax collectors, doubled burdens from double taxation, and the specter of hated and oppressive poll taxes -- all presented with the skillful sleight-of-hand of political trickery.
On the first point, there are two situations where there's absolutely no room for double sets of officers: one, where the right to impose the tax belongs exclusively to the Union, as with import duties; and the other, where the subject hasn't been covered by any state regulation, which could apply to a wide variety of things. In other cases, the most likely outcome is that the United States will either stay entirely away from revenue sources already claimed by the states for local purposes, or will use state officers and state regulations to collect any additional federal tax. This approach will best serve the goals of revenue collection, because it'll save the expense of a separate collection system, and it'll best avoid creating resentment in state governments and among the people. In any event, here's a workable solution for avoiding this problem -- and all that's required is to show that the predicted evils don't necessarily follow from the plan.
As for any argument based on a supposed system of federal influence-peddling, it's enough to say that this shouldn't be assumed. But the claim can be answered even more precisely. If such a corrupt spirit were to infect the federal government, the surest way to achieve its goals would actually be to employ state officers as much as possible and win their loyalty through increased pay. This would redirect the flow of state influence into federal channels, rather than having federal influence flow the other way. But all such assumptions are unfair and should be set aside when considering the great question before the people. They serve no purpose except to obscure the truth.
As for the suggestion of double taxation, the answer is straightforward. The needs of the Union have to be paid for one way or another. If the federal government raises the money, the state government won't need to. The total amount of taxes paid by the public will be the same either way -- with this advantage: if the federal government handles it, the major revenue source of import duties, which is the most convenient type of tax, can be managed far more effectively at the federal level than at the state level, reducing the need for less convenient methods. And there's a further advantage: to the extent that internal taxation does present any real difficulty, it will encourage greater care in choosing the best approach. It will naturally lead to a fixed policy in the national government to go as far as possible in taxing the luxuries of the wealthy for the public treasury, in order to reduce the need for taxes that might create resentment among the poorer and more numerous classes of society. It's a happy situation when the government's own interest in preserving its power lines up with a fair distribution of the public burden and tends to protect the least wealthy from oppression!
As for poll taxes, I'll freely admit I disapprove of them. And even though they've been used since early times in those states[1] that have been the most protective of their rights, I'd hate to see them adopted by the national government. But does the mere existence of this power mean poll taxes would actually be imposed? Every state in the Union has the power to levy taxes like this, and yet several of them have never used it. Should we call the state governments tyrannies because they have this power? If not, how can the same power justify such a charge against the national government, or even be used as a reason to reject it? As unfriendly as I am toward this type of tax, I'm still thoroughly convinced that the federal government ought to have the option of using it. Nations face certain emergencies in which measures that would normally be avoided become essential to the public welfare. And because such emergencies are always possible, the government should always have the option of using them. The real scarcity of good revenue sources in this country is itself a reason not to limit the national government's options in this area. There may be critical and turbulent moments when a poll tax could be an invaluable resource. And since I know nothing that exempts our corner of the world from the disasters that have struck others, I'm unwilling to support any plan that would strip the government of even a single tool that might, in any possible emergency, be useful for the common defense and security.
(I've now completed my examination of those powers proposed for the United States that have a direct connection to the energy of the government, and I've tried to answer the main objections raised against them. I've passed over in silence those lesser powers that are either too minor to have attracted the opposition's fire or too obviously proper to be controversial. The judiciary's power might have been examined in this section, except that its organization and scope can be more usefully discussed as a connected whole. That has led me to save it for the next phase of our inquiry.)[E1]
(I've now completed my examination of those powers proposed for the federal government that relate most directly to its energy and its ability to achieve the great primary goals of the Union. There are other powers that, though not covered here, will be addressed in the next section for a more complete picture. I'm hopeful that the progress we've made so far will have been enough to convince fair and thoughtful readers that some of the objections most forcefully raised against the Constitution -- and most alarming at first glance -- are not only without substance, but that if they had actually shaped the plan, they would have made it unable to achieve the great goals of public welfare and national prosperity. I'm equally hopeful that a deeper and more careful examination of the system will further recommend it to every sincere and honest supporter of good government, leaving no doubt about the wisdom and practicality of adopting it. How fortunate we'll be -- and what an honor to human nature -- if we have the wisdom and virtue to set so glorious an example for all of humanity!)[E1]
PUBLIUS
[1] The New England States.
[E1] Two versions of this paragraph appear in different editions.
To the People of the State of New York:
In reviewing the defects of the existing Confederation and showing that they can't be fixed by a government less energetic than the one now before the public, several of the most important principles of the proposed Constitution naturally came up for discussion. But since the ultimate goal of these papers is to determine clearly and fully the merits of this Constitution and the wisdom of adopting it, our project can't be complete without a more thorough and careful examination of the Convention's work -- looking at it from every angle, comparing all its parts, and weighing its likely effects. Before we take on this remaining task, though, fairness calls for some preliminary reflections that may help us approach it with the right frame of mind.
It's an unfortunate fact of human affairs that public measures are rarely examined with the spirit of moderation that's essential to a fair assessment of whether they'll actually advance or obstruct the public good -- and that this spirit of moderation is more likely to shrink than grow on occasions that demand an unusual amount of it. For anyone who's learned this lesson from experience, it shouldn't be surprising that the Convention's proposal -- which recommends so many important changes and innovations, which can be viewed from so many different angles, and which touches so many passions and interests -- would stir up hostility on both sides, making fair discussion and accurate judgment difficult. Some critics have made it all too obvious in their writings that they approached the proposed Constitution not merely with a tendency to criticize, but with a predetermined intent to condemn. Others betray the opposite bias, which makes their opinions equally worthless on this question. But in putting these two groups on the same level as far as the weight of their opinions goes, I don't mean to suggest there's no meaningful difference in the purity of their intentions. It's only fair to note, in favor of the latter group, that since our situation is universally acknowledged to be especially critical -- requiring urgently that something be done for our relief -- the person who's already decided to support what was actually done may have been swayed by the weight of those considerations, not just by selfish motives. The person who's already decided to oppose it, on the other hand, can't claim any such justifiable reason. The supporter's intentions may be honorable or they may be self-serving. But the opponent's intentions can't be honorable and must be self-serving. The truth is, though, that these papers aren't addressed to people in either of those categories. They seek the attention only of those who combine genuine concern for the happiness of their country with a temperament favorable to a fair evaluation of the means for promoting it.
People of this character will approach the Convention's plan not only without any urge to find or magnify faults, but will also see the wisdom of recognizing that a flawless plan was never to be expected. They won't simply make allowances for errors that might be chalked up to the fallibility of the Convention as a group of human beings -- they'll also keep in mind that they themselves are only human too, and shouldn't assume they're infallible when second-guessing the fallible opinions of others.
They'll also readily perceive that beyond these reasons for generosity, many allowances ought to be made for the difficulties that were inherent in the very nature of the task the Convention was given.
The sheer novelty of the undertaking strikes us immediately. It's been shown in the course of these papers that the existing Confederation is founded on flawed principles -- that we therefore need to change this very foundation, along with the entire structure built on top of it. It's also been shown that the other confederacies we might look to as precedents were corrupted by the same flawed principles and can therefore serve only as warning signs -- showing us the path to avoid without pointing out the one to follow. The most the Convention could do in such a situation was to steer clear of the mistakes revealed by the past experience of other countries, as well as our own, and to build in a practical way of correcting their own mistakes as future experience might reveal them.
Among the difficulties the Convention faced, one of the most important must have been combining the stability and energy needed in government with the unwavering commitment owed to liberty and the republican form of government. Without substantially accomplishing this, they would have fallen far short of their mission and the public's expectations -- yet no one who knows anything about this subject would deny that it was an enormously difficult thing to accomplish. Energy in government is essential to security against threats both foreign and domestic, and to the prompt and effective execution of the laws -- things that are part of the very definition of good government. Stability in government is essential to national character and its benefits, as well as to the peace of mind and public confidence that are among the chief blessings of a well-ordered society. Erratic and constantly changing laws are not only bad in themselves but deeply unpopular with the people. And we can say with confidence that the people of this country, as knowledgeable as they are about the nature of government and as affected as they are by its quality, will never be satisfied until some remedy is found for the instability and unpredictability that have plagued the state governments. But when we compare these valuable qualities with the vital principles of liberty, we immediately see the difficulty of blending them in the right proportions. The spirit of republican liberty seems to demand, on one side, not only that all power should come from the people, but that those entrusted with it should be kept dependent on the people through short terms of office -- and that even during these short terms, power should be placed not in a few hands but in many. Stability, on the other hand, requires that the people holding power should remain the same for an extended period. Frequent elections lead to frequent changes of officials, and frequent changes of officials lead to frequent changes of policy -- while energy in government requires not only a certain duration of power but that it be exercised by a single person.
How well the Convention may have succeeded in this part of their work will become clearer as we examine it more closely. Even from this quick overview, it should be obvious that it was an enormously challenging task.
No less challenging was the task of drawing the proper boundary between federal authority and state authority. Anyone will appreciate this difficulty in proportion to how accustomed they are to thinking carefully about complex subjects. Even the faculties of the human mind have never been clearly defined, despite all the efforts of the most brilliant philosophers. Sensation, perception, judgment, desire, will, memory, imagination -- these are separated by such subtle shades and tiny gradations that their boundaries have eluded the most careful investigations and remain a rich source of scholarly debate and disagreement. The boundaries within the great kingdoms of nature -- and even more so, within the various provinces and smaller divisions of those kingdoms -- illustrate the same important truth. The most knowledgeable and dedicated naturalists have never been able to draw with certainty the line separating plant life from nonliving matter, or the line marking where plant life ends and animal life begins. Even greater uncertainty surrounds the distinguishing features used to classify objects within each of these great categories.
When we move from the works of nature -- where all the boundaries are perfectly precise, only appearing otherwise because of the limitations of the eye observing them -- to the creations of human beings, where the vagueness comes as much from the subject itself as from the mind trying to understand it, we have to lower our expectations even further for what human wisdom can accomplish. Experience has taught us that no amount of expertise in the science of government has yet been able to clearly define its three great branches -- the legislative, executive, and judicial -- or even the powers and privileges of the different legislative chambers. Questions come up constantly in practice that reveal just how murky these subjects are and that stump even the most accomplished experts in political science.
The experience of centuries, combined with the ongoing efforts of the most enlightened lawmakers and legal scholars, has been equally unsuccessful in clearly defining the different types of law and the jurisdictions of different courts. The precise boundaries between common law, statutory law, maritime law, ecclesiastical law, corporate law, and other local laws and customs still haven't been clearly established in Great Britain -- where precision in these matters has been pursued more diligently than anywhere else in the world. The jurisdiction of its various courts -- general and local, courts of law, equity, admiralty, and so on -- is no less a source of frequent and complicated disputes, showing just how uncertain those boundaries are. All new laws, no matter how expertly drafted or how thoroughly debated, are considered somewhat unclear and ambiguous until their meaning is clarified through a series of real-world cases and court decisions. Beyond the vagueness that comes from the complexity of the subject and the imperfection of human understanding, the medium through which people communicate their ideas to each other creates an additional problem. The purpose of words is to express ideas. Clarity therefore requires not only that the ideas be clearly formed but that they be expressed in words that are precisely and exclusively suited to them. But no language is rich enough to supply words and phrases for every complex idea, or precise enough to avoid having many words that can mean different things. So no matter how precisely things may be distinguished in reality, and no matter how carefully those distinctions are thought through, any definition of them may be thrown off by the imprecision of the language used to express it. And this unavoidable imprecision will be greater or lesser depending on the complexity and novelty of what's being defined. When the Almighty himself chooses to address humanity in their own language, his meaning -- clear as it must be -- is rendered dim and uncertain by the cloudy medium through which it's communicated.
Here, then, are three sources of vague and imprecise definitions: the haziness of the object itself, the imperfections of the mind doing the thinking, and the inadequacy of language as a vehicle for ideas. Any one of these is enough to produce a degree of uncertainty. The Convention, in drawing the boundary between federal and state jurisdiction, must have felt the full force of all three.
To the difficulties already mentioned, we can add the competing claims of the larger and smaller states. We can safely assume that the larger states would have pushed for a share in the government proportional to their greater wealth and importance, and that the smaller states would have been no less determined to preserve the equality they currently enjoy. We can reasonably suppose that neither side would have completely given in to the other, and therefore that the struggle could only have been resolved by compromise. It's also highly probable that after the ratio of representation had been settled, this very compromise produced a new round of struggles between the same groups, each trying to shape the government's organization and the distribution of its powers in ways that would increase the importance of the branches where they'd gained the most influence. There are features in the Constitution that support each of these assumptions, and to the extent they're correct, they show that the Convention had to sacrifice theoretical perfection to the force of practical political considerations.
And it wasn't only the large and small states that lined up in opposition to each other on various points. Other coalitions, arising from differences in geographic position and local interests, must have created additional difficulties. Just as every state is divided into different districts and its citizens into different classes, each giving rise to competing interests and local rivalries, so the different regions of the United States are distinguished from each other by a variety of factors that produce the same effect on a larger scale. And although this diversity of interests, for reasons explained well in an earlier paper, may have a healthy influence on the government once it's up and running, everyone must realize that the same diversity would have had the opposite effect during the task of creating that government.
Would it really be surprising if, under the pressure of all these difficulties, the Convention was forced into some departures from the neat, symmetrical structure that an armchair theorist might dream up when designing a constitution in his study or his imagination? The real wonder is that so many difficulties were overcome -- and overcome with a near-unanimity that was as unprecedented as it was unexpected. No honest person can reflect on this fact without sharing in the amazement. No person of faith can fail to see in it the hand of that Almighty power which has been so frequently and remarkably extended for our benefit at the critical stages of the Revolution.
We had occasion in an earlier paper to note the repeated failed attempts in the Netherlands to reform the well-known and destructive flaws in their constitution. The history of nearly all the great councils and conferences held throughout human history -- aimed at reconciling disagreements, calming mutual suspicions, and balancing competing interests -- is a history of factions, conflicts, and disappointments. It could be filed among the darkest and most discouraging portraits of human weakness and corruption. If a few scattered bright spots appear, they serve only as exceptions that confirm the general truth -- and by their brightness, they make the surrounding gloom of the typical outcome look even darker. When we examine the reasons why these exceptions occurred and apply them to our own case, we're necessarily led to two important conclusions. First, the Convention must have enjoyed, to a truly remarkable degree, an immunity from the toxic influence of partisan hostility -- the disease most common to deliberative bodies and most likely to corrupt their proceedings. Second, all the delegations at the Convention were either genuinely satisfied with the final result or were persuaded to accept it by a deep conviction that private opinions and narrow interests had to be sacrificed for the public good -- and by the recognition that delays or new experiments would only make this sacrifice more painful.
PUBLIUS
To the People of the State of New York:
It's a remarkable fact that in every case recorded by ancient history where a government was established through deliberation and consent, the task of designing it wasn't given to an assembly of people -- it was carried out by some individual citizen of exceptional wisdom and proven integrity.
Minos, we're told, was the original founder of the government of Crete, just as Zaleucus was for the Locrians. Theseus was the first to establish the government of Athens, followed by Draco and Solon. Lycurgus was the lawgiver of Sparta. The foundation of Rome's original government was laid by Romulus, and the work was completed by two of his elected successors, Numa and Tullius Hostilius. When the monarchy was overthrown, the consular system was put in its place by Brutus, who came forward with a reform plan that he claimed had been prepared by Tullius Hostilius -- and through his persuasiveness, he secured the approval of both the senate and the people. This pattern applies to confederate governments too. Amphictyon, we're told, was the author of the confederation that bore his name. The Achaean League received its first form from Achaeus and its second from Aratus.
How much actual authority these legendary lawgivers had in creating their respective governments, or how far they were genuinely empowered by the people, can't always be determined. In some cases, however, the process was entirely legitimate. Draco appears to have been given unlimited authority by the people of Athens to reform their government and laws. And Solon, according to the ancient biographer Plutarch, was practically compelled by the unanimous will of his fellow citizens to take on sole and absolute power to redesign the constitution. The process under Lycurgus was less orderly, but insofar as advocates of legitimate reform could make their voices heard, they all looked to the individual efforts of that celebrated patriot and sage, rather than trying to bring about change through a deliberative assembly of citizens.
How did it happen that a people as protective of their liberty as the Greeks would so far abandon their caution as to place their destiny in the hands of a single citizen? How did it happen that the Athenians -- a people who wouldn't let an army be commanded by fewer than ten generals, and who considered the outstanding merit of any fellow citizen as proof enough of a threat to their freedom -- would consider one distinguished citizen a safer guardian of their own and their children's futures than a carefully chosen group of citizens, from whose collective deliberations more wisdom and more safety might have been expected? These questions can't be fully answered without assuming that their fear of conflict and division among a group of advisors outweighed their concern about betrayal or incompetence by a single individual. History also tells us about the difficulties these celebrated reformers had to face, as well as the compromises they had to make to put their reforms into effect. Solon, who seems to have taken a more pragmatic approach, admitted that he hadn't given his countrymen the government best suited to their happiness, but the one most tolerable given their prejudices. And Lycurgus, more committed to his vision, found it necessary to mix a measure of force with the authority of religious awe, and to seal his ultimate success by voluntarily giving up first his country and then his life. If these lessons teach us, on one hand, to admire the improvement America has made over the ancient method of preparing and establishing plans of government, they serve no less, on the other, to warn us of the risks and difficulties inherent in such experiments -- and of the great folly of unnecessarily repeating them.
Is it unreasonable to guess that whatever errors the Convention's plan may contain are the kind that resulted from the lack of prior experience with this complicated and difficult subject, rather than from any lack of care or thoroughness in their investigation? And that, consequently, these errors won't even become apparent until actual practice reveals them? This guess is supported not only by many general considerations but by the specific example of the Articles of Confederation. It's worth noting that among all the numerous objections and amendments proposed by the various states when the Articles were submitted for ratification, not a single one pointed to the great and fundamental flaw that actual experience has since exposed. And if we set aside the observations New Jersey was led to make -- more by its geographic situation than by any special foresight -- it's questionable whether a single suggestion was significant enough to justify revising the system. There's plenty of reason, nevertheless, to believe that trivial as these objections were, they would have been clung to with dangerous stubbornness in some states, had the urge to defend their opinions and supposed interests not been overridden by the more powerful instinct of self-preservation. One state, you may remember, refused for several years to give its consent, even though the enemy was at our gates the entire time -- or rather, in the very heart of our country. And in the end, that state was moved to cooperate only by the fear of being blamed for prolonging the nation's suffering and endangering the outcome of the war. Every fair-minded reader will draw the right conclusions from these important facts.
Imagine a patient who finds his condition getting worse every day. He knows that an effective treatment can't be delayed any longer without extreme danger. After carefully considering his situation and evaluating the various doctors available, he selects and calls in the ones he judges most capable of providing relief and most worthy of his trust. The doctors arrive. The case is carefully examined. They hold a consultation. They unanimously agree that the symptoms are critical but that the case, with proper and timely treatment, is far from hopeless -- in fact, it can lead to an improvement in his overall health. They're equally unanimous in prescribing the remedy that will produce this good result. But no sooner is the prescription announced than a number of people intervene. Without denying the reality or danger of the illness, they assure the patient that the prescription will be poison to his system and warn him, on pain of certain death, not to use it. Wouldn't the patient be reasonable in demanding, before following this advice, that these critics at least agree among themselves on some alternative treatment? And if he found them disagreeing with each other as much as they disagreed with his original doctors, wouldn't it be wise to try the treatment unanimously recommended by the latter, rather than listen to people who couldn't deny the need for urgent treatment but couldn't agree on what it should be?
That patient, in that situation, is America right now. She's recognized her illness. She's received the careful and unanimous advice of people she deliberately chose. And now she's being warned by others not to follow that advice, on pain of the most fatal consequences. Do these critics deny the reality of her danger? No. Do they deny the need for some urgent and effective remedy? No. Do they agree -- do any two of them even agree -- on what's wrong with the proposed remedy, or on what should replace it? Let them speak for themselves.
This one tells us the proposed Constitution should be rejected because it's not a confederation of states but a government over individuals. Another admits it should be a government over individuals to some extent, but definitely not to the extent proposed. A third doesn't object to the government over individuals, or to its extent, but to the lack of a bill of rights. A fourth agrees completely that a bill of rights is absolutely necessary, but argues it should declare the rights reserved to the states in their political capacity, not the personal rights of individuals. A fifth thinks a bill of rights of any kind would be unnecessary and out of place, and says the plan would be perfectly acceptable except for the fatal power of regulating the times and places of elections. An objector in a large state complains loudly about the unfair equality of representation in the Senate. An objector in a small state is equally loud about the dangerous inequality in the House of Representatives. From one corner, we hear alarm about the enormous expense of the number of people needed to run the new government. From another corner -- and sometimes from the same corner on a different occasion -- the complaint is that Congress will be barely a shadow of a real legislature, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a state that neither imports nor exports sees insurmountable problems with the power of direct taxation. His patriotic rival in a state with major imports and exports is no less upset that the entire tax burden could fall on consumption. One political analyst discovers in the Constitution an unmistakable and irresistible tendency toward monarchy. Another is equally certain it will end in aristocracy. A third is puzzled about which form it will ultimately take but is confident it must be one or the other. Meanwhile, a fourth comes along who insists, with no less confidence, that the Constitution is so far from leaning toward either of these dangers that it doesn't lean enough in that direction to even stay upright against its opposite tendencies.
Yet another group of opponents objects that the legislative, executive, and judicial departments are mixed together in ways that violate every principle of proper government and every safeguard for liberty. When this objection is stated in vague, general terms, it attracts a few supporters. But let each one come forward with his specific complaint, and you'll find that hardly any two of them agree. In one person's eyes, the problem is that the Senate shares with the President the important function of appointing government officials, instead of leaving this executive power to the President alone. For another, the problem is that the House of Representatives is excluded -- since only large numbers can provide adequate protection against corruption and favoritism in the exercise of such power. For yet another, allowing the President any share of a power that must always be a dangerous tool in an executive's hands is an unforgivable violation of republican principles. According to some, the most unacceptable part of the whole arrangement is that impeachment trials are conducted by the Senate, which serves as part of both the legislative and executive branches, when this power clearly belongs to the judiciary. "We completely agree," reply others, "with the objection to this part of the plan, but we could never agree that giving impeachment power to the judiciary would fix the error. Our main complaint about the system is that the judiciary already has too much power." Even among the enthusiastic supporters of a council of state, the most irreconcilable disagreement exists about how it should be set up. One gentleman insists the council should consist of a small number of people appointed by the larger branch of the legislature. Another would prefer a larger number and considers it a fundamental requirement that the President himself make the appointments.
Since it shouldn't offend the writers who oppose the Constitution, let's suppose that they are not only the most passionate but also the wisest of those who think the Convention was unequal to its task, and that a better plan could and should be created. Let's further suppose that the country agrees with this high opinion of their abilities and this low opinion of the Convention, and accordingly brings them together as a second convention, with full authority and the express purpose of revising and reshaping the first Convention's work. If this experiment were actually tried -- though it takes some effort to take the idea seriously even as a thought experiment -- I'll leave it to be judged, based on the sample of opinions just catalogued, whether these critics, for all their hostility toward their predecessors, would differ from their example in any respect so much as in the discord and turmoil that would mark their own deliberations. And I'll leave it to be judged whether the Constitution now before the public wouldn't have as good a chance of lasting forever -- as good as Lycurgus gave to Sparta's constitution by making its revision depend on his own return from exile and death -- if it were adopted immediately and left in force not until a better constitution could be agreed upon, but simply until another one could.
It's both surprising and regrettable that those who raise so many objections against the new Constitution never bother to consider the defects of the one it's meant to replace. The new Constitution doesn't have to be perfect; it only has to be less imperfect than the old one. No one would refuse to trade brass for silver or gold just because the gold had a little alloy in it. No one would refuse to leave a crumbling, tottering house for a solid and comfortable building just because the new one lacked a porch, or because some of the rooms were a little bigger or smaller, or the ceilings a little higher or lower, than they would have designed them. But setting aside these analogies, isn't it obvious that most of the major objections against the new system apply with ten times the force to the existing Confederation?
Is unlimited power to raise money dangerous in the hands of the federal government? The current Congress can make financial demands on the states for any amount they please, and the states are constitutionally required to pay. Congress can issue paper money as long as they can afford the paper. They can borrow, both domestically and abroad, as long as anyone will lend. Is unlimited power to raise armies dangerous? The Confederation gives Congress that power too, and they've already started using it. Is it improper and unsafe to mix different powers of government in the same group of people? Congress, a single body, is the sole repository of all federal powers. Is it particularly dangerous to give the keys to the treasury and command of the army to the same people? The Confederation places both in Congress's hands. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it a problem that the new Constitution allows the Senate, with the President's agreement, to make treaties that become the law of the land? The existing Congress, without any such check, can make treaties that they themselves have declared -- and most of the states have recognized -- to be the supreme law of the land. Does the new Constitution allow the importation of slaves for twenty years? Under the old system, it's allowed forever.
Now, I'll be told that however dangerous this concentration of powers may be in theory, it's rendered harmless by Congress's dependence on the states for the means to actually use them -- that however massive this pile of powers may be, it's really a lifeless pile. Fine, I reply. In the first place, that makes the Confederation guilty of the even greater absurdity of declaring certain powers to be absolutely necessary for the federal government while simultaneously making them absolutely useless. And in the second place, if the Union is to survive and no better government is created, real power will either have to be formally granted to or informally seized by the existing Congress -- and in either case, the contrast I just described will still hold. But that's not all. From this supposedly lifeless pile of powers, an unauthorized power has already grown that threatens to produce all the dangers you'd expect from a badly structured supreme government. It's no longer just a theory or a hope that the western territory is a vast source of wealth for the United States. Although it can't rescue us from our current financial troubles or generate regular revenue anytime soon, it will eventually, with proper management, be able both to gradually pay off the national debt and to contribute generously to the federal treasury for years to come. A very large portion of this fund has already been turned over by individual states, and there's good reason to expect the remaining states will follow suit. We can therefore count on the fact that a rich and fertile territory, equal in size to the currently settled parts of the United States, will soon be a national asset. Congress has taken charge of managing this asset. They've started making it productive. Congress has gone even further: they've created new states, established temporary governments, appointed officials for them, and set the conditions under which these states will be admitted into the Confederation. All of this has been done -- and done without the slightest shred of constitutional authority. Yet no one has whispered a complaint. No alarm has been raised. A great and independent source of revenue is flowing into the hands of a single body of people who can raise armies to any size and fund them for any length of time. And yet there are people who have not only watched this happen in silence but actively support the system that produces it -- while at the same time raising against the new system the very objections we've just heard. Wouldn't they be more consistent if they pushed for the new Constitution as being no less necessary to protect the Union against the future powers and resources of a body like the current Congress than to save it from the dangers of that body's present weakness?
I don't mean, by anything I've said here, to criticize the actions Congress has taken. I understand they couldn't have done otherwise. The public interest and the necessity of the situation forced them to go beyond their constitutional limits. But isn't this an alarming proof of the danger that comes from a government that lacks the proper powers for its responsibilities? Collapse or usurpation -- that's the terrible choice it constantly faces.
PUBLIUS
To the People of the State of New York:
The last paper concluded the observations that were meant to introduce a fair-minded examination of the plan of government reported by the Convention. We now move on to that examination itself.
The first question that presents itself is whether the general form and character of the government is strictly republican. It's clear that no other form would be compatible with the spirit of the American people, with the fundamental principles of the Revolution, or with that honorable determination that inspires every lover of freedom to stake all our political experiments on the capacity of humanity for self-government. If the Convention's plan is found to depart from the republican character, its supporters must abandon it as no longer defensible.
What, then, are the defining features of the republican form? If we tried to answer this question not by going back to first principles but by looking at how political writers have applied the term to the constitutions of various countries, we'd never find a satisfactory answer. Holland, where not a shred of supreme authority comes from the people, has almost universally been called a republic. The same title has been given to Venice, where absolute power over the vast majority of the population is exercised in the most absolute way by a small group of hereditary nobles. Poland, which is a mixture of aristocracy and monarchy in their worst forms, has been dignified with the same label. The government of England, which has only one republican branch combined with a hereditary aristocracy and monarchy, has been just as inaccurately placed on the list of republics. These examples, which are nearly as unlike each other as they are unlike a genuine republic, show how carelessly the term has been used in political discussions.
If we look instead for a standard based on the different principles underlying different forms of government, we can define a republic as -- or at least apply that name to -- a government that derives all its powers, directly or indirectly, from the great body of the people, and that is run by people who hold their offices at the public's pleasure, for a limited period, or during good behavior. It is essential to such a government that it draw its authority from the broad mass of society, not from some tiny fraction or privileged class -- otherwise a handful of tyrannical nobles, exercising their power through delegates, could claim the title of republicans and call their government a republic. It is sufficient for such a government that the people running it be appointed, directly or indirectly, by the people, and that they hold their positions on the terms just described -- otherwise every government in the United States, as well as every other well-organized or well-run popular government that has ever existed, would have to be stripped of the republican label. Under the constitution of every state in the Union, some government officials are appointed only indirectly by the people. In most states, the governor himself is appointed that way. And in one state, this indirect method extends to one of the legislative chambers. Under all the state constitutions, too, the terms of the highest offices extend for a fixed period, and in many cases -- in both the legislative and executive branches -- for a period of years. Under most of the state constitutions, and according to the most respected and widely accepted views on the subject, members of the judiciary are meant to hold their offices for the enduring term of good behavior.
When we compare the Constitution designed by the Convention with the standard I've just described, we see immediately that it conforms in the strictest sense. The House of Representatives, like at least one branch of every state legislature, is elected directly by the great body of the people. The Senate, like the current Congress and the Senate of Maryland, gets its members indirectly from the people. The President is indirectly chosen by the people, following the example of most states. Even the judges, along with all other officers of the Union, will be -- as in the individual states -- the choice, though a remote choice, of the people themselves. The length of appointments is equally in line with the republican standard and the model of state constitutions. The House of Representatives is periodically elected, as in all the states, and for a term of two years, as in South Carolina. The Senate is elected for six-year terms -- just one year more than the Maryland Senate, and only two more than the Senates of New York and Virginia. The President serves for four years; in New York and Delaware, the governor is elected for three years, and in South Carolina for two. In the other states, the election is annual. In several states, however, there's no constitutional provision for impeaching the governor. And in Delaware and Virginia, the governor can't be impeached until after leaving office. The President of the United States is impeachable at any time during his term. The tenure by which the judges hold their positions is, as it unquestionably should be, good behavior. The terms of other government offices will generally be a matter of legal regulation, consistent with common sense and the example of the state constitutions.
If any further proof were needed that this system is republican in character, the most decisive evidence would be its absolute ban on titles of nobility -- both at the federal and state levels -- and its express guarantee of the republican form of government to each state.
"But it wasn't enough," say the opponents of the proposed Constitution, "for the Convention to stick to the republican form. They should have been equally careful to preserve the federal form, which treats the Union as a confederacy of sovereign states. Instead, they've created a national government that treats the Union as a consolidation of the states." And the question is asked: By what authority was this bold and radical change made? The way this objection has been used demands that we examine it with some precision.
Without getting into whether the distinction the objection is based on is even accurate, a fair assessment of its force requires us to do three things: first, determine the real character of the government in question; second, ask how far the Convention was authorized to propose such a government; and third, consider how far their duty to their country could make up for any lack of formal authority.
First. To determine the real character of the government, we can consider it in relation to five things: the foundation on which it's established; the sources from which its regular powers are drawn; the way those powers operate; their extent; and the process by which future changes to the government can be made.
Looking at the first of these, it appears, on one hand, that the Constitution is to be founded on the consent and ratification of the American people, given through representatives elected for this specific purpose. But on the other hand, this consent and ratification is to come from the people not as individuals making up one single nation, but as members of the separate and independent states to which they belong. It's to be the consent and ratification of the individual states, derived from the supreme authority in each state -- the authority of the people themselves. The act establishing the Constitution will therefore not be a national but a federal act.
That it will be a federal act and not a national one -- using these terms as the objectors understand them -- the act of the people as members of so many independent states, not as members of one combined nation, is clear from this single fact: the result will come neither from the decision of a majority of the people of the Union nor from a majority of the states. It must come from the unanimous consent of every state that's a party to it, differing from the states' ordinary consent only in being expressed not by the state legislatures but by the people themselves. If the people were being treated in this process as forming one nation, the will of the majority of all the people of the United States would bind the minority, just as the majority in each state binds the minority. And that majority would be determined either by comparing individual votes or by treating the will of a majority of states as evidence of the will of a majority of the people. Neither of these rules has been adopted. Each state, in ratifying the Constitution, is treated as a sovereign body, independent of all others, bound only by its own voluntary act. In this respect, then, the new Constitution will be, if established, a federal and not a national constitution.
The next consideration is the sources from which the government's ordinary powers are drawn. The House of Representatives will draw its powers from the people of America, and the people will be represented in the same proportion and on the same basis as in the legislature of an individual state. To that extent, the government is national, not federal. The Senate, on the other hand, will draw its powers from the states as political and equal communities, represented on the principle of equality in the Senate, just as they are now in the existing Congress. To that extent, the government is federal, not national. The executive power will come from a very mixed source. The initial election of the President is to be made by the states in their political capacity. The electoral votes allocated to them follow a mixed formula that treats them partly as distinct and equal political communities and partly as unequal members of the same society. In the event of a contingent election, it's to be made by the branch of the legislature composed of the national representatives -- but for this particular vote, they're organized as individual state delegations, acting as so many separate and equal political bodies. Looking at the government from this angle, it appears to be of a mixed character, presenting at least as many federal as national features.
The difference between a federal and a national government, when it comes to how the government operates, is supposed to be this: in a federal system, the government's powers act on the political bodies that make up the confederacy, in their collective capacities; in a national system, they act on the individual citizens who make up the nation, in their individual capacities. When we test the Constitution by this standard, it falls under the national, not the federal, character -- though perhaps not as completely as has been assumed. In several cases -- particularly in disputes to which states themselves may be parties -- the states must be treated and dealt with in their collective, political capacity only. To that extent, the government's national character seems to be modified by a few federal features. But this is probably unavoidable in any plan, and since the government operates on the people in their individual capacities in its ordinary and most essential business, we can, on the whole, classify it in this respect as a national government.
But if the government is national in the way it operates, it changes its character again when we look at the extent of its powers. The concept of a national government implies not only authority over individual citizens but unlimited supremacy over all persons and things that are proper subjects of government. In a people consolidated into one nation, this supremacy is fully vested in the national legislature. In communities united for particular purposes, it's divided between the general and the local legislatures. In the first case, all local authorities are subordinate to the supreme authority and can be controlled, redirected, or abolished by it at will. In the second case, the local authorities form distinct and independent portions of that supremacy, no more subject to the general authority within their own areas than the general authority is subject to them within its sphere. In this respect, then, the proposed government cannot be called a national one, since its jurisdiction extends only to certain listed subjects and leaves to the individual states a remaining and inviolable sovereignty over everything else. It's true that in disputes about the boundary between the two jurisdictions, the court that ultimately decides will be established under the general government. But this doesn't change the principle involved. The decisions are to be made impartially, according to the rules of the Constitution, and all the usual and most effective safeguards are in place to ensure that impartiality. Some such court is clearly necessary to prevent disputes from escalating to armed conflict and a breakup of the compact. And the principle that it should be established under the general rather than the local governments -- or more precisely, that it could only be safely established under the former -- is a position not likely to be seriously challenged.
If we test the Constitution by its final relationship -- the process for making amendments -- we find it neither wholly national nor wholly federal. If it were wholly national, the supreme and ultimate authority would rest with the majority of the people of the Union, and this majority would have the power at any time, like the majority in any national society, to alter or abolish its government. If it were wholly federal, the agreement of every single state in the Union would be required for any change that would bind them all. The process provided by the Convention's plan follows neither principle. In requiring more than a simple majority, and especially in calculating the proportion by states rather than by individual citizens, it departs from the national character and moves toward the federal. In allowing less than unanimous agreement among the states, it loses the federal character and takes on the national.
The proposed Constitution, therefore, is strictly speaking neither a national nor a federal constitution, but a combination of both. In its foundation, it is federal, not national. In the sources from which the government's ordinary powers are drawn, it is partly federal and partly national. In the way these powers operate, it is national, not federal. In their extent, it is again federal, not national. And finally, in the process for making amendments, it is neither wholly federal nor wholly national.
PUBLIUS
To the People of the State of New York:
The second question to be examined is whether the Convention was authorized to design and propose this mixed Constitution.
Strictly speaking, the Convention's powers should be determined by examining the formal commissions given to the delegates by their respective states. Since all of these referred back either to the recommendation from the Annapolis meeting in September 1786 or to the resolution from Congress in February 1787, it will be enough to look at those two documents.
The Annapolis resolution recommended the "appointment of commissioners to examine the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the demands of the Union; and to report such a plan for that purpose to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectively provide for the same."
The Congressional resolution reads as follows: "Whereas there is provision in the Articles of Confederation and perpetual Union for making changes therein, by the consent of a Congress of the United States and of the legislatures of the several States; and whereas experience has shown that there are defects in the present Confederation; as a means of remedying these defects, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have proposed a convention for the purposes expressed in the following resolution; and such a convention appearing to be the most likely means of establishing in these States a firm national government:
"Resolved, That in the opinion of Congress it is advisable that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such changes and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the demands of government and the preservation of the Union."
From these two documents, four things are apparent. First, the Convention's objective was to establish in these states a firm national government. Second, this government was to be one that would be adequate to the demands of government and the preservation of the Union. Third, these goals were to be achieved by changes and provisions in the Articles of Confederation, as stated in the Congressional resolution, or by such further provisions as should appear necessary, as stated in the Annapolis recommendation. Fourth, the proposed changes and provisions were to be reported to Congress and to the states, for approval by the former and confirmation by the latter.
From a comparison and fair reading of these various phrases, we can determine the authority under which the Convention acted. They were to design a national government adequate to the demands of government and of the Union, and to rework the Articles of Confederation into a form that would accomplish these purposes.
There are two rules of interpretation, rooted in plain reason as well as established legal principles. The first is that every part of the language should, if possible, be given some meaning and should work toward some shared purpose. The second is that where the different parts can't be reconciled, the less important should give way to the more important -- the means should be sacrificed to the end, rather than the end to the means.
Suppose, then, that the phrases defining the Convention's authority were hopelessly contradictory -- that a national and adequate government could not possibly, in the Convention's judgment, be achieved through changes and provisions in the Articles of Confederation. Which part of the mandate should have been followed, and which rejected? Which was more important and which less? Which was the end, and which the means? Let the strictest interpreters of delegated powers answer these questions. Let the most determined opponents of the Convention answer them. Let them say whether it was more important to the happiness of the American people that the Articles of Confederation should be preserved and an adequate government abandoned and the Union lost -- or that an adequate government should be provided and the Union preserved even if it meant setting the Articles aside. Let them say whether preserving the Articles was the goal for which government reform was proposed as the method -- or whether establishing a government adequate to the nation's happiness was the goal that the Articles themselves were originally designed to serve, and to which they should have been sacrificed as an inadequate means.
But is it even necessary to assume that these phrases are absolutely irreconcilable? That no changes or provisions in the Articles of Confederation could possibly have reshaped them into a national and adequate government -- into the kind of government the Convention has proposed?
No great weight, I'd think, will be placed on the title. Changing a title could never be considered an exercise of unauthorized power. Changes in the body of the document are expressly authorized. New provisions are also expressly authorized. So we have the power to change the title, to add new articles, and to alter existing ones. Must we really accept that this power is violated as long as some part of the original articles remains? Those who insist it is should at least be able to draw the line between authorized and unauthorized changes -- between the level of change that falls within the scope of "alterations and further provisions" and the level that amounts to a complete transformation of the government. Will it be argued that the changes shouldn't have touched the substance of the Confederation? The states would never have convened a convention with so much formality, or described its purpose in such broad terms, if they hadn't intended some substantial reform. Will it be argued that the fundamental principles of the Confederation were off limits for the Convention? Then I ask: What are these fundamental principles?
Do they require that the Constitution treat the states as distinct and independent sovereigns? The proposed Constitution does exactly that. Do they require that government officials be appointed by the state legislatures rather than by the people directly? One branch of the new government is to be appointed by the state legislatures. And under the Confederation itself, congressional delegates may all be appointed directly by the people -- and in two states,[1] they actually are. Do they require that the government's powers act on the states rather than directly on individuals? In some cases, as we've seen, the powers of the new government will act on the states in their collective capacity. And in some cases, even the existing government acts directly on individuals -- in cases involving captures at sea, piracy, the post office, coinage, weights and measures, trade with Native Americans, disputes over land grants from different states, and above all, in the case of military courts-martial, where the death penalty can be imposed without a jury or even a civilian judge. In all these cases, the Confederation's powers already operate directly on the persons and interests of individual citizens. Do they require, specifically, that no tax should be collected without the states serving as intermediaries? The Confederation itself authorizes a direct tax, to some extent, through the post office. The coinage power has been interpreted by Congress as also allowing a levy from that source. But setting these examples aside -- wasn't it an acknowledged purpose of the Convention, and the universal expectation of the people, that the regulation of trade should be placed under the general government in a form that would make it a direct source of federal revenue? Hadn't Congress itself repeatedly recommended this step as fully consistent with the fundamental principles of the Confederation? Hadn't every state but one -- hadn't even New York herself -- gone along with Congress's plan far enough to accept the principle of this change? Do these principles, finally, require that the general government's powers be limited, with the states retaining their sovereignty and independence over everything beyond those limits? We've already seen that in the new government, just as in the old, the general powers are limited, and that the states retain their sovereign and independent authority over all matters not specifically assigned to the federal government.
The truth is that the great principles of the Constitution proposed by the Convention can be seen less as something entirely new than as an expansion of principles already present in the Articles of Confederation. The misfortune of the old system was that these principles were so weak and restricted that they justified all the charges of ineffectiveness that have been leveled against it, and required such a degree of expansion that the new system looks like a complete transformation of the old.
On one particular point, it's admitted that the Convention departed from the terms of its commission. Instead of submitting a plan requiring the approval of the legislatures of all the states, they submitted a plan to be approved by the people and that could take effect with the approval of just nine states. It's worth noting that this objection, though the most plausible, has been the least emphasized in all the attacks published against the Convention. This restraint can only have come from an overwhelming recognition of how absurd it would be to let the fate of twelve states be held hostage to the stubbornness or corruption of a thirteenth -- from the example of one state, representing just one-sixtieth of the American population, stubbornly blocking a measure approved and demanded by twelve states representing fifty-nine sixtieths of the people. That example is still fresh in the memory and resentment of every citizen who has felt the sting of wounded national honor and prosperity. Since this objection has essentially been dropped by those who've criticized the Convention's powers, I'll dismiss it without further discussion.
The third question to be explored is how far a sense of duty arising from the situation itself could have made up for any lack of formal authority.
In the previous analysis, the Convention's powers were examined and tested with the same rigor and the same rules that would apply to real and final powers for establishing a Constitution. We've seen how they held up even under that assumption. It's time now to remember that these powers were merely advisory and recommendatory -- that they were understood that way by the states and by the Convention itself -- and that the Convention accordingly designed and proposed a Constitution that has no more force than the paper it's written on unless it receives the approval of those it's addressed to. This realization puts the whole subject in an entirely different light and allows us to fairly judge the course the Convention took.
Let's consider the ground the Convention stood on. Their proceedings make clear that they were deeply and unanimously convinced of the crisis that had driven their country, with nearly one voice, to undertake so extraordinary and solemn an experiment in correcting the errors of a system that had produced this crisis. They were no less deeply and unanimously convinced that the kind of reform they proposed was absolutely necessary to fulfill the purposes of their appointment. They couldn't have been unaware that the hopes and expectations of the great body of citizens throughout this vast nation were focused with intense anxiety on the outcome of their deliberations. They had every reason to believe that every foreign and domestic enemy of American liberty and prosperity was just as anxiously watching. They had seen, in the origin and progress of this experiment, how eagerly the proposal made by a single state -- Virginia -- for a partial fix to the Confederation had been taken up and advanced. They had seen the liberty taken by a very few delegates from a very few states, meeting at Annapolis, in recommending a great and critical step that was entirely outside their commission -- and they'd seen it not only approved by public opinion but actually carried out by twelve of the thirteen states. They had seen, in various instances, Congress itself exercising not just recommendatory but actual governing powers, justified in the public's eyes by situations and purposes far less urgent than those guiding the Convention's own work.
They must have reflected that in all great changes to established governments, procedural forms ought to give way to substance -- that rigid adherence to procedure in such cases would make meaningless the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"[2] since it's impossible for the people to act spontaneously and in perfect unison toward their goal. It's therefore essential that such changes be initiated by some informal and unauthorized proposals, put forward by some patriotic and respected citizen or group of citizens. They must have remembered that it was through this very irregular and self-assumed right of proposing plans for the people's safety and happiness that the states first united against the threat from their former colonial government -- that committees and congresses were formed to coordinate their efforts and defend their rights -- and that conventions were elected in each state to establish the constitutions under which they now live. Nor could they have forgotten that no one objected to procedural irregularities at that time, except those who used such objections as a cover for their secret opposition to the substance being fought for. They must have kept in mind that since the plan they were designing was to be submitted to the people themselves, the rejection of it by this supreme authority would destroy it forever, while the approval of it would erase all prior errors and procedural irregularities. It might even have occurred to them that if critics were determined to find fault, the Convention would have been criticized no less for failing to exercise the full extent of the powers given to them, or for recommending any measure at all not specifically authorized by their commission, than for recommending a measure fully equal to the nation's needs.
If the Convention, under all these pressures and in the midst of all these considerations, had -- instead of placing confident trust in their country, whose trust they had so distinctly earned, and instead of proposing a system they believed could secure its happiness -- taken the cold and timid path of disappointing its urgent hopes, of sacrificing substance to procedure, of committing the country's dearest interests to the uncertainties of delay and the risks of events, let me ask any person capable of rising to an elevated thought, any person capable of feeling a patriotic emotion: what judgment would have been pronounced by the impartial world, by the friends of humanity, by every virtuous citizen, on the conduct and character of this assembly? Or if there's someone whose urge to condemn is beyond all restraint, then let me ask: what verdict does he have in reserve for the twelve states who took the unauthorized step of sending delegates to the Convention -- a body completely unknown to their constitutions? For Congress, which recommended the appointment of this body, equally unknown to the Confederation? And for the State of New York in particular, which first urged and then participated in this unauthorized action?
But to strip the objectors of every excuse, let's grant for the sake of argument that the Convention was neither authorized by its commission nor justified by circumstances in proposing a Constitution for their country. Does it follow that the Constitution should be rejected for that reason alone? If, as the noble principle says, it's right to accept good advice even from an enemy, should we set the shameful example of refusing such advice even when it comes from our friends? The sensible question, in every case, should surely be not so much who the advice comes from as whether the advice is good.
The sum of what has been argued and proven here is this: the charge that the Convention exceeded its powers has no real basis, except on one point that the objectors themselves have barely pressed. Even if the Convention had exceeded its powers, they were not only justified but required, as the trusted servants of their country, by the circumstances they faced, to take the liberty they did. And finally, even if they had violated both their powers and their obligations in proposing a Constitution, it should still be embraced if it's likely to accomplish the goals and promote the happiness of the people of America. How far the Constitution deserves this praise is the subject we're now investigating.
PUBLIUS
[1] Connecticut and Rhode Island.
[2] Declaration of Independence.
To the People of the State of New York:
The Constitution proposed by the convention can be examined from two general angles. The first concerns the total amount of power it gives to the government, including the restrictions it places on the states. The second concerns the particular structure of the government and how that power is distributed among its different branches.
Under the first angle, two important questions come up: 1. Is any part of the power transferred to the federal government unnecessary or inappropriate? 2. Does the total package of powers pose a danger to the authority left in the hands of the individual states?
Is the overall power of the federal government greater than it should be? That's the first question.
Anyone who has honestly followed the arguments against the Constitution's broad powers can't have missed this: the critics have barely considered how far these powers were necessary to achieve a necessary goal. They've chosen instead to dwell on the downsides that inevitably come with any political advantage, and on the potential abuses that accompany any power or responsibility -- even one that can be used for good. This approach won't fool the common sense of the American people. It may show off the writer's cleverness. It may open up an endless field for rhetoric and dramatic speechmaking. It may inflame the passions of the thoughtless and reinforce the prejudices of the confused. But calm, fair-minded people will immediately recognize that even the purest human blessings come with some drawbacks -- that the choice must always be made, if not of the lesser evil, then at least of the greater (not the perfect) good -- and that in every political institution, a power to advance the public good involves a degree of discretion that could be misused and abused. They'll see, therefore, that whenever power is to be granted, the first question is whether that power is necessary for the public good. And the next question, if the answer is yes, is how to guard as effectively as possible against that power being turned against the public interest.
To form a sound judgment on this subject, it'll be helpful to review the various powers given to the federal government. For convenience, they can be grouped into different categories based on the following purposes: 1. Security against foreign danger; 2. Regulation of dealings with foreign nations; 3. Maintaining harmony and proper relations among the states; 4. Certain miscellaneous matters of general usefulness; 5. Restrictions on the states against certain harmful actions; 6. Provisions for making all these powers effective.
The powers in the first category include declaring war and granting letters of marque (government licenses for private ships to capture enemy vessels); raising armies and building fleets; regulating and calling up the militia; and levying and borrowing money.
Security against foreign danger is one of the most basic purposes of any organized society. It's a stated and essential goal of the American Union. The powers needed to achieve it must be effectively entrusted to the federal government.
Is the power to declare war necessary? Nobody would say no. It would be pointless to argue the case. The existing Confederation already grants this power in the fullest terms.
Is the power to raise armies and build fleets necessary? This naturally follows from the power to declare war. It's inherent in the power of self-defense.
But was it necessary to give the government an unlimited power to raise troops as well as build fleets -- and to maintain both in peacetime as well as wartime?
These questions have already been addressed at length elsewhere in these papers, so there's no need for a long discussion here. The answer seems so obvious and decisive that it hardly needs debate at all. How could the forces needed for defense possibly be limited by people who can't limit the forces of attack? If a federal Constitution could somehow restrain the ambitions and military buildups of every other nation, then -- and only then -- could it prudently restrain its own government's judgment and limit its own security preparations.
How could military readiness in peacetime be safely prohibited, unless we could also prohibit the preparations and buildups of every hostile nation? The means of security can only be proportional to the means and danger of attack. They will, in fact, always be determined by those factors, and by nothing else. It's pointless to put up constitutional barriers against the instinct of self-preservation. Actually, it's worse than pointless -- because it plants in the Constitution itself the seeds of necessary power grabs, each of which becomes a precedent for more unnecessary ones. If one nation maintains a standing, disciplined army ready to serve its ambitions or its desire for revenge, it forces even the most peace-loving nations within its reach to take matching precautions. The fifteenth century was the unfortunate era when standing peacetime armies began. They were introduced by Charles VII of France. All of Europe followed suit -- or was forced to follow the example. If other nations hadn't followed, all of Europe would long ago have been in chains under a single monarch. If every nation except France were to disband its peacetime forces today, the same thing could happen again. The veteran legions of Rome were more than a match for the undisciplined courage of all other nations, and they made Rome the master of the world.
But it's equally true that Rome's own liberties ultimately fell victim to her military victories -- and that the liberties of Europe, to the extent they ever existed, have largely been the price paid for its military establishments. A standing army, therefore, is a dangerous but sometimes necessary measure. Even on the smallest scale, it has its drawbacks. On a large scale, the consequences can be fatal. At any scale, it deserves careful scrutiny and precaution. A wise nation will weigh all these considerations. While it won't rashly cut itself off from any resource that might become essential to its safety, it will use all its wisdom to reduce both the need for and the danger of relying on measures that could threaten its freedoms.
The clearest signs of this wisdom are built into the proposed Constitution. The Union itself, which the Constitution cements and secures, eliminates every excuse for a military establishment that could be dangerous. America united, with just a handful of troops -- or even without a single soldier -- presents a more intimidating front to foreign powers than America divided, with a hundred thousand veterans ready for battle. As noted on a previous occasion, the absence of any excuse for a standing army is what saved the liberties of one European nation. Because of her island location and her naval strength, Britain was beyond the reach of her neighbors' armies, and Britain's rulers were never able -- through real or manufactured threats -- to trick the public into accepting a large peacetime military. The distance between the United States and the powerful nations of the world gives us the same fortunate security. A dangerous military establishment can never be necessary or justifiable as long as we remain a united people. But let it never, for even a moment, be forgotten that we owe this advantage to the Union alone. The moment the Union dissolves will be the start of a whole new reality. The fears of the weaker states or confederacies, or the ambitions of the stronger ones, will set the same example in the New World that Charles VII set in the Old. That example will be followed here for the same reasons that produced universal imitation there. Instead of gaining from our geographic position the precious advantage that Britain has gained from hers, America's face will become a copy of continental Europe's. It will show us liberty everywhere crushed between standing armies and never-ending taxes. And disunited America's fate would be even worse than Europe's. The sources of conflict in Europe are contained within its own borders. No outside superpower from another part of the world meddles among its rival nations, inflaming their hostilities and turning them into instruments of foreign ambition, suspicion, and revenge. In America, the miseries from internal suspicions, conflicts, and wars would be only part of our suffering. A generous helping of additional evils would come from the relationship that Europe has with this part of the world -- a relationship that no other part of the world has with Europe.
This picture of disunion's consequences can't be painted too vividly or shown too often. Every person who loves peace, every person who loves their country, every person who loves liberty should keep it constantly in mind, so they can hold in their heart a proper attachment to the Union of America and properly value the means of preserving it.
After the Union itself, the best possible safeguard against the dangers of standing armies is a time limit on how long revenue can be dedicated to their support. The Constitution has wisely included this safeguard. I won't repeat the points I believe have already put this subject in a clear and satisfactory light. But it's worth addressing an argument against this part of the Constitution that's been drawn from Britain's policy and practice. Critics say that keeping an army in Britain requires an annual vote of Parliament, while the American Constitution has extended this critical period to two years. That's how the comparison is usually presented to the public -- but is it accurate? Is it a fair comparison? Does the British Constitution limit Parliament to one year? Does the American Constitution require Congress to fund the army for two years? On the contrary -- and the people pushing this misleading argument know it perfectly well -- the British Constitution sets no time limit whatsoever on Parliament's discretion, while the American Constitution caps Congress at two years as the longest allowable term.
If the British comparison had been stated honestly, it would go like this: The period for which military funding can be authorized, though unlimited by the British Constitution, has in practice been limited by Parliament to a single year. Now, if in Britain -- where the House of Commons is elected for seven-year terms; where a huge portion of the members are elected by a tiny fraction of the people; where the voters are corrupted by their representatives, and the representatives are corrupted by the Crown -- if in that system, the representative body can hold the power to fund the army for an indefinite period without wanting or daring to extend it beyond one year, shouldn't suspicion itself blush at the suggestion that the representatives of the United States, elected freely by the whole body of the people every two years, can't be safely trusted with that same discretion -- especially when it's expressly limited to the short period of two years?
A bad cause rarely fails to give itself away. The opposition to the federal government has been a perfect example of this truth. But among all the blunders they've committed, none is more remarkable than their attempt to recruit the people's healthy suspicion of standing armies to their side. This attempt has actually done the opposite of what they intended: it's focused the public's full attention on this important subject and prompted investigations that will lead to a thorough and universal recognition -- not only that the Constitution has provided the most effective protections against this danger, but that nothing less than a Constitution fully equal to national defense and the preservation of the Union can save America from ending up with as many standing armies as it has states or confederacies, and from watching those armies grow in each one until they become as burdensome to the people's property and as threatening to their liberties as anything that would ever be necessary under a united and effective government.
The obvious need for the power to build and maintain a navy has shielded that part of the Constitution from the critical spirit that has attacked almost everything else. Indeed, it should be counted among America's greatest blessings that the Union will be the only source of her naval strength, and that this naval strength will be a principal source of her security against foreign threats. In this respect, our situation looks a lot like Britain's island advantage. The defensive weapons most capable of repelling foreign attacks on our safety are happily the kind that can never be turned by a treacherous government against our own liberties.
The residents of the Atlantic coast all have a deep interest in this provision for naval protection. If they've been able to sleep peacefully in their beds so far; if their property has been safe from lawless raiders; if their coastal towns haven't yet been forced to pay ransom to avoid destruction by bold, sudden invaders -- these instances of good fortune should not be credited to the current government's ability to protect the people it claims authority over. They're due to circumstances that are temporary and unreliable. Except perhaps for Virginia and Maryland, which are especially vulnerable on their eastern shores, no part of the Union should feel more anxious about this than New York. Its coastline is long. A very important part of the state is an island. The state itself is cut through by a major navigable river for more than 150 miles. The great center of its commerce, the great storehouse of its wealth, lies at every moment at the mercy of events and can practically be considered a hostage -- vulnerable to humiliating surrender to the demands of a foreign enemy, or even to the greedy demands of pirates and raiders. If a war were to break out because of the unstable state of European affairs, and all the violent passions that come with it were unleashed on the ocean, our escape from attacks and plundering -- not just at sea but along every coast bordering it -- would be truly miraculous. In America's current condition, the states most exposed to these disasters have nothing to hope for from the phantom of a national government that currently exists. And if their individual resources were enough to fortify themselves against the danger, the thing they were trying to protect would be nearly consumed by the cost of protecting it.
The power to regulate and call up the militia has already been sufficiently defended and explained.
The power to levy and borrow money, being the lifeblood of national defense, is properly grouped in the same category. This power has also already been examined carefully, and I trust it's been clearly shown to be necessary, both in the scope and form the Constitution gives it. I'll add just one more thought for those who argue this power should have been limited to external taxation -- meaning taxes on goods imported from other countries. There's no doubt that import duties will always be a valuable source of revenue, that for a considerable time they'll be the main source, and that right now they're an essential one. But we'd be making a serious mistake if we forgot that revenue from foreign trade will fluctuate with changes in both the volume and the types of imports -- and that these fluctuations don't keep pace with population growth, which has to be the general measure of the nation's needs. As long as agriculture remains the only field of labor, manufactured imports will increase as the number of consumers grows. Once domestic manufacturing gets started by workers not needed in agriculture, imported manufactured goods will decline as the population increases. At a later stage, imports may largely consist of raw materials that get turned into products for export -- and at that point, they'd need the encouragement of incentives rather than being weighed down with discouraging taxes. A system of government designed to last has to anticipate these changes and be flexible enough to adapt to them.
Some critics who haven't denied the necessity of the taxing power have launched a fierce attack on the Constitution based on the language used to define it. They've argued -- loudly and repeatedly -- that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States" amounts to an unlimited authorization to exercise every power that might be claimed as necessary for the common defense or general welfare. The fact that these writers have stooped to such a distortion is the strongest proof of how desperate they are for objections.
If the Constitution had contained no other list or definition of Congress's powers beyond the general language just quoted, the critics might have had some basis for their claim -- though it would have been hard to explain why anyone would choose such an awkward way of describing a power to legislate on anything and everything. Imagine trying to describe a power to destroy freedom of the press, the right to trial by jury, or even to regulate inheritance law or property transfers by the phrase "to raise money for the general welfare."
But how can the objection hold any water when a specific list of the powers covered by these general terms immediately follows, separated by nothing more than a semicolon? If the different parts of the same document should be interpreted so that every part contributes to the overall meaning, how can one part of the same sentence be completely excluded from having any meaning at all -- while the vaguer and more open-ended terms keep their full force, and the clear and precise language is denied any significance whatsoever? Why would the framers have bothered inserting a list of specific powers if those and all other powers were already included in the general phrase that came before? Nothing is more natural or common than to first state a general idea and then explain and narrow it down with a list of specifics. But the notion of a list of specifics that neither explains nor narrows down the general statement -- that can only confuse and mislead -- is absurd. And since we're forced to attribute this absurdity either to the critics or to the authors of the Constitution, we'll take the liberty of assuming it didn't originate with the latter.
This objection is all the more bizarre because the language the convention used is actually copied from the Articles of Confederation. The stated purposes of the Union, as described in Article 3, are "their common defense, security of their liberties, and mutual and general welfare." The language in Article 8 is even more identical: "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, shall be defrayed out of a common treasury," and so on. Similar language shows up again in Article 9. Apply the same rules of interpretation to any of these articles that the critics apply to the new Constitution, and you'd find that the existing Congress already has the power to legislate on absolutely everything. But what would people have thought of that Congress if, latching onto these general expressions and ignoring the specific provisions that define and limit their scope, they had exercised unlimited power to provide for the common defense and general welfare? I ask the critics themselves: would they have used the same reasoning to justify Congress that they now use to attack the convention? How hard it is for a bad argument to escape its own contradictions!
PUBLIUS
To the People of the State of New York:
The second category of powers given to the federal government covers those that regulate our dealings with foreign nations. Specifically: making treaties; sending and receiving ambassadors, other diplomatic officials, and consuls; defining and punishing piracy and serious crimes committed on the high seas, and offenses against international law; regulating foreign trade -- including the power to ban the importation of slaves after the year 1808, and to impose an interim tax of ten dollars per person as a discouragement to such imports.
This category of powers is obviously an essential branch of federal authority. If we're going to be one nation in any respect, it clearly ought to be in how we deal with other nations.
The powers to make treaties and to send and receive ambassadors speak for themselves. Both are already part of the Articles of Confederation, with one key difference: the convention's plan removes an exception that let state regulations effectively undermine treaties. It also expressly and very sensibly adds the power to appoint and receive "other public ministers and consuls" to the existing provision about ambassadors. The term "ambassador," if taken strictly -- as the Articles of Confederation seem to require -- covers only the highest rank of diplomatic officials and excludes the lower ranks that the United States will most often prefer when foreign missions are needed. And no stretch of interpretation will make the term include consuls. Yet Congress has found it practical and necessary to use lower-ranking officials and to send and receive consuls.
It's true that when trade treaties call for the mutual appointment of consuls -- whose duties are connected with commerce -- admitting foreign consuls could fall under the power to make commercial treaties. And where no such treaties exist, sending American consuls to foreign countries might perhaps be covered by the authority in Article 9 of the Confederation to appoint all civil officers necessary for managing the nation's general affairs. But admitting consuls into the United States when no prior treaty has arranged for it seems to have been provided for nowhere. Fixing this gap is one of the smaller ways the convention improved on the model they were working from. But even the smallest provisions become important when they help prevent the need -- or the excuse -- for gradual, unnoticed power grabs. A full list of the cases where Congress has been pressured or forced by the Confederation's flaws into overstepping its official authority would come as quite a surprise to anyone who hasn't been paying attention. And it would be a significant argument in favor of the new Constitution, which seems to have addressed the lesser defects of the old system just as carefully as the more obvious and glaring ones.
The power to define and punish piracy and serious crimes on the high seas, and offenses against international law, equally and properly belongs to the federal government -- and represents an even greater improvement over the Articles of Confederation. Those articles contain no provision at all for offenses against international law, leaving open the possibility that any reckless state could drag the entire Confederacy into a conflict with foreign nations. The Confederation's provision on piracy and maritime crimes goes no further than setting up courts to try them. Defining piracy might perhaps be left to international law without much difficulty, though most national legal codes include a legislative definition. But defining serious crimes on the high seas clearly requires federal action. "Felony" is a vaguely defined term even in English common law, and it means different things in different English statutes. But neither English common law nor English statute law -- nor any other nation's law -- should serve as the standard for this country's legal proceedings unless we've formally adopted it through our own legislation. Using the varying definitions from the different states' legal codes would be just as unworkable as relying on foreign law would be inappropriate. The term doesn't mean precisely the same thing in any two states, and it changes in each state with every revision of its criminal laws. For the sake of certainty and consistency, then, the power to define maritime felonies at the federal level was in every way necessary and appropriate.
The regulation of foreign trade, having already been discussed from several angles in these papers, has been covered too thoroughly to need more evidence here that it properly belongs under federal authority.
It would certainly have been better if the power to ban the importation of slaves hadn't been delayed until 1808 -- or better still, if it had been allowed to take effect immediately. But it's not hard to understand why this restriction on the federal government was included, or why the whole clause was worded the way it was. It should be seen as a major victory for humanity that a twenty-year deadline may forever end, within these states, a trade that has long and loudly stood as an indictment of the cruelty of modern policy -- that during that period, it will be significantly discouraged by the federal government, and that it may be completely abolished through the combined example of the large majority of states that have already banned this unnatural trade. How fortunate it would be for the enslaved Africans if they had an equal prospect of being freed from the oppression of their European captors!
Some people have tried to twist this clause into an objection against the Constitution -- on one hand calling it a criminal tolerance of an immoral practice, and on the other hand claiming it was designed to block voluntary and beneficial immigration from Europe to America. I mention these distortions not to dignify them with a response -- they deserve none -- but as examples of the tactics and spirit some people have adopted in their opposition to the proposed government.
The powers in the third category are those that provide for harmony and proper relations among the states.
Under this heading, you might include the specific restrictions on state authority and certain powers of the judicial branch. But the former are reserved for a separate discussion, and the latter will be examined in detail when we get to the structure and organization of the government. I'll limit myself here to a quick review of the remaining powers in this third group: regulating trade among the states and with the Indian tribes; coining money and regulating its value, as well as the value of foreign coins; punishing counterfeiting of U.S. currency and securities; setting standard weights and measures; establishing a uniform rule for naturalization (the process of becoming a citizen) and uniform bankruptcy laws; determining how each state's official acts, records, and court proceedings will be verified and what effect they'll have in other states; and establishing post offices and mail routes.
The existing Confederation's lack of power to regulate trade between states is one of the problems that experience has clearly revealed. In addition to the evidence and arguments that previous papers have presented on this topic, it's worth adding that without this additional provision, the crucial power of regulating foreign trade would have been incomplete and ineffective. A major purpose of this power was to protect states that import and export goods through other states from the unfair charges those pass-through states could impose on them. If those states were free to regulate trade passing through their territory, you can bet they'd find ways to load import and export goods with duties that would ultimately be paid by the producers in one state and the consumers in another. Past experience assures us this would happen, and common knowledge of human nature confirms it -- and it would fuel endless hostilities and might well lead to serious disruptions of the public peace. To anyone who looks at this question without passion or self-interest, the desire of commercial states to collect indirect revenue from their less-commercial neighbors must appear as unwise as it is unfair -- since it would push the affected states, driven by both resentment and self-interest, to find less convenient trade routes. But the calm voice of reason, arguing for broader and longer-term interests, is too often drowned out -- in public bodies just as in individuals -- by the loud demands of impatient greed for quick and excessive profits.
The need for a central authority to oversee trade between confederated states has been demonstrated by other examples besides our own. In Switzerland, where the union is very loose, each canton is required to let goods pass through its territory into other cantons without adding to the tolls. In Germany, it's a rule of the empire that princes and states can't charge tolls or customs on bridges, rivers, or trade routes without the consent of the emperor and the imperial diet -- though as noted in an earlier paper, practice has often ignored this rule, producing there exactly the problems we've been anticipating here. Among the restrictions the Dutch Republic places on its member states, one is that they can't set up import duties that hurt their neighbors without general permission.
The regulation of trade with Indian tribes is very sensibly freed from two restrictions in the Articles of Confederation that made the provision confusing and contradictory. Under the Articles, the power was limited to Indians who weren't members of any state, and it couldn't violate or infringe on any state's own legislative authority. Which Indians count as "members" of a state has never been settled and has been a constant source of confusion and argument in Congress. And how trade with Indians who aren't state members but live within a state's territory can be regulated by an outside authority without encroaching on that state's internal legislative powers is completely beyond explanation. This isn't the only case where the Articles of Confederation thoughtlessly tried to accomplish the impossible -- to combine partial sovereignty in the Union with complete sovereignty in the states, to defy a basic rule of logic by removing a part while claiming the whole stays intact.
On the power to coin money and regulate its value, including foreign coins, all that needs to be said is that by covering foreign coins, the Constitution has filled a significant gap in the Articles of Confederation. The existing Congress can only regulate coins minted by its own authority or by the individual states. It's obvious that the intended uniformity in coin values could be destroyed if foreign coins were subject to different regulations in different states.
The punishment for counterfeiting public securities, as well as the nation's currency, naturally falls to the authority responsible for protecting the value of both.
The regulation of weights and measures is carried over from the Articles of Confederation and is based on the same reasoning as the power over coinage.
The inconsistency in naturalization rules has long been recognized as a flaw in our system and a recipe for complicated and sensitive legal questions. In Article 4 of the Confederation, it says "that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce," and so on. The language here is remarkably confused. Why "free inhabitants" is used in one part of the article, "free citizens" in another, and "people" in still another -- or what was meant by tacking "all the privileges of trade and commerce" onto "all privileges and immunities of free citizens" -- is impossible to figure out. Yet it seems almost unavoidable to read it as saying that people who qualify as "free inhabitants" of a state, even if they aren't citizens of that state, are entitled in every other state to all the privileges of full citizens of those states. In other words, they'd get greater privileges in other states than they might have in their own. This effectively means that any particular state -- or really, every state -- is forced not only to extend citizenship rights in other states to anyone it admits as a citizen, but also to anyone it simply allows to live within its borders. Even if you tried to interpret "inhabitants" narrowly to mean only citizens, the problem only shrinks without disappearing. Each state would still have the extremely improper power of effectively naturalizing foreigners in every other state. In one state, living there for a short time grants full citizenship rights. In another, more significant qualifications are required. A foreigner who's legally barred from certain rights in the stricter state could get around that barrier simply by first establishing residence in the more lenient one -- and in this way, one state's law would absurdly override another state's law within that state's own territory. It's only by luck that we've avoided very serious problems on this front so far. Under the laws of several states, certain categories of foreigners who'd made themselves unwelcome were subject to restrictions inconsistent not only with citizenship rights but even with the right to live there. What would have happened if those people had acquired citizenship under the laws of another state and then showed up demanding their rights as citizens -- including the right to live in the very state that had banned them? Whatever the legal consequences might have been, other consequences would probably have followed that were too serious not to guard against. The new Constitution has accordingly, with great wisdom, addressed these problems -- and all others arising from the Confederation's failures on this issue -- by giving the federal government the power to establish a uniform rule of naturalization throughout the United States.
The power to establish uniform bankruptcy laws is so closely tied to regulating commerce, and will prevent so many fraud cases where the people or property involved might be in different states, that its value is unlikely to be questioned.
The power to set general rules for how each state's official acts, records, and court proceedings will be verified and what legal weight they'll carry in other states is an obvious and valuable improvement over the corresponding provision in the Articles of Confederation. The old language was extremely vague and essentially useless under any reasonable interpretation. The power now established can become a very useful tool for justice, and will be particularly beneficial along the borders of neighboring states, where property subject to legal claims might be quickly and secretly moved across state lines at any stage of legal proceedings.
The power to establish mail routes is, by any measure, a harmless power -- and with smart management, it could become a source of great public convenience. Nothing that helps make communication between the states easier should be considered beneath the government's attention.
PUBLIUS
To the People of the State of New York:
The fourth category covers the following miscellaneous powers:
1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries."
The value of this power will hardly be questioned. Copyright for authors has been formally recognized in Britain as a right under common law. The right to useful inventions seems equally to belong to the inventors. The public good fully aligns with individual rights in both cases. The states can't effectively provide for either of these on their own, and most of them have already anticipated this decision by passing laws at Congress's request.
2. "To exercise exclusive authority, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by transfer from particular states and acceptance by Congress, become the seat of the government of the United States; and to exercise the same authority over all sites purchased, with the consent of the state legislatures, for the construction of forts, military warehouses, arsenals, dockyards, and other necessary buildings."
The absolute necessity of complete authority at the seat of government speaks for itself. This is a power exercised by every legislature in the Union -- I might say in the world -- as part of its general authority. Without it, not only could the federal government be openly insulted and its proceedings disrupted without consequence, but the dependence of federal officials on the state that happens to host the capital -- for their physical protection while doing their jobs -- could create the impression that the national government is either intimidated or controlled by that state. This would be equally embarrassing for the government and frustrating for the other members of the Union. This concern carries even more weight because the gradual buildup of public buildings and improvements at a permanent capital would represent too large a public investment to leave in the hands of a single state, and would create so many obstacles to ever relocating the government that it would further limit the government's necessary independence. The size of this federal district is limited enough to address any concern of the opposite kind. And since it will be dedicated to this use with the consent of the state that gives up the land; since that state will no doubt protect the rights and get the consent of the citizens living in it; since those residents will have good practical reasons to willingly agree to the transfer; since they'll have had a voice in electing the government that will have authority over them; since a local legislature for local purposes, chosen by their own votes, will of course be provided for them; and since the authority of the state legislature and the residents of the transferred area to agree to the transfer will come from the whole people of that state through their adoption of the Constitution -- every possible objection seems to be answered.
The need for similar authority over forts, military facilities, and so on, established by the federal government, is just as clear. The public money spent on these places, and the public property stored in them, requires that they be exempt from the authority of the individual state where they're located. And it wouldn't be wise for sites that the security of the entire Union may depend on to be in any way dependent on a single member of it. All objections and concerns here are also addressed by requiring the agreement of the states involved in every such case.
3. "To declare the punishment of treason, but no conviction for treason shall cause the loss of civil rights for the traitor's family or the seizure of property beyond the traitor's own lifetime."
Since treason can be committed against the United States, the United States must have the authority to punish it. But because made-up and artificial treason charges have historically been the main weapon that violent political factions -- the natural byproduct of free government -- have used to destroy each other, the convention wisely put up a barrier against this particular danger. They did this by writing a constitutional definition of the crime into the document, setting the standard of proof needed for conviction, and preventing Congress, even in punishing treason, from extending the consequences of guilt beyond the actual person who committed the crime.
4. "To admit new states into the Union; but no new state shall be created within the territory of any other state, nor shall any state be formed by combining two or more states, or parts of states, without the consent of the legislatures of the states involved, as well as Congress."
The Articles of Confederation contain no provision on this important subject. Canada was to be admitted automatically if it joined the American cause, and the other colonies -- which clearly meant the other British colonies -- could be admitted at the discretion of nine states. The eventual creation of entirely new states seems to have been overlooked by the authors of that document. We've seen the problems this gap has caused, and the unauthorized actions Congress has been forced into as a result. With great wisdom, then, the new system has filled this gap. The general rule -- that no new states can be formed without the agreement of both the federal government and the states involved -- is consistent with the principles that should govern such decisions. The specific protection against carving new states out of an existing state without its consent addresses the larger states' concerns, just as the similar protection against merging states without their consent addresses the concerns of the smaller ones.
5. "To dispose of and make all necessary rules and regulations for the territory or other property belonging to the United States," with the condition that "nothing in the Constitution shall be interpreted to harm any claims of the United States or of any particular state."
This is a very important power, made necessary by considerations similar to those behind the previous one. The attached condition is appropriate in itself, and was probably made absolutely necessary by the suspicions and disputes concerning the Western territory that are well known to the public.
6. "To guarantee to every state in the Union a republican form of government; to protect each of them against invasion; and, on request of the state legislature, or of the governor (when the legislature can't be assembled), against domestic violence."
In a confederation built on republican principles and made up of republican members, the central government should clearly have the authority to defend the system against anti-democratic or monarchical takeovers. The closer the bonds of such a union, the greater stake each member has in the political institutions of the others -- and the greater their right to insist that the forms of government under which the partnership was entered into be fundamentally maintained. But a right implies a remedy; and where else could the remedy be placed but where the Constitution places it? Governments with fundamentally different principles and structures have been found less suited to a federal partnership than those that share a common character. "As the confederate republic of Germany," says the French philosopher Montesquieu, "consists of free cities and small states subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland." "Greece was undone," he adds, "as soon as the king of Macedon gained a seat among the Amphictyons" -- the council of Greek city-states. In that case, no doubt, the disproportionate military power, as well as the monarchical form, of the new member played a part in what happened. Some might ask: what's the point of this provision, and couldn't it become an excuse for altering state governments without the states' consent? These questions have ready answers. If the federal government's intervention isn't needed, the provision will simply be a harmless extra clause in the Constitution. But who can predict what experiments might be attempted due to the whims of particular states, the ambitions of aggressive leaders, or the scheming and influence of foreign powers? To the second question: if the federal government does step in under this constitutional authority, it will obviously be bound to follow the authority's limits. But that authority extends only to guaranteeing a republican form of government -- which assumes a republican government already exists to be guaranteed. So as long as the states keep their current republican forms, they're protected by the federal Constitution. Whenever the states choose to adopt different republican forms, they have the right to do so and to claim the federal guarantee for the new version. The only restriction is that they can't swap a republican government for an anti-republican one -- a restriction that, I'd imagine, will hardly be considered a burden.
Protection against invasion is something every society owes to its parts. The broad language used here seems to protect each state not only against foreign attacks but also against aggressive or hostile moves by more powerful neighboring states. The history of both ancient and modern confederacies shows that the weaker members of a union would be wise to appreciate this provision.
Protection against domestic violence is included with equal good reason. Even among the Swiss cantons, which aren't really under one government in the strict sense, provision is made for this. The history of that confederation shows that mutual aid is frequently requested and provided -- by the most democratic cantons as well as the others. A recent and well-known event in our own country has warned us to be prepared for similar emergencies.[1]
At first glance, it might seem inconsistent with republican theory to suppose either that a majority might not have the right, or that a minority might have the force, to overthrow a government -- meaning that federal intervention would never be needed except when it would be wrong to intervene. But theoretical reasoning, in this case as in most others, has to be tempered by the lessons of real-world experience. Why couldn't illegal conspiracies for violent purposes be formed by a majority in a state -- especially a small state -- just as easily as by a majority in a county or district? And if state authority should step in to protect local officials in the latter case, shouldn't federal authority support state authority in the former? Besides, certain parts of the state constitutions are so intertwined with the federal Constitution that a violent blow to one can't help but wound the other. Insurrections in a state will rarely trigger federal intervention unless those involved represent a significant portion compared to the government's supporters. It will be much better for violence in such cases to be put down by the central authority than for the majority to have to defend itself through a bloody and stubborn fight. The very existence of the right to intervene will generally prevent the need to actually use it.
Is it true that force and right are necessarily on the same side in a republic? Couldn't the minority have enough financial resources, military skill and experience, or secret support from foreign powers to give them the upper hand in an armed conflict? Couldn't a more compact and strategically advantageous position tip the balance against a larger population that's too spread out to quickly unite its strength? Nothing is more unrealistic than imagining that in an actual military confrontation, victory can be predicted by census figures or election results! Couldn't it even happen that a minority of citizens becomes a majority of people through the addition of foreign residents, a sudden influx of outsiders, or those whom the state constitution hasn't given the right to vote? I won't dwell on an unfortunate class of people found in large numbers in some of the states, who during peaceful times under regular government are treated as less than human, but who in the turbulent scenes of civil violence might emerge into full human agency and tip the balance of power toward whichever side they join.
In cases where it's unclear which side is in the right, what better referees could two violent factions -- flying to arms and tearing a state apart -- wish for than the representatives of the other states in the Union, who aren't caught up in the local conflict? They would combine the impartiality of judges with the caring of friends. How wonderful it would be if such a remedy for internal conflict could be available to all free governments -- if an equally effective system could be established for universal peace among nations!
If someone asks what the solution would be for an insurrection that spreads across all the states and commands a majority of the total force, even without constitutional right -- the answer has to be that such a scenario, being beyond any human remedy, is fortunately also beyond any realistic probability. It's enough of a recommendation for the federal Constitution that it reduces the risk of a catastrophe that no possible constitution could cure.
Among the advantages of a confederate republic listed by Montesquieu, an important one is this: "Should a popular insurrection happen in one of the states, the others are able to put it down. Should abuses creep into one part, they are corrected by those that remain healthy."
7. "To consider all debts contracted and commitments made before the adoption of this Constitution as being equally valid against the United States under this Constitution as under the Confederation."
This can only be seen as a formal declaration. It may have been included, among other reasons, to reassure the United States' foreign creditors, who are well aware of the dubious argument that a change in the form of government magically dissolves its moral obligations.
Among the minor criticisms directed at the Constitution, it's been pointed out that the validity of these commitments should have been stated in favor of the United States as well as against them. And in the petty spirit typical of minor critics, this omission has been inflated into a supposed conspiracy against the nation's rights. The authors of this "discovery" can be told what most others already know: since commitments are by their nature mutual, asserting their validity on one side necessarily establishes their validity on the other. And since this article is purely a formal declaration, establishing the principle in one direction is sufficient for all directions. They can also be told that every constitution has to limit its safeguards to dangers that aren't entirely imaginary -- and that there's no realistic danger that the government would dare, with or without this constitutional statement, to refuse to pay debts legitimately owed to the public under the excuse condemned here.
8. "To provide for amendments to be ratified by three-fourths of the states, under two exceptions only."
That experience would suggest useful changes was only to be expected. It was therefore necessary to provide a method for making them. The method chosen by the convention seems to have every mark of good design. It strikes a balance between making the Constitution too easy to change, which would make it unstable, and making it too hard to change, which could lock in its flaws permanently. It also gives both the federal government and the state governments equal ability to propose corrections to errors, as those errors may be revealed by experience on either side. The exception protecting equal representation in the Senate was probably intended as a safeguard for the remaining sovereignty of the states, which is both implied and secured by that principle of representation in one branch of the legislature -- and it was probably insisted on by the states most attached to that equality. The other exception was no doubt included for the same reasons that produced the provision it protects.
9. "The ratification of the conventions of nine states shall be sufficient for the establishment of this Constitution between the states ratifying the same."
This article speaks for itself. Only the direct authority of the people themselves could give the Constitution proper legitimacy. Requiring the unanimous approval of all thirteen states would have left the essential interests of the whole nation at the mercy of the stubbornness or corruption of a single state. It would have shown a lack of foresight by the convention that our own experience would have made inexcusable.
Two very delicate questions come up here: 1. On what principle can the Confederation, which exists in the solemn form of a pact among the states, be replaced without the unanimous consent of all parties to it? 2. What relationship will exist between the nine or more states that ratify the Constitution and the remaining few that don't?
The first question is answered immediately by pointing to the absolute necessity of the situation; to the great principle of self-preservation; to the supreme law of nature and of nature's God, which declares that the safety and happiness of society are the goals toward which all political institutions must aim, and to which all such institutions must yield. Perhaps an answer can also be found within the principles of the existing pact itself. It has been noted before that in many states, the Confederation was ratified by nothing more than an ordinary act of the legislature. The principle of fairness seems to require that its obligations on the other states be held to the same standard. A pact between independent governments, based on ordinary legislative acts, can claim no higher standing than a treaty between nations. And it's an established principle in treaty law that all articles are mutual conditions of each other; that a violation of any one article is a violation of the entire treaty; and that a violation by either party releases the others and authorizes them, if they choose, to declare the agreement broken and void. If it becomes unfortunately necessary to rely on these sensitive truths to justify moving forward without the consent of particular states, won't the complaining parties find it difficult to answer for the numerous and important violations with which they themselves could be charged? There was a time when it was important for all of us to keep a veil over the realities this paragraph reveals. The situation has now changed, and with it the approach that the same concerns require.
The second question is equally delicate, and the encouraging prospect that it will remain purely hypothetical discourages too detailed a discussion. It's one of those situations that has to be dealt with if and when it arises. In general, it can be observed that although no formal political relationship can exist between the states that ratify and those that don't, the moral relationships will remain intact. The claims of justice, on both sides, will stay in force and must be honored. The rights of humanity must in all cases be properly and mutually respected. And it's hoped that a shared history, common interests, and above all the memory of the bonds we've shared and the expectation of quickly overcoming the obstacles to reunion will successfully encourage moderation on one side and wisdom on the other.
PUBLIUS
[1] This refers to Shays' Rebellion (1786-87), an armed uprising of farmers in western Massachusetts against state tax policies and debt collection practices. It was a major catalyst for the Constitutional Convention.
To the People of the State of New York:
A fifth category of provisions supporting federal authority consists of the following restrictions on the power of the individual states:
1. "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; issue paper currency; make anything but gold and silver legal tender for paying debts; pass any bill of attainder (a law that punishes specific people without a trial), ex post facto law (a law that retroactively makes something illegal), or law undermining the obligation of contracts; or grant any title of nobility."
The ban on treaties, alliances, and confederations is already part of the existing Articles of Union and, for obvious reasons, is carried over into the new Constitution. The ban on letters of marque is also part of the old system but is somewhat expanded in the new one. Under the old rules, states could grant letters of marque after a declaration of war. Under the new rules, these licenses must be obtained from the federal government both during war and before a war is declared. This change is fully justified by the advantage of having uniform policy in everything relating to foreign powers, and of having direct national accountability for anyone whose actions the nation itself will be held responsible for.
The right to coin money, which is now taken from the states, was left in their hands by the Confederation as a shared right with Congress, subject to Congress's exclusive right to regulate the alloy and value of coins. Here too, the new provision improves on the old. Since the alloy and value were controlled by the federal government anyway, letting individual states also coin money would only multiply expensive mints and create different shapes and weights of circulating coins. The latter problem defeats one of the very purposes for which the power was originally given to the federal government. And to the extent that state mints might prevent the inconvenience of shipping gold and silver to a central mint for re-coining, the same goal can be achieved through local mints operating under federal authority.
The ban on paper currency should please every citizen in proportion to their love of justice and their understanding of the real foundations of public prosperity. The losses America has suffered since the end of the Revolution from the poisonous effects of paper money -- on the trust between people that's essential to commerce, on public confidence in government, on the work ethic and moral character of the people, and on the reputation of republican government -- represent an enormous debt owed by the states responsible for this reckless policy. That debt will remain unpaid for a long time -- or rather, it represents an accumulation of guilt that can only be atoned for by voluntarily giving up the very power that caused the harm. Beyond these compelling arguments, it's worth noting that the same reasons that show the need to deny states the power to regulate coins prove with equal force that they shouldn't be free to substitute paper money for real coins. If every state had the right to regulate the value of its own coins, there might be as many different currencies as there are states, and trade between them would be crippled. States could retroactively change the value of their currency, cheating citizens of other states and stirring up hostilities among the states themselves. Citizens of foreign countries could suffer the same harm, dragging the Union into conflict and embarrassment because of one state's poor judgment. Every one of these problems is just as likely to result from states issuing paper money as from states coining gold or silver. The power to make anything but gold and silver legal tender for paying debts is taken from the states on the same principle.
Bills of attainder, ex post facto laws, and laws undermining the obligation of contracts are contrary to the most basic principles of the social contract and to every principle of sound lawmaking. The first two are expressly banned by the declarations at the beginning of some state constitutions, and all of them are banned by the spirit and purpose of those foundational charters. Our own experience has taught us, however, that extra protections against these dangers shouldn't be left out. Very properly, then, the convention has added this constitutional safeguard for personal security and private rights. And I'm very much mistaken if they haven't, in doing so, faithfully reflected both the genuine feelings and the clear interests of the people they represent. The sensible people of America are tired of the erratic policymaking that has characterized public governance. They've watched with frustration and outrage as sudden changes and legislative meddling in matters of personal rights have become money-making schemes for aggressive and well-connected speculators -- and traps for the harder-working, less-informed part of the community. They've also seen that one round of legislative interference is just the first link in a long chain of repetitions, with each new round naturally caused by the effects of the last. They rightly conclude that some thorough reform is needed -- one that will end speculation on government policy, inspire widespread responsibility and hard work, and bring a stable, predictable course to the business of society. The ban on titles of nobility is carried over from the Articles of Confederation and needs no explanation.
2. "No state shall, without the consent of Congress, impose any taxes or duties on imports or exports, except what may be absolutely necessary for carrying out its inspection laws; and the net revenue from all duties and taxes imposed by any state on imports or exports shall go to the treasury of the United States; and all such laws shall be subject to the review and control of Congress. No state shall, without the consent of Congress, impose any duty on ship tonnage, keep troops or warships in peacetime, enter into any agreement or compact with another state or with a foreign power, or go to war unless actually invaded or facing danger so immediate that delay isn't an option."
The restriction on states' power over imports and exports is supported by all the arguments that prove the need for federal control of trade. There's no need to say more about it here, except that the way the restriction is qualified seems well designed to give states reasonable leeway in managing their own import and export logistics, while giving the United States a reasonable check against abuse of that leeway. The remaining details of this clause involve reasoning that's either self-evident or has been so thoroughly covered already that they can be passed over without comment.
The sixth and final category consists of the various powers and provisions that make all the others work.
1. The first of these is the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
Few parts of the Constitution have been attacked more aggressively than this one. Yet on fair examination, no part turns out to be more completely bulletproof. Without the substance of this power, the entire Constitution would be a dead letter. Those who object to this provision as part of the Constitution can therefore only be objecting to the way it's worded. But have they considered whether a better wording could have been found?
There were four other possible approaches the Constitution could have taken on this subject. The framers could have copied Article 2 of the existing Confederation, which would have banned the use of any power not expressly delegated. They could have tried to list all the specific powers covered by the general terms "necessary and proper." They could have tried to list the powers excluded from the general definition. Or they could have said nothing at all on the subject, leaving these necessary and proper powers to be inferred through interpretation.
If the convention had taken the first approach and adopted the Confederation's language, it's clear that the new Congress would have been constantly stuck, just like its predecessors, between two equally bad options: interpreting the word "expressly" so strictly that the government would have no real authority whatsoever, or interpreting it so loosely that the restriction would be meaningless. It's easy to show, if it were necessary, that no important power granted by the Articles of Confederation has been or can be exercised by Congress without relying, to some degree, on interpretation and implied powers. Since the powers under the new system are more extensive, the government administering it would find itself in an even worse bind: either betraying the public interest by doing nothing, or violating the Constitution by exercising powers that are clearly necessary and appropriate but not expressly authorized.
If the convention had tried to list every specific power necessary for carrying its other powers into effect, the attempt would have required a complete code of laws on every subject the Constitution covers -- tailored not just to current circumstances but to every possible change the future might bring. Because with every new application of a general power, the particular powers that serve as the means of achieving that general power's purpose must always change along with the circumstances, and often need to change even when the purpose stays the same.
If they'd tried to list the specific powers that are not necessary or proper for implementing the general powers, the task would have been equally impossible -- and would have had this additional problem: every gap in the list would have been the equivalent of a positive grant of power. If, to avoid this result, they'd tried a partial list of exceptions and described the rest with the general label "not necessary or proper," what would have happened? The list would have covered only a few of the excluded powers; those would be the ones least likely to be claimed or tolerated, because the list would naturally select the ones that are least necessary or appropriate; and the unnecessary and inappropriate powers left in the unlisted remainder would actually be less firmly excluded than if no partial list had been made at all.
If the Constitution had been silent on this point, there's no doubt that all the specific powers needed to carry out the general powers would have been understood to belong to the government by unavoidable implication. No principle is more firmly established in law or in reason than this: wherever the goal is required, the means are authorized; wherever a general power to do something is granted, every specific power necessary to accomplish it is included. If this last approach had been taken, every objection now being raised against the convention's plan would still apply with full force -- and the real disadvantage would be that a pretext for questioning the Union's essential powers, which could be seized on in moments of crisis, would not have been removed.
If someone asks what happens when Congress abuses this part of the Constitution and exercises powers it's not authorized to use, my answer is: the same thing that happens if they abuse or stretch any other power they've been given; the same thing that would happen if the general power had been broken down into specifics and any one of them were violated; the same thing, in short, as when state legislatures violate their own constitutional limits. In the first instance, the success of the power grab will depend on the executive and judicial branches, whose job is to interpret and enforce legislative acts. And as a last resort, the remedy has to come from the people themselves, who can undo the acts of the usurpers by electing more faithful representatives. The truth is, this ultimate remedy is actually more reliable against unconstitutional acts by the federal government than by state governments, for a simple reason: since every such act by the federal government invades the rights of the states, the states will always be ready to spot the overreach, sound the alarm to the people, and use their local influence to get federal representatives replaced. There's no equivalent intermediate body between the state legislatures and the people watching the conduct of state governments, so violations of state constitutions are more likely to go unnoticed and uncorrected.
2. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
The reckless enthusiasm of the Constitution's opponents has led them to attack this part as well, even though without it the Constitution would have been obviously and fundamentally defective. To fully appreciate this, we only need to imagine for a moment what would happen if state constitutions had been declared supreme through a clause preserving their authority.
First, since state constitutions give their legislatures absolute sovereignty in all matters not covered by the existing Articles of Confederation, every power in the proposed Constitution that goes beyond what the Confederation grants would have been canceled out, and the new Congress would have been reduced to the same powerless condition as its predecessors.
Second, since some state constitutions don't even expressly and fully recognize the existing powers of the Confederation, a clause preserving state supremacy would, in those states, have called into question every power in the proposed Constitution.
Third, since state constitutions differ significantly from each other, it could happen that a treaty or national law of great and equal importance to all states would conflict with some state constitutions but not others. The result would be that the law was valid in some states and had no effect in others.
In short, the world would have seen, for the first time, a system of government built on a complete inversion of the fundamental principles of all government. It would have seen the authority of the whole society everywhere subordinate to the authority of the parts. It would have seen a monster in which the head was under the direction of the limbs.
3. "The Senators and Representatives, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and the several states, shall be bound by oath or affirmation to support this Constitution."
People have asked why state officials should be required to swear to support the federal Constitution, while no similar oath to support the state constitutions is required of federal officials.
Several reasons could be given for this difference. I'll offer just one, which is obvious and decisive. Federal officials will have no role in carrying out state constitutions. State officials, on the other hand, will play an essential role in making the federal Constitution work. The election of the President and Senate will, in every case, depend on the state legislatures. And the election of the House of Representatives will equally depend on the same authorities in the first instance, and will probably forever be conducted by the officers and under the laws of the states.
4. Among the provisions for making federal powers effective, we could include those relating to the executive and judicial branches. But since those are reserved for detailed examination elsewhere, I'll pass over them here.
We've now reviewed, in detail, every provision making up the total amount of power the proposed Constitution delegates to the federal government. And we've reached this undeniable conclusion: no part of that power is unnecessary or inappropriate for accomplishing the Union's necessary goals. The question of whether this amount of power should be granted therefore comes down to another question: whether or not a government equal to the Union's needs should be established -- or, in other words, whether the Union itself should be preserved.
PUBLIUS
To the People of the State of New York:
Having shown that none of the powers transferred to the federal government is unnecessary or inappropriate, the next question to consider is whether the whole package of them will be dangerous to the authority left in the hands of the individual states.
The opponents of the convention's plan, instead of first asking how much power was absolutely necessary for the federal government's purposes, have exhausted themselves on a secondary question: what the possible consequences of the proposed powers might be for the state governments. But if the Union, as has been shown, is essential to the security of the American people against foreign danger; if it's essential to their security against conflicts and wars between the states; if it's essential to protect them against the violent and oppressive factions that turn the blessings of liberty bitter, and against the military buildups that must gradually poison liberty at its very source; if, in a word, the Union is essential to the happiness of the American people -- isn't it absurd to object to a government, without which the Union's purposes can't be achieved, on the grounds that it might reduce the importance of the individual state governments? Was the American Revolution fought, was the American Confederacy formed, was the precious blood of thousands shed and the hard-earned wealth of millions spent, not so that the people of America could enjoy peace, liberty, and safety, but so that the governments of the individual states could enjoy a certain amount of power and be decorated with certain dignities and trappings of sovereignty? We've heard the disgraceful doctrine from the Old World that people were made for kings, not kings for people. Is the same doctrine going to be revived here in a different form -- that the real happiness of the people should be sacrificed to the interests of political institutions of a different shape? It's too soon for politicians to expect us to forget that the public good, the real welfare of the great body of the people, is the supreme goal to be pursued -- and that no form of government has any value except insofar as it serves that goal. If the convention's plan were harmful to the public happiness, my response would be: reject the plan. If the Union itself were inconsistent with the public happiness, it would be: abolish the Union. In the same way, to the extent that state sovereignty can't be reconciled with the happiness of the people, every good citizen must say: let sovereignty be sacrificed to happiness. How far that sacrifice is necessary has already been shown. How far the remaining, unsacrificed authority will be endangered is the question before us now.
Several important points raised in the course of these papers argue against the assumption that the federal government will gradually prove fatal to the state governments. The more I think about this subject, the more convinced I am that the balance is much more likely to be tipped by the dominance of the states than by the dominance of the federal government.
We've seen, in every example of ancient and modern confederacies, the strongest tendency in the member states to strip the central government of its powers, while the central government has almost no ability to defend itself against these encroachments. Although most of these examples involve systems so different from what we're considering that any comparison has limited value, the states will retain, under the proposed Constitution, a very extensive share of active sovereignty -- so the historical pattern shouldn't be completely ignored. In the Achaean league, the federal government probably had a degree and type of power that made it considerably similar to the government designed by the convention. The Lycian Confederacy, based on what we know of its principles and structure, must have been an even closer parallel. Yet history doesn't tell us that either one ever collapsed, or tended to collapse, into a single consolidated government. On the contrary, we know that one of them was destroyed by the federal authority's inability to prevent internal conflicts and, eventually, the breakup of the member states. These cases deserve our special attention because the external pressures forcing the member states together were much greater than in our situation -- meaning that weaker internal bonds should have been enough to hold the members to the center and to each other.
In the feudal system, we've seen the same pattern. Despite the lack of common feeling between the local lords and the people in every case, and despite the fact that in some cases the national sovereign actually had the people's sympathy, the local lords usually won the competition for power. If there had been no external threats to force internal unity and obedience -- and especially if the local lords had enjoyed the people's affection -- the great kingdoms of Europe would today consist of as many independent princes as there were once feudal barons.
The state governments will have the advantage over the federal government whether we compare them in terms of: the direct dependence of one on the other; the personal influence each side will have; the powers given to each; the people's natural preference and likely support; or the ability of each to resist and block the other's actions.
The state governments can be thought of as essential building blocks of the federal government, while the federal government is in no way essential to the operation or organization of the states. Without the involvement of the state legislatures, the President of the United States can't be elected at all. They must in every case have a major role in choosing the President, and in most cases will probably make the final decision themselves. The Senate will be elected entirely and exclusively by the state legislatures. Even the House of Representatives, though chosen directly by the people, will be heavily influenced by the class of people whose influence over the public wins them election to the state legislatures. So each of the main branches of the federal government will owe its existence, in one way or another, to the state governments -- and will naturally feel a dependence that's much more likely to make it too deferential toward the states than too domineering. On the other hand, no part of the state governments will owe its existence to the direct involvement of the federal government, and very little, if at all, to the local influence of federal officials.
The number of people employed by the federal government will be much smaller than the number employed by the individual states. There will therefore be less personal influence on the federal side than on the state side. The members of the legislative, executive, and judicial departments of thirteen (and more) states; the justices of the peace; militia officers; local law enforcement officials; along with all the county, city, and town officers serving three million or more people -- mingling with the public and personally familiar with every class and circle of citizens -- will far exceed, in both numbers and influence, the officials of every kind who will be employed in running the federal system. Compare the members of the three major departments across the thirteen states, not even counting local justices, with the members of the corresponding departments of the single federal government. Compare the militia officers of three million people with the military and naval officers of any force that's within the realm of probability -- or even possibility -- and on this comparison alone, the states' advantage is decisive. If the federal government has tax collectors, the state governments will have theirs too. And since the federal ones will mainly be on the coast and won't be very numerous, while the state ones will be spread across the entire country in far greater numbers, the advantage here also falls on the same side. It's true that the federal government will have, and may use, the power to collect both internal and external taxes throughout the states. But this power will probably only be used for supplementary revenue purposes. The states will most likely be given the option of meeting their share through their own tax collections, and the actual collection under federal authority will generally be done by the officers and under the rules set by the individual states. In fact, it's extremely likely that in other areas too -- particularly in organizing the judicial system -- state officers will be given the corresponding federal authority. Should it happen that the federal government does appoint its own internal revenue collectors, the total influence of that entire group wouldn't compare to the multitude of state officers pulling in the opposite direction. In every district assigned a single federal collector, there would be at least thirty or forty -- or even more -- officers of various types, many of them people of stature and influence, whose loyalties would lie with the state.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The federal powers will be exercised mainly on external matters -- war, peace, diplomacy, and foreign trade (with which the power of taxation will mostly be connected). The powers reserved to the states will cover all the things that, in the ordinary course of daily life, affect the lives, liberties, and property of the people, and the internal order, development, and prosperity of the state.
The federal government's operations will be most extensive and important during times of war and danger; the state governments' operations, during times of peace and security. Since the latter periods will probably far outweigh the former, the state governments will enjoy yet another advantage over the federal government. The more effective federal powers are at providing for national defense, the less often we'll face the kinds of dangerous situations that could give the federal government an upper hand over the state governments.
If the new Constitution is examined accurately and honestly, it will be clear that the change it proposes involves far less the addition of new powers to the Union than the strengthening of its existing powers. The regulation of commerce is, it's true, a new power -- but it's one that few oppose and that raises no concerns. The powers relating to war and peace, armies and fleets, treaties and finance, along with the other more significant powers, are all already given to the existing Congress by the Articles of Confederation. The proposed change doesn't expand these powers; it only provides a more effective way of exercising them. The change relating to taxation may be considered the most important. Yet the current Congress has just as complete an authority to demand unlimited contributions from the states for the common defense and general welfare as the future Congress will have to require them from individual citizens -- and individuals will be no more obligated to pay than the states themselves have been to meet their assigned quotas. If the states had reliably complied with the Articles of Confederation, or if their compliance could have been enforced through peaceful means like those available against individuals, our past experience is far from suggesting that the state governments would have lost their constitutional powers and gradually been absorbed into a single national government. To claim that this would have happened is to say, in effect, that the very existence of state governments is incompatible with any system that accomplishes the Union's essential purposes.
PUBLIUS
To the People of the State of New York:
Picking up where I left off in the last paper, I now want to ask: which will have the stronger claim on the people's loyalty and support -- the federal government or the state governments? Despite the different ways their officials are chosen, we have to recognize that both governments are fundamentally dependent on the great body of American citizens. I'll take this as given for the federal government here, and save the proof for later. The federal and state governments are really just different agents and trustees of the people, set up with different powers and designed for different purposes. The opponents of the Constitution seem to have completely forgotten about the people in their arguments on this subject. They've treated these two levels of government not just as rivals and enemies, but as if there's no higher authority keeping them in check as they try to grab power from each other. These critics need to be reminded of their mistake. They need to be told that the ultimate authority, wherever the delegated authority may be found, belongs to the people alone. It won't depend simply on the comparative ambition or skill of the different governments whether either one -- or which one -- will be able to expand its jurisdiction at the other's expense. Both honesty and decency require us to assume that the outcome in every case will depend on the judgment and approval of the people they both serve.
Many considerations, beyond those I've already mentioned, seem to make it clear beyond doubt that the people's first and most natural loyalty will be to their own state governments. More people will expect to rise through state government careers. State governments will hand out more offices and salaries. State governments will oversee and manage all the more personal and local interests of the people. The people will be more familiar with and more closely involved in state affairs. And a greater share of the people will have personal friendships, family ties, and political connections with members of state government. The people's natural bias, therefore, will almost certainly lean strongly toward the states.
Experience tells us the same thing. The federal government -- even though it's been pretty weak compared to what we can hope for under a better system -- did have, during the war, and especially while paper money still had credit, as much activity and importance as it's likely to have under any future circumstances. It was also pursuing measures that aimed to protect everything the people held dear and gain everything they could wish for. Yet it was consistently the case that, once the initial enthusiasm for the early Congresses wore off, the people turned their attention and loyalty back to their own state governments. The federal council was never the darling of public opinion, and politicians who wanted to build their careers on their constituents' loyalties generally did so by opposing any expansion of federal powers and importance.
So, as I've noted elsewhere, if the people should someday come to prefer the federal government over the state governments, that shift could only come from such clear and overwhelming proof of better governance that it overcomes all their existing preferences. And even then, the people surely shouldn't be prevented from placing their confidence where they find it most deserved. But even in that scenario, the state governments would have little to fear, because there's only so much that federal power can effectively manage by its very nature.
The remaining questions I want to examine about the federal versus state governments are: what willingness and what ability would each have to resist and block the other's actions?
I've already shown that members of the federal government will be more dependent on the members of state governments than the other way around. I've also shown that the loyalties of the people -- on whom both levels depend -- will lean more toward the state governments than the federal government. As far as each government's attitude toward the other is shaped by these factors, the state governments clearly have the advantage. But from another distinct and very important angle, the advantage lies on the same side. The biases that federal officials themselves will bring into the national government will generally favor the states, while it will rarely happen that state officials carry a bias in favor of the federal government into public deliberations. A local mindset will inevitably dominate among members of Congress far more than a national mindset will dominate in state legislatures. Everyone knows that many of the mistakes made by state legislatures come from legislators' tendency to sacrifice the broad, long-term interests of the state for the narrow concerns of the counties or districts where they live. And if they can't even expand their perspective enough to embrace the collective welfare of their own state, how can we expect them to make the overall prosperity of the Union and the dignity of its government their top priorities? For the same reason that state legislators won't attach themselves strongly enough to national goals, federal legislators will attach themselves too strongly to local goals. The states will be to federal legislators what counties and towns are to state legislators. Decisions will too often be made based on their likely effect, not on national prosperity and happiness, but on the biases, interests, and concerns of the individual states and their people. What spirit has generally characterized the proceedings of Congress? A look at their records, along with the honest admissions of those who've served there, tells us that members have too frequently acted as partisans for their own states rather than as impartial guardians of the common interest. For every instance where local concerns have been improperly sacrificed to expand federal power, national interests have suffered a hundred times over from too much attention to the local biases, interests, and priorities of individual states. I don't mean to suggest by these observations that the new federal government won't pursue a broader policy vision than the current government has, and much less that its outlook will be as narrow as state legislatures'. I only mean that it will share enough of both mindsets to be reluctant to invade the rights of individual states or the powers of their governments. The state governments' motivation to expand their powers at the federal government's expense won't be matched by any corresponding tendency among members of the federal government.
Even if we grant, however, that the federal government might be just as inclined as state governments to expand its power beyond proper limits, the states would still have the advantage in the means of stopping such overreach. If a particular state passes an act that's hostile to the national government but popular within that state, and it doesn't too blatantly violate the oaths of state officials, it gets carried out immediately -- on the spot, using only state resources. Any opposition from the federal government, or interference by federal officials, would only fire up everyone in the state even more, and the damage couldn't be prevented or fixed -- if it could be fixed at all -- without resorting to measures that are always used with reluctance and difficulty. On the other hand, if the federal government takes an unjustified action that's unpopular in particular states -- which would almost always be the case -- or even a justified action that happens to be unpopular, which can also happen, the tools for fighting back are powerful and readily available. The people's unrest, their resistance and possible refusal to cooperate with federal officials, the disapproval of the state's governor, the obstacles created by legislative countermeasures that would often be piled on in such situations -- all of this would present difficulties in any state that shouldn't be underestimated. In a large state, these would be very serious obstacles. And where several neighboring states happened to feel the same way, the resistance would be something the federal government would hardly dare to challenge.
But ambitious power grabs by the federal government against the authority of the state governments wouldn't just provoke opposition from one state or a few states. They'd be signals of a general alarm. Every state government would take up the common cause. Lines of communication would be opened. Plans of resistance would be coordinated. A single spirit would energize and guide the whole effort. The same kind of united front, in short, would emerge from fear of a federal power grab as was produced by the fear of a foreign one -- and unless the proposed overreach were voluntarily abandoned, the same resort to a trial of force would be made in one case as was made in the other. But what level of madness could ever drive the federal government to such a point? In the conflict with Great Britain, one part of the empire was used against the other. The larger part invaded the rights of the smaller part. The attempt was unjust and unwise, but it wasn't entirely far-fetched in theory. But what would a contest look like in the case we're imagining? Who would the opposing sides be? A few representatives of the people would be standing against the people themselves -- or rather, one set of representatives would be fighting against thirteen sets of representatives, with the entire body of their shared constituents on the other side.
The only argument left for those who predict the downfall of state governments is the far-fetched idea that the federal government might gradually build up a military force for its ambitious schemes. The arguments laid out in these papers would have been pretty useless if it were still necessary to disprove this danger. The idea that the people and the states would, for a long enough period, keep electing an unbroken string of leaders ready to betray them both -- that these traitors would, throughout this time, consistently and systematically pursue some fixed plan to expand the military -- that state governments and the people would silently and patiently watch the storm gather and keep supplying the resources until it was ready to burst on their own heads -- all of this sounds more like the fevered dreams of paranoid suspicion, or the exaggerated claims of fake patriotism, than like the reasonable concerns of genuine patriots. But however extreme this scenario is, let's go ahead and imagine it. Let's say a standing army, as large as the country's resources could support, is formed and is entirely at the federal government's command. Even then, it wouldn't be going too far to say that the state governments, with the people on their side, could fight off the threat. The largest standing army any country can maintain doesn't exceed one hundredth of its total population, or one twenty-fifth of the people able to bear arms. In the United States, that would mean an army of no more than twenty-five or thirty thousand men. Standing against them would be a militia of nearly half a million armed citizens, led by officers chosen from their own ranks, fighting for their shared freedoms, and united and directed by governments that have their loyalty and trust. It's very doubtful whether a militia in that position could ever be beaten by that proportion of regular troops. Those most familiar with our successful resistance against the British military will be the least likely to believe it possible. Beyond the advantage of being armed -- which Americans have over the people of nearly every other nation -- the existence of state governments, to which the people are attached and which appoint the militia officers, creates a barrier against ambitious power grabs more insurmountable than anything a government without such local structures could provide. Despite the military forces that the various kingdoms of Europe maintain at the very limits of what their resources allow, those governments are afraid to let their people have arms. And it's quite possible that with arms alone, their people could throw off their chains. But if those people also had the additional advantages of local governments they chose themselves -- governments that could channel the national will and direct the national force -- along with militia officers appointed by those governments and loyal to both the governments and the militia, we could say with the greatest confidence that every tyranny in Europe would be quickly overthrown despite the armies that surround them. Let's not insult the free and brave citizens of America with the suspicion that they'd be less capable of defending the rights they already hold than the oppressed subjects of absolute power would be of winning theirs back from their oppressors. Let's instead stop insulting them with the assumption that they could ever let things deteriorate to the point of needing to make that test, by blindly and meekly submitting to the long chain of underhanded measures that would have to come first.
The argument I'm making here can be boiled down to a very simple form that seems entirely conclusive. Either the way the federal government is constructed will make it sufficiently accountable to the people, or it won't. If it is accountable, that accountability will keep it from pursuing plans its constituents oppose. If it isn't accountable, it won't have the people's confidence, and its attempts to grab power will be easily defeated by the state governments, who will have the people's support.
Adding up everything I've discussed in this and the last paper, it all amounts to the most convincing evidence that the powers proposed for the federal government are as unthreatening to the powers reserved to the individual states as they are absolutely necessary for accomplishing the purposes of the Union. And all those alarms that have been raised about a planned and systematic destruction of state governments must, at the most charitable interpretation, be chalked up to the imaginary fears of the people raising them.
PUBLIUS
To the People of the State of New York:
Having reviewed the general design of the proposed government and the overall scope of power assigned to it, I now move on to examine its particular structure and how that power is distributed among its different parts.
One of the main objections pushed by the more serious opponents of the Constitution is that it supposedly violates the political principle that the legislative, executive, and judicial branches ought to be separate and distinct. In the design of the federal government, they say, no attention seems to have been paid to this essential safeguard for liberty. The different branches of power are mixed and blended in ways that destroy any clean organizational structure and expose some essential parts of the system to the danger of being crushed by the disproportionate weight of the others.
No political truth certainly has greater fundamental value, or carries the endorsement of more enlightened champions of liberty, than the one this objection is based on. The concentration of all powers -- legislative, executive, and judicial -- in the same hands, whether those of one person, a few, or many, and whether they got that power by inheritance, self-appointment, or election, can fairly be called the very definition of tyranny. If the federal Constitution really were guilty of concentrating power, or of mixing powers in a way that dangerously tends toward such concentration, no further argument would be needed to inspire universal rejection of the system. I'm confident, however, that it will become clear to everyone that the charge can't be sustained, and that the principle it relies on has been completely misunderstood and misapplied. To form a correct understanding of this important subject, we need to look carefully at what it actually means for the preservation of liberty that the three great branches of power should be separate and distinct.
The authority who is always consulted and cited on this subject is the French philosopher Montesquieu. If he wasn't the originator of this invaluable principle in political science, he at least deserves credit for presenting and promoting it most effectively to the world's attention. Let's try, first, to figure out exactly what he meant.
The British Constitution was to Montesquieu what Homer was to scholars of epic poetry. Just as those scholars treated Homer's work as the perfect model from which the principles and rules of epic poetry should be drawn and by which all similar works should be judged, Montesquieu seems to have viewed the English Constitution as the standard -- or, to use his own phrase, as the "mirror of political liberty." He presented, as fundamental truths, the distinctive principles of that particular system. To make sure we don't misread his meaning, then, let's go back to the source he was drawing from.
Even a brief look at the British Constitution shows that the legislative, executive, and judicial branches are by no means completely separate and distinct from each other. The executive -- the king -- is an integral part of the legislative authority. He alone has the power to make treaties with foreign nations, which, within certain limits, have the force of law. All judges are appointed by him, can be removed by him at the request of both Houses of Parliament, and serve, when he chooses to consult them, as one of his constitutional advisory councils. One branch of the legislature -- the House of Lords -- also serves as a major constitutional advisory body to the executive, and on the other hand, it's the sole holder of judicial power in cases of impeachment and has the supreme appellate jurisdiction in all other cases. The judges are also connected to the legislative branch, often attending and participating in its deliberations, though they don't get a legislative vote.
From these facts, which guided Montesquieu's thinking, we can clearly conclude that when he said "There can be no liberty where the legislative and executive powers are united in the same person, or body of officials," or "if the power of judging is not separated from the legislative and executive powers," he didn't mean that these branches should have no partial involvement in, or no check on, each other's actions. His meaning, as his own words indicate -- and even more clearly as shown by the example he was studying -- amounts to no more than this: where the entire power of one branch is held by the same people who hold the entire power of another branch, the fundamental principles of a free constitution are destroyed. This would have been the case in the British Constitution if the king, who holds all executive power, had also held complete legislative power or supreme judicial authority. Or if the entire legislature had held the supreme judicial or executive power. But that's not among the flaws of Britain's constitution. The official who holds all executive power can't make a law by himself, though he can veto any law. He can't personally administer justice, though he appoints those who do. The judges can exercise no executive powers, though they're appointed by the executive, and no legislative functions, though the legislature may consult them for advice. The entire legislature can perform no judicial act, though by the joint action of its two chambers the judges may be removed from office, and one of its chambers holds judicial power as a court of last resort. The entire legislature, again, can exercise no executive power, though one of its chambers provides the head of the executive, and another, upon impeachment by the third, can try and convict all subordinate executive officials.
The reasoning behind Montesquieu's principle further confirms this interpretation. "When the legislative and executive powers are united in the same person or body," he says, "there can be no liberty, because people may fear that the same monarch or senate could both enact tyrannical laws and execute them tyrannically." And again: "If the power of judging were combined with the legislative, the life and liberty of the citizen would be subject to arbitrary control, because the judge would then be the legislator. If it were combined with the executive power, the judge might act with all the violence of an oppressor." Some of these points are explained more fully in other passages, but even in this brief form, they clearly establish the meaning we've attributed to this celebrated principle by this celebrated author.
If we look at the constitutions of the various states, we find that despite the emphatic -- and in some cases absolute -- terms in which this principle has been stated, there isn't a single instance in which the different branches of power have been kept completely separate and distinct. New Hampshire, whose constitution was the most recently written, seems to have been fully aware of the impossibility and impracticality of avoiding any mixing of these branches whatsoever. It qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will allow, or as is consistent with the chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and friendship." Its constitution accordingly mixes these branches in several ways. The Senate, a branch of the legislature, also serves as a judicial tribunal for the trial of impeachments. The president, who heads the executive branch, also presides over the Senate and, besides having an equal vote in all cases, casts the tiebreaking vote. The executive head is himself elected annually by the legislature, and his council is chosen each year from the legislature's own members. Several state officers are also appointed by the legislature. And the members of the judiciary are appointed by the executive branch.
The constitution of Massachusetts takes sufficient, though less pointed, care in expressing this fundamental principle of liberty. It declares "that the legislative branch shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them." This declaration matches precisely with Montesquieu's doctrine as I've explained it, and it isn't violated at any single point by the plan of the convention. It goes no further than to prohibit any one entire branch from exercising the powers of another branch. Yet in the very constitution to which this declaration is attached, a partial mixing of powers has been allowed. The governor has a qualified veto over the legislature, and the Senate, which is part of the legislature, serves as an impeachment court for members of both the executive and judicial branches. Members of the judiciary are appointed by the executive branch and can be removed by that same authority at the request of both legislative chambers. And finally, a number of government officers are annually appointed by the legislature. Since appointing people to offices, particularly executive offices, is by nature an executive function, the authors of this constitution have, at least on this last point, violated their own rule.
I'll skip over the constitutions of Rhode Island and Connecticut, because they were written before the Revolution and even before the principle we're examining had become a subject of political discussion.
The constitution of New York contains no declaration on this subject, but it clearly was designed with an eye toward the danger of improperly blending the different branches. It gives the governor, nonetheless, a partial check on the legislature, and -- what's more -- gives a similar check to the judiciary, even blending the executive and judicial branches in exercising this power. In its council of appointment, members of the legislature are paired with the executive in appointing officers for both the executive and judicial branches. And its court for trying impeachments and correcting errors consists of one branch of the legislature combined with the leading members of the judiciary.
The constitution of New Jersey has blended the different powers of government more than any of the preceding states. The governor, who is the chief executive, is appointed by the legislature. He also serves as chancellor, probate judge, a member of the Supreme Court of Appeals, and president -- with a tiebreaking vote -- of one of the legislative chambers. That same legislative chamber also acts as the governor's executive council and together with him makes up the Court of Appeals. The judges are appointed by the legislature and can be removed by one chamber upon impeachment by the other.
Under the constitution of Pennsylvania, the president, who heads the executive branch, is annually elected by a vote in which the legislature has the dominant say. Together with an executive council, he appoints the judges and forms a court of impeachment for trying all officers, judicial as well as executive. The Supreme Court justices and justices of the peace also appear to be removable by the legislature, and the executive power to pardon in certain cases is assigned to the legislature as well. The members of the executive council automatically serve as justices of the peace throughout the state.
In Delaware, the chief executive is annually elected by the legislature. The speakers of the two legislative chambers serve as vice-presidents in the executive branch. The chief executive, along with six others -- three appointed by each legislative chamber -- makes up the Supreme Court of Appeals. He also joins the legislature in appointing the other judges. Throughout the states, it seems that legislators can simultaneously serve as justices of the peace. In Delaware, members of one legislative chamber are automatically justices of the peace, as are the members of the executive council. The main executive officers are appointed by the legislature, and one legislative chamber serves as a court of impeachment. All officers can be removed at the legislature's request.
Maryland adopted this principle in the strongest possible terms, declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Its constitution, however, has the chief executive appointed by the legislature and the judges appointed by the executive.
Virginia's language is even more forceful on this subject. Its constitution declares "that the legislative, executive, and judiciary departments shall be separate and distinct; so that none shall exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that county court justices shall be eligible for either House of the legislature." Yet beyond this explicit exception for local judges, we find that the governor, along with his executive council, is appointed by the legislature; that two members of the council are replaced every three years at the legislature's pleasure; and that all major offices, both executive and judicial, are filled by the legislature. The executive power to pardon is also, in one case, given to the legislature.
The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," simultaneously assigns to the legislature the power to appoint not only the chief executive but all the major officers in both the executive and judicial branches.
In South Carolina, the constitution makes the chief executive eligible for election by the legislature. It also gives the legislature the power to appoint all judges, including justices of the peace and sheriffs, as well as executive officers down to captains in the state's army and navy.
In the constitution of Georgia, where it's declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that none shall exercise the powers properly belonging to the other," we find that the executive branch is filled by legislative appointment, and the executive power to pardon is ultimately held by the legislature. Even justices of the peace are appointed by the legislature.
In citing all these cases where the legislative, executive, and judicial branches haven't been kept completely separate and distinct, I don't want to be seen as endorsing the specific arrangements of the various state governments. I'm well aware that among the many excellent principles they demonstrate, they also show clear signs of the haste -- and even more, the inexperience -- under which they were drafted. It's all too obvious that in some cases the fundamental principle we're discussing has been violated by too much mixing, and even outright merging, of different powers. And in no case has adequate provision been made for actually maintaining in practice the separation that's written on paper. What I've wanted to show is that the charge brought against the proposed Constitution -- that it violates the sacred principle of free government -- is supported neither by the real meaning that the principle's author intended, nor by the way it has been understood in America up to now. This important subject will be continued in the next paper.
PUBLIUS
To the People of the State of New York:
In the last paper, I showed that the political principle we examined doesn't require the legislative, executive, and judicial branches to be entirely disconnected from each other. I'll now move on to show that unless these branches are connected and blended enough to give each one a constitutional check on the others, the degree of separation that the principle requires, as essential to free government, can never actually be maintained in practice.
Everyone agrees that the powers belonging to one branch shouldn't be directly and completely controlled by either of the other branches. It's equally clear that none of them should have, directly or indirectly, an overriding influence over the others in exercising their respective powers. And no one would deny that power is aggressive by nature and needs to be effectively restrained from going beyond its assigned boundaries. So after sorting out, in theory, the different categories of power as they may be legislative, executive, or judicial in nature, the next and hardest task is to provide some practical protection for each branch against invasion by the others. What that protection should look like is the great problem to be solved.
Will it be enough to carefully mark the boundaries of these branches in the text of the constitution and then rely on these parchment barriers to hold back the encroaching spirit of power? This is the safeguard that the writers of most American constitutions seem to have mainly relied on. But experience tells us that this approach has been greatly overestimated, and that some stronger defense is absolutely necessary for the weaker branches against the more powerful ones. The legislative branch is everywhere expanding the reach of its activity, pulling all power into its swirling vortex.
The founders of our republics deserve enormous credit for the wisdom they've shown, which makes it all the more unpleasant to point out the mistakes they've made. Respect for the truth, however, requires us to note that they seem never for a moment to have looked away from the danger to liberty posed by the overgrown, all-grasping power of a hereditary executive backed by a hereditary branch of the legislature. They seem never to have considered the danger from legislative overreach, which, by concentrating all power in the same hands, must lead to the same tyranny threatened by executive overreach.
In a government where vast powers are placed in the hands of a hereditary monarch, the executive branch is rightly regarded as the main source of danger and watched with all the vigilance that a love of liberty demands. In a direct democracy, where a mass of people exercise the legislative functions in person and are constantly exposed -- by their inability to deliberate in an orderly way or coordinate their actions -- to the ambitious schemes of their executive officials, tyranny may well be expected to spring from that same quarter at some opportune moment. But in a representative republic, where the executive is carefully limited in both the scope and duration of its power, and where the legislative power is exercised by an assembly that feels, through its supposed influence over the people, a bold confidence in its own strength -- an assembly numerous enough to feel all the passions that move a crowd, yet not so numerous as to be incapable of pursuing those passions through rational means -- it's the ambitious overreach of this branch that the people should watch with all their suspicion and guard against with all their precautions.
The legislative branch gains an advantage in our governments from other factors too. Its constitutional powers are both more extensive and harder to define precisely, so it can more easily disguise, through complicated and indirect measures, the encroachments it makes on the other branches. In legislative bodies, it's frequently a genuinely difficult question whether a particular measure will or won't extend beyond the legislative sphere. On the other hand, executive power operates within a narrower scope and is simpler in nature, and the judiciary's boundaries are even more clearly marked. So any attempts at overreach by either of those branches would immediately expose and defeat themselves. And that's not all. Since the legislature alone has access to the people's wallets, and has in some constitutions full discretion -- and in all of them a dominant influence -- over the financial compensation of those who serve in the other branches, this creates a dependency that makes it even easier for the legislature to encroach.
I've pointed to our own experience as proof of what I'm arguing here. If it were necessary to back this up with specific examples, they could be multiplied endlessly. I could find a witness in every citizen who has participated in or paid attention to public affairs. I could gather evidence from the records and archives of every state in the Union. But for a more concise yet equally convincing demonstration, I'll point to the example of two states, backed by two unimpeachable authorities.
The first example is Virginia, a state which, as we've seen, expressly declared in its constitution that the three great branches must not be mixed together. The authority supporting this point is Thomas Jefferson, who, besides his other advantages for observing the workings of the government, was himself its chief executive. To fully convey the conclusions his experience led him to on this subject, I'll need to quote a substantial passage from his very important Notes on the State of Virginia (p. 195): "All the powers of government, legislative, executive, and judiciary, end up with the legislative body. Concentrating these in the same hands is precisely the definition of despotic government. It won't make things better that these powers are exercised by many hands rather than one. A hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it look at the republic of Venice. It won't help us much, either, that they're chosen by ourselves. An elective despotism was not the government we fought for, but one that should not only be founded on free principles, but in which the powers of government should be divided and balanced among several bodies of officials, so that none could go beyond its legal limits without being effectively checked and restrained by the others. For this reason, the convention that created the state's governing framework built it on this foundation: that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislature for their pay and, in some cases, for keeping their jobs. If, therefore, the legislature takes over executive and judicial powers, no opposition is likely to be made -- and if it is made, it can't be effective, because the legislature can put its decisions in the form of official legislation, which the other branches are then obligated to follow. They have accordingly, in many instances, decided cases that should have been left to judicial proceedings, and the legislature's direction of executive business during its entire session is becoming routine and familiar."
The other state I'll use as an example is Pennsylvania, and the other authority is its Council of Censors, which met in 1783 and 1784. Part of this body's job, as defined by the constitution, was "to investigate whether the constitution had been preserved intact in every part, and whether the legislative and executive branches had performed their duty as guardians of the people, or had assumed and exercised powers beyond what the constitution entitled them to." In carrying out this duty, the council was naturally led to compare the actions of both the legislative and executive branches against their constitutional powers. And from the facts they documented -- the accuracy of most of which was acknowledged by both sides of the council -- it's clear that the constitution had been blatantly violated by the legislature in a variety of important ways.
A large number of laws had been passed that violated, without any apparent necessity, the rule requiring all public bills to be printed beforehand for the people's review -- even though this is one of the key safeguards the constitution relies on against improper legislative acts.
The constitutional right to trial by jury had been violated, and powers had been claimed that the constitution never granted.
Executive powers had been grabbed by the legislature.
Judges' salaries, which the constitution specifically requires to be fixed, had been changed from time to time. And cases belonging to the judicial branch had frequently been pulled into the legislature's jurisdiction.
Anyone who wants the specific details under each of these headings can look at the council's published records. Some of these violations can be attributed to the special circumstances of the war, but the majority of them should be seen as the natural consequences of a poorly designed government.
It also turns out that the executive branch was guilty of its own frequent violations of the constitution. But three observations need to be made about this. First, a large share of these instances were either directly caused by wartime necessities or recommended by Congress or the commander-in-chief. Second, in most of the other instances, the executive was acting in line with the stated or known views of the legislature. Third, Pennsylvania's executive branch is different from other states' in that it's made up of multiple members. In this respect, it's more like a legislative assembly than an executive office. And being both free from the accountability that comes with a single individual being responsible for the group's actions and emboldened by their shared example and collective influence, unauthorized actions would naturally be taken more freely than when the executive branch is run by one person or just a few.
The conclusion I'm justified in drawing from these observations is that merely drawing lines on paper to mark the constitutional boundaries of the different branches is not an adequate safeguard against the kind of encroachment that leads to a tyrannical concentration of all government powers in the same hands.
PUBLIUS
To the People of the State of New York:
The author of the Notes on the State of Virginia, Thomas Jefferson, whom I quoted in the last paper, attached to that valuable work the draft of a constitution he had prepared to present to a convention the Virginia legislature was expected to call in 1783 for the purpose of establishing a new state constitution. The plan, like everything from Jefferson's pen, shows a turn of mind that's original, wide-ranging, and precise. It's all the more worth our attention because it displays an equally strong commitment to republican government and an enlightened awareness of the dangerous tendencies it needs to guard against. One of the safeguards he proposes, and the one he seems to ultimately rely on as a shield for the weaker branches of power against invasion by the stronger, is perhaps entirely his own invention. And since it directly relates to the subject of our current inquiry, it shouldn't be overlooked.
His proposal is this: "Whenever any two of the three branches of government agree, each by the votes of two-thirds of their total members, that a convention is necessary for amending the constitution or correcting violations of it, a convention shall be called for that purpose."
Since the people are the only legitimate source of power, and since it's from them that the constitutional charter -- under which the various branches of government hold their authority -- is derived, it seems perfectly consistent with republican theory to go back to that same original authority. Not only when it's necessary to expand, reduce, or restructure the powers of government, but also whenever any one branch commits encroachments on the chartered authority of the others. The different branches, being perfectly equal under the terms of their shared commission, obviously can't claim any exclusive or superior right to settle the boundaries between their respective powers. And how are overreaches by the stronger branch to be prevented, or wrongs against the weaker branch to be corrected, without an appeal to the people themselves? After all, as the ones who granted these powers, they alone can declare their true meaning and enforce their observance.
There's certainly great force in this reasoning, and it proves that a constitutional pathway to the people's judgment ought to be established and kept open for certain great and extraordinary occasions. But there appear to be insurmountable objections against relying on appeals to the people as a regular method for keeping the different branches of power within their constitutional limits.
First, this provision doesn't cover the scenario where two branches team up against the third. If the legislature, which has so many ways of influencing the motives of the other branches, manages to win over either of them -- or even one-third of one of them -- the remaining branch couldn't benefit at all from this remedy. I won't dwell on this objection, though, because it might be seen as an argument against the specific design of the proposal rather than against the principle itself.
Next, it can be argued as an inherent flaw in the principle that since every appeal to the people would imply some failure in the government, frequent appeals would largely strip the government of the reverence that time bestows on all things -- and without that reverence, perhaps even the wisest and freest governments wouldn't have the stability they need. If it's true that all governments rest on public opinion, it's equally true that the strength of any individual's opinion, and its practical influence on their behavior, depends heavily on how many other people they believe share that opinion. A person's reasoning, like the person himself, is timid and cautious when standing alone, and gains boldness and confidence in proportion to the number of people standing with it. When the precedents that reinforce an opinion are old as well as numerous, they have a double effect. In a nation of philosophers, this consideration could be set aside. Respect for the laws would be sufficiently instilled by the voice of enlightened reason. But a nation of philosophers is about as likely to exist as the race of philosopher-kings that Plato wished for. And in every other nation, even the most rational government will find it no small advantage to have the established sentiments of the community on its side.
The danger of disturbing public peace by stirring up public passions too strongly is an even more serious objection against frequently putting constitutional questions to the whole society for decision. Despite the success of the revisions we've made to our existing forms of government -- which does great credit to the character and intelligence of the American people -- we have to admit that these experiments are too risky in nature to be repeated unnecessarily. We should remember that all our current constitutions were created during a period of danger that suppressed the passions most hostile to order and harmony; during a time of enthusiastic public confidence in patriotic leaders that silenced the normal diversity of opinions on major national questions; during a universal eagerness for new forms of government, driven by universal resentment against the old one; and during a time when no partisan spirit connected to the changes being made, or the abuses being corrected, could inject its poison into the process. We can't expect that the situations we'll normally face in the future will provide anything like that level of protection against the dangers we're worried about.
But the greatest objection of all is that the decisions resulting from such appeals would probably fail to serve the purpose of maintaining the constitutional balance of the government. We've seen that the tendency of republican governments is for the legislature to expand its power at the expense of the other branches. Appeals to the people, therefore, would usually be initiated by the executive and judicial branches. But whether initiated by one side or the other, would each side have an equal shot at winning? Let's compare their situations. The members of the executive and judicial branches are few in number and can be personally known to only a small portion of the public. The judges, by the way they're appointed and by the nature and permanence of their positions, are too far removed from the people to share much in their sympathies. The executive officials are generally viewed with suspicion, and their administration is always vulnerable to being misrepresented and made unpopular. The members of the legislature, on the other hand, are numerous. They live among the people at large. Their connections by blood, friendship, and acquaintance reach a large share of the most influential people in society. The nature of their public role gives them personal influence among the people and makes them seen as the more direct and trusted guardians of the people's rights and liberties. With all these advantages, it's hard to imagine that the opposing side would have an equal chance of getting a favorable result.
But the legislative side wouldn't just be able to make their case to the people more effectively. They'd probably end up as the judges too. The same influence that won them their seats in the legislature would win them seats in the convention. If this wouldn't be true for all of them, it would probably be true for many, and almost certainly for those leading figures on whom everything depends in such bodies. The convention, in short, would be composed mainly of people who had been, currently were, or expected to become members of the very branch whose conduct was being challenged. They'd effectively be parties to the very question they were supposed to decide.
It might, however, sometimes happen that appeals would be made under circumstances less unfavorable to the executive and judicial branches. The legislature's overreach might be so blatant and so sudden that no plausible excuse could cover it. A strong faction within the legislature itself might side with the other branches. The executive might happen to be an especially popular leader. In such a situation, the public's decision might be less swayed by bias toward the legislature. But even then, the decision could never be expected to turn on the true merits of the question. It would inevitably be tangled up with the spirit of preexisting parties, or of parties that sprang up around the question itself. It would be influenced by individuals of prominent reputation and broad influence in the community. It would be decided by the very people who had been either agents in, or opponents of, the measures the decision would concern. The passions of the public, therefore, not their reason, would sit in judgment. But it's the reason of the public, alone, that should control and regulate the government. The passions should be controlled and regulated by the government.
In the last paper, we found that mere declarations in a written constitution aren't enough to keep the different branches within their legal boundaries. In this paper, it appears that occasional appeals to the people would be neither a proper nor an effective solution either. How far the different kinds of provisions contained in Jefferson's plan might be adequate, I won't examine here. Some of them are unquestionably founded on sound political principles, and all of them are crafted with remarkable skill and precision.
PUBLIUS
To the People of the State of New York:
It might be argued that instead of the occasional appeals to the people -- which are vulnerable to the objections I've raised against them -- regularly scheduled appeals are the proper and adequate way to prevent and correct constitutional violations.
Let me note that in examining these approaches, I'm limiting myself to their usefulness for enforcing the Constitution by keeping the different branches of power within their proper boundaries, without specifically considering them as methods for amending the Constitution itself. Viewed this way, appeals to the people at fixed intervals seem nearly as unsuitable as appeals triggered by specific events. If the intervals are short, the measures being reviewed will be recent, and they'll be tangled up with all the circumstances that tend to corrupt and distort the results of occasional reviews. If the intervals are long, the same problem applies to all recent measures. And to the extent that the passage of time might allow a more dispassionate review of older measures, this advantage is offset by drawbacks that seem to cancel it out. First, the distant prospect of public review would be a very weak restraint on a branch of government being driven to excess by the pressures of the moment. Can we really imagine that a legislature of a hundred or two hundred members, eagerly pursuing some pet project and blowing past constitutional limits to get it, would be stopped in their tracks by the thought that their actions might be reviewed ten, fifteen, or twenty years from now? Second, the abuses would often have done their damage before any remedy could be applied. And third, in cases where that wasn't true, the abuses would have been around so long, would have taken such deep root, that they wouldn't be easily pulled out.
The idea of periodically reviewing the constitution to correct recent violations, along with other purposes, has actually been tried in one of the states. One of the jobs of the Council of Censors that met in Pennsylvania in 1783 and 1784 was, as we've seen, to investigate "whether the constitution had been violated, and whether the legislative and executive branches had encroached on each other." This important and groundbreaking political experiment deserves very close attention from several angles. In some respects, as a single experiment conducted under somewhat unusual circumstances, it might be considered not entirely conclusive. But as it applies to the case we're examining, it involves certain facts that I'll venture to point out as a complete and convincing illustration of the reasoning I've been developing.
First. It's clear from the names of the people who made up the council that some of its most active members had also been active, leading figures in the political parties that already existed in the state.
Second. It turns out that the same active, leading members of the council had been active, influential members of the legislative and executive branches during the period under review -- and had even been supporters or opponents of the very measures now being tested against the constitution. Two of the members had been vice-presidents of the state, and several others had been on the executive council, all within the preceding seven years. One had been speaker of the legislative assembly, and a number of others had been prominent members of that body during the same period.
Third. Every page of their proceedings shows the effect of all these circumstances on the tone of their deliberations. Throughout the council's existence, it was split into two entrenched and hostile factions. The members themselves acknowledged and regretted this fact. Even without that admission, the record of their proceedings tells the same story. On every question, no matter how trivial or unrelated to other issues, the same names line up on opposite sides, every single time. Any fair-minded observer can conclude, without risk of error -- and without meaning to criticize either faction or any of its members -- that unfortunately, passion, not reason, must have driven their decisions. When people exercise their reason calmly and freely on a range of separate questions, they inevitably end up disagreeing on some of them. When they're governed by a shared passion, their opinions -- if you can even call them that -- will all be the same.
Fourth. It's debatable, at minimum, whether several of the council's decisions actually misread the constitutional boundaries set for the legislative and executive branches, instead of properly defining and enforcing them.
Fifth. As far as I know, the council's decisions on constitutional questions -- whether right or wrong -- had no actual effect on the practices that had grown up based on the legislature's own interpretations. In fact, it appears that in at least one case, the legislature at the time flatly rejected the council's interpretation and won the dispute.
This review body, therefore, proves two things at once: through its investigations, the existence of the disease, and through its own example, the ineffectiveness of the cure.
This conclusion can't be undermined by pointing out that the state where the experiment was tried was, at that point and for a long time before, fiercely heated and torn apart by partisan conflict. Can we assume that at any future review period, that same state will be free of parties? Can we assume that any other state, at that time or any other, will be free of them? Such an outcome shouldn't be assumed or even wished for, because the disappearance of parties necessarily implies either a universal crisis threatening public safety, or the complete extinction of liberty.
Even if the precaution were taken of barring from these review assemblies anyone who had been involved in the government during the period under review, the problems wouldn't go away. The important work would probably fall to people who, while having lesser abilities, would in other respects be little better qualified. Even though they hadn't personally been part of the administration and therefore weren't direct agents of the measures being examined, they would probably have been caught up in the parties connected to those measures and would have been elected under those parties' sponsorship.
PUBLIUS
To the People of the State of New York:
So what method should we ultimately rely on to maintain, in practice, the necessary separation of power among the different branches of government laid out in the Constitution? The only answer is this: since all these external safeguards turn out to be inadequate, the solution must come from designing the internal structure of the government so that its various parts, through their relationships with each other, keep one another in their proper places. Without claiming to fully develop this important idea, I'll offer a few general observations that may shed some light on it and help us better judge the principles and structure of the government designed by the convention.
To properly establish the separate and distinct exercise of the different powers of government — which everyone agrees is essential to preserving liberty — it's clear that each branch should have a will of its own. That means each branch should be set up so that its members have as little involvement as possible in appointing the members of the other branches. If this principle were strictly followed, it would require that all appointments to the top executive, legislative, and judicial offices be drawn from the same source of authority — the people — through channels that have no connection with one another. Perhaps such a plan for structuring the branches would be less difficult in practice than it seems in theory. But some difficulties and some extra expense would come with carrying it out. So some departures from the principle have to be allowed. For the judiciary in particular, it might be unwise to insist rigidly on this principle — first, because special qualifications are essential for judges, so the primary concern should be choosing a selection method that best ensures those qualifications; and second, because the permanent tenure that judges hold will quickly eliminate any sense of dependence on whoever appointed them.
It's equally clear that the members of each branch should depend as little as possible on the other branches for their salaries. If the president or the judges weren't financially independent of the legislature, their independence in every other respect would be meaningless.
But the real safeguard against a gradual concentration of all powers in one branch lies in giving those who run each branch the necessary constitutional tools and personal motivation to resist encroachments by the others. The provision for defense must, in this as in all other cases, be proportional to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
This strategy of using opposing and rival interests to compensate for the lack of better motives can be traced through the entire system of human affairs, private as well as public. We see it especially in all the lower-level distributions of power, where the constant goal is to divide and arrange the various offices so that each serves as a check on the others — so that every individual's private interest acts as a guard over the public's rights. These practical safeguards are no less necessary in distributing the highest powers of the state.
But it's not possible to give each branch an equal power of self-defense. In a republican government, the legislature inevitably dominates. The remedy for this problem is to divide the legislature into different chambers, and to make them — through different methods of election and different guiding principles — as disconnected from each other as their shared functions and shared dependence on the public will allow. It may even be necessary to guard against dangerous overreach with additional precautions. Just as the weight of legislative authority requires it to be divided, the weakness of the executive may require, on the other hand, that it be strengthened. An absolute veto over the legislature seems, at first glance, to be the natural defense the president should have. But perhaps it would be neither entirely safe nor sufficient on its own. On ordinary occasions, it might not be used with the necessary firmness, and on extraordinary occasions, it might be dangerously abused. Couldn't this shortcoming of an absolute veto be addressed by creating some connection between the weaker branch (the executive) and the weaker chamber of the stronger branch (the legislature), so that the latter is encouraged to support the constitutional powers of the former without becoming too detached from the interests of its own branch?
If the principles behind these observations are sound — and I believe they are — and we apply them as a standard to the various state constitutions and to the federal Constitution, we'll find that while the federal Constitution may not perfectly match these principles, the state constitutions fall infinitely shorter.
Beyond all this, there are two considerations that apply specifically to America's federal system, and they put it in a very interesting light.
First. In a single republic, all the power given up by the people is handed to one government, and abuses of power are guarded against by dividing that government into distinct and separate branches. In America's compound republic, the power given up by the people is first divided between two distinct governments — federal and state — and then the share given to each is further divided among separate branches. This creates a double layer of protection for the people's rights. The different governments will keep each other in check, while at the same time each will be internally checked by its own structure.
Second. In a republic, it's critically important not only to protect society from oppression by its rulers, but also to protect one part of society from injustice by another part. Different interests inevitably exist among different groups of citizens. If a majority unites around a common interest, the rights of the minority will be at risk. There are only two ways to guard against this: one is to create a power in the community that's independent of the majority — that is, independent of the society itself; the other is to include in the society so many distinct groups of citizens that an unjust combination of a majority becomes highly unlikely, if not impossible. The first method exists in all governments with hereditary or self-appointed rulers. But this is, at best, an unreliable safeguard — because a power independent of society might just as easily side with the majority's unjust aims as with the minority's legitimate interests, and could end up being turned against both. The second method will be demonstrated in the federal republic of the United States. While all authority in it will come from and depend on the people, society itself will be broken into so many parts, interests, and groups that the rights of individuals or minorities will face little danger from self-interested majority coalitions. In a free government, the security for civil rights must work the same way as security for religious rights. In one case it comes from the multiplicity of interests, and in the other from the multiplicity of religious denominations. The degree of security in both cases depends on the number of interests and denominations — and that, in turn, depends on the size of the country and the number of people under the same government. This perspective should especially recommend a proper federal system to all sincere and thoughtful friends of republican government, since it shows that as the territory of the Union is broken into smaller confederacies or states, oppressive majority coalitions become easier to form; the best protection under republican forms for the rights of every class of citizen diminishes; and consequently, the stability and independence of some part of the government — the only other safeguard — must be proportionally increased. Justice is the purpose of government. It is the purpose of civil society. It has always been pursued, and always will be, until it is achieved or until liberty is lost in the pursuit. In a society where the stronger faction can easily unite and oppress the weaker, anarchy can truly be said to reign, just as in a state of nature where the weaker individual has no protection against the stronger. And just as in that state of nature, even the stronger individuals are driven by the uncertainty of their situation to submit to a government that protects the weak as well as themselves — so too, in a badly structured society, the more powerful factions will gradually be led by the same logic to support a government that protects all parties, the weaker as well as the stronger. There's little doubt that if Rhode Island were separated from the Union and left on its own, the insecurity of rights under popular government within such narrow boundaries would be demonstrated by repeated oppression from factional majorities — until some power entirely independent of the people would be demanded by the very factions whose misrule had proven its necessity. In the extended republic of the United States, with its great variety of interests, parties, and religious groups, a coalition of a majority of the whole society could rarely form on any basis other than justice and the common good. And since there would be less danger to a minority from the will of a majority, there would also be less reason to protect the minority by introducing into the government a power independent of the majority — or, in other words, a power independent of the society itself. It is no less certain than it is important — despite the opposing views that have been expressed — that the larger the society, provided it remains within a practical scope, the more capable it will be of self-government. And happily for the republican cause, that practical scope can be extended very far through a wise modification and blending of the federal principle.
PUBLIUS
To the People of the State of New York:
Moving on from the broader questions explored in the last four papers, I'll turn to a more detailed examination of the specific parts of the government. I'll begin with the House of Representatives.
The first thing to consider about this branch is the qualifications of the voters and the candidates. The qualifications for voters in federal elections will be the same as the qualifications for voters in the most populous chamber of each state's legislature. The definition of the right to vote is rightly considered a fundamental element of republican government. It was therefore essential for the convention to define and establish this right in the Constitution. Leaving it to Congress to regulate on a case-by-case basis would have been improper for the reason I just mentioned. Leaving it to each state legislature's discretion would have been improper for the same reason, plus an additional one: it would have made the branch of the federal government that should depend only on the people too dependent on state governments instead. Reducing the different qualifications across states to one uniform standard would probably have been as unsatisfying to some states as it would have been difficult for the convention. The approach the convention settled on therefore appears to be the best option available to them. It should satisfy every state, because it matches the standard each state has already established, or may establish, for itself. It will be safe for the United States because, being set by the state constitutions, it can't be changed by state governments, and there's no reason to fear that the people of the states will amend their own constitutions in ways that take away rights guaranteed by the federal Constitution.
The qualifications for candidates, being less carefully defined by the state constitutions and being more suited to a uniform standard, have been appropriately addressed by the convention. A representative of the United States must be at least twenty-five years old, must have been a citizen of the United States for at least seven years, must be a resident of the state they represent at the time of their election, and must not hold any other federal office during their term. Within these reasonable limits, this part of the federal government is open to talent of every kind — whether native-born or naturalized, young or old, regardless of wealth or poverty, or any particular religious belief.
The length of term for which representatives are to be elected is the second issue worth examining. To judge whether this provision is appropriate, two questions need to be considered: first, whether two-year elections will be safe in this case; and second, whether they'll be necessary or useful.
First. Since it's essential to liberty that the government as a whole share a common interest with the people, it's especially essential that the branch we're discussing have a direct dependence on, and a close connection with, the people. Frequent elections are unquestionably the only way to effectively secure this dependence and connection. But exactly how frequent elections need to be doesn't lend itself to precise calculation — it depends on a variety of circumstances. Let's consult experience, the guide we should always follow when it's available.
The concept of representation as a substitute for citizens gathering in person was barely known in ancient politics, so we have to look to more modern times for useful examples. And even then, to avoid a search too broad and unfocused, we should limit ourselves to the best-known examples that most closely resemble our own situation. The first that fits this description is the House of Commons in Great Britain. The history of this branch of the English Constitution before the Magna Carta is too murky to be instructive. Its very existence during that period has been debated by political historians. The earliest records after that date show that parliaments were required to meet every year — not that they were to be elected every year. And even those annual sessions were left so much to the king's discretion that, under various pretexts, very long and dangerous gaps were often engineered by royal ambition. To fix this problem, a law was passed during the reign of Charles II requiring that gaps between parliaments not exceed three years. When William III took the throne through the Glorious Revolution, the issue was taken up even more seriously, and it was declared to be among the fundamental rights of the people that parliaments should be held frequently. Another law passed a few years later during the same reign gave the vague word "frequently" — which had referred to the three-year rule from Charles II's time — a precise meaning, explicitly requiring that a new parliament be called within three years of the previous one ending. The later change from three-year to seven-year terms is well known to have been introduced early in the eighteenth century, driven by concerns about the Hanoverian succession [1]. From these facts, it's clear that the most frequent elections ever considered necessary in Britain for keeping representatives accountable to their constituents didn't exceed a three-year cycle. And if we consider the degree of liberty that survived even under seven-year elections and all the other flaws in the parliamentary system, we can be confident that reducing the term from seven to three years — along with other necessary reforms — would extend the people's influence over their representatives enough to assure us that two-year elections under the federal system can't possibly endanger the proper accountability of the House of Representatives to its constituents.
Elections in Ireland, until recently, were controlled entirely by the crown's discretion and rarely held except when a new king took the throne or some other special event occurred. The parliament that began under George II continued throughout his entire reign — a period of about thirty-five years. The only accountability representatives had to the people came from the people's right to fill occasional vacancies by electing new members, and from the chance that some event might trigger a general new election. On top of that, the Irish parliament's ability to defend its constituents' rights — to whatever extent that desire existed — was severely limited by the crown's control over what topics they could even discuss. Recently, if I'm not mistaken, those restrictions have been lifted, and eight-year parliamentary terms have been established. What effect this partial reform will have remains to be seen. Ireland's example, from this perspective, sheds little light on our question. To the extent we can draw any conclusion from it, it's this: if the people of that country managed to retain any liberty at all under all those disadvantages, two-year elections would secure them every degree of liberty that could depend on a proper connection between representatives and the people.
Let's bring our inquiry closer to home. The experience of these states when they were British colonies deserves special attention, and it's well-known enough that little needs to be said about it. The principle of representation, in at least one branch of the legislature, was established in all of them. But the election periods varied — from one to seven years. Do we have any reason to conclude, from the spirit and conduct of the people's representatives before the Revolution, that two-year elections would have been dangerous to public liberty? The spirit that displayed itself everywhere at the start of the struggle, and which overcame the obstacles to independence, is the best proof that a sufficient degree of liberty was enjoyed everywhere to inspire both an appreciation for its value and a passion for expanding it. This observation holds true for the colonies with the least frequent elections just as much as for those with the most frequent. Virginia was the colony that led the way in resisting Britain's parliamentary overreach; it was also the first to publicly endorse the resolution for independence. Yet in Virginia, if I'm not mistaken, elections under the former government were held every seven years. I bring up this example not as proof of any special merit — the priority in those cases was probably coincidental — and still less as an argument for seven-year elections, which are clearly unacceptable compared to more frequent ones. I raise it simply as proof — and I think it's very strong proof — that the people's liberties can't be endangered by two-year elections.
The conclusion drawn from these examples is further strengthened by three additional points. First, the federal legislature will have only a portion of the supreme legislative authority that's fully vested in the British Parliament, and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It's a well-established principle that, all other things being equal, the greater the power, the shorter its term should be — and conversely, the smaller the power, the more safely its term can be extended. Second, as I've shown elsewhere, the federal legislature will not only be restrained by its dependence on the people, as other legislatures are, but will also be monitored and checked by the various state legislatures — a check that other legislatures don't face. And third, there's no comparison between the tools the more permanent branches of the federal government might have for corrupting the House of Representatives — even if they wanted to — and the tools that other branches of the governments mentioned above have for influencing their popular chambers. With less power to abuse, federal representatives will be less tempted on one side, and doubly watched on the other.
PUBLIUS
[1] The Hanoverian succession refers to the transfer of the British crown to the House of Hanover in 1714, which caused political instability and led Parliament to extend its own terms from three to seven years to avoid the risks of frequent elections during a period of uncertainty.
To the People of the State of New York:
At this point, I'll probably be reminded of a popular saying: "Where annual elections end, tyranny begins." If it's true, as is often noted, that sayings that become proverbial are generally grounded in reason, it's equally true that once established, they're often applied to situations where their reasoning doesn't actually fit. I don't need to look further than the case before us for proof. What's the reasoning behind this proverbial warning? Nobody would embarrass themselves by claiming there's some natural connection between the sun or the seasons and the length of time human virtue can withstand the temptations of power. Fortunately for humanity, liberty isn't confined to any single fixed point in time — it falls within a range that allows for all the variations that different situations and circumstances in society may require. Elections could be held daily, weekly, or monthly, as well as annually — if that were found to be practical, and in some cases it actually has been. And if circumstances can justify departing from the rule in one direction, why not in the other? When we look at the election periods established in our own states for the most populous branches of state legislatures, we find they're no more consistent on this point than on elections for other officials. In Connecticut and Rhode Island, elections are held every six months. In every other state except South Carolina, they're annual. In South Carolina, they're every two years — exactly what's proposed for the federal government. That's a four-to-one difference between the longest and shortest periods, and yet it wouldn't be easy to show that Connecticut or Rhode Island is better governed, or enjoys more genuine liberty, than South Carolina — or that any of these states is distinguished in these respects, and for these reasons, from states whose election schedules differ from all of them.
In searching for the basis of this doctrine, I can find only one — and it's entirely inapplicable to our situation. America clearly understands the important distinction between a Constitution established by the people that the government can't change, and a law established by the government that the government can change. This distinction seems to have been poorly understood and even less respected in other countries. Wherever the supreme power to make laws has existed, the power to change the form of government has been assumed to exist as well. Even in Great Britain, where the principles of political and civil liberty have been most thoroughly debated, and where we hear the most about constitutional rights, it's maintained that Parliament's authority is supreme and unchecked — over the Constitution itself as well as over ordinary legislation. The British Parliament has, in fact, changed some of the most fundamental elements of government through ordinary legislation on several occasions. They've repeatedly changed the election period, and most recently, they not only replaced three-year elections with seven-year elections, but through the same act, extended their own terms four years beyond what the people had elected them for. These alarming practices have naturally worried supporters of free government, for whom frequent elections are the cornerstone, and have driven them to seek some safeguard for liberty against these dangers. Where no Constitution superior to the government either existed or could be obtained, no constitutional protection like what we have in the United States was possible. Some other security had to be found — and what better option was available than choosing some simple and familiar unit of time as a standard for measuring the danger of changes, for anchoring public opinion, and for rallying patriotic efforts? The simplest and most familiar unit of time for this purpose was a year, and so the doctrine has been promoted — with admirable zeal — as a barrier against the gradual encroachments of an unlimited government: the idea that the march toward tyranny could be measured by how far elections departed from the fixed benchmark of annual elections. But what need is there to apply this safeguard to a government that's limited, as the federal government will be, by the authority of a supreme Constitution? And who would seriously claim that the liberties of the American people will be less secure under two-year elections permanently fixed by such a Constitution, than the liberties of any other nation would be under annual or even more frequent elections that could be changed at will by the ordinary power of government?
The second question I raised is whether two-year elections are necessary or useful. The case for answering yes will be clear from several very obvious points.
No one can be an effective legislator without combining good intentions and sound judgment with a certain degree of knowledge about the subjects they'll be legislating on. Some of this knowledge can be gained through information available to people in private life as well as public office. But another part can only be acquired — or at least fully acquired — through actual experience in the position that requires it. The length of service should therefore, in all such cases, be proportional to the scope of practical knowledge needed to do the job well. The term of legislative service established in most states for the more populous chamber is, as we've seen, one year. So the question can be put simply: does a two-year term bear no greater relationship to the knowledge needed for federal legislation than a one-year term does to the knowledge needed for state legislation? Just stating the question this way suggests the answer.
In a single state, the knowledge needed relates to the existing laws — which are uniform throughout the state and which all citizens are more or less familiar with — and to the state's general affairs, which are limited in scope, not very varied, and occupy much of the attention and conversation of every class of people. The national stage of the United States presents a very different picture. The laws are far from uniform — they vary in every state. Public affairs span a vast territory and are enormously complicated by the local issues connected to them, and they can hardly be properly learned anywhere except in the central councils where representatives from every part of the nation bring their knowledge. Yet members from each state ought to have some knowledge of the affairs, and even the laws, of all the other states. How can foreign trade be properly regulated by uniform laws without some familiarity with the commerce, ports, customs, and regulations of the different states? How can trade between the states be properly managed without some knowledge of their relative circumstances? How can taxes be wisely imposed and effectively collected if they aren't adapted to the different laws and local conditions in each state? How can uniform militia regulations be properly designed without similar knowledge of the many internal factors that distinguish one state from another? These are the main subjects of federal legislation, and they strongly demonstrate the extensive knowledge that representatives need to acquire. Other domestic matters will require a proportional degree of familiarity.
It's true that all these challenges will gradually diminish over time. The hardest work will be getting the government up and running and creating the initial body of federal law. Improvements to those first drafts will become both easier and fewer with each passing year. The government's past actions will be a ready and reliable source of information for new members. The affairs of the Union will increasingly become topics of interest and discussion among citizens at large. And greater interaction among people from different states will do much to spread mutual knowledge of each other's affairs, which will in turn contribute to a general alignment of their customs and laws. But even with all these improvements, the business of federal legislation will continue to be so much more novel and difficult than the legislative work of a single state that it justifies the longer term of service given to those who carry it out.
One area of knowledge that a federal representative needs — and that I haven't yet mentioned — is foreign affairs. In regulating our own trade, a representative should be familiar not only with the treaties between the United States and other nations, but also with the commercial policies and laws of those nations. They shouldn't be completely ignorant of international law either, since, as far as it's a proper subject of domestic legislation, it falls under the federal government's authority. And although the House of Representatives doesn't directly participate in foreign negotiations and agreements, the necessary connections between the various branches of public business mean that these topics will frequently come up in the ordinary course of legislation and will sometimes require specific legislative action and approval. Some of this knowledge can, of course, be acquired through private study, but some can only come from public sources of information — and all of it will be best absorbed through hands-on engagement with these issues during actual service in the legislature.
There are other considerations, perhaps less important, but still worth noting. The long distances many representatives will have to travel, and the arrangements that requires, would be much more serious objections for qualified candidates if the term were limited to a single year rather than extended to two. No comparison can be drawn here with the delegates to the existing Congress. They're elected annually, it's true, but their reelection is treated by the state legislatures as almost automatic. Elections of representatives by the people directly wouldn't follow that same pattern.
A few members, as happens in all such assemblies, will have exceptional talent. Through frequent reelection, they'll become long-serving members who thoroughly master the public business — and perhaps won't be unwilling to use those advantages. The greater the proportion of new members, and the less informed the majority of members are, the more likely they'll be to fall into traps set for them. This concern applies just as much to the relationship between the House of Representatives and the Senate.
There's a drawback mixed in with the benefits of our frequent elections, even in individual states. Where states are large and hold only one legislative session a year, fraudulent elections can't be investigated and overturned in time for the decision to have its proper effect. If a candidate can get certified as the winner — no matter how illegally — the improperly seated member who takes his place is guaranteed to hold the seat long enough to serve his purposes. This creates a very harmful incentive to use illegal methods for winning elections. If federal elections were annual, this problem could become a very serious abuse, particularly in the more distant states. Each chamber is, as it must be, the judge of its own members' elections, qualifications, and results. And whatever procedural improvements experience might suggest for simplifying and speeding up disputed cases, so much of the year would unavoidably pass before an illegitimate member could be removed from their seat that the prospect of removal would be little deterrent to unfair and illegal means of winning one.
All these considerations taken together justify our conclusion that two-year elections will be as useful for conducting the public's business as we've seen they'll be safe for the people's liberty.
PUBLIUS
To the People of the State of New York:
The next aspect of the House of Representatives I'll examine is how its members are apportioned among the states, which is determined by the same formula used for direct taxes.
Nobody disputes that the number of people in each state should be the standard for determining each state's share of representatives. Using the same formula for allocating taxes will probably be just as uncontroversial — even though the principle behind it is quite different in each case. For representation, the formula is understood to relate to the personal rights of the people, to which it has a natural and universal connection. For taxation, it relates to the share of wealth, which population doesn't precisely measure and, in most cases, measures rather poorly. But despite the formula's imperfection when applied to the relative wealth and contributions of the states, it's clearly the least objectionable among the practical options, and it had too recently received the general endorsement of America not to be readily adopted by the convention.
All of this is granted, someone might say — but does it follow that, just because population is used to measure representation and enslaved people combined with free citizens are factored into taxation, enslaved people should also be included in the population count for representation? Enslaved people are considered property, not persons. They should therefore be included in tax estimates based on property, and excluded from representation based on a census of persons. This is the objection, as I understand it, stated at full strength. I'll be equally honest in presenting the reasoning that can be offered on the other side.
"We accept the principle," one of our Southern brethren might say, "that representation relates most directly to persons, and taxation most directly to property, and we agree with applying this distinction to the case of our slaves. But we must reject the claim that slaves are considered purely as property and in no way as persons. The real situation is that they share both qualities — treated by our laws in some respects as persons, and in other respects as property. In being forced to labor not for himself but for a master; in being sold by one master to another; and in being subject at all times to having his liberty restricted and his body punished at the arbitrary will of another — the slave may seem to be stripped of his human status and classified with the irrational animals that fall under the legal category of property. On the other hand, in being protected in his life and body against violence from everyone — even his own master; and in being subject to punishment himself for any violence committed against others — the slave is clearly treated by the law as a member of society, not as part of the animal world; as a moral person, not as a mere piece of property. The federal Constitution therefore makes the right decision about our slaves when it treats them as having the mixed character of both persons and property. This is, in fact, their true status. It's the status assigned to them by the laws they live under, and no one can deny that these laws are the proper standard — because it's only by arguing that the laws have turned enslaved Black people into property that anyone disputes their place in the population count. And everyone admits that if the laws were to restore the rights that have been taken away, enslaved people could no longer be denied an equal share of representation with the rest of the population.
"This question can be looked at from another angle. It's agreed on all sides that population is the best measure of wealth and taxation, just as it's the only proper basis for representation. Would the convention have been fair or consistent if they had excluded slaves from the count of inhabitants when shares of representation were being calculated, but included them when the burden of taxes was being divided? Could the Southern states reasonably be expected to accept a system that counted their slaves as men when imposing burdens, but refused to count them the same way when granting advantages? And wouldn't it also be surprising that those who criticize the Southern states for the barbarous practice of treating part of their fellow human beings as property should themselves argue that the federal government — to which all states are parties — ought to treat this unfortunate group even more completely as mere property than the very laws they condemn?
"It might be objected that slaves aren't counted for representation in any of the states that have them. They neither vote themselves nor increase their masters' votes. On what principle, then, should they be included in the federal count for representation? By excluding them entirely, the Constitution would have followed the very laws that have been cited as the proper guide.
"This objection is answered by a single observation. It's a fundamental principle of the proposed Constitution that the total number of representatives allocated to the various states is to be determined by a federal formula based on the total number of inhabitants — but the right to choose those representatives within each state is to be exercised by whichever part of the population the state itself designates. The qualifications for voting probably aren't exactly the same in any two states. In some states, the differences are significant. In every state, a certain portion of inhabitants are denied the right to vote by the state's own constitution, yet they'll be included in the census that the federal Constitution uses to apportion representatives. On this point, the Southern states might turn the criticism around, insisting that the convention's principle required ignoring each state's particular policies toward its own inhabitants — and that consequently, slaves, as inhabitants, should have been included in the census at their full number, just like other inhabitants who, under the policies of their own states, aren't given all the rights of citizens. Those who would benefit from strict adherence to this principle, however, are willing to waive it. All they ask is that equal moderation be shown by the other side. Let the case of the slaves be considered for what it truly is — a unique situation. Let both sides accept the Constitution's compromise, which counts them as inhabitants but, recognizing their degraded status under slavery, counts them at a level below that of free inhabitants — treating each slave as three-fifths of a person.
"Finally, isn't there yet another basis on which this provision of the Constitution can be even more easily defended? So far, we've been working from the assumption that representation relates only to persons and not at all to property. But is that assumption correct? Government is established to protect property no less than to protect persons. Both, therefore, can be considered as represented by those entrusted with governing. It's on this very principle that, in several states — and particularly in New York — one branch of the government is specifically designed to be the guardian of property and is elected by the segment of society most concerned with that function. In the federal Constitution, this approach isn't followed. Property rights are placed in the same hands as personal rights. Some attention should therefore be paid to property when choosing those hands.
"There's another reason, too, why the votes each state gets in the federal legislature should bear some relationship to the states' comparative wealth. States don't have the same kind of influence over each other that individuals do, which comes from advantages of wealth. If the law gives even a wealthy citizen only a single vote in choosing his representative, the respect and influence that come from his fortunate position frequently guide other people's votes toward the candidates he favors — and through this invisible channel, property interests are carried into the public's representation. A state has no such influence over other states. It's unlikely that the richest state in the Union will ever influence the choice of a single representative in any other state. Nor will representatives of the larger and richer states have any advantage in the federal legislature over representatives of other states beyond what comes from their greater numbers alone. Insofar as their greater wealth and influence justly entitle them to any advantage, it should be secured through a larger share of representation. The new Constitution is, in this respect, fundamentally different from the existing Confederation, as well as from the Dutch Republic and other similar confederacies. In each of those systems, the effectiveness of federal decisions depends on the subsequent and voluntary compliance of the member states. As a result, the states — despite having equal votes in the central council — have unequal influence, corresponding to the unequal importance of their follow-through. Under the proposed Constitution, federal laws will take effect without needing action by the individual states. They'll depend simply on a majority vote in the federal legislature, and consequently each vote — whether from a larger or smaller state, or a wealthier or less wealthy state — will carry equal weight and effect. This is the same way that votes cast in a state legislature by representatives from counties of unequal size each have precisely equal value and effect. If there's any difference in the outcome, it comes from the personal character of the individual representative, not from the size of the district they come from."
This is the reasoning that a defender of Southern interests might use on this subject. And while it may seem somewhat strained in places, on the whole I have to admit that it fully persuades me to accept the formula for representation that the convention has established.
In one respect, using the same formula for both representation and taxation will have a very beneficial effect. Since the accuracy of the census conducted by Congress will necessarily depend in large part on the willingness — if not the active cooperation — of the states, it's very important that states feel as little bias as possible toward inflating or deflating their population numbers. If the formula only governed their share of representation, they'd have an incentive to exaggerate their population. If it only governed their share of taxes, the opposite temptation would apply. By extending the formula to both purposes, the states will have opposing incentives that check and balance each other, producing the necessary impartiality.
PUBLIUS
To the People of the State of New York:
The number of members the House of Representatives will have is another very interesting angle from which to examine this branch of the federal legislature. Hardly any provision in the entire Constitution seems more deserving of attention, given the weight of the critics and the apparent force of the arguments that have been leveled against it. The charges are: first, that such a small number of representatives will be an unsafe guardian of the public interest; second, that they won't have enough knowledge of their many constituents' local circumstances; third, that they'll be drawn from the class of citizens least likely to sympathize with the feelings of ordinary people and most likely to aim at permanently elevating the few at the expense of the many; and fourth, that even though the number is inadequate at the start, it will become increasingly disproportionate as the population grows and obstacles prevent a matching increase in representatives.
On this subject, it's worth noting generally that no political question is harder to answer precisely than one about the ideal size of a representative legislature. Nor is there any point where the different states' practices vary more — whether we compare their legislatures directly or look at the ratios of representatives to constituents. Setting aside the extremes between the smallest and largest states — Delaware, whose larger chamber has twenty-one representatives, and Massachusetts, where it's between three and four hundred — there's still a very noticeable difference among states of roughly equal population. Pennsylvania's number of representatives is no more than one-fifth of Massachusetts's. New York, whose population is to South Carolina's as six is to five, has little more than a third of South Carolina's number of representatives. An equally large gap exists between Georgia and Delaware or Rhode Island. In Pennsylvania, the ratio of representatives to constituents is only about one for every four or five thousand. In Rhode Island, it's at least one for every thousand. And under Georgia's constitution, the ratio could reach as high as one for every ten voters, far exceeding the ratio in any other state.
Another general point worth making is that the ratio of representatives to people shouldn't be the same when the population is very large as when it's very small. If Virginia's representation were based on Rhode Island's standard, it would right now amount to four or five hundred members, and in twenty or thirty years, a thousand. On the other hand, if Pennsylvania's ratio were applied to Delaware, it would shrink Delaware's legislature to seven or eight members. Nothing is more misleading than basing our political calculations on simple arithmetic. Sixty or seventy people can be more safely trusted with a given degree of power than six or seven. But it doesn't follow that six or seven hundred would be proportionally better. And if we carry the assumption to six or seven thousand, the whole logic should be reversed. The truth is that in all cases, a certain minimum number seems necessary to ensure the benefits of free discussion and deliberation, and to guard against too easy a conspiracy for improper purposes. On the other hand, the number should be kept below a certain maximum to avoid the chaos and emotionalism of a mob. In all very large assemblies, no matter who composes them, passion never fails to seize the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.
It's also important to recall the observations I made about two-year elections. For the same reason that Congress's limited powers and the oversight of state legislatures justify less frequent elections than public safety might otherwise require, members of Congress need to be less numerous than if they held all legislative power and faced no checks beyond those on other legislatures.
With these general ideas in mind, let's consider the specific objections raised against the proposed number of House members. The first objection is that such a small number can't be safely trusted with so much power.
The House will initially consist of sixty-five members. Within three years, a census will be taken, and the number may increase to one for every thirty thousand inhabitants. Every ten years after that, the census will be renewed and further increases may follow under the same limit. It's not an extravagant guess that the first census will raise the number of representatives to at least a hundred, at the rate of one per thirty thousand. Counting enslaved people at the three-fifths ratio, it can hardly be doubted that the United States' population will by then — if it doesn't already — reach three million. After twenty-five years, based on projected growth rates, the number of representatives will reach two hundred, and after fifty years, four hundred. That's a number which, I'd expect, will put an end to all concerns about the body being too small. I'm taking for granted here — and will demonstrate when I address the fourth objection — that the number of representatives will be increased over time as the Constitution provides. If I assumed otherwise, I'd have to admit the objection carries very great weight.
The real question to decide, then, is whether the smallness of the number, as a temporary arrangement, is dangerous to public liberty. Whether sixty-five members for a few years, and a hundred or two hundred for a few more, can be safely trusted with a limited and well-guarded power to legislate for the United States? I have to say that I couldn't answer no to this question without first erasing every impression I have about the present character of the American people, the spirit that drives the state legislatures, and the principles woven into the political identity of every class of citizen. I can't conceive that the people of America, in their current disposition, or under any circumstances likely to arise soon, will choose — and every two years repeat the choice of — sixty-five or a hundred men who would be willing to form and carry out a scheme of tyranny or treachery. I can't conceive that the state legislatures, which have so many reasons to watch and so many tools to counteract the federal legislature, would fail either to detect or to defeat a conspiracy against the liberties of their shared constituents. I'm equally unable to imagine that there are right now, or could be anytime soon, in the United States, sixty-five or a hundred men capable of winning the people's votes who would either want or dare, within the short span of two years, to betray the solemn trust placed in them. What changes in circumstances, time, and a larger population might bring requires a prophetic ability I don't claim to have. But judging from the circumstances before us now, and from their probable state within a reasonable period, I have to say that America's liberties can't be unsafe with the number of representatives proposed by the federal Constitution.
Where would the danger come from? Are we worried about foreign money? If foreign money could so easily corrupt our federal leaders and enable them to trap and betray their constituents, how is it that we're a free and independent nation right now? The Congress that led us through the Revolution was a smaller body than its successors will be. Its members weren't chosen by, or accountable to, the general public. Though technically appointed year to year and subject to recall, they were generally kept in office for three years, and before the ratification of the Articles of Confederation, for even longer. They always deliberated in secret. They had sole responsibility for our dealings with foreign nations. Throughout the entire war, they held our country's fate in their hands to a greater degree than we can hope will ever be the case with our future representatives. And given how much was at stake and how eager the losing side was, it's safe to assume that means beyond military force wouldn't have been off the table. Yet we know from happy experience that the public trust wasn't betrayed — and the integrity of our public councils on this point has never suffered, not even from the whispers of slander.
Is the danger supposed to come from the other branches of the federal government? But where would the President, or the Senate, or both find the means? Their official salaries presumably won't — and without first corrupting the House of Representatives, can't — do more than cover very different expenses. Their personal fortunes, since they must all be American citizens, can't possibly be a source of danger. The only tool they could have, then, would be the power to hand out government appointments. Is that where the suspicion lies? Sometimes we're told that this fund of corruption will be used up by the President in undermining the Senate's integrity. Other times, it's the House's loyalty that's supposedly at risk. The sheer improbability of such a mercenary and treacherous alliance among the various members of government — who stand on such different foundations as republican principles will allow and are at the same time accountable to the society they serve — should be enough by itself to quiet this fear. But fortunately, the Constitution provides an additional safeguard. Members of Congress are barred from holding any federal civil offices that are created, or whose salaries are increased, during their term. The only positions that could be offered to sitting members are those that happen to become vacant through normal turnover — and to suppose that these would be enough to buy off the people's guardians, chosen by the people themselves, is to abandon every reasonable standard for predicting events and substitute an indiscriminate and boundless suspicion that makes all reasoning pointless. Sincere friends of liberty who give themselves over to the extremes of this suspicion don't realize the harm they do to their own cause. As there is a degree of corruption in humanity that requires a certain degree of caution and distrust, so there are other qualities in human nature that justify a certain measure of respect and confidence. Republican government presupposes the existence of these qualities to a higher degree than any other form of government. If the portraits of human character painted by the political suspicion of some among us were accurate, the conclusion would be that there isn't enough virtue in humanity for self-government — and that nothing less than the chains of despotism can keep people from destroying and devouring one another.
PUBLIUS
To the People of the State of New York:
The second charge against the House of Representatives is that it will be too small for its members to have adequate knowledge of their constituents' interests.
This objection clearly comes from comparing the proposed number of representatives against the vast size of the United States, its huge population, and the diversity of its interests -- without also considering the specific features that will set Congress apart from other legislative bodies. The best answer to this objection is a brief explanation of those distinguishing features.
It's a sound and important principle that representatives should be familiar with the interests and circumstances of their constituents. But this principle only extends to those circumstances and interests that fall within the representative's authority and responsibility. Being unfamiliar with a wide variety of small, specific details that fall outside the scope of legislation is perfectly compatible with every quality needed for the proper performance of a legislator's job. To figure out how much knowledge a particular authority requires, you have to look at what that authority actually covers.
What will be the subjects of federal legislation? The ones that matter most, and that seem most to require local knowledge, are commerce, taxation, and the militia.
Proper regulation of commerce requires a lot of information, as I've pointed out elsewhere. But as far as this information relates to the laws and local conditions of each individual state, a very small number of representatives would be perfectly able to bring that knowledge to the federal government.
Taxation will largely consist of duties tied to the regulation of commerce, so the same point applies there. As for internal tax collection, a broader understanding of each state's circumstances may be necessary. But won't a handful of well-informed representatives, elected from across the state, have sufficient knowledge of this? Divide the largest state into ten or twelve districts, and you'll find that no district has unique local interests that its representative wouldn't understand. Beyond this source of information, the state's own laws -- written by representatives from every part of the state -- will themselves serve as a nearly sufficient guide. Every state has already created, and will continue to create, regulations on taxation that will, in many cases, leave the federal legislature with little more to do than review the different state laws and combine them into a single general act. A knowledgeable person working alone with all the state legal codes in front of them could draft a tax law for the entire union without needing anyone's verbal input. And whenever internal taxes become necessary -- especially in cases requiring uniformity across the states -- the simpler subjects will be preferred. To fully appreciate how much easier this branch of federal legislation will be thanks to the state codes, just imagine for a moment that this state or any other were divided into multiple parts, each with its own local legislature. Isn't it obvious that the volumes of their proceedings would contain so much local information and preparatory work that the general legislature's job would be greatly shortened, and a much smaller membership would be sufficient? The federal government will benefit from another advantage as well. Each state's representatives will bring with them not only considerable knowledge of their state's laws and firsthand familiarity with their own districts, but they'll probably have been members -- and may even currently be members -- of the state legislature, where all the local information and interests of the state are gathered. That knowledge can easily be carried by just a few representatives into the United States legislature.
The observations I've made about taxation apply with even greater force to the militia. However different the rules of military discipline may be from state to state, they're the same throughout each particular state and depend on circumstances that vary very little within a single state's borders.[1]
When it comes to regulating the militia, there are hardly any circumstances where local knowledge is truly essential. The general lay of the land -- whether mountainous or flat, better suited for infantry or cavalry operations -- is almost the only consideration of this kind that comes up. The art of war teaches general principles of organization, movement, and discipline that apply universally.[1]
The attentive reader will notice that the reasoning I've used here -- to show that a moderate number of representatives is sufficient -- doesn't contradict what I argued earlier about the extensive knowledge representatives should have and the time needed to acquire it. That knowledge, insofar as it relates to local matters, is made necessary and difficult not by differences in laws and circumstances within a single state, but by differences among the various states. Taken by itself, any single state has uniform laws and fairly simple interests. A few representatives, therefore, can possess all the knowledge needed to represent their state properly. If a state's interests and affairs were perfectly simple and uniform, knowledge of them in one part would mean knowledge of them everywhere, and the whole state could be competently represented by a single member from any corner of it. But when we compare the different states side by side, we find major differences in their laws and in many other areas relevant to federal legislation -- all of which federal representatives should have some familiarity with. So while a few representatives from each state can bring adequate knowledge of their own state, every representative will have a great deal to learn about all the other states. As I noted earlier, the passage of time will tend to make the different states more similar to each other. But the effect of time on a single state's internal affairs will be just the opposite. Right now, some states are little more than farming communities. Few have made much progress in the kinds of industry that add variety and complexity to a nation's affairs. Those developments will eventually come to all of them as their populations grow, and each state will require a fuller representation as a result. The convention wisely made sure that population growth could be accompanied by a proper increase in the representative branch of government.
The experience of Great Britain -- which offers the world so many political lessons, both cautionary and instructive, and which has been frequently referenced in these papers -- supports the conclusions we've just reached. The population of England and Scotland combined can't be estimated at less than eight million. The representatives of these eight million people in the House of Commons number five hundred and fifty-eight. Of that number, one-ninth are elected by just three hundred and sixty-four people, and fully half are elected by only five thousand seven hundred and twenty-three people.[2] It's safe to assume that the half elected this way -- who don't even live among the general public -- add nothing to the people's security against the government or to the legislature's knowledge of the people's circumstances and interests. On the contrary, it's well known that these members are more often tools and representatives of the executive branch than guardians and advocates of the people's rights. They could rightly be considered not just a subtraction from the real representatives of the nation, but something worse. Still, we'll count them only as a subtraction and won't extend the deduction to the considerable number of other members who don't live among their constituents, have only the faintest connection to them, and know very little about their affairs. Even with all these generous concessions, only two hundred and seventy-nine people serve as the protectors of the safety, interests, and happiness of eight million -- meaning there's only one representative to defend the rights and explain the situation of twenty-eight thousand six hundred and seventy constituents, in an assembly exposed to the full force of executive influence and whose authority extends to every subject of legislation in a nation whose affairs are enormously diverse and complicated. Yet it's absolutely certain that not only has a valuable degree of freedom been preserved under all these circumstances, but the defects in British law are only slightly attributable to the legislature's ignorance of the people's circumstances. When we give this example the weight it deserves and compare it to the House of Representatives as I've described it above, it seems to offer the strongest possible assurance that one representative for every thirty thousand people will make the House both a safe and competent guardian of the interests entrusted to it.
PUBLIUS
[1] Two versions of these militia paragraphs appear in different editions.
[2] Burgh's "Political Disquisitions."
To the People of the State of New York:
The third charge against the House of Representatives is that its members will come from the class of citizens with the least sympathy for ordinary people, and will be most likely to sacrifice the interests of the many to benefit the privileged few.
Of all the objections that have been raised against the federal Constitution, this is perhaps the most extraordinary. While the objection itself claims to target a supposed oligarchy, the principle behind it strikes at the very root of republican government.
The goal of every political constitution is -- or should be -- first, to get rulers who have the wisdom to identify the common good and the virtue to pursue it; and second, to take the most effective precautions for keeping them virtuous while they hold the public trust. Electing rulers is the defining feature of republican government. The methods this form of government uses to prevent its leaders from becoming corrupt are numerous and varied. The most effective one is limiting the length of their terms so they remain properly accountable to the people.
Let me now ask: what feature of the House of Representatives violates the principles of republican government, or favors elevating the few at the expense of the many? Let me ask whether every feature isn't, on the contrary, strictly in line with those principles and scrupulously fair to the rights and claims of every class of citizen.
Who will be the voters choosing federal representatives? Not the rich more than the poor. Not the educated more than the uneducated. Not the proud heirs of famous names more than the humble sons of obscurity and bad luck. The voters will be the great body of the people of the United States. They'll be the same people who exercise the right to elect the corresponding branch of their state legislature.
Who will be eligible to be chosen? Any citizen whose merit earns the respect and confidence of the country. No qualification of wealth, birth, religious faith, or profession is allowed to restrict the people's judgment or override their preferences.
If we consider the position of the people on whom their fellow citizens' free votes may confer the trust of representing them, we'll find it includes every safeguard that could be designed or desired to ensure their loyalty to their constituents.
First, since they'll have been singled out by their fellow citizens' preference, we can assume they'll generally be distinguished by the very qualities that earned that preference -- qualities that suggest a sincere and careful commitment to the responsibilities they've taken on.
Second, they'll enter public service under circumstances that can't help but produce at least a temporary bond of affection with their constituents. There's a natural sensitivity in every person to marks of honor, respect, and confidence which -- entirely apart from self-interest -- serves as a kind of guarantee of grateful and generous behavior in return. Ingratitude is a frequent complaint about human nature, and it must be admitted that examples of it are all too common and outrageous, in both public and private life. But the universal and intense outrage that ingratitude provokes is itself proof of how strong and widespread the opposite sentiment really is.
Third, the ties binding representatives to their constituents are reinforced by motives of a more self-interested nature. A representative's pride and ambition attach him to a form of government that supports his claims and gives him a share of its honors and distinctions. Whatever schemes a few ambitious individuals might dream up, the great majority of people who owe their advancement to their influence with the public will have more to gain from keeping the people's favor than from changes in government that would undermine the people's authority.
All these safeguards, however, would prove very insufficient without the restraint of frequent elections. Hence, fourth, the House of Representatives is designed to keep its members constantly aware of their dependence on the people. Before the feelings inspired by the way they were elevated to office can be erased by the exercise of power, they'll be forced to think about the moment when their power will end, when their use of it will be reviewed, and when they must step back down to the level they were raised from -- to stay there permanently unless a faithful performance of their duties earns them another term.
I'll add a fifth factor that restrains House members from oppressive measures: they can't pass any law that won't apply in full force to themselves and their friends, just as it does to the rest of society. This has always been considered one of the strongest bonds that political design can create between rulers and the people. It creates a shared interest and mutual understanding between them -- something few governments have ever achieved, but without which every government degenerates into tyranny. If someone asks what would stop the House from making laws that favor themselves and a particular class of society, I answer: the genius of the whole system, the nature of just and constitutional laws, and above all, the vigilant and courageous spirit that drives the people of America -- a spirit that nourishes freedom, and is in turn nourished by it.
If this spirit ever sinks so low that the people would tolerate a law that doesn't apply equally to the legislature and the public, then the people will be ready to tolerate anything except liberty.
Such will be the relationship between the House of Representatives and their constituents. Duty, gratitude, self-interest, and ambition itself are the bonds that will tie them to loyalty and sympathy with the great mass of the people. It's possible that all of these may be insufficient to control human selfishness and corruption. But aren't they everything that government allows and human wisdom can devise? Aren't they the genuine and characteristic methods by which republican government protects the liberty and happiness of the people? Aren't they the exact same methods that every state government in the Union relies on to achieve these vital goals? What, then, are we to make of the objection this paper has been addressing? What are we to say to people who profess the most passionate devotion to republican government, yet boldly attack its fundamental principle -- who claim to be champions of the people's right and ability to choose their own rulers, yet insist those same people will only choose leaders who will immediately and inevitably betray their trust?
If someone read this objection without having seen the Constitution's method for choosing representatives, they'd have to assume that some unreasonable property requirement had been attached to the right to vote, or that eligibility was restricted to people of particular families or fortunes, or at the very least that the method prescribed by state constitutions had been drastically changed. We've seen how wrong such an assumption would be on the first two points. And it would be no less wrong on the last. The only real difference between the two systems is that each United States representative will be elected by five or six thousand citizens, while in the individual states, a representative is elected by about as many hundreds. Are we supposed to believe that this difference alone justifies loyalty to state governments and hostility toward the federal government? If this is what the objection rests on, it deserves a closer look.
Is it supported by reason? You can't argue that it is without claiming that five or six thousand citizens are less capable of choosing a good representative, or more easily corrupted by a bad one, than five or six hundred. Reason actually tells us the opposite: in a larger pool, a worthy representative is more likely to be found, and the choice is less likely to be derailed by the schemes of the ambitious or the bribes of the rich.
Is the logical consequence of this argument acceptable? If we say that five or six hundred citizens is the most that can effectively exercise the right to vote, then we'd have to deny the people the direct choice of their public servants in every case where the government doesn't need as many officials as would amount to one per that number of citizens.
Is the argument supported by facts? It was shown in the last paper that the real representation in the British House of Commons barely exceeds the ratio of one representative per thirty thousand people. On top of that, a variety of powerful influences that don't exist here favor the claims of rank and wealth in that country. No one can be a representative for a county unless they own real estate worth at least six hundred pounds sterling per year, or for a city or borough unless they own property worth half that amount annually. In addition to this qualification for county representatives, county voters must own freehold property worth more than twenty pounds sterling per year. Despite these unfavorable circumstances, and despite some very unequal laws in the British legal code, it can't be said that the representatives of the nation have elevated the few at the expense of the many.
But we don't even need to look at foreign experience. Our own is clear and decisive. The districts in New Hampshire where senators are chosen directly by the people are nearly as large as the districts that will be needed for its representatives in Congress. Massachusetts's districts are even larger than what will be required for that purpose, and New York's are larger still. In New York, the Assembly members for the cities and counties of New York and Albany are elected by nearly as many voters as will be entitled to a representative in Congress, based on a calculation of sixty-five representatives. It doesn't matter that in these senatorial districts and counties, multiple representatives are voted for by each voter at the same time. If the same voters can competently choose four or five representatives at once, they surely can't be incompetent to choose one. Pennsylvania provides another example. Some of its counties that elect state representatives are almost as large as the districts from which its federal representatives will be elected. The city of Philadelphia is believed to contain between fifty and sixty thousand people. It will therefore form nearly two districts for choosing federal representatives. Yet it makes up only one county, where every voter casts a ballot for each of the county's representatives in the state legislature. And what may be even more directly relevant to our point: the entire city actually elects a single member to the executive council. This is the case in all the other counties of the state as well.
Aren't these facts the most convincing proof that the argument against this branch of the federal government is wrong? Has experience shown that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the Assembly members of the latter two states, have shown any particular tendency to sacrifice the many for the few? Are they in any way less worthy of their positions than the representatives and officials chosen in other states by much smaller groups of voters?
But there are even stronger examples than these. One branch of Connecticut's legislature is set up so that each member is elected by the entire state. So is the governor of Connecticut, of Massachusetts, and of this state, as well as the president of New Hampshire. I'll leave every reader to decide whether the result of any of these experiments supports the suspicion that choosing representatives from a wider electorate tends to elevate traitors and undermine public liberty.
PUBLIUS
To the People of the State of New York:
The remaining charge against the House of Representatives that I need to examine is based on the assumption that the number of members won't be increased over time as population growth demands.
I've acknowledged that this objection, if well supported, would carry serious weight. The following observations will show that, like most other objections to the Constitution, it can only come from a partial view of the subject or from the kind of suspicion that distorts and disfigures everything it looks at.
1. Those who raise this objection seem to have forgotten that the federal Constitution compares favorably with state constitutions when it comes to guaranteeing a gradual increase in the number of representatives. The initial number is explicitly declared to be temporary. It's limited to the short period of three years.
Every ten years, a census of the population is to be conducted. The clear purposes of these provisions are, first, to periodically readjust the distribution of representatives based on population, with the single exception that each state must have at least one representative; and second, to increase the total number of representatives at the same intervals, with the sole limit that the total can't exceed one for every thirty thousand people. If we look at the state constitutions, we'll find that some contain no fixed rules on this subject at all, that others are roughly similar to the federal Constitution on this point, and that the strongest guarantee in any of them amounts to nothing more than a general recommendation.
2. As far as experience goes, the gradual increase of representatives under state constitutions has at least kept pace with population growth. And it appears that state legislatures have been just as willing to approve such increases as the people have been to request them.
3. There's a unique feature of the federal Constitution that ensures both a majority of the people and a majority of their representatives will keep a close eye on increasing the size of the House. The key is this: one branch of the legislature represents citizens, while the other represents the states. In the first, the larger states will naturally have the most influence; in the second, the advantage goes to the smaller states. From this, we can safely conclude that the larger states will be strong advocates for increasing the size and influence of the branch where their power is concentrated. And as it happens, just four of the largest states will hold a majority of all votes in the House of Representatives. So if the representatives or people of the smaller states ever resist a reasonable increase in membership, a coalition of just a few states would be enough to overrule them -- a coalition that, despite the rivalries and local prejudices that might prevent it under ordinary circumstances, would certainly form when driven not just by shared interest but also justified by fairness and constitutional principles.
It might be argued that the Senate would be driven by similar motives to form an opposing coalition, and that since the Senate's agreement is required, the just and constitutional goals of the House could be blocked. This is the concern that has probably caused the most serious worry among those who strongly favor a large House of Representatives. Fortunately, it's one of those difficulties that only appears to exist and vanishes on close inspection. The following points will, I believe, be found conclusive and satisfying.
Despite the equal authority the two chambers share on all legislative matters -- except that money bills must originate in the House -- there's no doubt that the House, with its larger membership, backed by the more powerful states, and speaking the known and firm will of a majority of the people, will have a significant advantage in any dispute that comes down to a test of resolve between the two chambers.
This advantage will only grow stronger from the knowledge, on the House's side, that its demands are backed by what's right, by reason, and by the Constitution -- and the knowledge, on the Senate's side, that it's fighting against all of these weighty considerations.
It's also worth considering that, in the range from the smallest to the largest states, several states fall somewhere in between. While they'd generally align with the smaller states, they're close enough in size and population to the larger ones that they wouldn't join an opposition to the larger states' fair and legitimate claims. So it's far from certain that even a majority of the Senate would oppose a proper increase in the number of representatives.
It's not a stretch to add that senators from all the new states could be won over to the House's position through a strategy too obvious to miss. Since these states will grow in population especially fast, they'll have a strong interest in frequent reapportionments of representatives based on population. The large states, who will dominate the House, would simply need to make reapportionments and increases in House membership conditions of each other. Senators from the fastest-growing states would then be compelled to support the increases, because their own states would benefit from the reapportionments.
These considerations seem to provide ample assurance on this subject and should, by themselves, be enough to put all doubts and fears to rest. But even if they were all insufficient to overcome an unfair policy by the smaller states or their outsized influence in the Senate, the larger states would still have a constitutional and foolproof resource at their disposal to achieve their rightful goals. The House of Representatives can not only refuse funding, but it alone can propose the spending needed to run the government. In a word, it holds the purse -- that powerful instrument through which, in the history of the British Constitution, a young and humble representation of the people gradually expanded its sphere of activity and importance, eventually reducing all the excessive powers of the other branches of government as far as it saw fit. This power over the purse can, in fact, be considered the most complete and effective weapon any constitution can give to the people's immediate representatives for correcting every wrong and carrying out every just and beneficial measure.
But won't the House be just as concerned as the Senate about keeping the government functioning properly? And won't they therefore be reluctant to risk the government's existence or reputation on the Senate's willingness to bend? Or, if such a test of resolve between the two chambers were attempted, wouldn't one be just as likely to give in first as the other? These questions won't pose a problem for anyone who considers that, in every case, the smaller the group and the more permanent and prominent its members' positions, the stronger the personal stake each individual will feel in whatever affects the government. Those who represent their country's dignity in the eyes of other nations will be especially sensitive to any threat of public danger or embarrassing paralysis in public affairs. These are the reasons for the continual triumph of the British House of Commons over the other branches of government whenever the weapon of a money bill has been deployed. The other side's absolute refusal to budge -- though it would inevitably have dragged every branch of government into general chaos -- has never been seriously feared or actually attempted. The most determined resistance that the federal Senate or President could mount would be no more than what's supported by constitutional and patriotic principles.
In this review of the House of Representatives, I've passed over the matter of cost -- which, in the current state of affairs, might have played a role in keeping the initial number of representatives smaller, and which, if ignored, would probably have been just as rich a target for attacks on the Constitution as the small size of the House has been. I'm also skipping any discussion of how difficult it might currently be to attract enough qualified people to federal service to fill a large House. But there's one observation I must be allowed to add, because it deserves very serious attention. It's this: in all legislative assemblies, the greater the number of members, the fewer the people who will actually direct the proceedings. First, the larger an assembly is, regardless of its members' quality, the more passion is known to overpower reason. Second, the larger the number, the greater the proportion of members with limited knowledge and weak abilities. And it's precisely on people like this that the eloquence and influence of the few have their full effect. In the ancient republics, where the entire body of citizens assembled in person, a single orator or cunning politician was typically seen to rule with as complete a command as if a scepter had been placed in his hand. On the same principle, the larger a representative assembly becomes, the more it will take on the weaknesses that come with large public meetings. Ignorance will be the tool of cunning, and passion will be the slave of clever rhetoric. The people can never make a bigger mistake than in thinking that multiplying their representatives beyond a certain point strengthens the barrier against rule by the few. Experience will forever teach them that, on the contrary, once you've secured enough members for the purposes of safety, local knowledge, and broad sympathy with the whole society, every additional representative actually works against their goals. The face of the government may look more democratic, but its soul will become more oligarchic. The machine will be bigger, but the springs that drive its motions will be fewer -- and often more hidden.
Connected to the objection about the number of representatives is another one worth addressing here: the objection to the number required for a quorum and for passing legislation. Some have argued that more than a simple majority should have been required for a quorum, and in particular cases -- if not all -- more than a majority of a quorum should have been needed for a decision. It's true that some benefits might have come from such a precaution. It could have been an extra shield for certain interests and another obstacle to hasty and one-sided measures. But these advantages are outweighed by the problems on the other side. In every case where justice or the public good requires new laws or decisive action, the fundamental principle of free government would be turned upside down. It would no longer be the majority that rules -- power would be handed to the minority. If this veto privilege were limited to specific cases, a self-interested minority could use it to protect themselves from fair sacrifices to the common good, or in emergencies, to extort unreasonable concessions. Finally, it would encourage and entrench the destructive practice of walkouts -- a practice that has already shown itself even in states where only a simple majority is required, a practice that undermines every principle of orderly and regular government, a practice that leads more directly to public upheaval and the ruin of popular government than anything else we've yet seen.
PUBLIUS
To the People of the State of New York:
The natural order of our discussion brings us to the provision of the Constitution that gives the national legislature the power, as a last resort, to regulate the election of its own members. Here are the exact words: "The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators."[1] This provision has been attacked not only by those who condemn the Constitution wholesale, but also by those who've objected with more restraint and moderation. In one case, it was even found objectionable by a gentleman who has declared himself a supporter of every other part of the system.
I'm very much mistaken, however, if there's any article in the entire plan more completely defensible than this one. Its soundness rests on the evidence of a plain proposition: every government should contain within itself the means of its own preservation. Any fair-minded thinker will, at first glance, approve the convention's adherence to this rule and will disapprove of any departure from it -- unless that departure was clearly dictated by the necessity of incorporating some particular element that a strict adherence to the rule couldn't accommodate. Even then, while accepting the necessity, they won't stop viewing and regretting a departure from such a fundamental principle as a flaw in the system that could become the seed of future weakness, and perhaps even chaos.
No one will claim that a single election law could have been written and inserted into the Constitution that would have been suitable for every likely change in the country's circumstances. It therefore can't be denied that a flexible authority over elections has to exist somewhere. It will, I expect, be just as readily agreed that there were only three reasonable ways this power could have been arranged: it had to be placed entirely in the national legislature, entirely in the state legislatures, or primarily in the state legislatures with ultimate authority in the national legislature. The last option has, for good reason, been chosen by the convention. They've given the states the initial responsibility for regulating elections for the federal government, which under normal circumstances and when no improper motives are at work will be both more convenient and more satisfactory. But they've reserved for the national government the right to step in whenever extraordinary circumstances make that intervention necessary for its survival.
Nothing could be more obvious than this: an exclusive power over elections for the national government, in the hands of the state legislatures, would leave the Union's very existence entirely at their mercy. They could destroy it at any moment simply by refusing to arrange for the election of the people who run it. It's no use saying that such a failure would be unlikely. The mere constitutional possibility of it happening, with no safeguard against the risk, is an unanswerable objection. And no satisfactory reason has been given for taking that risk. The wild speculation of an overactive suspicion can never count as a real argument. If we're in the mood to assume abuses of power, it's just as fair to assume them on the part of the state governments as on the part of the national government. And since it makes more theoretical sense to trust the Union with its own survival than to hand that responsibility to someone else, if abuses of power are going to be risked on one side or the other, it's more rational to risk them where the power would naturally belong than where it would unnaturally be placed.
Suppose a provision had been included in the Constitution giving the United States the power to regulate elections for the individual states. Wouldn't everyone have immediately condemned it as both an outrageous overreach of power and a deliberate tool for destroying state governments? The violation of principle in that case would have needed no explanation. And to any unbiased observer, the principle is violated just as clearly when you propose to make the national government's existence dependent, in the same way, on the whims of the state governments. An impartial view of the matter can only lead to one conclusion: each level of government, as far as possible, should depend on itself for its own preservation.
As an objection to this position, someone might point out that the way the national Senate is set up already involves the full extent of the danger supposedly created by giving state legislatures exclusive power over federal elections. It could be argued that by refusing to appoint senators, the states could at any time deliver a fatal blow to the Union. From this, it might be concluded that since the Union's existence is already dependent on the states in such a critical way, there's no reason to object to trusting them with election regulation too. And it might be added that each state's interest in maintaining its representation in the national government would be a complete safeguard against abuse.
This argument, though clever-sounding, won't hold up under examination. It's certainly true that state legislatures, by refusing to appoint senators, could destroy the national government. But it doesn't follow that, because they have the power to do this in one case, they should have it in every other. There are situations where the harmful potential of such power could be far more decisive, without any justification as compelling as the one that guided the convention in designing the Senate. As far as the Senate's structure exposes the Union to the possibility of harm from state legislatures, it is an evil -- but an evil that couldn't have been avoided without completely excluding the states, in their governmental capacity, from any role in the national government's organization. If that had been done, it would undoubtedly have been seen as a total abandonment of the federal principle, and it certainly would have deprived state governments of the absolute safeguard they'll enjoy under this arrangement. But however wise it may have been to accept this drawback in order to achieve a necessary advantage, no argument can be drawn from it to justify piling on more risk where no necessity demands it and no greater good justifies it.
It's also easy to see that the national government would face a much greater risk from giving state legislatures power over House elections than from their power to appoint senators. Senators are chosen for six-year terms. There's a rotation system by which one-third of the seats are vacated and refilled every two years. No state can have more than two senators, and a quorum of the body requires only sixteen members. The combined effect of these features is that a temporary alliance of a few states to withhold senator appointments could neither destroy nor paralyze the body. And we have nothing to fear from a general, permanent combination of all the states. A temporary scheme might come from self-serving leaders in a handful of state legislatures. A permanent one would require a deep and entrenched dissatisfaction among the general public -- something that will either never exist at all, or will most likely result from the national government's failure to promote the people's happiness, in which case no good citizen would want it to continue anyway.
But when it comes to the federal House of Representatives, there's supposed to be a general election of members every two years. If state legislatures had exclusive power to regulate these elections, every election cycle would become a dangerous crisis for the nation, potentially ending in the Union's dissolution if the leaders of a few of the most important states had conspired in advance to prevent an election.
I won't deny that there's some weight to the observation that each state's interest in being represented in the federal government would guard against abuse of power over elections. But this security won't be considered complete by anyone who recognizes an obvious distinction: the difference between the people's interest in the nation's well-being and their local politicians' interest in their own power and position. The people of America may be deeply attached to the Union's government at times when the leaders of particular states -- driven by the natural rivalry of power and hopes of personal advancement, and backed by a strong faction in their states -- may feel exactly the opposite. This disconnect between the majority of the people and the most influential figures in their state governments is on display in several states right now, on this very question. The scheme of separate confederacies, which would always multiply opportunities for ambition, will be an irresistible temptation for every powerful figure in state government who's capable of putting personal advancement ahead of the public good. With something as potent as the exclusive power to regulate elections for the national government in their hands, a combination of a few such people in a few of the most important states -- where the temptation will always be strongest -- could accomplish the Union's destruction. They'd simply need to seize on some passing wave of public discontent (which they may have stirred up themselves) to stop holding elections for the federal House of Representatives. We should never forget that a strong union of this country, under an effective government, will probably be an increasing source of anxiety to more than one European nation, and that plots to undermine it will sometimes originate from the schemes of foreign powers and will rarely fail to be supported and encouraged by some of them. The Union's preservation, therefore, should never -- in any case that can be avoided -- be entrusted to anyone other than those whose position will always give them a direct personal stake in its faithful and vigilant protection.
PUBLIUS
[1] Article I, Section 4, Clause 1 of the Constitution.
To the People of the State of New York:
We've seen that an uncontrollable power over elections for the federal government couldn't, without serious risk, be left to the state legislatures. Let's now look at the danger on the other side -- that is, from giving the ultimate right to regulate its own elections to the Union itself. Nobody claims this right would ever be used to shut any state out of its share of representation. Everyone's interest in that regard would be everyone's security. But it's alleged that this power might be used to promote the election of some favored class of people by limiting where elections are held to particular districts, making it impossible for ordinary citizens to participate in the vote. Of all the far-fetched scenarios, this is the most far-fetched. On one hand, no rational calculation of probabilities would lead us to imagine that the kind of attitude such violent and extraordinary behavior would imply could ever find its way into the national government. On the other hand, we can say with certainty that if such a corrupt spirit ever did gain entry, it would show itself in a completely different and far more decisive form.
The unlikelihood of such an attempt can be satisfactorily demonstrated by this single observation: it could never be made without causing an immediate revolt by the great body of the people, led and directed by the state governments. It's not hard to imagine that this fundamental right of freedom might, in certain turbulent and divided times, be violated against a particular class of citizens by a powerful and overbearing majority. But the idea that such a basic privilege, in a country this advanced and enlightened, could be attacked to the detriment of the great mass of the people, as a deliberate policy of the government, without sparking a popular revolution -- that's simply inconceivable and unbelievable.
Beyond this general point, there are more specific reasons that rule out any worry on this subject. The different elements making up the national government, and even more so the different ways they'll be brought into action across its various branches, must form a powerful obstacle to any coordinated scheme involving elections. There's enough diversity in property, character, customs, and habits among the people of different parts of the Union to produce a real diversity of attitudes in their representatives toward the different ranks and classes of society. And while close interaction under the same government will gradually make some of these differences smaller, there are causes -- both physical and cultural -- that will, to a greater or lesser degree, permanently sustain different tendencies in this respect. But the factor most likely to have the greatest influence will be the different ways the various parts of the government are assembled. The House of Representatives is to be elected directly by the people. The Senate is to be chosen by the state legislatures. The President is to be selected by electors chosen for that purpose by the people. There would be very little chance of a shared interest uniting these different branches in a preference for any particular class of voters.
As for the Senate, it's impossible that any regulation of "time and manner" -- which is all that's proposed to be placed under the national government's authority regarding that body -- could affect the spirit guiding the choice of its members. The collective judgment of the state legislatures can never be influenced by external factors of that kind. This consideration alone should be enough to convince us that the feared discrimination would never be attempted. What incentive would the Senate have to participate in a preference that wouldn't include itself? And what would be the point of establishing such a preference for one branch of the legislature if it couldn't be extended to the other? The composition of one branch would, in that case, counteract the other. And we can't assume that such a scheme would affect Senate appointments unless we also assume the state legislatures would voluntarily cooperate with it. If we make that assumption, then it becomes irrelevant where the power in question is placed -- in the states' hands or the Union's.
But what would be the actual target of this arbitrary favoritism in the national government? Would it discriminate between different industries, or between different kinds of property, or between different levels of wealth? Would it favor the agricultural interest, or the financial interest, or the commercial interest, or the manufacturing interest? Or, to use the fashionable language of the Constitution's opponents, would it engineer the rise of "the wealthy and the well-born" while excluding and degrading the rest of society?
If this favoritism were exercised in favor of those involved in any particular industry or type of property, I think it will be readily admitted that the main contest would be between landowners and merchants. And I don't hesitate to say that it's infinitely less likely that either of them could gain dominance in the national government than that one or the other would dominate any particular state's government. The conclusion follows: a policy giving an unfair advantage to either group is far less to be feared from the national government than from the states.
The various states are devoted to agriculture and commerce in different degrees. In most, if not all of them, agriculture dominates. In a few, commerce almost rivals it, and in most it has a considerable share of influence. In proportion to which one dominates, it will be reflected in the national representation. And precisely because this representation will come from a wider variety of interests, in much more varied proportions than can be found in any single state, it will be far less likely to strongly favor either one than any single state's representation would.
In a country consisting mainly of farmers, where the principle of equal representation holds, the agricultural interest must, on the whole, dominate the government. As long as this interest prevails in most state legislatures, it will maintain a corresponding dominance in the national Senate, which will generally be a faithful reflection of the majorities in those bodies. It therefore can't be assumed that the Senate would ever sacrifice agricultural interests to the commercial class. In applying this general point specifically to the Senate -- a point suggested by the country's situation -- I'm guided by the fact that those who zealously defend state power can't, by their own logic, suspect that state legislatures would be swayed from their duty by outside influence. But in reality, the same situation would have the same effect on the initial makeup of the federal House of Representatives as well: an improper bias toward the commercial class is just as unlikely from this quarter as from the other.
Perhaps to give the objection some support regardless, someone might ask: isn't there a danger of the opposite bias -- that the national government might try to secure a monopoly of federal positions for the agricultural class? Since this possibility is unlikely to alarm those who would actually be hurt by it, a lengthy answer to this question isn't needed. It will be enough to note, first, that for reasons explained elsewhere, a strong preference for any group is less likely to prevail in the Union's government than in any individual state's. Second, there would be no temptation to violate the Constitution in favor of the agricultural class, because that class would, in the natural course of things, enjoy as much dominance as it could wish for. And third, people accustomed to studying the sources of public prosperity on a large scale must be too well aware of commerce's value to be willing to inflict such a deep wound on it as would result from completely excluding those who best understand its interests from any role in managing them. The importance of commerce -- from a revenue perspective alone -- must effectively protect it against the hostility of a body that would constantly be reminded of its value by the pressing demands of public necessity.
I've kept this discussion brief regarding the probability of favoritism based on different types of industry and property, because, as far as I understand the critics, they have a different kind of discrimination in mind. They seem to envision, as the beneficiaries of the favoritism they're trying to alarm us about, those they call "the wealthy and the well-born." These people, it seems, are to be raised to an odious position of privilege over the rest of their fellow citizens. At one point, we're told their elevation will be an inevitable result of making the representative body too small. At another point, it's supposed to happen by depriving ordinary people of the chance to exercise their right to vote in choosing that body.
But on what principle would the discrimination in voting locations be made in order to achieve this imagined favoritism? Are "the wealthy and the well-born," as they're called, confined to particular spots in the various states? Have they, by some miraculous instinct or foresight, staked out a common neighborhood in each state? Are they only found in cities and towns? Or are they, on the contrary, scattered across the countryside wherever chance or ambition happened to place them or their ancestors? If the latter is the case -- as every informed person knows it is[1] -- isn't it obvious that a policy of restricting election locations to particular districts would undermine its own goal just as surely as it would be objectionable on every other ground? The truth is, there's no way to guarantee the rich the favoritism that's feared except by setting property qualifications for either voters or candidates. But this is not part of the power to be given to the national government. Its authority would be expressly limited to regulating the times, the places, and the manner of elections. The qualifications for who may vote or be voted for, as has been noted on other occasions, are defined and fixed in the Constitution and can't be changed by the legislature.
But let's suppose, for the sake of argument, that the scheme described might work. And let's also assume that all the scruples that a sense of duty or a fear of the experiment's dangers might inspire were overcome in the hearts of the national leaders. I still believe it will hardly be suggested that they could ever hope to carry out such an enterprise without the help of a military force strong enough to crush the resistance of the great body of the people. The impossibility of such a force existing has been discussed and demonstrated in other parts of these papers. But to show the absurdity of the objection we're considering in the strongest possible light, let's concede for a moment that such a force might exist, and that the national government actually had it at its disposal. What would follow? If a government had the desire to invade the essential rights of the people and the means to act on that desire, is it really plausible that they'd waste their time on the ridiculous project of rigging election laws to favor some preferred class? Wouldn't they be more likely to pursue something that served their own immediate power? Wouldn't they rather boldly choose to make themselves permanent rulers through one decisive act of seizure, rather than relying on precarious tricks that, despite every precaution, might end in their dismissal, disgrace, and ruin? Wouldn't they fear that citizens -- who are no less fierce than they are conscious of their rights -- would flock from the far corners of their states to the polling places to overthrow their tyrants and replace them with leaders who would avenge the violated dignity of the people?
PUBLIUS
[1] This is especially true in the Southern states and in this state.
To the People of the State of New York:
The more honest opponents of the election provision in the proposed Constitution, when pressed in argument, will sometimes concede that the provision is reasonable -- with this one condition: it should have been accompanied by a declaration that all elections must be held in the counties where the voters live. This, they say, was a necessary safeguard against abuse of the power. A declaration like that certainly would have been harmless, and to the extent it would have calmed people's fears, it might not have been a bad idea. But in reality, it would have provided little or no additional protection against the danger they're worried about. And the lack of such a declaration will never be seen by any fair and thoughtful observer as a serious objection to the plan -- let alone a fatal one. The different perspectives I've laid out in the two previous papers should be enough to convince any fair-minded person that if the public's liberty ever falls victim to the ambition of national leaders, the power we're discussing here will at least be innocent of that crime.
If those who are inclined to follow their suspicions would direct that energy toward a careful look at the various state constitutions, they'd find just as much room for worry from the freedom those constitutions allow regarding elections as from the freedom proposed for the national government on the same subject. Reviewing the states' situations on this point would go a long way toward removing any negative impressions about this matter. But since that review would take us deep into long and tedious details, I'll limit myself to the single example of the state where I'm writing.
The constitution of New York makes no provision for where elections must be held beyond saying that Assembly members shall be elected in their counties, and senators in the large districts into which the state is divided. These districts currently number four, and each covers anywhere from two to six counties. It's easy to see that it would be no harder for the New York state legislature to undermine the votes of New York citizens by confining elections to certain specific locations than it would be for the United States legislature to undermine the votes of all American citizens by the same trick.
Suppose, for example, that the city of Albany were designated as the only polling place for the county and district it belongs to. Wouldn't the residents of Albany quickly become the only people actually voting for both Senate and Assembly members from that county and district? Can we really imagine that voters living in the far corners of Albany, Saratoga, and Cambridge counties -- or anywhere in Montgomery County -- would bother traveling all the way to Albany to cast their votes for Assembly or Senate members, any sooner than they'd travel to New York City to vote for members of the federal House of Representatives? The alarming indifference we already see in voter turnout under current laws -- which make voting as easy as possible -- gives us a ready answer to that question. And even without looking at actual experience, we can easily figure out that when a polling place is inconveniently far from the voter, the effect on their behavior will be the same whether the distance is twenty miles or twenty thousand miles.
So it should be clear that objections to this particular feature of the federal power to regulate elections apply with equal force to the equivalent provisions in this state's constitution. And for that reason, it's impossible to approve of one while condemning the other. A similar comparison would lead to the same conclusion for most of the other states as well.
If someone argues that flaws in the state constitutions don't excuse flaws in the proposed plan, I'd answer this: since the state constitutions have never been accused of neglecting the security of liberty, and since the same charges now thrown at the federal plan can be shown to apply to the states too, the logical conclusion is that these objections are really just the nitpicking of a predetermined opposition -- not the well-founded conclusions of an honest search for truth. To those who are ready to treat as innocent oversights in their state constitutions the very same things they call unforgivable flaws in the proposed Constitution, nothing much can be said. At most, they can be asked to give some real reason why state representatives should be more resistant to the temptations of power or other corrupt motives than the representatives of the entire United States.
If they can't do that, they should at least prove that it's easier to destroy the liberties of three million people -- who have local governments ready to lead the opposition -- than to destroy the liberties of two hundred thousand people who have no such advantage. And on the specific point we're discussing, they need to convince us that a dominant faction in a single state is less likely to favor a particular class of voters to maintain its grip on power than a similar spirit would be among the representatives of thirteen states, spread across a vast region and distinguished from each other by a diversity of local conditions, biases, and interests.
Up to this point, my arguments have only aimed at defending this provision based on theoretical soundness, the danger of placing the power elsewhere, and the safety of placing it as proposed. But there's still a positive advantage to mention -- one that comes from this particular arrangement and couldn't easily be achieved any other way. I'm referring to the benefit of holding elections for the federal House of Representatives at the same time nationwide.
It's more than possible that this uniformity will prove, through experience, to be very important for the public good -- both as a safeguard against any entrenched political spirit taking hold in the body, and as a cure for the diseases of faction. If each state gets to choose its own election date, there could be as many different election periods as there are months in the year. State election dates, as they currently stand for local purposes, range as widely as March to November. The result of this variation would be that the entire body could never be dissolved and renewed all at once. If some harmful political spirit happened to take hold, it would tend to spread to new members as they arrived one by one. The body would likely stay much the same, constantly absorbing newcomers into its existing character. There's a contagion in example that few people have the strength of mind to resist. I'm inclined to think that triple the length of office with the condition that the entire body turns over at once might actually be less dangerous to liberty than one-third that term with gradual, staggered replacement.
Uniform election timing seems equally necessary for carrying out the idea of regular rotation in the Senate, and for conveniently assembling the legislature at a set time each year.
It might be asked: if uniform timing is so important, why not just fix a specific date in the Constitution? Since the strongest opponents of the proposed Constitution in this state are generally also the strongest admirers of the state constitution, the question can be turned right back on them: Why wasn't a specific election date fixed in the state constitution? The best answer is that this was a matter that could safely be left to the legislature's judgment, and that if a date had been locked in, it might have turned out to be less convenient than some other time. The same answer applies to the question about the federal plan. And it can be added that since the supposed danger of gradual turnover is purely theoretical, it would hardly have been advisable to establish as a fixed constitutional principle something that would deprive several states of the convenience of holding their state and national elections at the same time.
PUBLIUS
To the People of the State of New York:
Having examined the structure of the House of Representatives and answered the objections that seemed worth addressing, I turn next to the Senate. The topics under which this branch of government can be considered are: I. The qualifications of senators; II. Their appointment by the state legislatures; III. Equal representation in the Senate; IV. The number of senators and their term of office; V. The powers given to the Senate.
I. The qualifications required for senators, as distinct from those for representatives, consist of a higher minimum age and a longer period of citizenship. A senator must be at least thirty years old, compared to twenty-five for a representative. And a senator must have been a citizen for at least nine years, compared to seven for a representative. The reasoning behind these distinctions comes from the nature of the Senate's role. Because it requires greater breadth of knowledge and steadiness of character, it makes sense that a senator should have reached an age where they're most likely to have developed these qualities. And because the Senate participates directly in dealings with foreign nations, it should only be open to people who have been thoroughly freed from the biases and habits that come with being born and raised in another country. The nine-year requirement strikes a sensible middle ground between completely excluding naturalized citizens -- whose talents and merit may well earn the public's trust -- and allowing them in too quickly and indiscriminately, which could create a pipeline for foreign influence over our national decisions.
II. There's equally little need to dwell on the appointment of senators by state legislatures. Among the various methods that could have been designed for forming this branch of government, the one the convention proposed is probably the most in tune with public opinion. It has the double advantage of producing a more selective appointment process while also giving state governments a role in shaping the federal government -- one that helps secure the states' authority and serves as a useful link between the two systems.
III. Equal representation in the Senate is another point that, being clearly the result of a compromise between the competing claims of the large and small states, doesn't call for much discussion. If it's true that in a fully unified nation, every district should have representation proportional to its size, and that among independent sovereign states joined by a simple alliance, all parties -- however unequal in size -- should have equal say in shared decisions, then it seems reasonable that in a mixed republic like ours, which partakes of both national and federal character, the government should be built on a blend of proportional and equal representation.
But it's pointless to judge by abstract theory a part of the Constitution that everyone acknowledges was the result not of theory but "of a spirit of friendship, and that mutual respect and compromise which our unique political situation made absolutely necessary." A common government with powers adequate to its responsibilities is demanded by the voice -- and even more urgently by the political circumstances -- of America. A government built on principles more agreeable to the larger states is unlikely to be accepted by the smaller states. The only choice, then, for the larger states is between the proposed government and one that would be even more objectionable. Given these options, the wise course is to embrace the lesser of two evils and, instead of dwelling on the potential problems that might follow, focus instead on the real advantages that may offset the sacrifice.
In that spirit, it's worth noting that the equal vote given to each state serves two purposes: it's a constitutional recognition that each individual state retains a share of sovereignty, and it's a tool for preserving that remaining sovereignty. Seen this way, equal representation should be no less acceptable to the large states than to the small ones, since the large states are just as eager to guard against an improper merging of all the states into one undifferentiated republic.
Another benefit of this feature of the Senate is the additional check it provides against bad legislation. No law or resolution can be passed without the agreement, first, of a majority of the people (through the House), and then, of a majority of the states (through the Senate). Admittedly, this double check on legislation may sometimes block good measures as well as bad ones. And the special protection it gives to the smaller states would be more justified if they had distinct common interests that would otherwise be at risk. But since the larger states will always be able to use their power over funding to block unreasonable uses of this advantage by the smaller states, and since passing too many laws too easily seems to be the disease our governments are most prone to, it's quite possible that this part of the Constitution will work better in practice than it looks in theory.
IV. The number of senators and the length of their terms come next. To form a sound judgment on both points, we need to ask what purposes a senate is meant to serve. And to answer that, we need to consider the problems that a republic would suffer from without such an institution.
First. It's an unfortunate reality of republican government -- though less so than other forms -- that the people who run it may forget their obligations to the public and betray their important trust. From this perspective, a senate, as a second branch of the legislature distinct from and sharing power with the first, serves in every case as a healthy check on the government. It doubles the people's security by requiring two separate bodies to agree before any scheme of power-grabbing or betrayal can succeed -- when the ambition or corruption of one body alone would otherwise be enough. This is a safeguard built on such clear principles, and by now so well understood in the United States, that elaborating further would be unnecessary. I'll just note that since the likelihood of corrupt alliances between the two bodies will decrease the more different they are from each other, it makes sense to distinguish them by every characteristic that's consistent with proper harmony on legitimate measures and with the genuine principles of republican government.
Second. The need for a senate is equally demonstrated by the tendency of all single, large legislative bodies to give in to sudden and violent passions, and to be led by factional leaders into reckless and harmful decisions. Examples could be cited endlessly, from proceedings within the United States as well as from the history of other nations. But a point that no one will dispute doesn't need to be proven. All that needs to be said is that the body meant to correct this problem should itself be free from it -- and therefore should be smaller in number. It should also have great steadiness of purpose, and therefore should hold office for a considerable length of time.
Third. Another gap that a senate needs to fill is the lack of real expertise in legislation. It's simply not possible for an assembly of people called mostly from private life, serving short terms, and having no strong incentive to study the laws, national affairs, and broader interests of their country between sessions, to avoid making a significant number of important mistakes in their legislative work if left entirely to themselves. It can be said with confidence that a good portion of America's current problems can be blamed on the blunders of our governments -- and that those blunders have come more from the heads than the hearts of most of those responsible. What are all the laws that repeal, clarify, and amend previous laws -- the ones that fill and disgrace our bloated legal codes -- but monuments to a lack of wisdom? Each legislative session amounts to an indictment of the one before it, and each serves as a reminder to the people of just how valuable a well-designed senate could be.
A good government requires two things: first, faithfulness to the purpose of government, which is the happiness of the people; second, the knowledge of how best to achieve that purpose. Some governments fail on both counts; most fail on the first. I won't hesitate to say that American governments have paid too little attention to the second. The federal Constitution avoids this mistake. And what's especially worth noting is that it addresses the second requirement in a way that also strengthens the first.
Fourth. The constant turnover in our legislatures caused by rapid replacement of members -- however qualified the new ones may be -- powerfully demonstrates the need for some stable institution in the government. Every new election in the states replaces roughly half the representatives. With new people come new opinions, and with new opinions come new policies. But a constant change of policies -- even good ones -- is inconsistent with every rule of good judgment and every prospect of success. This observation holds true in private life and becomes even more true, and more important, in national affairs.
Tracing all the harmful effects of an unstable government would fill a book. I'll just touch on a few, each of which is itself a source of countless others.
In the first place, it costs us the respect and confidence of other nations, along with all the advantages that come with a strong national reputation. A person who's seen constantly changing their plans -- or maybe having no plan at all -- is immediately written off by every sensible observer as someone who'll soon be the victim of their own inconsistency and foolishness. Their friendlier neighbors may feel sorry for them, but everyone will avoid tying their fate to theirs, and more than a few will seize the chance to profit from their mistakes. The relationship between nations works the same way -- with this sad difference: nations, having even fewer charitable impulses than individuals, also have fewer restraints against exploiting each other's missteps. Any nation whose affairs show a lack of wisdom and stability can expect to lose out to the more systematic policies of their wiser neighbors. But the best lesson on this subject is, unfortunately, provided by America's own situation. She finds that her friends don't respect her, that her enemies mock her, and that she's easy prey for any nation that stands to gain from speculating on her inconsistent policies and troubled affairs.
The domestic effects of unstable policy are even worse. It poisons the very blessing of liberty itself. It will do the people little good that their laws are made by representatives of their own choosing, if those laws are so numerous they can't be read, or so incoherent they can't be understood -- if they're repealed or revised before they're even published, or changed so constantly that no one who knows what the law is today can guess what it will be tomorrow. Law is supposed to be a rule of action. But how can something be a rule if it's barely known and constantly shifting?
Another effect of public instability is the unfair advantage it gives to the shrewd, the enterprising, and the wealthy few over the hardworking and less-informed majority. Every new regulation affecting commerce or revenue, or anything that changes the value of different kinds of property, presents a new opportunity for profit to those who are watching the changes and can predict their consequences -- a harvest reaped not from their own labor, but from the hard work of their fellow citizens. This is a situation where it can truthfully be said that laws are made for the few, not for the many.
From another angle, an unstable government causes serious harm by destroying confidence in the system. A lack of faith in the government's consistency discourages every worthwhile undertaking whose success depends on existing arrangements staying in place. What sensible businessperson will invest in a new line of commerce when they don't know if their plans might be made illegal before they can even get started? What farmer or manufacturer will commit to a venture encouraged by current policy when they have no assurance that their preparatory work and investment won't be wiped out by an inconsistent government? In short, no major improvement or worthwhile enterprise can move forward without the support of a steady system of national policy.
But the most devastating effect of all is the loss of attachment and respect that gradually creeps into people's hearts toward a political system that shows so many signs of weakness and disappoints so many of their hopes. No government, any more than any individual, will be respected for long without actually being respectable. And no government can be truly respectable without maintaining a reasonable degree of order and stability.
PUBLIUS
To the People of the State of New York:
A fifth reason for a senate's usefulness is the lack of a proper sense of national character. Without a selective and stable branch of government, we won't just lose the respect of foreign powers through the uninformed and inconsistent policies I've already discussed -- our national leaders won't even develop the sensitivity to world opinion that is perhaps no less necessary for deserving that respect than for obtaining it.
Paying attention to the judgment of other nations is important for every government for two reasons. The first is that, regardless of the merits of any particular plan or policy, it's desirable on many counts that it should appear to other nations as the product of wise and honorable governance. The second is that in doubtful cases -- particularly when national policy may be distorted by some strong passion or short-term interest -- the presumed or known opinion of the impartial world may be the best guide available. How much has America lost by her poor reputation with foreign nations? And how many errors and foolish choices would she have avoided if the fairness and wisdom of her policies had, in every case, been tested beforehand against how they would probably look to unbiased observers around the world?
But however necessary a sense of national character may be, it's clear that it can never be adequately maintained by a large and constantly changing body. It can only be found in a group small enough that each member feels a meaningful share of the praise and blame for public decisions, or in an assembly invested with public trust long enough that its members' pride and sense of importance become genuinely tied to the reputation and prosperity of the community. The representatives of Rhode Island, elected every six months, were probably little influenced in their deliberations on that state's unjust policies by arguments about how those policies would look to foreign nations, or even to their sister states. But it's hard to doubt that if the agreement of a selective and stable body had been required, concern for national character alone would have prevented the disasters under which that misguided state is now suffering.
I'll add, as a sixth defect, the lack -- in some important cases -- of proper accountability from the government to the people, caused by the very frequency of elections that in other cases produces that accountability. This observation will probably seem not just new, but contradictory. But once explained, it must be acknowledged to be as undeniable as it is important.
Accountability, to be reasonable, must be limited to matters within the responsible party's control. And to be effective, it must relate to uses of that power about which voters can form a ready and sound judgment. The business of government can be divided into two broad categories: one covers measures that have a single, immediate, and obvious effect; the other covers a series of well-chosen and interconnected measures that produce gradual -- and perhaps unnoticed -- results. The importance of this second category to the collective and long-term welfare of every country is obvious. Yet it's equally obvious that a legislature elected for a term so short that it can only contribute one or two links in a chain of measures on which the general welfare may depend shouldn't be held responsible for the final outcome -- any more than a manager or tenant hired for one year could fairly be blamed for improvements that would take at least half a dozen years to complete. Nor can the people realistically estimate how much influence their annually elected legislatures may have had on outcomes that result from the combined actions of several years' worth of lawmakers. It's hard enough to maintain personal accountability among individual members of a large body, even for actions that have immediate, distinct, and obvious effects on voters.
The proper remedy for this defect is an additional body in the legislature that, having enough permanence to address goals requiring sustained attention and a series of connected measures, can be justly and effectively held accountable for achieving those goals.
So far I've discussed the reasons for a well-designed Senate only as they relate to the representatives of the people. To a people as clear-eyed and uncorrupted by flattery as those I'm addressing, I won't hesitate to add that such an institution may sometimes be necessary as a defense of the people against their own temporary mistakes and passions. The cool and deliberate judgment of the community should, in every government -- and actually will, in every free government -- ultimately prevail over the views of its rulers. But there are particular moments in public life when the people, stirred up by some irregular passion or some illicit incentive, or misled by the skillful distortions of self-interested individuals, may demand measures that they themselves will later be the first to regret and condemn. In those critical moments, how valuable will the intervention of some steady and respected body of citizens be -- to check the misguided course and suspend the blow the people are about to strike against themselves, until reason, justice, and truth can regain their hold on the public mind! How much bitter anguish would the people of Athens have been spared if their government had contained such a wise safeguard against the tyranny of their own passions! Popular liberty might then have escaped the unforgettable disgrace of sentencing the same citizens to death by hemlock one day and erecting statues in their honor the next.
It may be suggested that a people spread across an extensive territory can't, like the crowded residents of a small city-state, be infected by violent passions or combine in pursuit of unjust measures. I'm far from denying that this is an important distinction. On the contrary, I've argued in a previous paper that it's one of the principal advantages of a large republic. At the same time, this advantage shouldn't be considered a replacement for additional safeguards. In fact, the same large territory that protects the American people from some of the dangers that afflicted smaller republics will also expose them to the disadvantage of remaining longer under the influence of misinformation that interested parties may succeed in spreading among them.
It adds considerable weight to all these arguments to remember that history tells us of no long-lived republic that didn't have a senate. Sparta, Rome, and Carthage are actually the only ancient states that qualify as long-lived. In both Sparta and Rome, the senate served for life. The structure of Carthage's senate is less well known, but the available evidence suggests it wasn't very different on this point from the other two. What's certain is that it had some quality that made it an anchor against popular instability, and that a smaller council drawn from the senate not only served for life but filled its own vacancies.
These examples, though as unfit for imitation as they are contrary to the spirit of America, are nonetheless -- when compared with the brief and turbulent existence of other ancient republics -- very instructive proof of the need for some institution that blends stability with liberty. I'm well aware of the differences between American government and other popular governments, both ancient and modern, which make it necessary to be very cautious in drawing lessons from one for the other. But after giving that caution its full weight, it can still be argued that there are enough similarities to make these examples worth our attention. Many of the defects that, as we've seen, only a senate can remedy are common to both a large legislature frequently elected by the people and the people themselves. There are other defects unique to such a legislature that also require the check of a senate. The people can never willfully betray their own interests, but they may be betrayed by their representatives -- and the danger is obviously greater when all legislative power rests in the hands of a single body than when it requires the agreement of two separate and different bodies for every public act.
The difference most often cited between American and other republics is the principle of representation -- the foundation on which ours operates, and which is thought to have been unknown to the ancients, or at least to the ancient republics. The way I've used this distinction in earlier papers will have shown that I'm inclined neither to deny its existence nor to downplay its importance. I therefore feel all the more comfortable observing that the claim about the ancients' complete ignorance of representation is not precisely true in the way it's usually stated. Without going into a lengthy analysis that would be out of place here, I'll point to a few well-known facts to support my point.
In the purest democracies of Greece, many of the executive functions were carried out not by the people themselves but by officers elected by the people, representing the people in their executive capacity.
Before the reforms of Solon, Athens was governed by nine archons, annually elected by the people at large. The extent of power given to them remains unclear. After Solon's reforms, we find an assembly -- first of four hundred, then of six hundred members -- annually elected by the people, partially representing them in a legislative capacity. These members weren't just associated with the people in the lawmaking function; they had the exclusive right to propose new legislation for the people to approve. The senate of Carthage, too, whatever its powers or the length of its term, appears to have been elected by the people's votes. Similar examples can be found in most, if not all, of the popular governments of antiquity.
Finally, in Sparta we find the Ephori, and in Rome the Tribunes -- two bodies, small in number, but annually elected by the entire citizen body and considered the representatives of the people in virtually their fullest capacity. The Cosmi of Crete were also annually elected by the people and have been compared by some scholars to the institutions of Sparta and Rome, with only this difference: the right to vote in electing that representative body was limited to only a portion of the people.
From these facts -- and many more could be added -- it's clear that the principle of representation was neither unknown to the ancients nor entirely absent from their political systems. The true distinction between their governments and ours lies in the total exclusion of the people, acting collectively, from any direct share in the American system -- not in the total exclusion of elected representatives from the ancient systems. This distinction, properly understood, still gives the United States a very significant advantage. But to get the full benefit of that advantage, we must be careful not to separate it from the other advantage of governing an extensive territory. For it's hard to believe that any form of representative government could have succeeded within the tiny borders occupied by the democracies of Greece.
In response to all these arguments -- supported by reason, illustrated by historical examples, and confirmed by our own experience -- the suspicious opponents of the Constitution will probably settle for repeating that a senate not elected directly by the people, serving six-year terms, must gradually acquire a dangerous dominance in the government and eventually transform it into a tyrannical aristocracy.
To this general objection, the general reply should be sufficient: liberty can be endangered by the abuse of liberty just as surely as by the abuse of power. There are many examples of both, and the former rather than the latter seems to be the greater current threat to the United States. But a more specific answer can also be given.
Before any such revolution could happen, the Senate would first have to corrupt itself, then corrupt the state legislatures, then corrupt the House of Representatives, and finally corrupt the people themselves. It's obvious that the Senate would have to be corrupted first before it could even attempt to establish tyranny. Without corrupting the state legislatures, it couldn't pursue the attempt, because the regular replacement of members would otherwise regenerate the entire body. Without successfully corrupting the House of Representatives, the opposition from that equal branch would inevitably defeat the attempt. And without corrupting the people themselves, a new wave of representatives would quickly restore everything to its original order. Is there anyone who can seriously believe that the proposed Senate could, by any means within the range of human ability, achieve such lawless ambition through all these obstacles?
If reason rejects this fear, experience delivers the same verdict. The constitution of Maryland provides the most relevant example. Maryland's Senate is elected -- just as the federal Senate will be -- indirectly by the people, and for a term just one year shorter than the federal Senate's. It's also distinguished by the notable power of filling its own vacancies during its term, and at the same time, it isn't subject to any rotation requirement like the one provided for the federal Senate. There are some other minor differences that would actually make Maryland's Senate more vulnerable to legitimate criticism than the federal one. If the federal Senate truly posed the danger that's been so loudly proclaimed, at least some signs of a similar danger should have appeared in Maryland's Senate by now. But no such signs have appeared. On the contrary, the suspicions initially held by the same type of people who now view the corresponding part of the federal Constitution with alarm have gradually been extinguished by the experiment's success. The Maryland constitution is daily building a reputation from the beneficial operation of this very feature -- a reputation that will probably be unmatched by any state in the Union.
But if anything could silence these fears, it should be the British example. The British Senate, instead of being elected for six-year terms and open to any citizen regardless of family or fortune, is a hereditary assembly of wealthy nobles. The British House of Representatives, instead of being elected every two years by the entire population, is elected every seven years, and largely by a very small fraction of the people. If the dire warnings about aristocratic takeover were valid, we'd surely expect to see them on full display in Britain. But British history tells us the opposite: the hereditary House of Lords has been unable to defend itself against the steady encroachments of the House of Commons. And the moment it lost the support of the monarch, it was actually crushed by the weight of the popular branch.
Ancient history tells the same story. In Sparta, the Ephori -- the annually elected representatives of the people -- proved more than a match for the senate-for-life, steadily eroding its authority and eventually pulling all power into their own hands. In Rome, the Tribunes, who were the people's representatives, prevailed in almost every contest with the senate-for-life and ultimately achieved complete triumph over it. This is especially remarkable given that unanimity was required for every act of the Tribunes, even after their number was increased to ten. It proves the irresistible force that belongs to the branch of a free government that has the people on its side. To these examples could be added Carthage, whose senate, according to the historian Polybius, instead of swallowing up all power, had actually lost almost all of its original authority by the start of the Second Punic War.
Beyond this decisive collection of evidence that the federal Senate will never be able to gradually transform itself into an independent aristocratic body, we're also justified in believing that if such a revolution ever did happen -- from causes that human foresight can't guard against -- the House of Representatives, with the people on its side, would at all times be able to bring the Constitution back to its original form and principles. Against the force of the people's direct representatives, nothing will be able to maintain even the Senate's legitimate constitutional authority -- nothing except such a display of enlightened policy and dedication to the public good as would earn the Senate a share of the affections and support of the entire body of the people themselves.
PUBLIUS
To the People of the State of New York:
It's a fair observation -- and not a new one -- that enemies of particular people and opponents of particular policies rarely limit their criticism to things that actually deserve blame. Without this tendency, it would be hard to explain what motivates those who condemn the proposed Constitution wholesale and harshly attack some of its most unobjectionable provisions.
The second section gives the President the power "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur."
The power to make treaties is an important one, especially as it relates to war, peace, and commerce. It should only be delegated in a way, and with safeguards, that provide the highest assurance it will be exercised by the most qualified people and in the manner best serving the public good. The convention appears to have been attentive to both of these concerns. They've arranged for the President to be chosen by select bodies of electors, appointed by the people specifically for that purpose, and they've given the power of selecting senators to the state legislatures. This method has a huge advantage over direct popular elections, where the energy of partisan enthusiasm -- taking advantage of the apathy, ignorance, hopes, and fears of the unwary and self-interested -- often puts people in office with only a small fraction of the voters' support.
Since the electoral bodies choosing the President, as well as the state legislatures appointing senators, will generally be made up of the most informed and respected citizens, there's good reason to expect that they'll direct their attention and their votes only to people who have distinguished themselves through ability and character, and in whom the public has sound reasons for confidence. The Constitution pays very particular attention to this goal. By excluding anyone under thirty-five from the presidency and anyone under thirty from the Senate, it limits the choices to people about whom the public has had time to form a judgment -- people who won't fool voters with the kind of brilliant but fleeting displays of talent and patriotism that, like shooting stars, sometimes dazzle and mislead.
If the old saying is true that wise rulers will always be served by capable advisors, then it's fair to reason that a body of select electors -- possessing even better access to extensive and accurate information about people and their reputations than individual rulers do -- will make appointments that show at least equal wisdom and judgment. The natural conclusion from all this is that the President and senators chosen through this process will always be among those who best understand our national interests, whether in relation to the individual states or to foreign nations, who are best equipped to advance those interests, and whose reputations for integrity inspire and merit confidence. With such leaders, the power to make treaties can safely rest.
Although everyone knows and acknowledges the absolute necessity of a systematic approach to any enterprise, the vital importance of this in national affairs hasn't yet been fully impressed on the public mind. Those who would hand the treaty-making power to a popular assembly -- with members constantly coming and going -- don't seem to realize that such a body would inevitably be inadequate for achieving the great objectives that require steady, sustained attention across all their complexities, and that can only be accomplished through measures requiring not just talent but also detailed knowledge and, often, considerable time to plan and carry out.
It was wise, therefore, for the convention to ensure not only that the treaty-making power would be entrusted to capable and honest people, but also that they would stay in office long enough to become thoroughly familiar with our national affairs and to develop and implement a coherent strategy for managing them. The term of office prescribed will give them the opportunity to greatly expand their political knowledge and to make their growing experience increasingly beneficial to the country. The convention also showed good judgment in providing for frequent but staggered elections of senators -- so that instead of periodically handing all these important matters over to entirely new people, a substantial number of experienced senators would always remain in place, preserving continuity, institutional knowledge, and orderly process.
Few would deny that trade and navigation should be governed by a carefully designed and consistently followed system, and that both our treaties and our laws should be made to support it. It matters a great deal that this consistency be carefully maintained, and those who agree with this will see that it's well served by requiring the Senate's agreement for both treaties and laws.
In treaty negotiations, regardless of their nature, perfect secrecy and immediate action are sometimes essential. There are situations where the most valuable intelligence can only be obtained if the people who possess it are assured their identities won't be exposed. These concerns affect such people whether they're driven by financial motives or by friendly ones, and there are certainly many of both kinds who would trust the President's discretion but would not trust the Senate's -- and even less that of a large popular assembly. The convention acted wisely, therefore, in structuring the treaty-making power so that while the President must have the Senate's advice and consent in finalizing treaties, he retains the ability to handle the intelligence-gathering side of diplomacy with whatever discretion circumstances require.
Those who've observed the course of human affairs know that there are tides in them -- tides that are highly irregular in their duration, strength, and direction, and that rarely run the same way twice. Recognizing and seizing these tides in national affairs is the business of those who lead nations. And experienced leaders tell us that there are frequently occasions when days -- or even hours -- are precious. The loss of a battle, the death of a ruler, the removal of a minister, or other sudden changes in the current state of affairs can turn the most favorable tide against us. As on the battlefield, so in diplomacy: there are moments that must be seized as they pass, and those in charge of either must be free to act on them. We've suffered so often and so seriously from a lack of secrecy and speed in our affairs that the Constitution would have been inexcusably flawed if it hadn't addressed these concerns. The matters that typically require the most secrecy and the most urgency in negotiations are the preparatory and supporting steps that aren't important in themselves but help achieve the goals of the negotiation. For these, the President will have no difficulty making arrangements. And should any situation arise that requires the Senate's advice and consent, he can convene them at any time. So we can see that the Constitution ensures our treaty negotiations will have every advantage that comes from talent, knowledge, integrity, and careful deliberation on one hand, and from secrecy and speed on the other.
But objections have, as usual, been crafted and raised against this plan.
Some people are unhappy with it not because of any actual flaws, but because treaties, once made, have the force of law -- and they argue that only people with legislative authority should make them. These critics don't seem to consider that our courts' decisions and our governor's official commissions are just as valid and binding on everyone they affect as any law passed by our legislature. All constitutional acts of power, whether from the executive or the judicial branch, have the same legal force as if they came from the legislature. Therefore, whatever we call the treaty-making power, and however binding treaties are once made, the people can perfectly well entrust that power to a body separate from the legislature, the executive, or the judiciary. It simply doesn't follow that because the people have given the legislature the power to make laws, they should therefore give it the power to perform every other act of sovereignty that affects citizens.
Others accept that treaties should be made the way the Constitution proposes, but object to treaties being the supreme law of the land. They insist, and claim to believe, that treaties -- like ordinary legislation -- should be repealable at will. This idea seems to be new and unique to this country, but new errors, like new truths, do appear from time to time. These critics should reflect that a treaty is really just another name for a bargain, and that no nation on earth would make any deal with us that was absolutely binding on them but binding on us only as long as we felt like honoring it. Those who make laws can certainly amend or repeal them, and those who make treaties can certainly alter or cancel them. But let's not forget that treaties are made not by one party alone, but by both. And since the consent of both was essential to creating them in the first place, the consent of both must always be required to change or cancel them. The proposed Constitution, therefore, hasn't extended the binding nature of treaties one bit. They're just as binding and just as far beyond the reach of ordinary legislation now as they will be under any future form of government.
While healthy suspicion is useful in republics, when it builds up too much in the body politic -- like excess bile in the body -- it distorts how we see everything around us. This is probably why some people fear that the President and Senate might make treaties without giving equal consideration to the interests of all the states. Others worry that a two-thirds majority will oppress the remaining third, and ask whether these officials are sufficiently accountable for their conduct -- whether they can be punished if they act corruptly, and how we'd get out of a bad treaty.
Since all states are equally represented in the Senate, by leaders who are both the most capable and the most motivated to advance their constituents' interests, every state will have an equal degree of influence in that body -- especially as long as they continue to appoint good people and insist on their regular attendance. As the United States increasingly takes on a national identity and national character, the good of the whole will become more and more the focus of attention. And the government would have to be a weak one indeed if it forgot that the good of the whole can only be advanced by promoting the good of each of its parts. The President and senators won't have the power to make any treaty by which they and their families and properties wouldn't be equally bound and affected along with everyone else. And since they have no private interests separate from those of the nation, they'll have no temptation to neglect the nation's interests.
As for corruption, the scenario is simply implausible. A person would have to have been very unlucky in their dealings with the world, or have a heart very prone to dark assumptions, to think it likely that the President and two-thirds of the Senate would ever be capable of such disgraceful conduct. The idea is too outrageous and too offensive to take seriously. But in such a case, if it ever did occur, any treaty obtained through corruption would be null and void under international law, just like any other fraudulent contract.
As for their accountability, it's hard to imagine how it could be increased. Every consideration that can influence the human mind -- honor, oaths, reputation, conscience, love of country, and family ties -- provides assurance of their faithfulness. In short, since the Constitution has taken the greatest care to ensure these are people of talent and integrity, we have reason to believe that the treaties they make will be as favorable as circumstances allow. And to the extent that the fear of punishment and disgrace can motivate good behavior, that incentive is amply provided by the Constitution's provisions on impeachment.
PUBLIUS
To the People of the State of New York:
The remaining powers that the proposed Constitution gives to the Senate in its own right are: its role alongside the executive in appointing officials, and its judicial role as a court for impeachment trials. Since the executive will be the main player in the appointment process, the provisions relating to it will be better discussed when we examine that branch. So we'll wrap up this topic with a look at the Senate's role as an impeachment court.
A well-designed court for impeachment trials is something as difficult to create as it is important to have in a government that's entirely elected. The offenses within its jurisdiction are those that stem from the misconduct of public officials -- or in other words, from the abuse or violation of some public trust. These offenses are, by their very nature, political, since they mainly involve injuries done directly to society itself. Prosecuting them will almost inevitably inflame the passions of the entire community and divide it into camps that are more or less sympathetic or hostile to the accused. In many cases, impeachment will become entangled with existing political factions, enlisting all their animosities, biases, influence, and self-interest on one side or the other. And in such cases, there will always be the greatest danger that the verdict will be driven more by the relative strength of the parties than by the actual evidence of innocence or guilt.
The sensitivity and magnitude of a power that so deeply affects the political reputation and career of everyone in public life speak for themselves. The difficulty of placing this power properly in a government based entirely on periodic elections is equally obvious when you consider that the most prominent figures in such a government will, for that very reason, too often be the leaders or the tools of the most cunning or most powerful faction -- and can therefore hardly be expected to be neutral toward people whose conduct is under scrutiny.
The convention, it seems, concluded that the Senate was the most appropriate body to hold this important trust. Those who best appreciate how genuinely difficult this problem is will be the least hasty in criticizing that decision, and the most willing to give fair weight to the arguments that presumably led to it.
What, we might ask, is the true purpose of the impeachment process itself? Isn't it designed as a method of national investigation into the conduct of public officials? If that's its purpose, who could more properly serve as the nation's investigators than the representatives of the nation themselves? No one disputes that the power to initiate an investigation -- that is, to bring the impeachment charges -- should belong to one branch of the legislature. Won't the same reasoning that supports this also argue strongly for giving the other branch a role in conducting the trial? The model from which this institution was borrowed pointed the convention in that direction. In Great Britain, it's the House of Commons that brings impeachment charges and the House of Lords that decides them. Several state constitutions have followed the same pattern. Both the British and the state examples seem to have treated impeachment as a check held by the legislative branch over the executive's officials. Isn't that exactly the right way to think about it?
Where else but in the Senate could we find a court with sufficient dignity and sufficient independence? What other body would be likely to feel confident enough in its own standing to maintain, without being intimidated or swayed, the necessary impartiality between an individual accused and the representatives of the people who are his accusers?
Could the Supreme Court have been relied upon for this role? There's serious reason to doubt whether the members of that court would always possess the extraordinary degree of courage that such a difficult task demands. And there's even more reason to doubt whether they'd have enough public credibility and authority to reconcile the people to a verdict that might clash with the charges brought by their own elected representatives. A lack of courage would be fatal to the accused; a lack of credibility would be dangerous to the public peace. The risk on both counts could only be avoided, if at all, by making the court larger -- which would conflict with any reasonable concern for economy.
The need for a large court in impeachment cases is equally demanded by the nature of the proceedings. Impeachment trials can never be governed by the same strict rules that, in ordinary cases, limit the discretion of courts in favor of the accused's rights. In a regular trial, there's a jury standing between the judges who pronounce the law's sentence and the person who must bear it. In an impeachment, there is no such buffer. The awesome power that an impeachment court must necessarily wield -- the power to consign the most trusted and most prominent members of society to either honor or disgrace -- makes it unthinkable to place that trust in the hands of a small number of people.
These considerations alone seem sufficient to establish that the Supreme Court would have been an unsuitable replacement for the Senate as the impeachment court. But there's an additional argument that strengthens this conclusion considerably. It's this: the punishment that may follow an impeachment conviction doesn't end the offender's legal jeopardy. After being sentenced to permanent exile from the respect, trust, honors, and official positions of their country, they can still be prosecuted and punished through the ordinary criminal justice system.
Would it be proper for the same people who decided the accused's reputation and most valuable rights as a citizen in one trial to also decide their life and fortune in a second trial for the same offense? Wouldn't there be every reason to fear that an error in the first verdict would produce an error in the second? That the powerful bias of one decision would be likely to override any new evidence that might change the outcome of the next? Anyone who knows anything about human nature won't hesitate to answer these questions yes, and will easily see that making the same people judges in both cases would largely strip the accused of the double protection intended by the double trial. A sentence of removal from office and disqualification from future service would, in practice, often amount to a death sentence and financial ruin as well. It might be argued that the involvement of a jury in the criminal trial would prevent this danger. But juries are frequently influenced by the opinions of judges. They're sometimes led to issue special verdicts that refer the main question back to the court. Who would be willing to stake their life and their property on the verdict of a jury acting under the direction of judges who had already decided they were guilty?
Would it have been better to combine the Supreme Court with the Senate to form the impeachment court? This combination would certainly have had several advantages. But wouldn't they be outweighed by the serious disadvantage I've already described -- the problem of the same judges participating in both the impeachment trial and the subsequent criminal prosecution? To some extent, the benefits of combining the two bodies will be achieved by making the Chief Justice of the Supreme Court the presiding officer of the impeachment court, as the proposed Constitution provides, while substantially avoiding the drawbacks of fully merging the Court into the Senate. This was perhaps the wisest middle ground. I'll refrain from commenting on the additional ammunition against the judiciary that such a significant expansion of its authority would have provided to its critics.
Would it have been better to create the impeachment court from people entirely separate from every other branch of government? There are strong arguments both for and against such a plan. Some will find it a significant objection that this would add to the complexity of the political system by introducing a new mechanism of government whose usefulness would be questionable at best. But an objection that no one should dismiss is this: a court designed this way would either be very expensive or, in practice, be subject to all sorts of problems and complications. It would have to consist either of permanent officials stationed at the seat of government -- who would of course be entitled to regular salaries -- or of certain state officials called upon only when an impeachment was actually pending. It's hard to imagine a meaningfully different third option.
Since the court, for reasons already given, needs to be large, the first approach would be rejected by anyone who can compare the extent of the nation's needs with the means of meeting them. The second approach would be adopted only cautiously by those who seriously consider the difficulty of assembling people scattered across the entire country, the harm to the innocent from delayed resolution of the charges against them, the advantage to the guilty from the opportunities that delay would give for scheming and corruption, and -- in some cases -- the damage to the nation from the prolonged absence of officials whose diligent performance of their duties might have made them targets of a hostile or politically motivated majority in the House of Representatives. While this last scenario may seem harsh and might not come up often, we shouldn't forget that the demon of faction will, at certain times, extend its reach over all large political bodies.
But even if one of these alternatives -- or some other that might be devised -- were considered preferable to the convention's plan on this point, it wouldn't follow that the Constitution should be rejected for this reason. If we resolved to accept no system of government until every single part of it had been perfected to some exact ideal standard, society would soon descend into total chaos and the world would become a wasteland. Where is this standard of perfection to be found? Who will undertake to unite the conflicting opinions of an entire community behind a single vision of it? And who will convince one self-assured reformer to give up his supposedly infallible standard in favor of the equally infallible standard of his even more self-assured neighbor?
To make their case, the opponents of the Constitution need to prove not merely that certain provisions aren't the best that could have been imagined, but that the plan as a whole is bad and dangerous.
PUBLIUS
To the People of the State of New York:
A review of the main objections that have been raised against the proposed court for impeachment trials will probably clear away whatever negative impressions may still exist on the subject.
The FIRST of these objections is that this arrangement blends legislative and judicial powers in the same body, violating that important and well-established principle requiring a separation between the different branches of government. The true meaning of this principle has been discussed and clarified elsewhere, and it's been shown to be entirely compatible with a partial overlap of those branches for specific purposes, as long as they remain, on the whole, distinct and independent. This partial overlap is, in some cases, not only appropriate but necessary for the different branches of government to defend themselves against each other. An absolute or limited veto by the executive over the acts of the legislature is recognized by the most accomplished political scientists as an essential barrier against legislative encroachment on executive power. And it can be argued with just as much reason that the power of impeachment is, as I've suggested before, an essential check that the legislature holds against encroachments by the executive. Dividing that power between the two chambers of the legislature -- giving one the right to accuse and the other the right to judge -- avoids the problem of making the same people both prosecutors and judges, and guards against the danger of political persecution driven by partisan spirit in either chamber. Since a two-thirds vote of the Senate will be required for conviction, the protection of the innocent from this additional safeguard will be as complete as anyone could wish.
It's interesting to see how fiercely this part of the plan is attacked on the principle I just mentioned by people who claim to admire, without reservation, the constitution of this state. Yet that constitution makes the Senate, together with the chancellor and Supreme Court judges, not only a court of impeachments but the highest court in the state for all cases, civil and criminal. The proportion of the chancellor and judges to the senators is so small that the ultimate judicial authority of New York can truthfully be said to rest in its Senate. If the convention's plan can be charged with departing from the celebrated principle that has been so often invoked and so little understood, how much more guilty must New York's own constitution be?[1]
A SECOND objection to the Senate as a court of impeachments is that it contributes to an excessive concentration of power in that body, making the government look too aristocratic. The Senate, it's pointed out, is supposed to share authority with the executive in making treaties and appointing officials. If you add to those powers the authority to decide all impeachment cases, the objectors say, it'll give the Senate a dominant influence. To an objection this vague, it's hard to give a precise answer. Where's the yardstick we can use to determine what gives the Senate too much, too little, or just the right amount of influence? Wouldn't it be both safer and simpler to set aside these vague and uncertain calculations, examine each power on its own, and decide, based on general principles, where it can be placed with the most advantage and the least inconvenience?
If we take this approach, it will lead to a clearer, if not more definitive, result. The arrangement for treaty-making power in the convention's plan will, if I'm not mistaken, turn out to be fully justified by the considerations laid out in a previous paper and by others that will come up under the next topic of our inquiry. The wisdom of pairing the Senate with the executive for appointing officials will, I trust, be shown just as convincingly in the discussions under that same topic. And I'm confident that the arguments in my last paper must have gone a considerable way toward proving that it wasn't easy -- maybe not even possible -- to find a better home for the power to try impeachments than the one that was chosen. If that's truly the case, the hypothetical fear that the Senate would become too powerful should be set aside.
But this hypothesis, such as it is, has already been refuted by the points made about the senators' terms of office. It was shown there, through both historical examples and the logic of the matter, that the most popular branch of any republican-style government, being generally the people's favorite, will typically be a full match -- if not more than a match -- for every other part of the government.
But setting aside even this powerful and active principle that protects the balance of the national House of Representatives, the convention's plan has built in several important counterweights to the Senate's additional powers. The exclusive right to originate spending bills will belong to the House of Representatives. The same body will have the sole right to bring impeachments -- isn't that a complete counterbalance to the power to decide them? The same body will be the final decision-maker in any presidential election where no candidate wins a majority of the Electoral College -- a situation that will undoubtedly happen sometimes, if not frequently. The constant possibility of this occurring must be a rich source of influence for the House. The more you think about it, the more important this ultimate, though conditional, power appears: the power to decide the contests among the most distinguished citizens of the Union for its highest office. It might not be too bold to predict that, as a source of influence, this power will end up outweighing all of the Senate's special advantages.
A THIRD objection to the Senate as a court of impeachments comes from its role in appointments to office. The concern is that senators would be too lenient as judges of officials they helped put in office. But the principle behind this objection would condemn a practice found in every state government, if not every government we know of: making officeholders who serve at the pleasure of their appointers dependent on those very appointers. You could just as plausibly argue that the appointers' favoritism would always provide a safe haven for their appointees' misconduct. Yet that practice proceeds on the assumption that the responsibility appointers feel for the fitness and competence of the people they choose, and their own interest in having the government run respectably and successfully, will give them sufficient motivation to remove anyone whose conduct proves them unworthy of the trust placed in them. While the facts may not always match this assumption, if it's generally valid, it has to destroy the notion that the Senate -- which merely confirms the executive's choices -- would feel a bias toward those choices strong enough to blind them to evidence of guilt so extreme that it led the people's representatives to become the nation's accusers.
If any further argument were needed to show how unlikely such a bias would be, you can find it in the nature of the Senate's role in the appointment process. It's the president's job to nominate, and, with the advice and consent of the Senate, to appoint. So the Senate doesn't really exercise any independent choice. They can reject one of the executive's picks and force him to make another, but they can't choose for themselves -- they can only approve or reject the president's selection. They might even prefer a different candidate at the very moment they're approving the one proposed, because there might be no solid grounds to oppose him -- and they couldn't be sure that if they withheld their approval, the next nomination would land on their preferred candidate or on anyone they considered more qualified than the one they rejected. So it would hardly ever happen that the majority of the Senate would feel any warmer toward a presidential appointee than whatever favorable impression merit itself might inspire -- and whatever proof of unfitness would destroy.
A FOURTH objection to the Senate as a court of impeachments comes from its partnership with the executive in making treaties. This, it's been said, would make the senators judges in their own case whenever a treaty was carried out through corruption or betrayal of trust. After conspiring with the executive to sell out the nation's interests in a disastrous treaty, what chance would there be of them suffering the punishment they deserved, when they themselves would be the ones deciding the charges brought against them for the very treachery they committed?
This objection has been circulated with more intensity and a greater appearance of logic than any other criticism of this part of the plan. And yet I'm confident it rests on a flawed foundation.
The safeguard the Constitution intended against corruption and treachery in treaty-making is found in the number and character of the people involved in making them. The joint involvement of the chief executive and two-thirds of the members of a body selected by the collective wisdom of the state legislatures is designed as the guarantee of faithful conduct in this area. The convention might reasonably have considered punishing the executive for ignoring the Senate's instructions or for dishonesty in the negotiations assigned to him. They might also have had in mind punishing a few leading senators who prostituted their influence in that body as hired tools of foreign corruption. But they couldn't have reasonably -- or even equally reasonably -- contemplated impeaching and punishing two-thirds of the Senate for agreeing to an improper treaty, any more than a majority of either chamber for passing a harmful or unconstitutional law -- a principle that, I believe, has never been accepted in any government. How, in practice, could a majority of the House of Representatives impeach themselves? No better, obviously, than two-thirds of the Senate could try themselves. And yet what reason is there that a majority of the House, sacrificing the public interest through an unjust and tyrannical law, should escape accountability any more than two-thirds of the Senate sacrificing the same interests through a harmful treaty with a foreign power? The truth is that in all such cases, it's essential to the freedom and necessary independence of a deliberative body that its members be exempt from punishment for acts done in their collective capacity. The public's security has to depend on the care taken to entrust power to the right hands, to make it in their interest to use it faithfully, and to make it as difficult as possible for them to unite against the public good.
As for the president misusing his instructions or going against the Senate's views in negotiations, we don't need to worry about the Senate lacking the desire to punish an abuse of their confidence or to defend their own authority. We can count on their pride for that, if nothing else. And as for corruption among leading members whose schemes and influence might have lured the majority into actions the public despises: if the evidence of that corruption is convincing enough, basic human nature guarantees that the Senate would usually be more than willing to redirect the public's anger away from themselves by quickly sacrificing the masterminds behind their disgrace.
PUBLIUS
[1] In New Jersey, too, the final judicial authority rests in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature serves as the court for impeachment trials.
To the People of the State of New York:
The design of the executive branch of the proposed government deserves our attention next.
There's hardly any part of the system that was harder to work out than this one, and there's probably none that has been attacked with less fairness or criticized with less good judgment.
Here, the writers against the Constitution seem to have gone out of their way to showcase their talent for misrepresentation. Playing on the people's hostility toward monarchy, they've tried to turn all their suspicions and fears against the proposed president of the United States -- portraying him not merely as the seed but as the fully grown offspring of that hated institution. To build this supposed resemblance, they haven't hesitated to draw material from pure fiction. The powers of an official who in most ways has no more authority -- and in some ways has less -- than a governor of New York have been inflated into something beyond royal privilege. He's been dressed up with qualities grander and more magnificent than those of a king of Great Britain. He's been shown to us with a crown sparkling on his forehead and imperial robes trailing behind him. He's been placed on a throne surrounded by lackeys and mistresses, receiving ambassadors from foreign rulers in all the arrogant splendor of royalty. Images of Asian despotism and decadence have practically been thrown in to top off this overblown fantasy. We've been taught to tremble at the terrifying faces of murderous palace guards and to blush at the unveiled secrets of a future royal harem.
Exaggerations this extreme -- distorting, or rather transforming, the subject beyond recognition -- make it necessary to take an accurate look at what this office actually is, in order to see its true nature and real features, and to unmask the dishonesty and expose the falsehood of the fake comparisons that have been so cunningly and relentlessly spread around.
In taking on this task, anyone would find it a real struggle either to look calmly at, or to take seriously, the tactics -- as weak as they are dishonest -- that have been cooked up to twist public opinion on this subject. They go so far beyond even the usual (though still unjustifiable) dirty tricks of political gamesmanship that even the most fair-minded and tolerant observer has to set aside any inclination to give political opponents the benefit of the doubt and give way to outright indignation. It's impossible not to charge deliberate fraud and deception against the absurd claim that there's any similarity between a king of Great Britain and an official with the role laid out for the president of the United States. It's even more impossible to withhold that charge from the reckless and brazen methods that have been used to make this attempted deception succeed.
In one case, which I'll cite as a sample of the general approach, the audacity has gone so far as to attribute to the president of the United States a power that the Constitution explicitly assigns to the governors of the individual states. I'm talking about the power to fill temporary vacancies in the Senate.
This bold gamble on the gullibility of the public has been attempted by a writer who (whatever his actual abilities) has received considerable praise from his party.[1] On the basis of this false and baseless claim, he's built an entire chain of arguments that are equally false and baseless. Let him now be confronted with the actual evidence, and let him, if he can, justify or excuse the shameful outrage he has committed against truth and fair play.
The second clause of the second section of the second article gives the president the power "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not in the Constitution otherwise provided for, and which shall be established by law." Immediately after this clause comes another that reads: "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." It's from this second provision that the supposed power of the president to fill vacancies in the Senate has been invented. Even a slight look at how these clauses connect and what the words actually mean will show us that this interpretation doesn't hold up at all.
The first of these two clauses clearly only provides a method for appointing officers "whose appointments are not otherwise provided for in the Constitution, and which shall be established by law." So it obviously can't apply to senators, whose appointments are otherwise provided for in the Constitution[2] and who are established by the Constitution itself, not by any future law. This point will hardly be disputed.
The second of these two clauses equally clearly cannot be read to include the power of filling Senate vacancies, for the following reasons.
First: The way this clause relates to the one before it shows it's nothing more than a supplement to that clause, creating a backup method of appointment for situations where the normal method wouldn't work. The regular appointment power belongs to the president and Senate jointly, and so it can only be used when the Senate is in session. But since it would have been unreasonable to require the Senate to be in permanent session just to make appointments, and since vacancies might occur during their recess that needed to be filled right away for the public good, the follow-up clause is clearly meant to let the president, acting alone, make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
Second: If this clause is a supplement to the previous one, then the "vacancies" it talks about must refer to the "officers" described in the previous clause -- and we've already seen that senators are excluded from that description.
Third: The time frame in which the power operates -- "during the recess of the Senate" -- and the duration of the appointments -- "to the end of the next session" of that body -- both help clarify the meaning of this provision. If it had been meant to cover senators, it would naturally have tied the temporary filling power to the recess of the state legislatures (which make the permanent appointments), not to the recess of the national Senate (which has nothing to do with those appointments). And it would have extended the temporary senator's term to the next session of the state legislature where the vacancy occurred, instead of having it expire at the end of the next session of the national Senate. The circumstances of the body responsible for permanent appointments would naturally have shaped the terms of temporary appointments. Since the national Senate is the only body contemplated in the clause on which this phony argument is based, the vacancies it refers to can only involve officers in whose appointment the Senate shares authority with the president.
But finally, the first and second clauses of the third section of the first article don't just eliminate any possible doubt -- they destroy the very basis of this misinterpretation. The first provides that "the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years." The second directs that "if vacancies in that body should 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 legislature, which shall then fill such vacancies." Here is an explicit power, given in clear and unmistakable language, to the state governors to fill temporary vacancies in the Senate. This not only destroys the theory that the clause we've been examining was intended to give that power to the president, but proves that this theory -- lacking even the faintest plausibility -- must have been born from a deliberate intent to deceive the people, too obvious to be disguised by clever arguments and too outrageous to be softened by hypocrisy.
I've taken the trouble to single out this case of misrepresentation and put it in a clear and strong light as unmistakable proof of the dishonest tactics being used to prevent a fair and impartial judgment of the real merits of the Constitution now before the people. And I haven't held back, in a case this blatant, from allowing myself a harshness of criticism that doesn't really fit the general tone of these papers. I don't hesitate to put it to any honest and fair-minded opponent of the proposed government: can language even supply words harsh enough for such a shameless and outrageous attempt to deceive the citizens of America?
PUBLIUS
[1] See Cato, No. V.
[2] Article I, Section 3, Clause 1.
To the People of the State of New York:
The method for choosing the chief executive of the United States is almost the only part of the system of any importance that has escaped harsh criticism, or that has received even the slightest nod of approval from its opponents. The most credible of those opponents who has written publicly has even gone so far as to admit that the election of the president is pretty well guarded.[1] I'll go a bit further and say without hesitation that if the method isn't perfect, it's at least excellent. It combines to a remarkable degree all the advantages you could hope for.
It was important that the will of the people should play a role in choosing the person who would be entrusted with such enormous responsibility. This goal is achieved by giving the right to make that choice not to any pre-existing body, but to people chosen by the public specifically for this purpose, at the particular moment it's needed.
It was equally important that the actual selection be made by people most capable of evaluating the qualities the job requires, and acting under conditions that encourage careful deliberation and a thoughtful weighing of all the relevant factors. A small number of individuals, selected by their fellow citizens from the general population, will most likely have the knowledge and judgment needed for such a complex decision.
It was also especially important to allow as little opportunity as possible for chaos and disorder. This was no small concern when it came to electing an official who would play such a crucial role in running the government as the president of the United States. But the safeguards that have been so skillfully built into this system promise effective protection against this danger. Choosing multiple people to form an intermediate body of electors will be far less likely to throw the country into turmoil than choosing a single person who would himself be the ultimate object of the public's support. And since the electors chosen in each state are to meet and vote in the state where they were chosen, this scattered and divided arrangement will expose them far less to the heated passions that might spread from them to the general public than if they were all brought together in one place at one time.
Nothing was more essential than placing every practical obstacle in the path of backroom dealing, scheming, and corruption. These deadliest enemies of republican government could be expected to make their approach from more than one direction, but mainly from the desire of foreign powers to gain improper influence over our affairs. How could they better achieve this than by installing one of their own puppets in the nation's highest office? But the convention has guarded against this danger with the most careful and thoughtful attention. They haven't made the president's appointment depend on any pre-existing group of people who could be tampered with ahead of time to corrupt their votes. Instead, they've referred it, in the first instance, to a direct act of the American people, carried out through the selection of individuals for the temporary and sole purpose of making the appointment. And they've barred from eligibility for this role anyone who, because of their position, might be suspected of too much loyalty to the sitting president. No senator, representative, or anyone else holding a position of trust or profit under the United States can be among the electors. So without corrupting the general public, the people directly involved in the election will at least begin the task free from any hidden bias. Their temporary existence and their dispersed situation, already noted, provide good reason to expect they'll remain that way through the end of the process. Corruption, when it has to reach a large number of people, takes time as well as resources. And it wouldn't be easy to suddenly enlist them, scattered as they would be across thirteen states, in any scheme based on motives that -- even if they couldn't technically be called corrupt -- might still lead them away from their duty.
Another equally important goal was that the president should depend for his continuation in office on no one but the people themselves. Otherwise, he might be tempted to sacrifice his duty in order to stay in the good graces of those whose favor was necessary to keeping his job. This advantage will also be secured by making his reelection depend on a special body of representatives, chosen by the public for the single purpose of making this important decision.
All of these advantages come together nicely in the plan the convention devised. Here's how it works: the people of each state choose a number of electors equal to the total number of senators and representatives that state has in Congress. Those electors meet within their state and vote for someone they consider fit for the presidency. Their votes are then sent to the seat of the national government, and the person who receives a majority of the total votes becomes president. But since a majority might not always go to a single candidate, and since it would be risky to let anything less than a majority be decisive, the plan provides that in such a case, the House of Representatives will choose among the top five vote-getters the person they believe is best qualified for the office.
This election process provides a strong assurance that the presidency will never fall to anyone who isn't highly endowed with the necessary qualifications. A talent for petty scheming and the shallow tricks of popularity may be enough to elevate someone to the top office in a single state. But it will take different talents and a different kind of merit to earn the respect and confidence of the entire Union, or at least a large enough portion of it to win the distinguished office of president of the United States. It won't be too much to say that there will be a consistent likelihood of seeing the office filled by people of outstanding ability and character. And those who appreciate the enormous role the executive plays in every government's success or failure will consider this no small recommendation of the Constitution. Though we can't agree with the political heresy of the poet who said:
"For forms of government let fools contest -- that which is best administered is best" -- we can safely say that the true test of a good government is its ability and tendency to produce good administration.
The vice president is to be chosen the same way as the president, with one difference: the Senate does for the vice president what the House of Representatives does for the president when no candidate wins a majority.
The creation of a separate office of vice president has been criticized as unnecessary, if not harmful. Some have suggested it would have been better to let the Senate elect one of its own members to fill this role. But two considerations seem to justify the convention's thinking on this. First, to ensure that the Senate can always reach a definitive decision, the presiding officer should have only a tie-breaking vote. And pulling a senator from any state out of his seat to make him president of the Senate would mean exchanging a permanent vote for that state for a merely occasional one. Second, since the vice president may at times have to step in as president, all the reasons that support the method of electing the president apply with great -- if not equal -- force to the method of selecting the vice president. It's worth noting that in this, as in most other instances, the objection being raised actually applies to the constitution of this state too. We have a lieutenant governor, elected by the people at large, who presides over the Senate and is the constitutional successor to the governor in emergencies just like those that would call the vice president to exercise the duties of the president.
PUBLIUS
[1] See the Federal Farmer.
To the People of the State of New York:
I'll now trace the actual characteristics of the proposed executive, as laid out in the convention's plan. This will help shine a strong light on how unfair the portrayals of this office have been.
The first thing that jumps out is that the executive power, with few exceptions, is to be placed in the hands of a single person. But this can hardly be treated as a point of meaningful comparison, because if having a single executive makes the president resemble the king of Great Britain, it also makes him resemble the Ottoman Sultan, the Khan of Tartary, the Pope, or the governor of New York.
That executive is to be elected for four years and can be reelected as often as the people of the United States consider him worthy of their trust. In this respect, there's a total difference between him and a king of Great Britain, who is a hereditary monarch possessing the crown as a family inheritance that passes to his heirs forever. But there's a close similarity to a governor of New York, who is elected for three years and can be reelected without any limit or gap. If we consider how much less time it would take to build a dangerous power base in a single state than across the entire United States, we have to conclude that a four-year term for the head of the Union is far less concerning than a three-year term for the equivalent office in a single state.
The president of the United States would be subject to impeachment, trial, and -- upon conviction of treason, bribery, or other high crimes and misdemeanors -- removal from office. After that, he'd still be subject to prosecution and punishment through the regular legal process. The king of Great Britain, by contrast, is considered sacred and untouchable. There's no constitutional court that can hold him accountable, no punishment he can face without triggering a national revolution. On this critical matter of personal accountability, the president would stand on no better ground than a governor of New York, and on worse ground than the governors of Maryland and Delaware.
The president is to have the power to send a bill back to Congress for reconsideration after it has passed both chambers. The bill then becomes law only if, on that second look, it's approved by two-thirds of both houses. The king of Great Britain, on the other hand, has an absolute veto over acts of Parliament. The fact that this power hasn't been used for a long time doesn't change the reality that it exists. The crown simply found it easier to use behind-the-scenes influence rather than formal authority -- securing a majority in one or both houses of Parliament instead of exercising a veto that would almost always risk stirring up public unrest. The president's limited veto is fundamentally different from the British king's absolute veto, and it matches exactly the review authority of the Council of Revision of this state, of which the governor is a member. In this area, the president's power would actually exceed the governor of New York's, because the president would hold this power alone while the governor shares it with the chancellor and judges. But it would be exactly the same as the governor of Massachusetts's power, whose constitution seems to have been the model the convention copied on this point.
The president is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these areas, the president's power will roughly equal both the king of Great Britain's and the governor of New York's. The most important differences are these:
First. The president will only have occasional command of whatever portion of the national militia Congress authorizes to be called into active service. The king of Great Britain and the governor of New York have permanent command of all the militia within their respective jurisdictions. On this point, therefore, the president's power would be less than either the king's or the governor's.
Second. The president is to be commander-in-chief of the army and navy. In this area, his authority would technically be the same as the British king's, but in substance far less. It would amount to nothing more than supreme command and direction of the military and naval forces, as the nation's top general and admiral -- while the British king's power extends to declaring war and to raising and managing armies and navies on his own authority. Under the proposed Constitution, all of those powers would belong to Congress.[1] The governor of New York, on the other hand, is only given command of the state's militia and navy by the state constitution. But several states' constitutions explicitly declare their governors to be commanders-in-chief of both the army and navy. And it's a real question whether the constitutions of New Hampshire and Massachusetts, in particular, don't actually give their governors larger military powers than a president of the United States could claim.
Third. The president's pardon power would extend to all cases except impeachment. The governor of New York can pardon in all cases, including impeachment, except for treason and murder. Isn't the governor's power, when you think through the political implications, actually greater than the president's? All conspiracies and plots against the government that haven't yet ripened into actual treason could be shielded from any punishment at all by the governor's pardon power. So if a governor of New York were at the head of such a conspiracy, he could guarantee his accomplices and supporters complete immunity until the plot had escalated into open hostility. A president, on the other hand, even though he can pardon treason when prosecuted through the normal legal process, couldn't protect any offender from the consequences of impeachment and conviction. Wouldn't the prospect of total immunity for all the preliminary steps be a greater temptation to attempt and persist in an attack on public liberty than the mere prospect of avoiding death and property seizure if the final armed attempt should fail? Would that last expectation have any influence at all when you consider the likelihood that the very person who was supposed to provide that protection might himself get swept up in the consequences -- and might be prevented by his own involvement from granting the desired immunity? To judge this properly, keep in mind that under the proposed Constitution, treason is defined as "levying war upon the United States, and adhering to their enemies, giving them aid and comfort" -- and that New York law defines it in similar terms.
Fourth. The president can only adjourn the national legislature in the single case of a disagreement about when to adjourn. The British king can suspend or even dissolve Parliament. The governor of New York can also suspend the state legislature for a limited time -- a power that, in certain situations, can be used for very significant purposes.
The president is to have the power, with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present agree. The king of Great Britain is the sole and absolute representative of the nation in all foreign affairs. He can make treaties of peace, commerce, alliance, and every other kind entirely on his own. Some have hinted that his authority in this area isn't final and that his agreements with foreign powers are subject to review and ratification by Parliament. But I don't think this theory was ever heard of until it was invented for the current occasion. Every legal scholar[2] in that kingdom, and everyone else familiar with its constitution, knows as an established fact that the power to make treaties belongs to the crown in its fullest extent, and that agreements entered into by royal authority have complete legal force and validity, independent of any other approval. It's true that Parliament sometimes passes laws to bring existing statutes into line with the terms of a new treaty, and this may have given rise to the notion that Parliament's cooperation was necessary for the treaty to be binding. But that parliamentary action happens for a different reason: the need to adjust a highly complex system of tax and trade laws to the changes a treaty creates, and to adapt new rules and safeguards to the new situation, to keep the system from falling into disorder. In this area, then, there's no comparison between the intended power of the president and the actual power of the British king. The one can do alone what the other can only do with the agreement of a branch of the legislature. It must be admitted that, on this point, the federal executive's power would exceed that of any state executive. But this naturally follows from the fact that treaty-making is an exercise of sovereign power. If the Union were to dissolve, it would become a question whether the state executives would end up holding that sensitive and important authority by themselves.
The president is also authorized to receive ambassadors and other foreign officials. Although this has been a popular topic for dramatic complaints, it's more a matter of ceremony than of real power. It's a responsibility that would have no practical impact on the administration of the government, and it was far more convenient to handle it this way than to require convening the legislature, or one of its branches, every time a foreign diplomat arrived, even if it were merely to replace a departing one.
The president is to nominate, and with the advice and consent of the Senate, to appoint ambassadors and other public officials, judges of the Supreme Court, and in general all federal officers established by law whose appointments aren't otherwise provided for in the Constitution. The king of Great Britain is emphatically and truly called "the fountain of honor." He not only fills all offices but can create new ones. He can hand out titles of nobility at will and has the disposal of a vast number of church appointments. The president's power in this area is obviously far less than the British king's, and it's not even equal to the governor of New York's, if we interpret that state's constitution by the practice that has developed under it. In New York, the appointment power is lodged in a council made up of the governor and four members of the Senate chosen by the Assembly. The governor claims -- and has frequently exercised -- the right of nomination, and he gets a tie-breaking vote on appointments. If he really does have the right to nominate, his authority in this area equals the president's and exceeds it with the tie-breaking vote. In the national government, if the Senate is evenly divided, no appointment can be made. In New York's government, if the council is divided, the governor can tip the scale and confirm his own nominee.[3] If we compare the transparency that necessarily comes with appointments made by the president and an entire branch of Congress, with the secrecy of appointments made by the governor of New York behind closed doors with at most four -- and often only two -- people; and if we also consider how much easier it is to influence the small number making up an appointment council than the large number making up the national Senate; we can't hesitate to say that the governor of this state's power over appointments must, in practice, be vastly greater than the president's.
From all of this, it's clear that -- apart from the president's shared authority in treaty-making -- it would be hard to determine whether the president would have more or less overall power than the governor of New York. And it's even more obvious that there's absolutely no basis for the comparison that has been drawn between the president and the king of Great Britain. But to make the contrast even more striking, it may help to group the main differences together.
The president of the United States would be an officer elected by the people for four years; the king of Great Britain is a permanent, hereditary ruler. The president would be subject to personal punishment and disgrace; the king is considered sacred and untouchable. The president would have a limited veto on legislation; the king has an absolute veto. The president would have the right to command the nation's military and naval forces; the king, in addition to this, has the power to declare war and to raise and regulate armies and navies on his own authority. The president would share treaty-making power with a branch of the legislature; the king is the sole possessor of that power. The president would share the appointment power similarly; the king is the sole authority for all appointments. The president can grant no special privileges whatsoever; the king can make citizens out of foreigners, nobles out of commoners, and can create corporations with all the rights that come with them. The president can make no rules regarding the nation's trade or currency; the king is in many ways the master of commerce, and in that capacity can establish markets and fairs, regulate weights and measures, impose temporary trade embargoes, coin money, and authorize or prohibit the circulation of foreign coins. The president has no trace of religious authority; the king is the supreme head and governor of the national church! What answer should we give to those who would convince us that things so fundamentally different are actually alike? The same answer we should give to those who tell us that a government whose entire power would rest in the hands of elected, temporary officials is really an aristocracy, a monarchy, and a despotism.
PUBLIUS
[1] A writer in a Pennsylvania paper, using the pen name Tamony, has claimed that the king of Great Britain owes his authority as commander-in-chief to an annual military bill. The truth is the opposite: this authority is ancient, and was only challenged -- "contrary to all reason and precedent," as Blackstone (vol. I, p. 262) puts it -- by the Long Parliament during the reign of Charles I. But by the statute of the 13th of Charles II, Chapter 6, it was declared to belong to the king alone, affirming that "the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same."
[2] See Blackstone's Commentaries, Vol. I, p. 257.
[3] Honesty, however, requires me to acknowledge that I don't think the governor's claim to a right of nomination is well founded. Yet it's always fair to reason from a government's actual practice until its legality has been formally challenged. And even setting aside this claim, when we consider all the other factors and follow them to their logical conclusions, we'd be inclined to reach much the same result.
To the People of the State of New York:
There's an idea out there, and it has its supporters, that a strong executive is incompatible with the spirit of republican government. The thoughtful supporters of republican government must at least hope this assumption is wrong -- because they can never accept it as true without simultaneously condemning their own principles. Energy in the Executive is a leading characteristic of good government. It's essential to protecting the nation against foreign attacks. It's no less essential to the steady enforcement of the laws, to the protection of property against those lawless and heavy-handed combinations that sometimes disrupt the ordinary course of justice, and to the security of liberty against the schemes and assaults of ambition, faction, and anarchy. Anyone with even a passing knowledge of Roman history knows how often that republic was forced to take refuge in the absolute power of a single man, under the fearsome title of Dictator -- both against the plots of ambitious individuals who aspired to tyranny and the uprisings of entire classes of society whose behavior threatened the existence of all government, as well as against foreign enemies who threatened the conquest and destruction of Rome.
There's no need, however, to pile up more arguments or examples on this point. A feeble Executive implies a feeble execution of the government. A feeble execution is just another way of saying bad execution; and a government badly executed, whatever it may be in theory, must be, in practice, a bad government.
Taking it for granted, then, that all reasonable people will agree on the need for an energetic executive, the only questions left are: What are the ingredients that make an executive energetic? How far can they be combined with the ingredients that make it safe in the republican sense? And how well does this combination describe the plan the convention has put forward?
The ingredients that create energy in the executive are: first, unity; second, duration; third, adequate financial support; fourth, sufficient powers.
The ingredients that create safety in the republican sense are: first, a proper dependence on the people; second, a proper accountability.
The politicians and statesmen who have been most celebrated for the soundness of their principles and the fairness of their views have come out in favor of a single executive and a large legislature. They've rightly considered energy to be the most important quality of the executive, and have seen it as most achievable when power is in a single person's hands. At the same time, they've rightly considered the legislature best suited for deliberation and wisdom, and best designed to win the people's confidence and protect their rights and interests.
That unity is conducive to energy won't be disputed. Decisiveness, speed of action, secrecy, and urgency will generally mark the conduct of one person to a far greater degree than the conduct of any larger number -- and the more you increase the number, the more these qualities diminish.
This unity can be destroyed in two ways: either by giving the power to two or more executives of equal rank and authority, or by formally placing it in one person but making him partly or wholly dependent on the approval and cooperation of others acting as his advisors. The two consuls of ancient Rome (who shared executive power) are an example of the first approach. We'll find examples of the second in the constitutions of several states. New York and New Jersey, if I recall correctly, are the only states that have entrusted executive authority entirely to a single person.[1] Both of these methods of destroying executive unity have their supporters, but the advocates for an executive council are the more numerous. Both approaches are subject to similar, if not identical, objections, and in most respects can be examined together.
The experience of other nations offers little guidance on this point. But insofar as it teaches us anything, it teaches us not to fall in love with the idea of a plural executive. We've seen that the Achaeans of ancient Greece, after experimenting with two chief magistrates (called Praetors), decided to get rid of one. Roman history is full of examples of damage done to the republic by conflicts between the consuls, and between the military tribunes who sometimes replaced them. But it gives us no examples of any special benefits the state gained from having multiple executives. That these conflicts weren't more frequent or more destructive is actually surprising, until you consider the unusual circumstances Rome was almost constantly in, and the practical policy the consuls followed of dividing the government between them. The patricians (the aristocratic class) were locked in a constant struggle with the plebeians (the common people) to preserve their ancient privileges and status. The consuls, who were usually chosen from the patrician class, were commonly united by their personal stake in defending the privileges of their order. On top of this shared interest, once Rome's military campaigns had significantly expanded the republic's territory, it became standard practice for the consuls to divide their responsibilities by drawing lots -- one staying in Rome to govern the city and its surroundings, the other taking command in the more distant provinces. This arrangement must have had a huge impact in preventing the clashes and rivalries that would otherwise have disrupted the republic's peace.
But setting aside the dim light of historical research and relying purely on reason and common sense, we'll find far more cause to reject than to accept the idea of a plural executive, in any form whatever.
Wherever two or more people are involved in any shared enterprise, there's always a risk of disagreement. If it's a public office in which they hold equal rank and authority, there's a particular risk of personal rivalry and even hostility. From any or all of these causes, the most bitter conflicts tend to arise. Whenever they do, they reduce the credibility, weaken the authority, and disrupt the plans and operations of those involved. If such conflicts were to strike the supreme executive office of a country run by multiple leaders, they could block or derail the most critical actions of the government in the most dangerous moments. And worse still, they could split the country into the most violent and irreconcilable factions, each loyal to a different member of the executive.
People often oppose something simply because they had no part in planning it, or because it was planned by people they dislike. But if they were consulted and happened to disagree, opposition then becomes, in their minds, an essential matter of personal pride. They seem to feel bound by honor, and by every instinct of personal infallibility, to ensure the failure of whatever was decided against their wishes. People of good and generous character have too many opportunities to observe, with horror, how far this tendency can go and how often the great interests of society are sacrificed to the vanity, the arrogance, and the stubbornness of individuals who are prominent enough to make their passions and whims matter to everyone else. Perhaps the question now before the public may, in its consequences, provide tragic proof of this despicable weakness -- or rather, detestable vice -- in human nature.
Under the principles of free government, the problems from this source have to be accepted in the design of the legislature. But it's unnecessary, and therefore unwise, to build them into the executive. It's in the executive, in fact, where they can do the most damage. In the legislature, quick decision-making is more often harmful than helpful. Disagreements and partisan clashes in that branch, though they may sometimes block useful legislation, often actually promote careful deliberation and caution, and help check the excesses of the majority. Once a decision is made, the opposition ends. That decision becomes law, and resistance to it is punishable. But nothing softens or offsets the disadvantages of disagreement in the executive branch. There, the harm is pure and unmitigated. There's no point at which it stops causing damage. Disagreements embarrass and weaken the execution of every plan or policy they touch, from the first step to the last. They constantly undermine exactly those qualities most needed in the executive -- vigor and speed -- and they do so without any compensating benefit. In wartime, where the energy of the executive is the nation's shield, everything would be at risk from a plural executive.
I have to admit that these observations apply with the most force to the first scenario -- a group of executives with equal rank and authority, a scheme that isn't likely to attract many supporters. But they apply with considerable force, even if not quite equal, to the idea of an executive council whose agreement is constitutionally required for the president's actions. A scheming faction within that council could paralyze and weaken the entire system of administration. Even without any deliberate scheming, the mere diversity of viewpoints and opinions would be enough to infect the exercise of executive power with a chronic pattern of weakness and delay.
But one of the most serious objections to a plural executive -- and one that applies just as much to the council plan as to the co-executive plan -- is that it tends to hide mistakes and destroy accountability. Accountability takes two forms: accountability to public opinion and accountability to legal punishment. The first is the more important of the two, especially in an elected office. A person holding public trust will much more often act in ways that make him unworthy of continued trust than in ways that expose him to legal punishment. But multiplying the executive makes detection harder in either case. It often becomes impossible, amid mutual finger-pointing, to determine who should really bear the blame or the punishment for a harmful decision, or a whole series of harmful decisions. Responsibility gets shifted from one person to another with such skill, and under such convincing pretenses, that the public is left uncertain about who's actually at fault. The circumstances behind any national failure or disaster are sometimes so complicated that, where multiple actors may have played different roles to different degrees, even though we can clearly see that there's been mismanagement overall, it may be impossible to determine whose account the damage should truly be charged to.[E1]
"I was overruled by my council." "The council was so divided in their opinions that it was impossible to get a better decision on the matter." These and similar excuses are always ready at hand, whether true or false. And who's going to take the trouble, or bear the criticism, of conducting a rigorous investigation into the hidden details of what really happened? Even if some determined citizen takes on that thankless task, if the parties involved are colluding, how easy it is to wrap the facts in so much ambiguity that no one can determine what any of them actually did?
In the one instance where the governor of this state is paired with a council -- namely, in making appointments to office -- we've seen the problems I'm describing in action. Scandalous appointments to important offices have been made. Some cases have been so outrageous that all parties have agreed the appointments were wrong. When questions were asked, the governor blamed the council members, who in turn blamed the governor's nominations -- while the people were left completely unable to figure out whose influence put their interests in such unqualified and obviously improper hands. Out of consideration for the individuals involved, I won't go into specifics.
It's clear from all of this that a plural executive tends to deprive the people of the two greatest safeguards they can have for the faithful use of any delegated power: first, the restraint of public opinion, which loses its force both because blame for bad decisions gets divided among multiple people and because it's unclear who deserves the blame; and second, the ability to easily and clearly identify the misconduct of those they've trusted, in order to either remove them from office or, where appropriate, punish them.
In England, the king is a permanent ruler, and the accepted principle -- for the sake of public peace -- is that he's not personally accountable for his administration, and that his person is sacred. So nothing could be wiser in that kingdom than to attach to the king a constitutional council that can be held responsible to the nation for the advice they give. Without this, there would be no accountability at all in the executive branch -- an idea that's unacceptable in a free government. But even in England, the king isn't bound by his council's decisions, even though its members are answerable for their advice. He's the absolute master of his own conduct in office and can follow or ignore the advice given to him entirely at his own discretion.
But in a republic, where every official ought to be personally accountable for his conduct in office, the reasoning that justifies a council in the British system not only stops applying -- it actually argues against one. In the British monarchy, the council serves as a substitute for the personal accountability that the king is exempt from, acting as a kind of guarantee to the nation for his good behavior. In the American republic, such a council would destroy, or at least greatly reduce, the personal accountability that the chief executive is supposed to have.
The idea of an executive council, which has become so common in state constitutions, comes from that principle of republican vigilance which considers power safer in the hands of a group than in the hands of one person. If this principle were actually applicable here, I'd still argue that the advantage it offers wouldn't outweigh the numerous disadvantages on the other side. But I don't think the rule applies to executive power at all. I wholeheartedly agree, on this point, with a writer whom the celebrated Junius called "deep, solid, and ingenious": that "the executive power is more easily confined when it is one"[2] -- that it's far safer to have a single target for the people's vigilance and watchfulness -- and, in a word, that any multiplication of the executive is more dangerous than friendly to liberty.
A little thought will show us that the kind of security people seek by multiplying the executive is unachievable. The numbers have to be large enough to make collusion difficult, or they're actually a source of danger rather than safety. The combined credibility and influence of several individuals is more threatening to liberty than the credibility and influence of any one of them alone. So when power is placed in the hands of a number small enough that their interests and aims can be easily combined by a skillful leader, it becomes more vulnerable to abuse, and more dangerous when abused, than if it's lodged in the hands of one person -- who, precisely because he's alone, will be more closely watched and more quickly suspected, and who cannot rally the same mass of influence as when he's backed by associates. The Decemvirs of ancient Rome (a body of ten who seized ruling power)[3] were more to be feared in their tyranny than any one of them would have been alone. Nobody would propose an executive much larger than that body; six to twelve have been suggested for the number of advisors. Even the largest of these numbers isn't too big for an easy conspiracy, and from such a conspiracy America would have more to fear than from the ambition of any single individual. A council attached to an executive who is himself accountable for what he does is generally nothing better than a drag on his good intentions, often an instrument and accomplice of his bad ones, and almost always a cover for his faults.
I won't dwell on the subject of expense, though it's obvious that if the council were large enough to serve the main purpose people want it for, the salaries of its members -- who would have to leave their homes and live at the seat of government -- would be a line item in the national budget too significant to spend on something of questionable value. I'll only add that, before the Constitution appeared, I rarely met an intelligent person from any of the states who didn't acknowledge, based on experience, that the unity of New York's executive was one of the best features of our state constitution.
PUBLIUS
[1] New York has no council except for the single purpose of making appointments to offices. New Jersey has a council the governor may consult, but I believe, based on the terms of their constitution, the council's recommendations don't bind him.
[2] De Lolme.
[3] The name "Decemvirs" literally means "ten men."
[E1] Two versions of this paragraph about responsibility appear in different editions of The Federalist. The version above follows the first published text. The alternate version presents the same argument with slightly different paragraph breaks and minor wording variations, but the substance is identical.
To the People of the State of New York:
I've already mentioned that the second ingredient of a strong executive is how long the president serves in office. This relates to two things: first, the personal firmness of the president in using his constitutional powers; and second, the stability of the policies adopted during his administration. On the first point, it should be obvious that the longer someone holds office, the more likely they are to develop that kind of firmness. It's a basic principle of human nature that people care about what they have in proportion to how secure their hold on it is. We're less attached to what we hold on a temporary or uncertain basis than to what we enjoy with a stable, reliable claim -- and naturally, we're willing to risk more for the latter than for the former. This applies just as much to a political office or position of trust as it does to any piece of personal property. The takeaway is this: a president who knows he *must* leave office very soon won't feel invested enough to risk serious criticism or trouble by exercising his powers independently, or by standing up to the bad moods -- however temporary -- of a large segment of the public or even of a dominant faction in the legislature. And if the situation is that he *might* be able to stay on if he wins re-election, and if he wants to stay on, then his desires and his fears would work together even more powerfully to corrupt his integrity or undermine his courage. Either way, weakness and indecision would define the office.
Some people would actually prefer a president who's a pushover -- someone who bends to whatever the prevailing mood is, whether in the public at large or in the legislature. But people who think this way have a very shallow understanding of both the purposes of government and the real means of promoting public happiness. The republican principle demands that the well-considered judgment of the community should guide the conduct of those they've entrusted with managing their affairs. But it doesn't require blind obedience to every sudden gust of passion, or to every passing impulse the people might feel thanks to the schemes of those who flatter their prejudices in order to betray their interests. It's a fair observation that the people generally *intend* the public good. This even applies to their mistakes. But their own good sense would reject the flatterer who claimed they always *reason correctly* about the *means* of promoting it. They know from experience that they sometimes get it wrong. And the wonder is that they get it wrong as rarely as they do, given that they're constantly besieged by the tricks of parasites and sycophants, by the traps set by the ambitious, the greedy, and the desperate, by the schemes of people who have their trust more than they deserve it, and of those who seek to gain that trust rather than earn it. When situations arise where the people's true interests conflict with their current desires, it's the duty of their appointed leaders -- the guardians of those interests -- to resist the temporary delusion, to give the people time and space for calmer, more careful reflection. History offers examples where this kind of leadership has saved the people from the very worst consequences of their own mistakes, and has earned lasting gratitude for the leaders who had the courage and integrity to serve them at the risk of their displeasure.
But however much we might insist that the president should defer to the people's wishes, we can't reasonably demand the same deference to the moods of the legislature. The legislature may sometimes be at odds with the people, and at other times the people may have no strong opinion either way. In either case, it's clearly desirable for the president to be in a position where he dares to act on his own judgment with vigor and decisiveness.
The same principle that justifies separating the branches of power also tells us that this separation should be designed to make each branch independent of the others. What's the point of separating the executive and judicial branches from the legislative branch if both the executive and the judiciary are set up to be completely at the mercy of the legislature? Such a separation would be purely on paper, incapable of achieving the goals it was created for. There's a difference between being subordinate to the laws and being dependent on the legislature. The first is consistent with good government; the second violates its fundamental principles. Whatever the formal structure of a constitution, if one branch controls the others, it effectively unites all power in the same hands. The tendency of legislative power to absorb everything else has been fully demonstrated with examples in earlier papers. In purely republican governments, this tendency is almost impossible to resist. The people's representatives in a popular assembly sometimes seem to imagine that *they are* the people themselves, and they show signs of impatience and outrage at the slightest opposition from any other branch -- as if the exercise of legitimate authority by the executive or judiciary were a violation of their privileges and an insult to their dignity. They often try to impose domineering control over the other branches. And since they usually have the people on their side, they always act with such force that it becomes very difficult for the other parts of government to maintain the constitutional balance.
Someone might ask: how does a short term in office affect the president's independence from the legislature, unless one has the power to appoint or remove the other? One answer comes from the principle I've already discussed -- that people naturally take little interest in a short-lived advantage and have little motivation to put themselves at risk for it. Another answer, perhaps more obvious if not more conclusive, comes from the legislature's influence over the people, which could be used to prevent the re-election of a president who, by standing up to some corrupt scheme of the legislature's, had made himself a target of its resentment.
It might also be asked whether a four-year term would actually achieve these goals, and if not, whether a shorter term -- which would at least offer more security against ambitious power grabs -- might be preferable to a longer term that was still too short to inspire the firmness and independence we're looking for.
I can't claim that a four-year term, or any fixed term, would perfectly achieve the goal. But it would contribute to it significantly enough to have a real impact on the spirit and character of the government. Between the beginning and end of such a term, there would always be a substantial period when the prospect of leaving office would be far enough away not to improperly influence the conduct of a president with a reasonable amount of courage. During that time, he could reasonably expect to have enough opportunity to demonstrate to the public the wisdom of his chosen course of action. Admittedly, as he approached the moment when a new election would deliver the public's verdict on his performance, his confidence -- and with it his firmness -- would likely decline. But both would draw support from the opportunities his time in office had given him to establish himself in the respect and goodwill of his constituents. He could then take calculated risks in proportion to the evidence he'd given of his wisdom and integrity, and to the respect and loyalty he'd earned from his fellow citizens. On one hand, a four-year term will contribute enough to the president's firmness to make it a very valuable part of the overall design. On the other hand, it's not long enough to justify any alarm about threats to public liberty. If the British House of Commons, starting from the humblest beginnings -- from the *mere power of agreeing or disagreeing to a new tax* -- managed through rapid advances to reduce the powers of the crown and the privileges of the nobility to limits they considered compatible with free government, while raising themselves to an equal branch of the legislature; if they were able, in one instance, to abolish both the monarchy and the aristocracy and overturn every established institution in both Church and State; if they were able, on a recent occasion, to make the king tremble at the prospect of a reform [1] they had attempted -- then what on earth would there be to fear from an elected president serving a four-year term with the limited powers of a President of the United States? What danger is there, except that he might not be up to the task the Constitution assigns him? I'll only add this: if his term is short enough to raise doubts about his firmness, those doubts are inconsistent with any fear of his overreach.
PUBLIUS
[1] This refers to Mr. Fox's India Bill, which passed the House of Commons but was rejected by the House of Lords, reportedly to the complete satisfaction of the people.
To the People of the State of New York:
"Administration of government," in the broadest sense, covers all the operations of the political system -- legislative, executive, and judicial. But in its more common and perhaps more precise meaning, it refers to executive functions specifically, and falls squarely within the executive department's domain. The actual conduct of foreign negotiations, the development of financial plans, the spending of public money in line with congressional appropriations, the management of the army and navy, the direction of military operations -- these and similar responsibilities are what we properly mean by "the administration of government." The people directly managing these various responsibilities should therefore be considered assistants or deputies of the president. For that reason, they should get their positions from his appointment -- or at least his nomination -- and should answer to his oversight. This perspective immediately reveals the close connection between how long the president serves and the stability of his administration's policies. Reversing and undoing what a predecessor accomplished is very often seen by a successor as the best proof of his own ability and worth. On top of this tendency, when the change of leadership has come through an election, the new president is justified in assuming that his predecessor was dismissed because the people disliked his policies -- and that the less he resembles his predecessor, the more popular he'll be with his constituents. These considerations, combined with the pull of personal loyalties and connections, would likely lead every new president to bring in his own people for the subordinate positions. Taken together, these factors could easily produce a disgraceful and damaging instability in how the government is run.
Along with a substantial fixed term, I'd pair the option of re-eligibility. The first gives the president both the motivation and the resolve to do his job well, and gives the public time to observe the direction of his policies and form a judgment based on actual results. The second lets the people, when they're satisfied with his performance, keep him in office to extend the benefits of his talents and virtues, and to give the government the advantage of continuity in a wise set of policies.
Nothing looks more appealing at first glance, yet proves more flawed under close examination, than a proposal that has had some respected supporters -- I mean the idea of keeping the president in office for a set period and then barring him from it, either temporarily or permanently. Whether the exclusion is temporary or permanent, it would have nearly the same effects, and those effects would be mostly harmful rather than beneficial.
**First harmful effect:** It would reduce the incentive for good behavior. Few people would feel as much dedication to their duties when they knew the benefits of their position had a fixed expiration date, compared to when they could hope to keep those benefits by earning them. This point isn't controversial as long as we accept that the desire for reward is one of the strongest motivators of human conduct, and that the best way to ensure people's loyalty is to align their interests with their duties. Even the love of fame -- the ruling passion of the noblest minds -- which might inspire someone to plan and undertake ambitious, difficult projects for the public good, projects that require considerable time to develop and complete, would actually *discourage* him from starting if he knew he'd have to leave the stage before he could finish the work, handing it off -- along with his reputation -- to people who might be unequal to the task or hostile to it. The most you can expect from the average person in that situation is the negative virtue of not doing harm, instead of the positive virtue of doing good.
**Second harmful effect:** It would create temptation for corruption, embezzlement, and in some cases, seizing power illegally. A greedy person who happened to hold the presidency, looking ahead to the day when he'd inevitably have to give up its financial benefits, would feel a strong urge -- hard for such a person to resist -- to squeeze every last dollar out of his time in office. He might not hesitate to use the most corrupt methods to make the harvest as rich as possible while it lasted. Yet this same person, with a different prospect ahead of him, might have been content with the legitimate compensation of his position and might even have been unwilling to risk the consequences of abusing his opportunities. His greed might have served as a check on his greed. Add to this that the same person might be vain or ambitious as well as greedy. If he could expect to extend his honors through good conduct, he might hesitate to sacrifice his desire for prestige to his desire for profit. But with the certainty of inevitable removal looming ahead, his greed would likely win out over his caution, his vanity, or his ambition.
An ambitious person, too -- finding himself at the peak of his country's honors, looking ahead to the day when he must descend from that height forever, knowing that no amount of merit on his part could save him from that unwelcome reversal -- such a person, in such a situation, would be far more violently tempted to seize a favorable moment to extend his power, at whatever personal risk, than if he had the option of achieving the same goal simply by doing his job well.
And would it really promote peace in the country, or stability in the government, to have half a dozen former presidents wandering among the people like discontented ghosts, pining for a position they could never hold again?
**Third harmful effect:** It would deprive the country of the experience the president gains while in office. "Experience is the parent of wisdom" is a saying whose truth is recognized by the wisest and simplest people alike. What quality could be more desirable or essential in national leaders? Where could it be more desirable or essential than in the nation's chief executive? Can it be wise to put this desirable and essential quality under a constitutional ban -- to declare that the moment it's acquired, its possessor must be forced to abandon the very position where he gained it and where it's most useful? Yet that's precisely what all those rules do that bar people from serving their country, by their fellow citizens' choice, after they've fitted themselves through experience to serve with even greater skill.
**Fourth harmful effect:** It would ban people from positions where, in certain national emergencies, their presence might be critically important to the public interest or safety. Every nation has, at one time or another, experienced an absolute necessity for the services of particular individuals in particular situations -- perhaps it wouldn't be too strong to say, for its very political survival. How unwise, then, is any self-imposed rule that prohibits a nation from using its own citizens in the way best suited to its needs! Even setting aside the question of whether any one person is indispensable, it's clear that replacing the president at the outbreak of a war, or any similar crisis, with someone else -- even someone of equal ability -- would always be harmful to the country, since it would substitute inexperience for experience and would tend to unravel the administration's established operations.
**Fifth harmful effect:** It would amount to a constitutional guarantee of instability in the administration. By forcing a change of leadership in the nation's highest office, it would force a change of policies. You generally can't expect the leaders to change while the policies stay the same. The opposite is the usual course of events. And we don't need to worry about too much stability as long as there's even the option of making a change. Nor should we want to prevent the people from continuing to place their trust where they believe it's well placed, and where their consistency can prevent the serious problems caused by shifting leadership and erratic policy.
These are some of the disadvantages that would flow from term limits. They apply most strongly to a permanent ban on re-election. But even a temporary exclusion would always make the person's return a remote and uncertain prospect, so these observations apply almost as fully to one case as to the other.
What are the supposed advantages to offset these disadvantages? They're said to be: first, greater independence for the president; and second, greater security for the people. Unless the exclusion is permanent, there's no basis to claim the first advantage. But even if it were permanent -- couldn't the president still have goals beyond his current position that might compromise his independence? Couldn't he have connections, friends, for whom he might sacrifice it? Mightn't he be *less* willing to take firm stands and make personal enemies when he knows a time is approaching when he not only *may* but *must* face their resentment on equal -- perhaps even inferior -- footing? It's hard to say whether his independence would be helped or hurt by such an arrangement.
As for the second supposed advantage, there's even more reason for doubt. If the exclusion were permanent, a man of dangerous ambition -- the only kind we'd have reason to worry about -- would be extremely reluctant to give up a position where his hunger for power had become a force of habit. And if he'd been skillful or fortunate enough to win the people's affection, he might lead them to see a term-limit provision as an outrageous and unjustifiable restriction on *themselves* -- a rule designed to deny them the right to show their continued support for their favorite leader. You can imagine circumstances where the people's resentment of such a restriction, combined with the frustrated ambition of such a leader, might actually create a greater danger to liberty than could ever reasonably be feared from the possibility of someone staying in office through the voluntary votes of the people exercising their constitutional right.
There's an excess of cleverness in the idea of preventing the people from keeping in office those who have earned, in their judgment, their approval and confidence. The supposed advantages are speculative and uncertain at best, and they're outweighed by disadvantages that are far more definite and decisive.
PUBLIUS
To the People of the State of New York:
The third ingredient of a strong executive is adequate financial support. Without proper attention to this point, the separation of the executive from the legislative branch would be purely on paper and meaningless in practice. If the legislature had the power to set the president's salary and compensation at its own discretion, it could make him as submissive to its will as it pleased. It could, in most cases, either starve him into submission or bribe him with generous pay to surrender his independent judgment to its wishes. These expressions, taken literally, admittedly go further than what I mean. There are people who couldn't be pressured or bought into betraying their duty. But that kind of unwavering virtue is rare, and as a general rule, power over a person's livelihood is power over his will. If we needed facts to confirm so obvious a truth, we wouldn't have to look far -- even in this country -- for examples of the executive being intimidated or seduced by the financial arrangements of the legislature.
It's hard to overstate how wisely the proposed Constitution has handled this issue. It provides that "The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them." It's impossible to imagine a better arrangement. When a president takes office, Congress sets his compensation once and for all for the duration of his term. After that, they have no power to change it -- up or down -- until a new term begins with a new election. They can't weaken his resolve by squeezing his finances, nor corrupt his integrity by appealing to his greed. Neither the federal government nor any state can give, and he cannot receive, any compensation beyond what was established by the original act. He therefore has no financial incentive to give up or abandon the independence the Constitution intended for him.
The last requirement for executive energy on our list is adequate powers. Let's move on to consider those proposed for the President of the United States.
The first thing we notice is the president's qualified veto over the acts and resolutions of the two houses of Congress -- in other words, his power to return bills with objections, which prevents them from becoming law unless they're subsequently approved by two-thirds of each chamber.
I've already discussed the tendency of the legislative branch to encroach on the rights and absorb the powers of the other branches. I've also noted how inadequate it is to simply draw the boundaries of each branch on paper. And from these points, I've argued that each branch needs constitutional tools to defend itself. From these clear and undeniable principles, it follows that the executive should have a veto -- whether absolute or qualified -- over acts of the legislature. Without one or the other, the president would be completely unable to defend himself against the legislature's encroachments. He could be gradually stripped of his powers through a series of resolutions, or destroyed by a single vote. Either way, the legislative and executive powers could quickly end up concentrated in the same hands. Even if the legislature had never shown any tendency to invade the executive's rights, the rules of sound reasoning and theoretical principle would teach us on their own that one branch shouldn't be left at the mercy of another, but should possess a constitutional and effective power of self-defense.
But the veto power has a further purpose. It doesn't just serve as a shield for the president -- it also provides an additional safeguard against the passage of bad laws. It establishes a healthy check on the legislature, designed to protect the public against the effects of faction, haste, or any impulse hostile to the public good that might happen to influence a majority of that body.
The case for a veto has sometimes been challenged with the argument that we shouldn't assume one person has more virtue and wisdom than a large group, and that unless we make that assumption, it would be wrong to give the executive any form of control over the legislature.
But this argument, when you examine it closely, turns out to be more appealing than sound. The case for the veto doesn't rest on the assumption that the president is wiser or more virtuous than Congress. It rests on the assumption that Congress won't be infallible -- that the love of power may sometimes lead it to encroach on the rights of the other branches; that partisan spirit may sometimes distort its deliberations; that the passions of the moment may sometimes rush it into measures that it would, on calmer reflection, condemn. The primary reason for giving the president a veto is to enable him to defend himself. The secondary reason is to improve the chances that the public won't be subjected to bad laws passed through haste, carelessness, or deliberate scheme. The more times a measure is examined, and the more diverse the perspectives of those examining it, the less danger there is of errors that come from insufficient deliberation, or missteps that come from some shared passion or interest. It's far less likely that corrupt motives of any kind will infect all parts of the government at the same time and on the same issue, than that such motives will mislead each part in turn.
It might be argued that the power to prevent bad laws also includes the power to prevent good ones, and could be used for either purpose. But this objection won't carry much weight with anyone who properly understands the damage caused by the instability and constant changes in laws that are the biggest flaw in our current governments. They'll see any institution designed to restrain excessive lawmaking and keep things stable as far more likely to do good than harm, because it favors greater stability in the legal system. The harm that might come from occasionally blocking a few good laws will be more than offset by the benefit of preventing many bad ones.
And that's not all. The legislature's naturally greater weight and influence in a free government, and the risk the executive faces in any power struggle with that body, provide a reassuring guarantee that the veto would generally be used with great caution. There'd be more reason to accuse the president of timidity than of recklessness in using it. A king of Great Britain, with all his sovereign powers and all the influence he draws from a thousand sources, would hesitate even today to veto the joint resolutions of both houses of Parliament. He would use every resource of his influence to kill an unwelcome measure during its progress through the legislature, to avoid facing the dilemma of either letting it take effect or risking the nation's anger by opposing the legislature's will. And he probably wouldn't use his veto except in cases of clear necessity. Every knowledgeable person in Britain would confirm this observation. It's been a very long time since the crown has exercised its veto.
If a leader as powerful and well-protected as a British monarch would have reservations about using the veto, how much more cautious would we expect a President of the United States to be -- someone holding executive power for just four years in a government that is entirely and purely republican?
It's clear that the greater danger is the president *not* using his veto when it's needed, rather than using it too often or too aggressively. In fact, an argument against the veto's usefulness has been drawn from this very point. It's been described as a power that looks threatening but is useless in practice. But just because it might be rarely used doesn't mean it would never be used. In the situation it's primarily designed for -- a direct attack on the president's constitutional powers, or a case where the public good is clearly and obviously being sacrificed -- a president with reasonable courage would use his constitutional means of defense and would listen to the demands of duty and responsibility. In the first scenario, his resolve would be strengthened by his personal stake in the powers of his office. In the second, it would be strengthened by the likelihood that his constituents would back him up -- because while they'd naturally side with the legislature in a close call, they'd hardly let their bias blind them in an obvious case. I'm talking here about a president with just an ordinary level of courage. There are people who, under any circumstances, will have the courage to do their duty no matter the risk.
But the Constitutional Convention took a middle path on this issue, one that both makes it easier for the president to exercise the veto and ties its effectiveness to the agreement of a substantial portion of the legislature. Instead of an absolute veto, the Constitution gives the president the qualified veto I've already described. This is a power that would be used much more readily than an absolute veto. A president who might be afraid to kill a bill outright with a single veto might not hesitate to send it back for reconsideration, knowing it could only be finally enacted if more than one-third of each chamber agreed his objections were insufficient. He'd be encouraged by the knowledge that if his opposition prevailed, it would have the backing of a very substantial portion of the legislature, whose influence would join with his in supporting the wisdom of his position in the public's eyes. An outright, categorical veto has something harsher about it, something more likely to provoke, than the mere suggestion of reasoned objections for others to accept or reject. To the extent that it's less likely to offend, it would be more likely to be used -- and for that very reason, it may prove more effective in practice. We can hope that improper motives will not often control as large a proportion as two-thirds of both chambers at the same time -- especially against the counterbalancing weight of the executive. In any case, it's far less likely that this would happen than that such motives would influence a bare majority. A power like this in the executive's hands will often have a quiet, unnoticed, but powerful effect. When people pursuing unjustifiable goals know that obstacles may come from a source they can't control, the mere fear of opposition will often restrain them from doing what they'd eagerly rush into if no such external barrier existed.
This qualified veto, as I've noted elsewhere, already exists in this state -- vested in a council made up of the governor, the chancellor, and the judges of the Supreme Court (or any two of them). It's been used freely on a variety of occasions, frequently with success. And its usefulness has become so obvious that people who originally opposed it fiercely during the drafting of the state constitution have, through experience, become its declared supporters. [1]
I've noted elsewhere that the Constitutional Convention, in designing this part of their plan, departed from the model of New York's constitution in favor of Massachusetts's. Two strong reasons can be imagined for this choice. First, the judges who will interpret the law might develop an improper bias from having given a prior opinion in their role reviewing legislation. Second, by frequently working alongside the president, they might be drawn too far into his political agenda, and a dangerous alliance might gradually form between the executive and judicial branches. It's impossible to keep judges too separate from every function other than interpreting the laws. It's especially dangerous to put them in a position where they could be corrupted or influenced by the executive.
PUBLIUS
[1] Mr. Abraham Yates, a strong opponent of the Constitutional Convention's plan, is one of these converts.
To the People of the State of New York:
The President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." This provision is so obviously sensible, and so consistent with the precedents set by state constitutions generally, that little needs to be said to explain or defend it. Even those states that have, in other respects, paired the chief executive with a council have mostly concentrated military authority in the executive alone. Of all government responsibilities, the conduct of war most demands the qualities that come from having power exercised by a single person. The conduct of war means the direction of the nation's combined military strength, and the power to direct and deploy that strength is a standard and essential part of what executive authority means.
"The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." I consider this a mere redundancy in the plan, since the right it provides would naturally follow from the office itself.
The president is also authorized to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." Both humanity and good policy agree that the power to pardon should be as free from restrictions and complications as possible. Every country's criminal code is necessarily severe enough that without ready access to exceptions for cases of unfortunate guilt, justice would wear a face too harsh and cruel. Since the sense of responsibility is always strongest when it's undivided, it follows that a single person would be most responsive to the considerations that might argue for softening the severity of the law, and least likely to give in to considerations designed to shield someone who genuinely deserves punishment. The knowledge that a fellow human being's fate depended on his decision alone would naturally inspire carefulness and caution. At the same time, the fear of being accused of weakness or of looking the other way would produce equal caution, though of a different kind. On the other hand, since people generally draw confidence from numbers, a group might encourage each other in acts of harshness, and might be less sensitive to the risk of being suspected of granting unwise or politically motivated clemency. For these reasons, one person is a better dispenser of the government's mercy than a committee.
The wisdom of giving the president the pardoning power has, if I'm not mistaken, only been challenged with respect to the crime of treason. The argument has been made that pardons for treason should require the approval of one or both chambers of Congress. I won't deny that there are strong reasons for requiring congressional involvement in this particular case. Since treason is a crime aimed at the very existence of the society, once the law has established the offender's guilt, there seems to be a natural logic in referring the question of mercy to the legislature's judgment. And this seems especially appropriate given that we can't entirely rule out the possibility that the president himself might be complicit. But there are also strong objections to such a plan. There's no question that a single person of good judgment and common sense is better equipped, in delicate situations, to weigh the arguments for and against reducing a punishment than any large group could be. It deserves special attention that treason will often be connected with uprisings that involve a large portion of the community -- as recently happened in Massachusetts [during Shays' Rebellion]. In every such case, we'd expect to see the people's representatives infected with the same spirit that gave rise to the crime in the first place. And when political parties are fairly evenly matched, the secret sympathy of the condemned person's friends and supporters, taking advantage of the good nature and weakness of others, might frequently grant immunity where making an example was necessary. On the other hand, when the uprising had been fueled by causes that inflamed the resentments of the majority party, they might often prove stubborn and merciless when sound policy called for restraint and mercy. But the strongest argument for giving the president the pardoning power in cases of treason is this: during insurrections or rebellions, there are often critical moments when a well-timed offer of pardon to the rebels could restore peace -- and if that moment is allowed to pass, it may never come again. The slow process of convening Congress, or one of its chambers, to get approval for such a measure would frequently mean missing the golden opportunity. The loss of a week, a day, an hour can sometimes be fatal. If someone objects that the president could be given temporary discretionary power for such emergencies, the answer is, first, that it's questionable whether such power could be delegated by law under a limited constitution, and second, that it would generally be unwise to take any step in advance that might signal the prospect of amnesty. Such an unusual move would likely be interpreted as a sign of timidity or weakness, and would tend to embolden the guilty.
PUBLIUS
To the People of the State of New York:
The President is to have the power, "by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." Though this provision has been attacked on different grounds with considerable intensity, I don't hesitate to declare my firm belief that it's one of the most carefully considered and least objectionable parts of the plan. One line of attack is the familiar complaint about mixing the powers of different branches -- some arguing the president should have the sole power to make treaties, others that it should belong exclusively to the Senate. Another objection focuses on the small number of people who can approve a treaty. Among those making this objection, some think the House of Representatives should have been included in the process, while others believe the only change needed was to require two-thirds of *all* the senators, rather than two-thirds of those *present*. Since I'm confident that my earlier discussion of this part of the plan should have been enough to present it favorably to any careful reader, I'll limit myself here to a few additional remarks, mainly in response to the objections I've just outlined.
On the question of mixing powers, I'll rely on the explanations already given elsewhere about the true meaning of the principle that objection is based on. I'll take it as established that the partnership of the executive and the Senate in treaty-making doesn't violate that principle. I'll go further and suggest that the very nature of the treaty-making power makes this partnership particularly appropriate. Although several writers on government classify treaty-making as an executive power, this is clearly an arbitrary categorization. If we look carefully at what treaty-making actually involves, it has more in common with the legislative function than the executive, though it doesn't strictly fit the definition of either one. The essence of legislative power is to enact laws -- in other words, to prescribe rules for governing society. The execution of those laws, and the deployment of the nation's collective strength -- whether to enforce the laws or to provide for the common defense -- seem to cover all the functions of the executive. The power to make treaties is clearly neither one nor the other. It has nothing to do with executing existing laws or enacting new ones, and even less to do with deploying military strength. Its objects are *contracts* with foreign nations that have the force of law but derive that force from the obligations of good faith. They're not rules imposed by a sovereign on its subjects, but agreements between one sovereign and another. This power therefore seems to form a category of its own, properly belonging to neither the legislative nor the executive branch. The qualities I've described elsewhere as essential for managing foreign negotiations point to the president as the most suitable agent in these transactions. At the same time, the enormous importance of the trust, and the fact that treaties operate as laws, argue strongly for including all or part of the legislature in the process of making them.
However proper or safe it might be in governments where the chief executive is a hereditary monarch to give him the sole power to make treaties, it would be completely unsafe and improper to entrust that power to an elected president serving a four-year term. As I've noted on another occasion -- and the point is beyond question -- a hereditary monarch, though often an oppressor of his people, has too much personal stake in the government to be in any real danger of being corrupted by foreign powers. But a person raised from private life to the presidency, possessing a moderate or modest fortune, and looking ahead to a time in the not-too-distant future when he'll probably have to return to private life, might sometimes face temptations to sacrifice his duty to his personal interest that would require extraordinary virtue to resist. A greedy person might be tempted to betray the nation's interests in exchange for wealth. An ambitious person might make his own rise to power, with the help of a foreign government, the price of his betrayal of his constituents. The history of human behavior doesn't support the exalted opinion of human virtue that would make it wise for a nation to entrust interests as sensitive and consequential as its relations with the rest of the world to the sole control of a president.
To have given the power to make treaties to the Senate alone would have meant giving up the benefits of the president's constitutional role in conducting foreign negotiations. It's true that in that case, the Senate would have had the option of using him in that capacity, but they'd also have had the option of not doing so -- and petty grudges or backroom scheming might lead them to choose the latter over the former. Beyond this, a mere servant of the Senate couldn't be expected to command the confidence and respect of foreign powers to the same degree as the constitutional representative of the nation, and therefore couldn't act with equal weight or effectiveness. While the country would lose a significant advantage in managing its foreign affairs from this arrangement, the people would also lose the additional security that comes from the president's involvement. Though it would be unwise to trust him alone with so important a responsibility, there's no doubt that his participation adds significantly to the nation's safety. It must be abundantly clear that joint control of this power by the president and Senate offers a greater prospect of security than either of them holding it alone. And anyone who has carefully considered the process by which a president is chosen will be satisfied that the office will always tend to attract people of the kind whose involvement in treaty-making is particularly valuable, in terms of both wisdom and integrity.
The observations I made in an earlier paper, which I've referenced elsewhere in this discussion, apply with decisive force against including the House of Representatives in the treaty-making process. The constantly changing membership and -- considering future growth -- the increasingly large size of that body make it impossible to expect from it the qualities essential for this kind of work. Thorough and comprehensive knowledge of foreign affairs; a steady, consistent commitment to the same strategic vision; a keen and reliable sensitivity to the nation's reputation; decisiveness, secrecy, and speed -- these are incompatible with the nature of a body so variable and so numerous. The sheer complexity of requiring so many different bodies to agree would itself be a strong objection. The more frequent demands on the House's time, and the longer periods it would often need to stay in session to give its approval at the various stages of treaty negotiations, would create such inconvenience and expense that this alone should be enough to reject the idea.
The only remaining objection to address is the one that would require two-thirds of *all* senators, rather than two-thirds of those *present*. I've already shown that all provisions requiring more than a simple majority tend to obstruct the government's operations and, indirectly, to let the minority override the majority. This consideration seems sufficient to settle the question: the Convention went as far as it could to secure the advantage of requiring a large number of senators for treaty approval, while still allowing the government to function effectively and respecting the will of the majority. If two-thirds of the total membership had been required, it would in many cases -- because some senators would inevitably be absent -- effectively require unanimity. And the history of every political system that has operated on that principle is a history of paralysis, confusion, and dysfunction. I could point to examples like the Roman Tribunate (where any single tribune could veto legislation), the Polish Diet (which required unanimous consent), and the States-General of the Netherlands -- but an example right here at home makes foreign precedents unnecessary.
Requiring a fixed proportion of the total membership would not, in all likelihood, achieve the benefits of a large deliberating body any better than requiring a proportion of those actually present. The first approach, by always demanding a set number for any decision, reduces the incentive for senators to show up regularly. The second approach, by making the body's ability to act depend on a proportion that changes with every absent or present member, has the opposite effect. And by encouraging regular attendance, it tends to keep the body at full strength, making it very likely that its decisions would generally involve just as many senators as under the other system -- while causing far fewer delays. We also shouldn't forget that under the current Confederation, two delegates typically represent a state. As a result, Congress -- which currently holds *all* the powers of the Union -- rarely has more members than the proposed Senate would. Add to this that the current delegates vote by state, and that when only one delegate is present from a state, his vote is lost, and it's fair to conclude that the active voting members in the Senate, where senators will vote individually, would rarely fall below the number of active votes in the current Congress. When we also take into account the president's involvement, we shouldn't hesitate to conclude that the American people would have greater protection against the improper use of treaty-making power under the new Constitution than they currently have under the Confederation. And when we go one step further and consider the likely growth of the Senate as new states are admitted, we'll not only find ample reason for confidence in the sufficiency of the senators entrusted with this power, but we'll probably conclude that a body much larger than the Senate is likely to become would actually be poorly suited for the job.
PUBLIUS
To the People of the State of New York:
The President is "to nominate, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. But Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
I've pointed out in an earlier paper that "the true test of a good government is its ability and tendency to produce good administration." If that observation is correct, then the method of appointing officers laid out in the clauses above deserves particular praise. It's hard to imagine a system better designed to promote smart choices for filling the offices of the Union. And it should go without saying that the character of any administration depends fundamentally on this very point.
Everyone will agree that the power of appointment, in ordinary cases, should work in one of three ways. It should be given either to a single person, to a small group of moderate size, or to a single person with the approval of such a group. Having the general public exercise this power directly is obviously impractical — setting aside every other concern, it would leave them little time to do anything else. So when I refer to "an assembly" or "body of men" in the discussion that follows, I mean a select group of the kind I've just described. The public as a whole, because of their numbers and geographic spread, can't be manipulated by the kind of organized scheming and backroom dealing that will be raised as the main objection to placing this power in a group of people.
Those who've thought about this subject themselves, or who've followed the arguments made in earlier papers about how the President is elected, will probably agree with this position: there would always be a strong likelihood of the presidency being filled by a person of at least respectable ability. Taking this as a given, I'll lay down a rule: one person with good judgment is better equipped to analyze and evaluate the specific qualities needed for particular offices than a group of people with equal or even greater judgment.
When a single person bears sole and undivided responsibility, it naturally creates a stronger sense of duty and a more careful concern for reputation. Because of this, he'll feel more obligated — and more motivated — to carefully investigate the qualifications required for each position and to impartially choose the people with the strongest claims. He'll have fewer personal favorites to reward than a group of people, where each member presumably has their own circle of friends to take care of. And he'll be far less likely to be swayed by feelings of friendship and affection. A single focused individual, guided by one mind, can't be pulled in different directions and thrown off course by the variety of views, feelings, and interests that so often distort the decisions of a group. Nothing stirs people's passions quite like personal considerations — whether about ourselves or about the people we're choosing or promoting. So every time an assembly exercises the power of appointment, we should expect to see a full display of all the personal and partisan likes and dislikes, biases and grudges, loyalties and hostilities felt by the assembly's members. Any choice made under these circumstances will inevitably be the result either of one faction winning over another, or of a compromise between factions. In either case, the actual merit of the candidate will too often be beside the point. When one party wins, the qualities that matter most are those that unite the party's votes — not those that make the person right for the job. When it's a compromise, the deal usually boils down to horse-trading: "Give us the person we want for this office, and you'll get the person you want for that one." That's the usual bargain. And it will rarely happen that advancing the public interest is the main goal of either party victories or party negotiations.
Even the most intelligent critics of this part of the Constitution seem to recognize the truth of these principles. They argue that the President should have been given sole authority to make appointments under the federal government. But it's easy to show that every advantage you'd expect from such an arrangement would, in practice, come from the power of nomination, which the Constitution proposes to give him — while avoiding several disadvantages that would come with giving him absolute appointment power. In the act of nominating, his judgment alone would be at work. And since his sole duty would be to identify the person who, with the Senate's approval, should fill an office, his responsibility would be just as complete as if he were making the final appointment himself. From this perspective, there's no real difference between nominating and appointing. The same motives that would drive him to do his duty properly in one case would exist in the other. And since no one could be appointed without his prior nomination, every person who got appointed would, in fact, be his choice.
But couldn't his nomination be overruled? Sure, it could. But that would only make room for another nomination by him. The person ultimately appointed would have to be someone he preferred — maybe not his first choice, but still his choice. And it's not very likely that his nominations would often be overruled. The Senate couldn't be tempted to reject a nominee just because they'd prefer someone else, because they'd have no guarantee that the person they wanted would be put forward in a second or any later nomination. They couldn't even be sure that a future nominee would be any more acceptable to them. And since rejecting a nominee could cast a kind of stigma on the person rejected — and might look like a rebuke of the President's judgment — the Senate isn't likely to withhold its approval very often, unless there are special and strong reasons for doing so.
So what's the purpose of requiring the Senate's cooperation? My answer: the requirement of their agreement would have a powerful, though generally silent, effect. It would serve as an excellent check against favoritism by the President, and would go a long way toward preventing the appointment of unqualified people based on state bias, family connections, personal loyalty, or a desire for popularity. On top of that, it would be an effective source of stability in the administration.
It's easy to see that a person who had sole control over appointments would be governed much more by personal preferences and interests than when he was required to submit his choices for review and approval by a different, independent body — and not just any body, but an entire branch of the legislature. The possibility of rejection would be a strong incentive to be careful in making nominations. The risk to his own reputation — and, for an elected official, to his political survival — from showing obvious favoritism or chasing popularity before a body whose opinion carries enormous weight with the public, would serve as a barrier against both tendencies. He'd be both ashamed and afraid to put forward, for the most important or highest-paying positions, candidates whose only qualification was coming from the same state he did, or being personally connected to him, or having the kind of spineless subservience that would make them obedient tools of his will.
Some have objected to this reasoning by arguing that the President, through his power of nomination, could secure the Senate's compliance with his wishes. But the assumption that everyone is corrupt is almost as big an error in political reasoning as the assumption that everyone is virtuous. The very institution of representative government implies that there's enough virtue and honor in human nature to provide a reasonable foundation for trust — and experience backs up this theory. Virtue has been found to exist even in the most corrupt periods of the most corrupt governments. The corruption of the British House of Commons has long been a topic of accusation in both Britain and here, and there's no doubt the charge is, to a considerable extent, well-founded. But it's equally true that there's always a large portion of that body made up of independent, public-spirited individuals who have real influence in the nation's deliberations. That's why — even under the current king — the will of that body has often been seen to override the monarch's wishes, on both appointments and policies. So while it might be reasonable to suppose that the President could occasionally influence some individual senators, the idea that he could routinely buy the integrity of the whole body would be far-fetched and implausible. Anyone who's willing to look at human nature as it really is — without flattering its virtues or exaggerating its vices — will find enough reason to trust in the Senate's integrity. They can be confident not only that it would be virtually impossible for the President to corrupt or seduce a majority of its members, but also that requiring the Senate's cooperation in appointments will serve as a significant and healthy check on the President's conduct. And the Senate's integrity isn't the only safeguard. The Constitution has provided some important protections against executive influence over the legislature. It declares that "No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the United States which shall have been created, or the salary of which shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office."
PUBLIUS
To the People of the State of New York:
I've mentioned that one of the advantages we can expect from the Senate's involvement in the appointment process is that it would contribute to the stability of the administration. The Senate's consent would be needed to remove officials, not just to appoint them. So a change in the presidency wouldn't cause the kind of sweeping, wholesale turnover in government offices you'd expect if the President were the sole decision-maker on appointments. When someone in a position had proven their competence, a new President would be discouraged from trying to replace them with someone more to his liking — knowing that the Senate might block the move and embarrass him in the process. Those who best appreciate the value of a steady administration will most value a provision that ties the professional fate of public officials to the approval or disapproval of a body that, because of its own longer terms, will probably be less prone to instability than any other part of the government.
Some critics have suggested that this partnership between the Senate and the President on appointments would give the President improper influence over the Senate. Others have argued the exact opposite — that it would give the Senate improper influence over the President. The fact that the objection cuts both ways is strong proof that neither version is true.
To state the first objection clearly is to refute it. The argument amounts to this: the President would have improper influence over the Senate because the Senate would have the power to restrain him. That's absurd on its face. There's no question that having complete, unchecked appointment power would allow the President to build a far more dangerous hold over the Senate than a mere power of nomination that's subject to the Senate's approval.
Now let's look at the flip side: "the Senate would influence the President." As I've noted on several other occasions, when an objection is this vague, it's hard to give a precise answer. How, exactly, would this influence work? Over what? The power to influence someone, in the sense meant here, implies the power to grant them some benefit. How could the Senate grant the President a benefit through the way they use their veto over his nominations? You might say they could sometimes do him a favor by going along with a personal favorite when the public interest called for a different choice. But the instances where the President would have a personal stake in the outcome would be too few for the Senate's cooperation to matter much to him. The power that can create positions of honor and compensation is more likely to attract than to be attracted by the power that can merely block those appointments. If by "influencing the President" you mean restraining him — well, that's exactly the point. And I've already shown that this restraint would be beneficial, without destroying any of the advantages we'd gain from the President's independent authority. The power of nomination would produce all the benefits of full appointment power, while largely avoiding its drawbacks.
When you compare the Constitution's plan for appointing government officers with the system established by New York's state constitution, the federal plan clearly comes out ahead. Under it, the power of nomination belongs unambiguously to the President. And since every nomination has to be submitted to the judgment of an entire branch of the legislature, the circumstances surrounding each appointment would naturally become public knowledge. The public would have no trouble figuring out who played what role. The blame for a bad nomination would fall squarely on the President alone. The blame for rejecting a good one would fall entirely on the Senate — made even worse by the fact that they'd overridden the President's sound judgment. If a bad appointment went through, both the President (for nominating) and the Senate (for approving) would share in the disgrace, though in different degrees.
Everything about New York's appointment system is the opposite. The state's council of appointment consists of three to five people, with the governor always being one of them. This tiny group, meeting behind closed doors — completely invisible to the public — carries out their duties in secret. It's known that the governor claims the right of nomination based on some ambiguous language in the state constitution, but nobody knows to what extent or in what way he exercises it, or when he's overruled or challenged. The blame for a bad appointment, since nobody knows who's really responsible, lacks both sharpness and staying power. With a wide-open field for backroom dealing and scheming, all sense of accountability is lost. The most the public can learn is this: the governor claims the right of nomination; two out of a mere four other members can often be won over without much difficulty; if some members of a particular council happen to be uncooperative, it's frequently possible to neutralize their opposition by scheduling meetings at times when they can't attend; and for whatever reason, a great many terrible appointments get made from time to time. Whether a governor of this state uses his dominant position in this sensitive and important part of government to appoint the best-qualified people — or instead abuses that advantage to promote people whose main qualification is blind loyalty to him, propping up a pathetic and dangerous system of personal influence — these are questions that, unfortunately for the public, can only be matters of speculation and guesswork.
Any appointment council, however it's set up, will be a closed-door operation where scheming and intrigue will run wild. Their numbers — without an unjustifiable increase in expense — can't be large enough to prevent members from cutting deals. And since each member will have friends and allies to take care of, the desire for mutual favors will create a shameful system of vote-trading and position-swapping. One person's friends and favorites might be easy enough to accommodate. But satisfying the personal connections of a dozen or twenty people would create a monopoly on all the major government positions by a handful of families — and would lead more directly to an aristocracy or oligarchy than any other scheme you could come up with. And if you tried to prevent this accumulation by frequently rotating the council's membership, you'd get all the problems of an unstable administration in full force. Such a council would also be more vulnerable to presidential influence than the Senate, because it would have fewer members and would operate further from public scrutiny. In short, a council like this, as a substitute for the Constitution's plan, would mean more expense, more favoritism and intrigue in distributing public positions, less stability in government, and less protection against improper presidential influence. And yet this is exactly the kind of council that has been passionately advocated as an essential change to the proposed Constitution.
I can't properly wrap up my discussion of appointments without mentioning one other proposal that's found a few — though only a few — advocates: the idea of giving the House of Representatives a role in making appointments. I'll say little more than mention it, since I can't imagine it gaining widespread support. A body as constantly changing and as large as the House can never be considered appropriate for this power. Its unsuitability will be obvious to everyone when you consider that within half a century, it could consist of three or four hundred members. All the advantages of stability — in both the presidency and the Senate — would be destroyed by this arrangement, and it would cause endless delays and complications. The experience of most states under their own constitutions gives us good reason to reject the idea.
The only remaining powers of the President are: informing Congress about the state of the Union; recommending measures he considers wise; convening Congress, or either chamber, on extraordinary occasions; adjourning them when they can't agree on a time themselves; receiving ambassadors and other foreign officials; faithfully executing the laws; and commissioning all officers of the United States.
Apart from some minor complaints about the power to convene either house of Congress and the power to receive ambassadors, no objections have been raised against this set of authorities — nor could any reasonably be made. It would take an insatiable appetite for criticism to invent objections to these provisions. Regarding the power to convene either house, I'll just point out that there's an obvious good reason for it, at least where the Senate is concerned. Since the Senate shares power with the President over treaties, it might often be necessary to call the Senate together for that purpose without also convening the House of Representatives. As for receiving ambassadors, what I said in an earlier paper provides a sufficient answer.
We've now completed our survey of the structure and powers of the executive branch, which, I've tried to show, combines all the ingredients of energy — as far as republican principles will allow. The remaining question is: Does it also provide the safety that a republic requires — proper dependence on the people, proper accountability? The answer to this question has already been anticipated in our examination of the executive's other features, and can be clearly drawn from these facts: the President is elected every four years by people chosen by the public specifically for that purpose, and he's at all times subject to impeachment, trial, removal from office, disqualification from holding any other office, and — through subsequent prosecution in the ordinary courts — to the forfeiture of his life and property. But these safeguards, significant as they are, aren't the only ones the Constitution provides for the public's security. In the only situations where abuse of executive power is most to be feared, the President would, under this plan, be subject to the control of a branch of the legislature. What more could an informed and reasonable people ask for?
PUBLIUS
[1] These two alternate endings of this sentence appear in different editions: "all the good, without the ill" and "all the good of that of appointment, and would in a great measure avoid its evils."
To the People of the State of New York:
We now move on to an examination of the judiciary branch of the proposed government.
In laying out the defects of the existing Confederation, the usefulness and necessity of a federal court system have already been clearly demonstrated. There's less need to repeat those arguments here, since the concept of a federal judiciary isn't itself in dispute. The only questions that have been raised concern how to structure it and how far its power should reach. So those are the points we'll focus on.
The structure of the judiciary seems to involve several key questions: First, how should the judges be appointed? Second, how long should they serve? Third, how should judicial authority be divided among different courts, and how should those courts relate to each other?
First, the method of appointing judges. This is the same process used for appointing all officers of the Union, and it's been discussed so thoroughly in the last two papers that there's nothing to add here that wouldn't be repetition.
Second, how long the judges should serve. This mainly concerns the length of their time in office, the provisions for their pay, and the safeguards for holding them accountable.
Under the Constitution's plan, all judges appointed by the United States are to hold their offices during good behavior — which matches the best of the state constitutions, including New York's. The fact that opponents of the Constitution have challenged this provision is a telling sign of the obsessive fault-finding that warps their thinking and judgment. Lifetime tenure during good behavior for judges is certainly one of the most valuable modern improvements in the practice of government. In a monarchy, it's an excellent barrier against the despotism of the ruler. In a republic, it's an equally excellent barrier against the overreach and oppression of the legislature. And it's the best tool that can be designed, in any government, to ensure a steady, honest, and impartial administration of the laws.
Anyone who carefully considers the different branches of power must recognize that, in a government where they're separated from each other, the judiciary, by the nature of what it does, will always be the least dangerous to the political rights of the Constitution — because it will be least capable of threatening or undermining them. The executive branch not only hands out honors but holds the sword of the community. The legislature not only controls the purse but writes the rules that govern every citizen's rights and duties. The judiciary, by contrast, has no influence over either the sword or the purse — no command over the nation's strength or its wealth — and cannot take any active action on its own. It may truly be said to have neither force nor will, but merely judgment; and it must ultimately depend on the executive branch even to enforce its own decisions.
This straightforward view of the matter leads to several important conclusions. It proves beyond question that the judiciary is, by far, the weakest of the three branches of power [1]; that it can never successfully attack either of the other two; and that every possible precaution is needed to enable it to defend itself against their attacks. It also proves that while individual injustices may occasionally come from the courts, the general liberty of the people can never be endangered from that direction — so long as the judiciary remains truly separate from both the legislature and the executive. For I agree that "there is no liberty if the power of judging is not separated from the legislative and executive powers" [2]. And it proves, finally, that since liberty has nothing to fear from the judiciary alone, but everything to fear from its merger with either of the other branches — and since the effects of such a merger would come from the judiciary's dependence on the other branch, regardless of any formal separation on paper — and since the judiciary, because of its natural weakness, is constantly at risk of being overpowered, intimidated, or manipulated by the other branches — and since nothing can do more for its strength and independence than permanence in office — this quality of permanence may rightly be considered an essential element of the judiciary's makeup, and, to a great extent, the fortress of public justice and public security.
The complete independence of the courts is especially essential under a limited Constitution. By a limited Constitution, I mean one that places specific restrictions on legislative power — for instance, that the legislature shall pass no bills of attainder (laws that punish specific people without a trial), no ex post facto laws (laws that criminalize actions after the fact), and similar prohibitions. Restrictions like these can only be enforced in practice through the courts, whose duty it must be to declare any law that clearly violates the Constitution void. Without this, all the protections of particular rights and privileges would amount to nothing.
Some confusion has arisen about the courts' authority to strike down legislative acts as unconstitutional. This confusion comes from the mistaken idea that such a power would make the judiciary superior to the legislature. The argument goes that any body with the authority to declare another body's acts void must necessarily be superior to the body whose acts can be voided. Since this principle is critically important in all American constitutions, a brief discussion of the reasoning behind it is warranted.
There is no principle that rests on clearer ground than this: every act of a delegated authority that contradicts the terms of its authorization is void. No legislative act that contradicts the Constitution, therefore, can be valid. To deny this would be to say that the deputy is greater than the principal; that the servant is above the master; that the representatives of the people are superior to the people themselves; that those acting under granted powers may do not only what those powers don't authorize, but what they explicitly forbid.
If you argue that the legislature itself should be the judge of its own constitutional powers, and that the interpretation it adopts is binding on the other branches, the answer is: this can't be the natural assumption unless the Constitution specifically says so. We shouldn't suppose that the Constitution intended to let the people's representatives substitute their own will for that of their constituents. It's far more rational to suppose that the courts were designed to be an intermediary between the people and the legislature — to, among other things, keep the legislature within the limits of its authority. Interpreting the laws is the proper and unique role of the courts. A constitution is, in fact, a fundamental law, and must be treated as such by the judges. It's therefore up to them to determine its meaning, as well as the meaning of any specific law passed by the legislature. If an irreconcilable conflict arises between the two, the one with higher authority and validity must, of course, take precedence. In other words, the Constitution must be preferred over an ordinary statute, and the intention of the people over the intention of their agents.
This conclusion doesn't in any way imply that the judiciary is superior to the legislature. It only means that the power of the people is superior to both. Where the will of the legislature, as expressed in its statutes, conflicts with the will of the people, as expressed in the Constitution, the judges should be guided by the latter rather than the former. They should base their decisions on the fundamental law, rather than on laws that are not fundamental.
This exercise of judicial judgment — choosing between two contradictory laws — is illustrated by a familiar example. It's not uncommon for two statutes to exist at the same time that clash with each other, in whole or in part, and neither of which contains a repealing clause. In such cases, it's up to the courts to sort out their meaning and application. To the extent the two laws can be reasonably reconciled, both reason and law say they should be. Where reconciliation is impossible, it becomes necessary to give effect to one at the expense of the other. The rule courts have adopted for determining which one prevails is that the more recent law takes precedence over the older one. But this is just a rule of interpretation, not something mandated by any statute. It comes from the nature and logic of the situation. It's a rule the courts have adopted on their own, as a matter of common sense and good practice, to guide their work as interpreters of the law. They reasoned that, between conflicting acts of an equal authority, the most recent expression of that authority's will should prevail.
But when it comes to conflicting acts of a superior and a subordinate authority — of an original and a derived power — the nature and logic of the situation point to the opposite rule. They tell us that the earlier act of the superior authority should take precedence over the later act of the inferior, subordinate authority. Accordingly, whenever a particular statute violates the Constitution, it's the duty of the courts to uphold the Constitution and disregard the statute.
Some will argue that the courts might use the pretext of a constitutional conflict to substitute their own preferences for the legislature's constitutional intentions. But the same thing could happen when two ordinary statutes conflict, or in any ruling on any single statute. The courts must interpret the meaning of the law. And if they chose to exercise will instead of judgment, the result would equally be the substitution of their preferences for those of the legislature. This objection, if it proved anything, would prove that there should be no judges at all separate from the legislature.
If, then, the courts are to serve as the bulwarks of a limited Constitution against legislative overreach, this is a powerful argument for giving judges permanent tenure, since nothing will do more to foster the independent spirit that is essential to the faithful performance of so demanding a duty.
The independence of the judges is equally necessary to protect the Constitution and individual rights from the effects of those bad moods that the schemes of manipulative people, or the pressures of particular crises, sometimes spread among the public. Even though these moods quickly give way to better information and calmer reflection, they can, in the meantime, lead to dangerous changes in government and serious oppression of minorities. While I trust that supporters of the proposed Constitution will never join its opponents [3] in questioning the fundamental republican principle that the people have the right to alter or abolish their Constitution whenever they find it contrary to their happiness — still, it doesn't follow from this principle that the people's representatives are justified in violating the Constitution whenever a temporary impulse grabs hold of a majority of their constituents. Nor would the courts be any more justified in ignoring constitutional violations just because popular sentiment was behind them, as opposed to violations that came purely from legislative scheming. Until the people have, through some formal and authoritative act, changed or repealed the established Constitution, it's binding on everyone — collectively and individually. No assumption about public sentiment, or even certain knowledge of it, can justify the people's representatives in departing from the Constitution before such an act takes place. But it's easy to see that it would take extraordinary courage for judges to do their duty as faithful guardians of the Constitution when legislative violations of it had been driven by the majority's voice.
And it's not only constitutional violations that make judicial independence an essential safeguard. These bad public moods sometimes go no further than harming the private rights of particular groups of citizens through unjust and biased laws. Here, too, the firmness of the courts is enormously important in softening the harshness and limiting the reach of such laws. The courts don't just serve to moderate the immediate damage from laws that have already been passed — they also serve as a deterrent against the legislature passing them in the first place. Legislators who know that the courts will scrutinize their work and push back against unjust intentions are, in effect, forced by the very logic of their own injustice to tone down their efforts. This dynamic is likely to have more influence on the character of our governments than most people realize. The benefits of judicial integrity and moderation have already been felt in more than one state. And though these benefits may have displeased those whose underhanded plans they frustrated, they've earned the respect and applause of every fair-minded and principled person. Thoughtful people of every kind should value anything that nurtures this spirit in the courts. After all, no one can be sure that they won't be tomorrow's victim of the same spirit of injustice from which they benefit today. And everyone must recognize that the inevitable tendency of such a spirit is to undermine both public and private trust, replacing it with universal suspicion and misery.
The unwavering and consistent commitment to the rights of the Constitution and of individuals, which we see as indispensable in the courts, certainly can't be expected from judges who hold their offices on a temporary basis. Periodic appointments, no matter how they're structured or who makes them, would in one way or another be fatal to the courts' necessary independence. If the appointment power belonged to the executive or the legislature alone, there'd be a risk of improper deference to whichever branch controlled it. If it belonged to both, judges would be reluctant to offend either one. If it belonged to the people, or to persons chosen by them for this specific purpose, there'd be too great a temptation to cater to popularity — making it impossible to trust that nothing would guide the judges but the Constitution and the laws.
There's yet another — and even weightier — reason for giving judges permanent tenure, and it comes from the nature of the qualifications the job requires. It's been rightly observed that a large and complex body of law is one of the unavoidable costs of a free government. To prevent judges from exercising arbitrary discretion, they must be bound by strict rules and precedents that define their duty in every case that comes before them. And given the endless variety of legal disputes that arise from the foolishness and wrongdoing of humanity, the body of precedent inevitably grows to an enormous size, requiring long and intensive study to master. That's why there can only be a limited number of people in society with enough legal expertise to qualify as judges. And once you factor in the ordinary imperfections of human nature, the number who combine the necessary integrity with the necessary knowledge is smaller still. This tells us that the government won't have a large pool of qualified candidates to choose from. And temporary tenure, which would naturally discourage talented lawyers from leaving a profitable practice to take a seat on the bench, would tend to hand the administration of justice over to people who are less capable and less qualified to carry it out with skill and dignity. Given the current state of this country — and likely for a long time to come — these disadvantages would be greater than they might first appear, though I'll admit they're less serious than the other problems I've discussed.
All things considered, there can be no doubt that the Constitutional Convention acted wisely in following the model of those constitutions that have established good behavior as the standard for judicial tenure. Far from being a flaw, their plan would have been inexcusably deficient without this important feature of good government. The experience of Great Britain offers a powerful testament to the excellence of this institution.
PUBLIUS
[1] The celebrated Montesquieu, the French political philosopher, speaking of the three powers, says: "Of the three powers above mentioned, the judiciary is next to nothing." — *The Spirit of the Laws*, Vol. I, page 186.
[2] Montesquieu, *The Spirit of the Laws*, page 181.
[3] See the Protest of the Minority of the Convention of Pennsylvania, Martin's Speech, etc.
To the People of the State of New York:
After lifetime tenure, nothing can contribute more to the independence of judges than a guaranteed provision for their pay. The point I made about the President applies equally here. As a general rule of human nature, power over a person's livelihood amounts to power over their will. And we can never hope to see, in practice, a true separation of the judicial branch from the legislative branch in any system that leaves judges financially dependent on occasional handouts from the legislature. Thoughtful supporters of good government in every state have had reason to regret the lack of clear and specific protections on this point in the state constitutions. Some states have declared that judges should receive permanent [1] salaries, but experience has shown in several cases that this kind of vague language isn't enough to prevent the legislature from finding ways around it. Something more definitive and unmistakable has proven necessary. Accordingly, the Constitution provides that the judges of the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office."
This is, all things considered, the best provision that could have been devised. It's easy to understand why the Constitution couldn't lock in a fixed dollar amount for judicial pay. Fluctuations in the value of money and changes in society would make a fixed rate unworkable. What might be generous today could become stingy and inadequate within half a century. So it was necessary to leave it to the legislature to adjust compensation as circumstances change — but with a critical restriction: the legislature can never reduce the pay of a sitting judge. A judge can then be sure of where they stand, and can never be intimidated into neglecting their duty by the threat of being put in a worse financial position. The constitutional clause I've quoted achieves both goals. Judicial salaries can be adjusted over time as needed — but they can never be reduced below whatever level a particular judge was receiving when they took office. You'll notice that the Constitution treats the President's pay differently from judges' pay. The President's compensation can neither be increased nor decreased during his term. Judges' compensation can only not be decreased. This difference probably stems from the different lengths of service. Since the President serves a four-year term, a salary set at the start of that period will rarely become inadequate by its end. But judges, if they serve honorably, are guaranteed their positions for life. It's entirely possible — especially in the early stages of the government — that a salary perfectly adequate at the time of their appointment could become too small as the years go on.
This provision for judges' pay bears every mark of wisdom and effectiveness. And it can safely be said that, combined with lifetime tenure, it offers a better guarantee of judicial independence than anything found in the constitution of any state regarding its own judges.
The provisions for holding judges accountable are contained in the impeachment clause. They can be impeached for misconduct by the House of Representatives and tried by the Senate. If convicted, they can be removed from office and barred from holding any other. This is the only accountability mechanism consistent with the necessary independence of the judiciary — and it's the only one found in our own state constitution for our own judges.
The absence of a provision for removing judges due to mental incapacity has been a source of complaint. But every thoughtful person will recognize that such a provision would either go unused or be far more likely to be abused than to serve any good purpose. There is no known method for measuring a person's mental faculties. Any attempt to draw a line between ability and inability would, far more often than not, become a weapon for personal and partisan attacks rather than a way to advance justice or the public good. The result, except in cases of outright insanity, would almost always be arbitrary. And insanity, even without any formal rule, can safely be considered an automatic disqualification.
New York's constitution, trying to avoid investigations that would always be vague and dangerous, has chosen a specific age as the cutoff for judicial service. No one can be a judge past sixty. I believe few people today think this is a good idea. There's no position where an age limit makes less sense than for a judge. The abilities to analyze and compare — the core skills of judging — generally remain strong well past that age in people who live that long. And when you consider how few people outlive their intellectual prime, and how unlikely it is that any significant portion of the bench would be mentally declining at the same time, we should be ready to conclude that age limits like this have little to recommend them. In a republic, where fortunes aren't lavish and pensions aren't practical, forcing people out of positions where they've served their country long and well — positions they depend on for their livelihood, and from which it would be too late to start a new career — ought to have a better justification than the imaginary danger of a senile bench.
PUBLIUS
[1] See the Constitution of Massachusetts, Chapter 2, Section 1, Article 13.
To the People of the State of New York:
To judge accurately how far the power of the federal courts should reach, we first need to consider what kinds of cases they should handle.
It's hard to argue against the proposition that federal judicial authority should extend to these categories of cases: first, all cases arising from laws passed by the United States under its legitimate constitutional powers; second, all cases involving the enforcement of provisions expressly stated in the Constitution; third, all cases in which the United States is a party; fourth, all cases that affect the peace of the nation, whether they involve relations between the United States and foreign countries, or relations between the states themselves; fifth, all cases originating on the high seas that fall under admiralty or maritime law; and finally, all cases where state courts can't be expected to be impartial and unbiased.
The first category depends on an obvious principle: there should always be a constitutional method for enforcing constitutional provisions. What good would restrictions on the authority of state legislatures be without some constitutional way to make them stick? Under the Constitution, the states are prohibited from doing a variety of things — some because they conflict with the interests of the Union, others because they violate the principles of good government. Imposing duties on imported goods and printing paper money are examples of each kind. No sensible person would believe that such prohibitions would be carefully obeyed without some effective power in the government to stop or correct violations. This power must take one of two forms: either a direct federal veto on state laws, or the authority of federal courts to overrule state laws that clearly violate the Constitution. I can't imagine a third option. The Constitutional Convention apparently preferred the latter approach, and I expect it will be more acceptable to the states.
As for the second category, it's impossible to make it any clearer than it already is. If there are such things as political axioms, this is one of them: the judicial power of a government should be as broad as its legislative power. The sheer necessity of uniform interpretation of national laws settles the question. Thirteen independent courts all having final say over the same cases, arising under the same laws, would be a hydra in government — producing nothing but contradiction and confusion.
Even less needs to be said about the third category. Disputes between the nation and its own members or citizens can only be properly handled by national courts. Any other arrangement would be contrary to reason, precedent, and basic propriety.
The fourth category rests on a simple principle: the peace of the whole shouldn't be left in the hands of a part. The Union will undoubtedly be held accountable by foreign nations for the conduct of its members. And the responsibility for preventing harm should always come with the power to prevent it. Since the denial or distortion of justice by court decisions — just like any other form of injustice — is rightly considered a legitimate cause of war, it follows that the federal courts should have authority over all cases involving citizens of other countries. This is just as essential for maintaining the nation's good faith as for securing public peace. You might try to draw a distinction between cases arising under treaties and international law and those that fall purely under domestic law. The first kind might seem appropriate for federal courts, the second for state courts. But it's at least debatable whether an unjust verdict against a foreigner — even in a case governed entirely by local law — wouldn't, if left uncorrected, be an offense against their country, just as much as a violation of a treaty or international law would be. And an even stronger objection to this distinction is the enormous difficulty — if not impossibility — of drawing a practical line between the two kinds of cases. Such a large proportion of cases involving foreigners raise questions of national importance that the safest and most practical approach, by far, is to send all cases involving foreign parties to the national courts.
The power to decide disputes between two states, between one state and the citizens of another, and between citizens of different states may be just as essential to the nation's peace as the power just discussed. History paints a horrifying picture of the feuds and private wars that tore Germany apart before Emperor Maximilian established the Imperial Chamber (a supreme court for the German states) toward the end of the fifteenth century — and also shows us the enormous influence that court had in calming the chaos and establishing order across the empire. This was a court with the authority to make final decisions on all disputes between the members of the Germanic federation.
Even under the flawed system that has held our states together so far, there's been some provision for settling territorial disputes between states under federal authority. But there are many other sources of friction and hostility among the states besides boundary disputes. We've already witnessed some of them. I'm sure you can guess that I'm referring to the fraudulent laws that have been passed in too many states. Although the proposed Constitution establishes specific safeguards against a repeat of the abuses we've already seen, it's reasonable to expect that the same spirit that produced them will take new forms that couldn't be predicted or specifically guarded against. Whatever actions might tend to disturb the harmony between the states are proper subjects for federal oversight and control.
It may be considered the very foundation of the Union that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it's a sound principle that every government should have the power to enforce its own provisions by its own authority, then it follows that the federal courts should preside over all cases in which one state or its citizens are opposed to another state or its citizens — in order to guarantee the equal privileges and immunities that all citizens of the Union are entitled to. To fully protect such a fundamental provision against evasion and trickery, its interpretation should be entrusted to a court that has no local loyalties, that will be impartial between different states and their citizens, and that — owing its very existence to the Union — will never develop a bias against the principles on which the Union is founded.
The fifth category requires little discussion. Even the most extreme champions of state authority haven't been inclined to deny federal courts jurisdiction over maritime cases. These cases so often depend on international law and so frequently affect the rights of foreigners that they naturally fall within the considerations related to public peace. The most important of them are already, under the current Confederation, subject to federal jurisdiction.
The case for federal courts handling disputes where state courts can't be expected to be impartial speaks for itself. No one should be a judge in their own case, or in any case where they have the slightest interest or bias. This principle carries considerable weight in designating federal courts as the proper forum for disputes between different states and their citizens. And it should apply equally to certain cases between citizens of the same state. For example, claims to land based on grants from different states with competing boundary claims fall into this category. The courts of neither granting state could be expected to be neutral. The state's own laws may have already prejudged the question, locking the courts into ruling in favor of their own state's grants. And even where that hasn't happened, it's only natural that judges, being human, would feel a strong inclination toward the claims of their own government.
Having now laid out and discussed the principles that should govern the structure of the federal judiciary, we'll proceed to test the specific powers that the Constitution assigns to it against those principles. The federal judiciary is to handle "all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; all cases affecting ambassadors, other public ministers, and consuls; all cases of admiralty and maritime jurisdiction; controversies to which the United States shall be a party; controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects." This makes up the entire mass of the Union's judicial authority. Let's now review it in detail. It extends to:
First. All cases in law and equity arising under the Constitution and the laws of the United States. This matches the first two categories I laid out as proper for federal jurisdiction. Some have asked: what does "cases arising under the Constitution" mean, as distinct from cases "arising under the laws of the United States"? I've already explained the difference. All the restrictions the Constitution places on state legislatures are examples of it. States are not, for instance, allowed to print paper money. But that prohibition comes from the Constitution, not from any federal statute. If paper money were issued anyway, the resulting legal disputes would be cases arising under the Constitution, not under the laws of the United States in the ordinary sense. This example illustrates the broader principle.
Some have also asked: why include the word "equity"? What equitable cases could arise from the Constitution and federal laws? In fact, there's hardly any kind of lawsuit between individuals that doesn't potentially involve elements of fraud, accident, trust, or hardship — elements that would make the case a matter of equity rather than strict law, as that distinction is recognized and practiced in several states. It's specifically the role of a court of equity, for instance, to provide relief against so-called hard bargains: contracts where, even though there may not have been outright fraud or deception sufficient to void the contract in a regular court, one party may have taken unfair and unconscionable advantage of the other's desperation or misfortune. A court of equity wouldn't tolerate this. In such cases, when foreign parties were involved on either side, it would be impossible for the federal courts to deliver justice without having equitable jurisdiction alongside their legal jurisdiction. Agreements to transfer land claimed under grants from different states could provide another example of why federal courts need equity powers. This reasoning may not be as obvious in states where the formal distinction between law and equity isn't maintained, but in New York, where it plays out in daily legal practice, it's clear enough.
The federal judiciary's authority also extends to:
Second. Treaties made, or to be made, under the authority of the United States, and all cases involving ambassadors, other foreign officials, and consuls. These belong to the fourth category I listed, as they have an obvious connection to preserving the nation's peace.
Third. Cases of admiralty and maritime jurisdiction. These make up the fifth category of cases appropriate for the federal courts.
Fourth. Disputes to which the United States is a party. These are the third category.
Fifth. Disputes between two or more states; between a state and citizens of another state; between citizens of different states. These belong to the fourth category and also share some characteristics with the sixth.
Sixth. Cases between citizens of the same state claiming land under grants from different states. These fall under the final category, and are the only cases where the proposed Constitution specifically envisions the federal courts handling disputes between citizens of the same state.
Seventh. Cases between a state or its citizens and foreign states, citizens, or subjects. As I've already explained, these belong to the fourth category and are, in a special way, the proper business of the federal courts.
From this review of the federal judiciary's specific powers as outlined in the Constitution, it's clear that they all conform to the principles that should govern the structure of this branch — and that they're necessary for the system to work properly. If some minor inconveniences might come from including any particular power in the plan, we should remember that Congress will have full authority to create exceptions and make regulations designed to address or eliminate those inconveniences. The possibility of specific problems can never be viewed, by any informed mind, as a valid objection to a general principle that's designed to prevent larger problems and achieve broader benefits.
PUBLIUS
To the People of the State of New York:
Let's now return to the question of how judicial authority should be divided among different courts, and how those courts should relate to each other.
"The judicial power of the United States is" (according to the convention's plan) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." [1]
That there should be one court of supreme and final authority is a point that's unlikely to be disputed. The reasons for it have been covered elsewhere and are too obvious to repeat. The only real question that's been raised is whether this court should be a separate, independent body, or a branch of the legislature. And here we find the same contradiction that I've pointed out in several other cases. The very people who object to the Senate serving as a court of impeachments — on the grounds that it improperly mixes different powers — are at the same time advocating, at least implicitly, for giving the final decision in all legal cases to all or part of the legislature.
The arguments — or rather, suggestions — behind this objection go something like this: "The authority of the proposed Supreme Court, which will be a separate and independent body, will be superior to the legislature. The power to interpret laws according to the spirit of the Constitution will allow the Court to mold them into whatever shape it likes — especially since its decisions won't be subject to any review or correction by Congress. This is unprecedented and dangerous. In Britain, the final judicial authority rests with the House of Lords, which is a branch of the legislature, and this model has been generally copied in the state constitutions. Parliament and the state legislatures can correct their courts' bad decisions at any time through new legislation. But the errors and overreach of the Supreme Court of the United States will be uncontrollable and without remedy." Upon examination, this argument turns out to be built entirely on faulty reasoning and mistaken facts.
First, there isn't a single word in the proposed plan that directly gives the national courts the power to interpret laws according to the spirit of the Constitution — or grants them any greater flexibility in this area than the courts of every state already claim. I do acknowledge that the Constitution should be the standard for interpreting laws, and that whenever a law clearly contradicts the Constitution, the law should give way. But this principle doesn't come from anything unique to the convention's plan. It flows from the general theory of a limited Constitution, and it applies just as much to most, if not all, of the state governments. So any objection on this basis that could be raised against the federal judiciary could equally be raised against every state court system — and would condemn every constitution that tries to set limits on legislative power.
But perhaps the real force of the objection is thought to lie in the specific structure of the Supreme Court — the fact that it's a distinct body of judges rather than a branch of the legislature, as in Britain and in several states. To press this point, the critics would have to abandon the very meaning they've been trying to give to the celebrated principle requiring separation of powers. I'll concede, however — consistent with the interpretation given to that principle throughout these papers — that placing final judicial power in a part of the legislature wouldn't technically violate it. But even if it's not an outright violation of that excellent rule, it comes so close that this alone makes it less desirable than the convention's approach. From a body that had even a partial hand in passing bad laws, we could rarely expect a willingness to moderate those laws in their application. The same spirit that drove the making of them would be all too likely to influence their interpretation. Even less could we expect that legislators who had violated the Constitution in their role as lawmakers would then fix the damage in their role as judges. And there's more. Every reason for giving judges life tenure argues against placing final judicial power in a body of people chosen for limited terms. It's absurd to send cases first to permanent judges, and then on final appeal to temporary ones whose makeup is always changing. And it's even more absurd to subject the decisions of people chosen for their legal expertise — gained through years of demanding study — to review and overrule by people who lack that expertise and can't help but be deficient in legal knowledge. Legislators are rarely chosen based on qualifications that make good judges. Because of this, there's every reason to expect the bad consequences of inadequate knowledge, and because of the natural tendency of such bodies to divide into partisan factions, there's equal reason to fear that the poisonous influence of partisanship may contaminate the wellsprings of justice. The habit of constantly lining up on opposite sides is all too likely to drown out the voice of both law and fairness.
These considerations should lead us to applaud the wisdom of those states that have placed final judicial power not in a branch of the legislature, but in separate and independent bodies. Contrary to what critics have claimed — that the convention's plan is novel and unprecedented in this regard — it actually mirrors the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. The preference given to these models is highly commendable.
Second, it's not true that the British Parliament or the state legislatures can overturn their courts' objectionable decisions in any way that a future Congress of the United States couldn't also do. Neither British constitutional theory nor state constitutional theory authorizes the reversal of a judicial decision by a legislative act. And there's nothing in the proposed Constitution — any more than in either of theirs — that forbids it. In both cases, the impropriety of doing so, based on general principles of law and reason, is the only obstacle. A legislature, without overstepping its proper role, can't reverse a decision already made in a particular case — though it can establish a new rule for future cases. This is the principle, and it applies in exactly the same way and to exactly the same extent to the state governments as to the national government we're considering. Not the slightest difference can be pointed to from any angle.
Finally, let me note that the supposed danger of the judiciary encroaching on legislative authority — a fear that's been repeated endlessly — is really a phantom. Occasional misinterpretations and deviations from the legislature's intent may happen here and there, but they can never be so widespread as to cause real problems or noticeably disrupt the political system. This can be inferred with certainty from the general nature of judicial power, from the kinds of matters it deals with, from the way it's exercised, from its relative weakness, and from its complete inability to back up any overreach by force. And this conclusion is greatly strengthened by the important constitutional check that the power of impeachment provides — the House can bring impeachment charges, and the Senate can try and decide them. This gives the legislature a powerful check on members of the judiciary. This alone is a complete safeguard. There can never be any real danger that judges, through a pattern of deliberate overreach against the legislature, would risk the united anger of the body that holds that authority — especially when that body has the power to punish their arrogance by removing them from office. While this should eliminate all fears on this subject, it also provides a strong argument for making the Senate the court for impeachment trials.
Having now examined — and, I trust, answered — the objections to making the Supreme Court a separate and independent body, I'll move on to consider the power to create lower federal courts [2] and the relationship between those courts and the Supreme Court.
The power to create lower courts is clearly designed to avoid the need to bring every federal case directly to the Supreme Court. It's meant to let the national government establish, in each state or district, a court capable of handling federal cases within its area.
But why, some ask, couldn't the same goal have been achieved by using the state courts? This has several answers. Even granting the state courts' competence in the fullest possible sense, the power to create federal courts can still be seen as a necessary part of the plan — if only to let Congress formally assign federal constitutional cases to those courts. Giving state courts jurisdiction over cases arising under the national Constitution might count as "constituting tribunals" just as much as creating new courts for that purpose. But shouldn't a more direct provision have been made in favor of the state courts? In my opinion, there are substantial reasons against this. The most perceptive observer can't predict how far local bias might disqualify state courts from handling national cases, and anyone can see that courts structured like those in some states would be unsuitable channels for federal judicial authority. State judges who hold their positions at the pleasure of the appointing authority, or from year to year, are too lacking in independence to be trusted with the unwavering enforcement of national laws. And if state courts had to handle federal cases in the first instance, there would have to be a correspondingly wide-open right of appeal. The easier or harder it should be to appeal ought to match how much we trust or distrust the lower courts. And while I'm fully persuaded that the convention's plan for appellate jurisdiction across the various categories of cases is appropriate, I'd consider anything that gave a completely unrestricted right of appeal to be a source of both public and private problems.
I'm not sure, but I think it may prove very practical and useful to divide the United States into four, five, or six districts and establish a federal court in each, instead of one in every state. The judges of these courts, working alongside state judges, could travel circuits to try cases in different parts of their respective districts. Justice could be delivered with speed and efficiency through them, and appeals could be safely limited to a manageable scope. This plan seems to me, at present, the most promising one available, and to make it work, the power to create lower courts needs to exist in the full extent provided by the proposed Constitution.
These reasons should be enough to satisfy any fair-minded person that lacking this power would have been a major flaw in the plan. Let's now examine how judicial authority is to be distributed between the Supreme Court and the lower federal courts.
The Supreme Court is to have original jurisdiction only "in cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." Public ministers of every rank are the direct representatives of their nations. All cases involving them are so closely connected to international peace that, both for the sake of preserving that peace and out of respect for the nations they represent, it makes sense to submit such cases first to the highest court in the land. Although consuls don't strictly have diplomatic status, they're still public agents of their nations, and much the same reasoning applies. In cases where a state is a party, it wouldn't suit the state's dignity to be sent to a lower court.
Though it's somewhat of a digression from this paper's main topic, I'll take this opportunity to address a concern that has caused unnecessary alarm. It's been suggested that if one state's public debt securities were transferred to citizens of another state, those citizens could then sue the debtor state in federal court. The following considerations prove this suggestion has no foundation.
It's inherent in the nature of sovereignty that a state can't be sued by an individual without its consent. This is the common understanding and universal practice of nations, and this immunity, as an attribute of sovereignty, is currently enjoyed by every state in the Union. Unless the convention's plan explicitly surrenders this immunity, it stays with the states, and the supposed danger is purely imaginary. The circumstances that would constitute an actual surrender of state sovereignty were discussed in the earlier papers on taxation and don't need repeating here. Reviewing the principles established there will confirm that there's absolutely no basis for claiming that states would, by adopting the Constitution, lose the ability to pay their own debts in their own way — free from any constraint except what flows from their obligations of good faith. Contracts between a nation and individuals bind only the nation's conscience and carry no right to compulsory enforcement. They create no independent right of legal action against the nation's will. What would be the point of authorizing lawsuits against states for debts they owe? How would you enforce the judgments? Obviously, you couldn't do it without waging war against the debtor state. And to attribute to federal courts — by mere implication, and in destruction of a pre-existing right of the state governments — a power that would lead to such a consequence would be entirely forced and unjustifiable.
Let's pick up the thread of our analysis. We've seen that the Supreme Court's original jurisdiction would be limited to two categories of cases — categories that would rarely arise. In all other federal cases, original jurisdiction would belong to the lower courts, and the Supreme Court would have nothing more than appellate jurisdiction, "with such exceptions and under such regulations as the Congress shall make."
The propriety of this appellate jurisdiction has barely been questioned regarding matters of law. But there's been loud protest against extending it to matters of fact. Some well-meaning people in this state, drawing their understanding from the legal language and procedures of our own courts, have been led to see this as an implied elimination of trial by jury in favor of the civil-law mode of trial used in our admiralty, probate, and chancery courts. A technical meaning has been attached to the word "appellate" that, in our legal language, is commonly associated with appeals under the civil law system. But if I'm not mistaken, the same word wouldn't carry that meaning anywhere in New England. There, an appeal from one jury to another is familiar in both language and practice — it's even routine until there have been two verdicts on the same side. The word "appellate," therefore, would be understood differently in New England than in New York, which shows why it's wrong to base a technical interpretation on the legal traditions of any one particular state. The term, taken in the abstract, means nothing more than the power of one court to review the proceedings of another — whether as to law, fact, or both. How that's done may depend on established custom or legislation (and in a new government, it would have to depend on legislation), and it may or may not involve a jury, as deemed appropriate. So if re-examining a fact originally decided by a jury is permitted under the proposed Constitution, it could be structured so that a second jury handles it — either by sending the case back to the lower court for a new trial on the facts, or by having the Supreme Court itself empanel a new jury.
But it doesn't follow that the Supreme Court will be allowed to re-examine facts that a jury has already decided. When a writ of error is brought from a lower to a higher court of law in this state, why can't it be said — with complete accuracy — that the higher court has jurisdiction over the facts as well as the law? It's true the higher court can't conduct a new investigation of the facts, but it reviews the facts as they appear in the record and pronounces the law based upon them. [3] This is jurisdiction over both fact and law, and it's not even possible to separate the two. Although the common-law courts of this state use juries to determine disputed facts, they unquestionably have jurisdiction over both fact and law. And when the facts are agreed upon in the pleadings, they don't use a jury at all but proceed directly to judgment. I therefore maintain that the expressions "appellate jurisdiction, both as to law and fact" don't necessarily mean the Supreme Court will re-examine facts that juries in lower courts have already decided.
Here's the train of thinking that probably influenced the convention regarding this particular provision. The Supreme Court's appellate jurisdiction (they may have reasoned) will cover cases decided under different systems — some under the common law, others under the civil law. In common-law cases, reviewing only the law will generally be the Supreme Court's proper role. In civil-law cases, re-examining the facts is consistent with practice and, in some situations — prize cases being one example — may be essential for protecting public peace. It's therefore necessary for appellate jurisdiction to extend, in certain cases, to matters of fact in the broadest sense. It won't work to make an explicit exception for cases originally tried by jury, because in some states all cases are tried by juries [4], and such an exception would block the review of facts even where that review would be proper as well as where it would be improper. To avoid all these problems, the safest approach is to declare generally that the Supreme Court shall have appellate jurisdiction over both law and fact, and that this jurisdiction shall be subject to whatever exceptions and regulations Congress prescribes. This gives the government the flexibility to shape the system in a way that best serves the interests of public justice and security.
This view of the matter puts it beyond all doubt that the supposed abolition of jury trials through this provision is a false and baseless claim. Congress would certainly have full power to provide that, in appeals to the Supreme Court, there would be no re-examination of facts in cases where a jury tried them originally. This would clearly be a valid exception. But if, for the reasons already mentioned, that's considered too broad, it could be limited to just those cases that are decided by jury under the common-law system.
To sum up everything said so far about the judiciary: its authority has been carefully restricted to cases that clearly belong under national jurisdiction. In dividing this authority, only a very small portion of original jurisdiction has been kept for the Supreme Court, with the rest going to the lower courts. The Supreme Court will have appellate jurisdiction over both law and fact in all referred cases, subject to whatever exceptions and regulations Congress sees fit. This appellate jurisdiction does not, in any case, abolish trial by jury. And an ordinary degree of good judgment and integrity in Congress will ensure that we gain real benefits from establishing the proposed judiciary, without suffering any of the problems that have been predicted.
PUBLIUS
[1] Article 3, Section 1.
[2] This power has been absurdly misrepresented as an attempt to abolish all the county courts in the various states — courts that are commonly called "inferior courts." But the Constitution's actual language is to create "tribunals inferior to the Supreme Court," and the clear purpose is to enable the establishment of local courts subordinate to the Supreme Court, whether in states or in larger districts. It's ridiculous to imagine that county courts were what anyone had in mind.
[3] This word — "jurisdiction" — comes from the Latin jus (law) and dictio (speaking): literally, the speaking or pronouncing of the law.
[4] I maintain that the states will have concurrent jurisdiction with the lower federal courts in many categories of federal cases, as I'll explain in my next paper.
To the People of the State of New York:
Creating a new government — no matter how carefully or wisely it's designed — is bound to raise complicated and delicate questions. And these are especially likely to come up when establishing a constitution based on merging a number of separate sovereign states, whether fully or partially. Only time can refine and perfect such a complex system, clarify the meaning of all its parts, and fit them together into a harmonious and consistent whole.
Sure enough, such questions have come up about the convention's plan, particularly regarding the judiciary. The main ones concern the role of state courts in relation to cases that fall under federal jurisdiction. Is federal jurisdiction exclusive, or do state courts share it? If they share it, what's the relationship between state courts and the national ones? These are questions raised by thoughtful people, and they certainly deserve attention.
The principles I established in an earlier paper [1] tell us that the states keep all their existing powers except those exclusively given to the federal government. And this exclusive delegation can only happen in one of three situations: where the Constitution expressly grants exclusive authority to the federal government; where it grants a particular power to the federal government and simultaneously prohibits the states from exercising the same power; or where it grants a power to the federal government that would be completely incompatible with the states exercising a similar power. While these principles may not apply with exactly the same force to the judiciary as they do to the legislature, I'm inclined to think they're broadly correct for both. Based on this, I'll lay down a rule: state courts keep whatever jurisdiction they currently have, unless it's clearly taken away in one of the three ways I just described.
The only passage in the proposed Constitution that looks like it confines federal cases to federal courts is this: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish." This could be read in two ways. It could mean that the Supreme Court and the lower federal courts are the only courts allowed to decide cases under federal authority. Or it could simply mean that the federal judiciary will consist of one Supreme Court and however many lower courts Congress decides to create — in other words, that the United States will exercise its judicial power through one supreme court and a number of lower courts established by Congress. The first reading rules out concurrent state jurisdiction; the second allows it. And since the first interpretation would effectively strip the states of power by implication alone, the second strikes me as the most natural and defensible reading.
That said, this principle of concurrent jurisdiction clearly applies only to types of cases that state courts already handle. It's less clear when it comes to cases that arise specifically from the new Constitution itself, since denying state courts jurisdiction over such cases can hardly be considered taking away a pre-existing power. I'm not arguing, therefore, that Congress can't assign certain cases arising from federal law exclusively to federal courts if it thinks that's wise. What I am saying is that state courts won't lose any of their existing jurisdiction beyond what may relate to the right of appeal. In fact, I believe that in every case where future acts of Congress don't expressly exclude them, state courts will naturally have jurisdiction over cases arising from those federal laws. I draw this conclusion from the nature of judicial power and from the overall design of the system. The judicial power of any government reaches beyond its own local laws. In civil cases, it takes hold of all disputes between parties within its jurisdiction, even when those disputes involve the laws of the most distant corners of the globe. The laws of Japan, no less than those of New York, can provide the basis for legal proceedings in our courts. When we add to this the fact that the state and national governments are truly parts of one unified whole — as they genuinely are — the conclusion seems unavoidable: state courts should have concurrent jurisdiction in all cases arising under federal law, unless Congress expressly says otherwise.
This raises another question: what would the relationship be between national and state courts in cases of concurrent jurisdiction? My answer is that appeals would certainly go from state courts to the Supreme Court of the United States. The Constitution directly gives the Supreme Court appellate jurisdiction in all the listed categories of federal cases where it doesn't have original jurisdiction — without a single word limiting those appeals to lower federal courts only. The Constitution focuses on the types of cases that can be appealed, not on which courts the appeals come from. Given this language and the logic of the situation, appellate jurisdiction should be read as extending to state courts. Otherwise, one of two things would have to follow: either state courts would have to be shut out of concurrent jurisdiction over federal cases entirely, or the federal judiciary's authority could be evaded whenever a plaintiff or prosecutor chose. Neither consequence should be accepted without clear necessity. The latter would be completely unacceptable, because it would defeat some of the most important and openly stated purposes of the proposed government and seriously obstruct its operations. And I see no basis for assuming it would happen. As I've already noted, the national and state systems should be understood as parts of one whole. The state courts will naturally serve as supporting institutions for enforcing federal law, and appeals from them will naturally flow to the court designated to unify the principles of national justice and create consistent national legal standards. The convention's clear goal is that all cases in the specified categories should, for important public reasons, receive their initial or final resolution in the courts of the Union. To restrict the broad language giving the Supreme Court appellate jurisdiction — limiting it only to appeals from lower federal courts instead of extending it to state courts as well — would narrow the meaning of the text, undermine its intent, and violate every sound rule of interpretation.
But could an appeal go from a state court to a lower federal court? This is another question that's been raised, and it's harder than the last one. The following considerations support saying yes. First, the Constitution authorizes Congress "to constitute tribunals inferior to the Supreme Court." [2] Next, it declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish." It then lists the cases covered by this judicial power. After that, it divides the Supreme Court's jurisdiction into original and appellate — but says nothing about the jurisdiction of the lower courts. The only guidelines given are that they must be "inferior to the Supreme Court" and can't exceed the boundaries of federal judicial power. Whether their authority is original, appellate, or both isn't specified. All of this appears to be left to Congress's discretion. Given that, I see no current obstacle to establishing appeals from state courts to lower federal courts, and many advantages of having that option can be imagined. It would reduce the pressure to create lots of federal courts and would allow arrangements that limit the Supreme Court's appellate caseload. State courts could be left with a larger share of federal cases, and appeals, in most situations where they're appropriate, could go to district courts of the Union instead of all the way up to the Supreme Court.
PUBLIUS
[1] No. 31.
[2] Article 1, Section 8.
To the People of the State of New York:
The objection to the convention's plan that has gained the most traction in this state — and probably in several others — is the lack of a constitutional provision guaranteeing trial by jury in civil cases. The dishonest way this objection is usually framed has been repeatedly pointed out and exposed, but it continues to be pushed in every conversation and piece of writing by the Constitution's opponents. The mere silence of the Constitution on civil jury trials is portrayed as an abolition of them, and the inflammatory rhetoric built on this claim is cleverly designed to convince people that this supposed abolition is total and universal — extending not just to every type of civil case, but even to criminal cases. Arguing against the claim regarding criminal cases, however, would be as pointless as trying to seriously prove that matter exists, or to demonstrate propositions that are self-evidently true the moment they're put into words.
As for civil cases, arguments almost too flimsy to bother refuting have been used to support the notion that something the Constitution simply doesn't mention has been entirely abolished. Anyone with basic judgment can immediately see the vast difference between silence and abolition. But since the inventors of this fallacy have tried to back it up with certain legal rules of interpretation — twisting those rules from their actual meaning — it may be worth examining the ground they've staked out.
The rules they rely on go like this: "Listing specific items excludes everything not listed," or "Stating one thing implies the exclusion of others." Therefore, they argue, since the Constitution establishes trial by jury in criminal cases and says nothing about civil cases, this silence is an implied prohibition of jury trials in civil cases.
Rules of legal interpretation are rules of common sense, adopted by courts for reading laws. The real test of whether they're being applied correctly is whether the application makes common sense. With that in mind, let me ask: does it make sense to suppose that a provision requiring the legislature to use juries in criminal cases strips it of the right to allow jury trials in other cases? Is it natural to assume that a command to do one thing is a prohibition against doing something else — something there was already the power to do, and which isn't incompatible with the thing commanded? If such an assumption would be unnatural and unreasonable, then it can't be rational to claim that requiring jury trials in certain cases is a ban on them in others.
The power to create courts includes the power to set the mode of trial. So if the Constitution said nothing at all about juries, Congress would be free to either adopt that institution or leave it alone. In criminal cases, this discretion is restricted by the express requirement of trial by jury. But in civil cases, it's left completely open, since the Constitution is entirely silent on the subject. Requiring jury trials for all criminal cases eliminates the obligation to use them in civil cases, yes — but it doesn't take away Congress's power to use them in civil cases if it chooses. The claim, therefore, that Congress wouldn't be fully free to submit all federal civil cases to jury determination is a claim without any legitimate foundation.
From these observations, we reach this conclusion: trial by jury in civil cases is not abolished, and the way those legal maxims have been used is contrary to reason and common sense, and therefore inadmissible. Even if these maxims had a precise technical meaning that matched what these critics intend — which they don't — they'd still be inapplicable to a constitution of government. For a subject like this, the natural and obvious meaning of its provisions — apart from technical rules — is the true standard for interpretation.
Having now shown that the legal maxims being cited don't support the use they've been put to, let's work out their actual meaning and proper application. This is best done through examples. The convention's plan says that the power of Congress — that is, the national legislature — shall extend to certain listed cases. This listing of specific powers obviously rules out any claim to a general legislative authority, because granting specific powers would be pointless if a general authority were intended.
Similarly, the Constitution declares that the judicial authority of the federal courts shall cover certain specified cases. Listing those cases marks the precise boundaries beyond which federal courts can't extend their jurisdiction, because spelling out the categories of cases they can hear would be meaningless if broader authority were implied.
These examples are enough to illustrate the maxims in question and to show how they should be used. But to prevent any misunderstanding, I'll add one more case to demonstrate the proper application of these maxims — and the abuse that's been made of them.
Suppose that under the laws of this state, a married woman was unable to transfer her property, and the legislature — considering this unjust — passed a law saying she could sell her property by executing a deed in the presence of a judge. In that situation, the specification would clearly exclude any other method of transfer, because the woman had no prior right to sell her property, so the specification defines the particular method she must use for that purpose. But now suppose that later in the same law, a provision declared that no woman could sell any property above a certain value without the written consent of three of her nearest relatives, shown by their signing the deed. Could anyone infer from this that a married woman couldn't get her relatives' approval for a deed transferring property of lesser value? The idea is too absurd to deserve a rebuttal — and yet this is precisely the argument that must be made by anyone who claims that jury trials in civil cases are abolished because they're expressly provided for in criminal cases.
From these observations, it should be absolutely clear that trial by jury is not abolished in any case by the proposed Constitution. And it's equally true that in the kinds of disputes between individuals where ordinary citizens are most likely to have a stake, the institution will remain in exactly the same position it occupies under the state constitutions — completely unaltered and unaffected by adopting this plan. The basis for this assertion is that the national judiciary won't have jurisdiction over these cases, so they'll continue to be decided — as before — by state courts alone, following whatever procedures the state constitutions and laws prescribe. All land disputes — except where claims under grants from different states come into conflict — and all other disputes between citizens of the same state, unless they involve direct violations of the Constitution by state legislatures, will belong exclusively to the state courts. Add to this the fact that admiralty cases and almost all equity cases are already decided under our current state system without a jury, and the overall conclusion is clear: this institution, as it currently exists, can't possibly be affected to any significant degree by the proposed change in our system of government.
Both the supporters and opponents of the convention's plan, if they agree on nothing else, at least agree on the value they place on trial by jury. If there's any difference between them on this, it's this: the supporters consider it a valuable safeguard of liberty, while the opponents call it the very cornerstone of free government. For my own part, the more I've observed how this institution operates, the more reason I've found to hold it in high regard. It would be completely unnecessary to examine the extent to which jury trials deserve to be considered useful or essential in a representative republic, or to debate whether they have more value as a defense against the oppression of a hereditary monarch than as a barrier against tyranny by elected officials in a democratic government. These kinds of academic debates would be more interesting than useful, since everyone agrees the institution is valuable and friendly to liberty. But I have to admit that I can't easily see the inseparable connection between the existence of liberty and the trial by jury in civil cases. Arbitrary impeachments, arbitrary prosecutions of trumped-up offenses, and arbitrary punishments based on arbitrary convictions — these have always seemed to me to be the great engines of judicial tyranny. And all of these relate to criminal proceedings. Trial by jury in criminal cases, along with habeas corpus (the right to challenge unlawful imprisonment), therefore seems to be the only thing really at stake. And both of these are provided for, in the fullest possible way, in the convention's plan.
It's been argued that trial by jury serves as a safeguard against oppressive taxation. This claim deserves careful examination.
Obviously, jury trials can have no influence on the legislature regarding how much to tax, what to tax, or how to distribute the tax burden. If jury trials have any influence at all, it must be on the methods of tax collection and on the conduct of the officials charged with enforcing the revenue laws.
As for collection methods in this state, under our own Constitution, trial by jury is mostly not used for taxes. Taxes are typically collected through the quicker process of seizing and selling property, as in cases of unpaid rent. And everyone agrees that this is essential for revenue laws to work effectively. The slow pace of a regular trial to recover taxes from individuals would suit neither the government's needs nor the taxpayers' convenience. It would often pile up legal costs that would be more burdensome than the original tax itself.
As for the conduct of revenue officers, the provision for trial by jury in criminal cases already provides the protection people are looking for. Willful abuses of public authority to oppress citizens, and every form of official extortion, are crimes against the government, and the people who commit them can be indicted and punished based on the circumstances of each case.
The value of trial by jury in civil cases appears to depend on considerations that are separate from the preservation of liberty. The strongest argument in its favor is that it guards against corruption. Since there's always more time and better opportunity to tamper with a permanent body of judges than with a jury assembled for the occasion, there's reason to think corrupt influence could reach the former more easily than the latter. The force of this argument is, however, weakened by other considerations. The sheriff who summons regular juries, and the court clerks who select special juries, are themselves permanent officials — and, acting as individuals, may be more susceptible to corruption than judges, who act as a group. It's not hard to see that these officials could select jurors who would serve one party's interests just as effectively as a corrupt judge would. Furthermore, it's fair to assume there would be less difficulty in swaying some jurors randomly drawn from the general public than in corrupting people specifically chosen by the government for their integrity and good character. But even after making every allowance for these considerations, trial by jury remains a valuable check on corruption. It greatly multiplies the barriers to success. As things stand now, you'd have to corrupt both the judge and the jury, because when a jury has clearly gone wrong, the court will generally order a new trial. And there's little use in bribing the jury unless you've also gotten to the judge. This double layer of security creates a system where each institution helps protect the other. By increasing the obstacles to corruption, it discourages attempts to undermine the integrity of either. The temptations to corruption that judges might face are certainly far fewer when a jury's cooperation is also needed than they would be if judges alone determined every case.
Despite the doubts I've expressed about whether civil jury trials are essential to liberty, I admit that they're, in most cases and under proper rules, an excellent way of resolving property disputes. On that basis alone, they'd deserve a constitutional provision if it were possible to clearly define which cases they should cover. But in every context, that's extremely difficult to do. And anyone not blinded by enthusiasm must recognize that in a federal government — which is a union of different societies with significantly different ideas and practices on this subject — the difficulty is even greater. For my own part, every time I look at this issue from a new angle, I become more convinced of the reality of the obstacles that, as we're authoritatively told, prevented the convention from including a provision on this topic in its plan.
The enormous variation in jury trial practices across the different states isn't widely understood, and since it has a considerable bearing on how we should judge the omission in question, an explanation is necessary. In this state, our judicial system resembles Great Britain's more closely than any other state's. We have courts of common law, courts of probate (similar in some respects to England's ecclesiastical courts), a court of admiralty, and a court of chancery (equity). Trial by jury is used only in the common-law courts, and even there with some exceptions. In all the others, a single judge presides and generally follows either ecclesiastical or civil law procedure without a jury. [1] In New Jersey, there's a chancery court that operates like ours, but no separate admiralty or probate courts in the sense we have them. In New Jersey, the common-law courts handle the types of cases that we send to admiralty and probate courts, so the jury trial is more extensive there than in New York. In Pennsylvania, this is perhaps even more the case, because there's no chancery court at all — the common-law courts handle equity jurisdiction. Pennsylvania has an admiralty court but no probate court of the kind we have. Delaware has followed Pennsylvania's model in these respects. Maryland's system is more like New York's, as is Virginia's, except that Virginia has multiple chancellors. North Carolina is closest to Pennsylvania's model; South Carolina is closest to Virginia's. However, I believe that in some states with separate admiralty courts, those cases may still be tried by juries. In Georgia, there are only common-law courts, and appeals naturally go from one jury's verdict to another — a "special jury" selected through a designated process. In Connecticut, there are no separate courts of equity or admiralty, and their probate courts don't hear cases. Their common-law courts handle admiralty matters and, to a certain extent, equity cases. For important cases, their General Assembly is the only court of equity. In Connecticut, therefore, jury trials extend further in practice than in any other state mentioned so far. Rhode Island, I believe, is in much the same situation as Connecticut. Massachusetts and New Hampshire similarly blend law, equity, and admiralty jurisdiction. In these four New England states, the trial by jury not only stands on a broader foundation than in the other states, but it comes with a unique feature unknown, in its full extent, anywhere else: an appeal from one jury to another is routine until there have been two out of three verdicts on one side.
From this survey, it's clear that there's significant diversity — in both the scope and the details of jury trials in civil cases — across the different states. And from this fact, two obvious conclusions follow. First, no single rule could have been established by the convention that would have fit the circumstances of all the states. Second, adopting any one state's system as the standard would have been at least as risky as leaving the matter out entirely and, as the convention did, leaving it to legislative regulation.
The various proposals that have been made to fill this supposed gap have served more to illustrate the difficulty of the task than to solve it. The minority of the Pennsylvania convention proposed this language: "Trial by jury shall be as heretofore." I maintain this would be meaningless and ineffective. The United States as a national entity is the subject to which all general provisions in the Constitution must necessarily refer. Now, it's obvious that while trial by jury, with various limitations, exists in each state individually, in the United States as a whole it's currently completely unknown — because the present federal government has no judicial power whatsoever. So there's no prior federal practice that "heretofore" could refer to. The language would therefore lack any precise meaning and be unenforceable due to its vagueness.
On one hand, this proposed language wouldn't accomplish what its authors intend. On the other, even if I correctly understand that intent, it would itself be unwise. I believe they mean that federal cases should be tried by jury if, in the state where the federal court sits, the state courts would use a jury in a similar case. In other words, admiralty cases would be tried by jury in Connecticut but without one in New York. The bizarre result of applying such different procedures in the same types of cases under the same government is, by itself, enough to make any reasonable person reject the idea. Whether a case was tried with or without a jury would depend, in a great many instances, on the accident of where the court happened to be located and where the parties happened to live.
But this isn't, in my view, the biggest objection. I have a deep and considered conviction that there are many types of cases where trial by jury is not the right choice. I think this is especially true in cases involving international relations — that is, in most cases where the question centers on the law of nations. Prize cases (disputes over captured ships) are a prime example. Juries can't be expected to be competent for investigations that require thorough knowledge of the laws and customs of nations, and they'll sometimes be influenced by attitudes that won't allow them to give proper weight to public policy considerations that should guide their inquiry. There would always be a risk that their decisions could violate other nations' rights, creating grounds for retaliation and war. While the proper role of juries is to determine matters of fact, in most cases the legal implications are so entangled with the facts that separating them is practically impossible.
This point carries even more weight regarding prize cases when we consider that the method of deciding them has been thought important enough to be specifically addressed in various treaties between European powers. Under those treaties, prize cases in Great Britain are decided, as a last resort, by the king himself in his privy council, where both the facts and the law are re-examined. This alone demonstrates the bad policy of inserting a constitutional provision that would make each state's system the standard for the national government on this issue, and the danger of burdening the government with any constitutional provisions whose wisdom isn't beyond dispute.
I'm equally convinced that great advantages come from separating equity jurisdiction from law jurisdiction, and that the types of cases belonging to equity courts would be improperly handled by juries. The primary purpose of a court of equity is to provide relief in extraordinary situations that are exceptions [2] to general rules. Combining equity jurisdiction with regular legal jurisdiction would tend to unsettle the general rules and turn every case into a special, one-off determination. Keeping them separate has the opposite effect — each serves as a watchdog over the other, keeping both within proper bounds. Beyond this, the circumstances that make cases suitable for equity courts are often so complex and nuanced that they're incompatible with the nature of jury trials. They frequently require the kind of long, careful, and thorough investigation that's impractical for people called away from their jobs who are expected to reach a verdict before they can return to them. The simplicity and speed that are the defining features of jury trials require that the issue to be decided be reduced to some single, clear-cut point. But equity cases typically involve a long chain of detailed, independent facts and considerations.
It's true that the separation of equity from legal jurisdiction is unique to the English system of law, which is the model followed in several of the states. But it's equally true that wherever these jurisdictions have been combined, trial by jury has never been used. And keeping them separate is essential to preserving the jury system in its original form. A court of equity can easily expand to cover legal matters, but the reverse — trying to extend law courts into equity — is a different story. It would not only fail to provide the benefits that come from equity courts as they're established in this state, but would gradually change the nature of law courts themselves and undermine trial by jury by introducing questions too complex for that mode of decision.
These seemed like conclusive reasons against incorporating every state's legal system into the formation of the national judiciary — which appears to be what the Pennsylvania minority was attempting. Let's now look at how well the Massachusetts proposal would solve the supposed problem.
Here's their language: "In civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them, request it."
At best, this covers only one category of cases. The fair inference is either that the Massachusetts convention saw this as the only type of federal case where jury trials would be appropriate, or that if they wanted a broader provision, they found it impossible to craft one that would actually work. If the first, then omitting a rule for such a limited subject can hardly count as a significant flaw in the system. If the second, it strongly confirms just how extremely difficult the task is.
But that's not all. If we look back at the observations already made about the court systems in the various states and the different powers they exercise, it becomes clear that there are no terms more vague and unclear than those being used to define which cases should be entitled to a jury trial. In this state, the boundaries between common-law actions and equity actions follow the rules used in England. In many other states, those boundaries are less clear. In some of them, every case is tried in a common-law court, and on that basis every action can be treated as a common-law action that's eligible for a jury trial if either party wants one. The result would be the same inconsistency and confusion I've already noted with the Pennsylvania minority's proposal. In one state, a case would be decided by a jury if either party requested it; in another state, a virtually identical case would have to be decided without a jury, because the state court systems varied in their approach to common-law jurisdiction.
It's obvious, then, that the Massachusetts proposal can't work as a general rule until all the different states adopt some uniform standard for the boundaries between common-law and equity jurisdiction. Developing such a standard is a demanding task in itself and would take considerable time and reflection to finalize. It would be extremely difficult, if not impossible, to come up with any general rule that would be acceptable to every state in the Union, or that would perfectly align with each state's existing institutions.
Someone might ask: why couldn't New York's system have been used as the model for the whole nation, since even I agree it's a good one? My answer is that the other states probably wouldn't share our high opinion of our own institutions. It's natural to assume they're more attached to their own systems and that each would push for its own to be chosen. If the idea of picking one state as a model had been considered at the convention, it's fair to assume that each state's delegates would have pushed for their own government's approach, making adoption difficult. And it's uncertain which state would have been chosen. It's been shown that many of them would be inappropriate choices. And I'll leave it to you to guess whether, all things considered, New York or some other state would have been the most likely pick. But even if a wise choice could have been made at the convention, there would still have been great risk of resentment and hostility from the other states over the favoritism shown to one state's institutions. The Constitution's opponents would have had an excellent excuse for whipping up local prejudices against the plan, which might have seriously endangered its ultimate adoption.
To avoid the difficulties of defining which cases should include jury trials, some enthusiastic people have suggested that a provision could simply have been inserted establishing jury trials in all cases whatsoever. I believe there's no precedent for this in any state in the Union, and the considerations I've already discussed regarding the Pennsylvania minority's proposal should convince any sober-minded person that establishing jury trials in all cases would have been an inexcusable error in the plan.
In short, the more you think about it, the harder it appears to craft a provision that wouldn't either say too little to accomplish the goal, say too much to be prudent, or open up new lines of attack against the great and essential objective of establishing a strong national government.
On the other hand, I can't help believing that the different angles from which I've examined this subject in these observations will go a long way toward easing the concerns of fair-minded readers. They've shown that the security of liberty is really at stake only in criminal jury trials, which are provided for in the fullest possible way in the convention's plan; that even in the vast majority of civil cases — those where ordinary citizens are most affected — jury trials will continue in full force as established by the state constitutions, completely untouched by the convention's plan; that jury trials are not abolished in any case [3] by the plan; and that there are enormous, if not insurmountable, difficulties in the way of including any precise and proper provision for them in a Constitution for the United States.
The people who understand this subject best will be the least anxious for a constitutional guarantee of civil jury trials, and will be the most willing to acknowledge that changes constantly occurring in society may make different methods of resolving property disputes preferable in many cases where jury trials currently prevail. For my own part, I'm convinced that even in this state, jury trials could be beneficially extended to some cases where they don't currently apply, and just as beneficially scaled back in others. All reasonable people agree that jury trials shouldn't be used in every case. The examples of reforms that have narrowed the original scope of jury trials — both in these states and in Great Britain — strongly suggest that the old, broader scope was found to be problematic, and give reason to think that future experience may reveal the wisdom of additional exceptions. I suspect it's simply impossible to identify the perfect point at which jury trials should stop, and this is for me a strong argument for leaving the matter to Congress's discretion.
This is now clearly understood to be the case in Great Britain, and it's equally true in Connecticut. And yet there have been more encroachments on trial by jury in this state since the Revolution — even though it's protected by a specific provision of our constitution — than have occurred in the same period in either Connecticut or Great Britain. It's worth adding that these encroachments have generally been driven by the very people who try to convince the public they're the most passionate defenders of popular liberty — yet who have rarely let constitutional obstacles stop them when pursuing a favored agenda. The truth is that the overall spirit of a government is all that can really be relied on for lasting results. Specific provisions, while not entirely useless, have far less power and effectiveness than people commonly give them credit for. And the absence of such provisions will never be, for people of sound judgment, a decisive objection to any plan that demonstrates the essential qualities of good government.
It certainly sounds harsh and extreme to claim that there's no security for liberty in a Constitution that expressly establishes trial by jury in criminal cases, just because it doesn't do so in civil cases as well — especially when Connecticut, always regarded as one of the most democratic states in the Union, can't point to any constitutional provision guaranteeing either.
PUBLIUS
[1] It's been falsely implied about the court of chancery that it generally uses juries to decide disputed facts. The truth is that jury references in that court are rare, and are only necessary when the validity of a land bequest comes into question.
[2] It's true that the principles governing equity relief have been organized into a regular system. But it's still the case that they mainly apply to special circumstances that form exceptions to general rules.
[3] See No. 81, where the claim that jury trials are abolished because the Supreme Court has appellate jurisdiction over matters of fact is examined and refuted.
To the People of the State of New York:
In the course of this review of the Constitution, I've addressed and tried to answer most of the objections raised against it. However, a few remain that either didn't fit naturally under any particular topic or were overlooked where they belonged. I'll deal with them now. But since this series has gone on at considerable length, I'll keep things brief and cover all my observations on these miscellaneous points in a single paper.
The most significant of the remaining objections is that the convention's plan contains no bill of rights. Among other responses to this, it's been noted on various occasions that the constitutions of several states are in the same situation. I'll add that New York is one of them. And yet the opponents of the new system in this state — who profess unlimited admiration for our state constitution — are among the most passionate advocates for a bill of rights. To justify their zeal on this point, they make two arguments. First, they say that even though the New York constitution has no bill of rights attached to it as a separate document, it contains various provisions scattered throughout its text that protect specific rights and privileges, which amount to the same thing. Second, they say that the state constitution adopts the full body of English common and statutory law, which secures many other rights not explicitly stated in the constitution itself.
To the first argument, I answer that the Constitution proposed by the convention also contains a number of such provisions, just like the constitution of this state.
Setting aside the provisions relating to the structure of government, we find the following: Article 1, Section 3, Clause 7 — "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9 of the same article, Clause 2 — "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3 — "No bill of attainder (a law singling out specific people for punishment without trial) or ex post facto law (a law that criminalizes conduct after the fact) shall be passed." Clause 7 — "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of Congress, accept any present, salary, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, Section 2, Clause 3 — "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." Section 3 of the same article — "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And Clause 3 of the same section — "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood (punishing the traitor's family), or forfeiture, except during the life of the person attainted."
You could reasonably ask whether these protections aren't, taken together, at least as important as any found in the constitution of this state. The establishment of habeas corpus, the prohibition of ex post facto laws, and the ban on titles of nobility — none of which have any equivalent in our state constitution — are perhaps stronger safeguards for liberty and republican government than anything our state constitution contains. Making something a crime after the fact — in other words, punishing people for things that were legal when they did them — and arbitrary imprisonment have been, throughout history, the favorite and most fearsome tools of tyranny. The observations of the great legal scholar Blackstone [1] on arbitrary imprisonment are well worth quoting: "To take a man's life," he writes, "or to seize his property by force, without accusation or trial, would be so blatant and notorious an act of tyranny that it would immediately sound the alarm throughout the whole nation. But confining a person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, less dramatic, and therefore a more dangerous instrument of arbitrary government." And as a remedy for this terrible evil, he's especially emphatic in his praise for the habeas corpus act, which he calls in one place "the bulwark of the British Constitution." [2]
Nothing needs to be said to explain the importance of banning titles of nobility. This can truly be called the cornerstone of republican government. As long as such titles are excluded, there can never be a serious risk that the government will be anything other than a government of the people.
To the second argument — about the supposed incorporation of English common and statutory law by the state constitution — I answer that those laws are expressly made "subject to such alterations and provisions as the legislature shall from time to time make concerning the same." They can therefore be repealed at any moment by ordinary legislation, and have no constitutional protection. The only purpose of that provision was to acknowledge the existing body of law and to clear up doubts that the Revolution might have raised. It can't be considered part of a declaration of rights, which under our constitutions must be intended as limits on the power of the government itself.
It's been correctly observed many times that bills of rights are, in their origin, agreements between kings and their subjects — reductions of royal power in favor of the people's rights, reservations of rights not surrendered to the monarch. Such was Magna Carta, extracted by the barons, sword in hand, from King John. Such were the later confirmations of that charter by subsequent kings. Such was the Petition of Right agreed to by Charles I at the beginning of his reign. Such too was the Declaration of Right presented by the Lords and Commons to William of Orange in 1688, later formalized as an act of Parliament called the Bill of Rights. Clearly, then, in their original meaning, bills of rights have no application to constitutions that are expressly founded on the power of the people and carried out by their immediate representatives and servants. Here, strictly speaking, the people surrender nothing. And since they retain everything, they have no need for specific reservations. "We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." This is a better recognition of popular rights than volumes of those fine-sounding maxims that feature prominently in several of our state bills of rights — maxims that would sound more at home in a book on ethics than in a constitution of government.
But a detailed list of specific rights is certainly far less relevant to a Constitution like this one — which is merely intended to regulate the nation's general political affairs — than it is to a state constitution that regulates every kind of personal and private concern. If, therefore, the loud protests against the convention's plan on this score are justified, no words of condemnation would be too strong for the constitution of this state. But the truth is that both documents contain everything that, in relation to their respective purposes, can reasonably be desired.
I go further and affirm that bills of rights, in the sense and to the extent being demanded, are not only unnecessary in the proposed Constitution, but would actually be dangerous. They would list exceptions to powers the government was never given, and on this very basis, they'd provide a plausible excuse to claim more power than was actually granted. For why declare that things shall not be done when there's no power to do them? Why, for example, should it be said that the liberty of the press shall not be restricted, when no power has been given by which restrictions could be imposed? I won't argue that such a provision would directly confer a regulatory power, but it's obvious that it would give people inclined toward power grabs a plausible excuse for claiming that power. They could argue, with a show of reason, that the Constitution shouldn't be charged with the absurdity of guarding against the abuse of an authority that was never granted — and that the very provision against restraining press freedom clearly implies that the national government was meant to have some power over it. This should serve as an example of the many openings that would be given to the doctrine of implied powers by an overzealous insistence on a bill of rights.
On the subject of press freedom, since so much has been said, I can't resist adding a few observations. First, there isn't a single word about it in the constitution of this state. Second, whatever any other state's constitution says about it amounts to nothing. What does a declaration that "the liberty of the press shall be inviolably preserved" actually accomplish? What is the liberty of the press? Who can define it in a way that wouldn't leave enormous room for evasion? I consider it impossible to define, and from this I conclude that press freedom — regardless of whatever fine declarations may be written into any constitution — must ultimately depend on public opinion and on the general spirit of the people and the government. [3] And here, as I've suggested on another occasion, we must look for the only solid foundation of all our rights.
There's one final way to look at this matter that wraps up the point. The truth is, after all the passionate speeches we've heard, that the Constitution is itself, in every meaningful sense and for every practical purpose, a bill of rights. The various bills of rights in Great Britain collectively form its constitution, and conversely, each state's constitution is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is one purpose of a bill of rights to declare and specify the political privileges of citizens in the structure and administration of government? The convention's plan does this in the fullest and most precise manner, including various protections for public security that aren't found in any state constitution. Is another purpose to define certain protections and legal procedures relating to personal and private matters? We've seen that the plan addresses these as well, in a variety of ways. Looking, then, at the real substance of what a bill of rights is, it's absurd to claim one can't be found in the convention's work. You might argue it doesn't go far enough — though that would be hard to prove — but you simply can't claim there's no such thing. It certainly doesn't matter what form the declaration of citizens' rights takes, as long as those rights are found somewhere in the document that establishes the government. And from this it should be clear that much of what's been said on this subject rests on purely verbal and formal distinctions that have nothing to do with the substance of the matter.
Another objection that's been made — and, judging by how often it's repeated, one that's apparently relied upon — goes like this: "It's improper," the critics say, "to give such sweeping powers to the national government, because the seat of that government will necessarily be too far from many of the states for constituents to properly monitor their representatives' conduct." This argument, if it proves anything, proves that there should be no general government at all. Because the powers that everyone seems to agree should be given to the Union can't safely be entrusted to a body that isn't subject to every necessary check. But there are good reasons to show that the objection is not well founded in reality. Most of the arguments about distance involve an obvious trick of the imagination. What are the sources of information by which the people of Montgomery County currently judge the conduct of their representatives in the state legislature? They can't benefit from personal observation — that's limited to citizens who are actually there. They must rely on information from knowledgeable people they trust. And how do those people get their information? Obviously, from the direction of public policy, from the newspapers, from letters with their representatives, and from correspondence with other people at the seat of government. This doesn't apply only to Montgomery County, but to every county at any significant distance from the capital.
It's equally obvious that the same sources of information would be available to the people regarding the conduct of their representatives in the national government. And any obstacles that distance might create for quick communication will be more than offset by the vigilance of the state governments. The executive and legislative bodies of each state will serve as watchdogs over everyone employed in every department of the national administration. Since it will be in their power to maintain a regular and effective system of monitoring, they'll never lack knowledge of how their state's representatives in Congress are behaving — and they can easily share that knowledge with the public. Their willingness to alert the community to anything that might harm its interests from another quarter can be counted on, if for no other reason than their own competitive relationship with federal power. And we can conclude with complete confidence that the people, through this channel, will be better informed about the conduct of their national representatives than they currently are about their state representatives by any means now available to them.
It should also be remembered that citizens living at or near the seat of government will, on all questions affecting the general welfare and liberty, have the same interests as those at a distance — and will be ready to sound the alarm when necessary and to identify the actors behind any harmful scheme. The newspapers will serve as swift messengers of information to the most remote inhabitants of the Union.
Among the many odd objections raised against the proposed Constitution, the most extraordinary and least plausible comes from the absence of any provision about debts owed to the United States. This has been portrayed as a secret surrender of those debts and as a wicked scheme to protect public officials who've defaulted on their obligations. The newspapers have been full of the most inflammatory attacks on this point. Yet nothing is clearer than that this charge is completely unfounded — the product of either extreme ignorance or extreme dishonesty. In addition to the remarks I've already made on this subject elsewhere, I'll simply observe that it's both a plain matter of common sense and an established principle of political law that "states neither lose any of their rights nor are released from any of their obligations by a change in the form of their civil government." [4]
The last objection of any real consequence that I can recall concerns the cost of the new government. Even if it were true that adopting the proposed government would cause a significant increase in expense, that objection shouldn't carry any weight against the plan.
The great majority of Americans are convinced, with good reason, that Union is the foundation of their political well-being. Thoughtful people across all parties now agree, with few exceptions, that the Union can't be preserved under the current system without fundamental changes — that broad new powers must be granted to the national government, and that these require a restructured federal government, since a single legislative body is too risky a place to deposit such extensive authority. Once you concede all this, the objection about expense has to be dropped. Because it's impossible, with any degree of safety, to shrink the foundation on which the system must stand. The two branches of the legislature are initially to consist of only sixty-five people — the same number that Congress under the current Confederation may include. It's true that this number is meant to increase, but only to keep pace with the country's growing population and resources. A smaller number would clearly have been unsafe even at the start, and keeping the current number as the population grows would produce a woefully inadequate representation of the people.
So where is this dreaded increase in expense supposed to come from? One source cited is the multiplication of government offices. Let's examine this a bit.
It's obvious that the principal departments of the current government are the same ones that will be needed under the new one. Right now there's a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury consisting of three people, a Treasurer, assistants, clerks, and so on. These positions are essential under any system and will be sufficient under the new one just as they are under the old. As for ambassadors and other diplomatic representatives abroad, the proposed Constitution would make no difference except to make their status more respected and their work more effective wherever they're stationed. As for people employed in tax collection, it's certainly true that these will substantially increase the number of federal officers. But it doesn't follow that this will increase public spending. In most cases, it will simply be a swap of state officers for national ones. For all customs duties, for example, the collectors will be entirely federal employees. The states individually won't need anyone for this purpose. What difference does it make, in terms of cost, whether customs officers are appointed by the state or by the United States? There's no good reason to think that the number or salaries of federal officers will be greater than those of the state officers they replace.
Where, then, are we supposed to find the additional expenses that will supposedly inflate the cost to the enormous amounts we've been told about? The main item I can think of is the salaries of the federal judges. I'm not counting the President, because there's already a president of Congress whose expenses are probably not much less — if at all — than those for the President of the United States. The cost of supporting the judges will clearly be an additional expense, but how much will depend on whatever specific plan is adopted. Under any reasonable plan, it can't amount to a sum of real significance.
Let's now see what offsets any extra expense from establishing the proposed government. The first thing to note is that a great deal of the business that currently keeps Congress in session year-round will be handled by the President. Even the management of foreign affairs will naturally fall to him, following general principles agreed upon with the Senate and subject to their final approval. This means that a fraction of the year will be enough for the sessions of both the Senate and the House of Representatives — perhaps about a quarter of the year for the House, and a third or maybe half for the Senate. The additional work of treaties and appointments may account for the Senate's extra time. From this, we can conclude that until the House of Representatives grows well beyond its current size, there will be considerable savings from the difference between Congress's current year-round sessions and the future Congress's limited sessions.
But there's another factor of great importance for the bottom line. Federal business has so far occupied state legislatures as well as Congress. Congress has made financial demands that the states have had to fulfill. As a result, state legislative sessions have been extended far beyond what local business alone would require. More than half their time has often been spent on matters related to the United States. Now, the members of all the state legislatures combined number over two thousand. All the work those two thousand people have done on federal matters will, under the new system, be handled initially by just sixty-five people — and probably never by more than a quarter or fifth of that two thousand. Congress under the proposed government will handle all federal business itself, without needing state legislatures to get involved. From that point on, state legislatures will only need to deal with their own state affairs, and won't need to remain in session nearly as long as they have been. This reduction in state legislative session time will be a clear savings, and by itself could be considered an offset for any additional costs that may come from adopting the new system.
The bottom line from these observations is that the sources of additional expense from establishing the proposed Constitution are far fewer than people have imagined; that they're counterbalanced by significant savings; and that while it's uncertain which side of the ledger comes out ahead, it's certain that a less expensive government would be inadequate for the needs of the Union.
PUBLIUS
[1] See Blackstone's Commentaries, Vol. 1, p. 136.
[2] Ibid., Vol. 4, p. 438.
[3] To show that the Constitution contains a power that could affect press freedom, some have pointed to the taxing power. They say that duties could be imposed on publications so high as to amount to a prohibition. I don't know by what logic anyone could argue that the state constitutional declarations in favor of press freedom would prevent state legislatures from imposing duties on publications. No one can seriously claim that any degree of duty, however low, would be a restriction on press freedom. We know that newspapers are taxed in Great Britain, and yet the press notoriously enjoys greater freedom there than anywhere else. And if any level of duty can be imposed without violating press freedom, then clearly the question of how much duty is appropriate depends on legislative judgment, regardless of press freedom declarations, which give no greater protection than what would exist without them. The same attacks on press freedom could be carried out through taxation under state constitutions that contain such declarations just as easily as under the proposed Constitution, which doesn't contain one. It would be just as meaningful to declare that government ought to be free, that taxes ought not to be excessive, and so on, as to declare that the liberty of the press ought not to be restrained.
[4] See Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. See also Grotius, Book II, Chapter IX, Sections VIII and IX.
To the People of the State of New York:
According to the outline I announced in my first paper, there would appear to be two topics still left to discuss: "the analogy of the proposed government to your own state constitution," and "the additional security its adoption will provide for republican government, liberty, and property." But these topics have been so thoroughly covered over the course of this work that it would now be nearly impossible to do anything more than repeat, in a more drawn-out form, what's already been said. The advanced stage of the question and the time already spent on it both argue against doing so.
It's worth noting that the resemblance between the convention's plan and the structure of this state's government extends not just to the real strengths of the former, but equally to many of its supposed flaws. Among those alleged defects are the President's eligibility for re-election, the lack of an executive council, the omission of a formal bill of rights, and the absence of a provision for freedom of the press. These, along with several others noted throughout our examination, can be charged against the existing constitution of this state just as easily as against the one proposed for the Union. Anyone who attacks the latter for imperfections they have no trouble excusing in the former has a very weak claim to consistency. Indeed, there's no better proof of the insincerity and pretense of some of the convention's most vocal critics among us — people who profess devoted admiration for the government under which they live — than the fury with which they've attacked the proposed plan for things that our own constitution is equally, or perhaps even more, vulnerable to.
The additional safeguards for republican government, liberty, and property that would come from adopting this plan consist mainly of the following: the restraints the Union will impose on local factions and uprisings, and on the ambitions of powerful individuals in single states who might build enough influence and popularity to become tyrants over the people; the reduced opportunities for foreign meddling that the dissolution of the Confederacy would invite and encourage; the prevention of large standing armies, which would inevitably grow out of wars between the states if they were disunited; the express guarantee of a republican form of government to each state; the absolute and universal ban on titles of nobility; and the safeguards against a repetition of those practices by state governments that have undermined the foundations of property and credit, planted mutual distrust among all classes of citizens, and caused an almost universal collapse of public morals.
And so, fellow citizens, I've completed the task I set for myself. How successfully — your own judgment must determine. I trust, at least, that you'll admit I've kept the promise I made about the spirit in which I'd conduct this effort. I've appealed purely to your reason, and I've carefully avoided the personal attacks that are all too common among political debaters of every party — attacks that have been more than a little provoked by the language and behavior of the Constitution's opponents. The charge that the Constitution's advocates are part of a conspiracy against the people's liberties — a charge that's been hurled indiscriminately at everyone who supports the plan — is too reckless and too malicious not to provoke the anger of every person who carries in his own heart a refutation of the slander. The constant drumbeat about "the wealthy, the well-born, and the great" has been enough to disgust every thoughtful person. And the unjustifiable concealments and misrepresentations that have been practiced in various ways to keep the truth from the public eye are the kind of thing all honest people should condemn. It's possible that these provocations may have occasionally led me into harsher language than I intended. I know I've frequently struggled between passion and restraint. And if passion has sometimes won out, let my defense be that it hasn't happened often or gone too far.
Let us now pause and ask ourselves whether, over the course of these papers, the proposed Constitution has not been satisfactorily defended against the attacks leveled at it, and whether it has not been shown to be worthy of the public's approval and necessary for the public's safety and prosperity. Every person is bound to answer these questions for himself, according to the best of his conscience and understanding, and to act in accordance with the honest and sober dictates of his judgment. This is a duty from which nothing can excuse him. It's one that he's called upon — indeed, compelled by every obligation that holds society together — to discharge sincerely and honestly. No partisan motive, no selfish interest, no pride of opinion, no temporary passion or prejudice can justify to himself, to his country, or to his descendants a wrong choice in the role he is to play. Let him beware of blind loyalty to party. Let him reflect that what he's deciding is not some narrow interest of the community, but the very existence of the nation. And let him remember that a majority of America has already given its approval to the plan he is being asked to accept or reject.
I won't pretend otherwise: I feel complete confidence in the arguments recommending this proposed system for your adoption, and I can't find any real force in the arguments against it. I'm persuaded that it's the best Constitution our political situation, habits, and beliefs will allow, and that it's superior to anything the Revolution has produced.
Concessions by the Constitution's supporters — admitting that the plan doesn't claim absolute perfection — have given its opponents plenty of ammunition. "Why," they ask, "should we adopt an imperfect thing? Why not amend it and make it perfect before it's permanently established?" This may sound reasonable enough, but it's only superficially persuasive. First, the extent of these concessions has been greatly exaggerated. They've been portrayed as admitting that the plan is fundamentally defective and that, without major changes, the community's rights and interests can't safely be entrusted to it. This, as far as I understand the people making the concessions, is a complete distortion of their meaning. You won't find a single supporter of the Constitution who won't say that, while the system may not be perfect in every detail, it's, on the whole, a good one — the best that current circumstances and perspectives allow — and one that promises every kind of security a reasonable people can desire.
My next answer is that I'd consider it the height of recklessness to prolong the precarious state of our national affairs and expose the Union to the danger of one experiment after another, chasing the fantasy of a perfect plan. I never expect to see a perfect work from imperfect human beings. The product of any group's deliberations must inevitably be a mix of the errors and prejudices, as well as the good sense and wisdom, of the individuals who compose it. The agreements that must unite thirteen distinct states in a common bond of friendship and union must necessarily represent a compromise among just as many different interests and inclinations. How can perfection possibly spring from such materials?
The arguments laid out in an excellent pamphlet recently published in this city [1] are unanswerable in showing the near impossibility of assembling a new convention under circumstances anywhere near as favorable as those under which the recent convention met, deliberated, and concluded. I won't repeat the arguments made there, as I assume the pamphlet itself has circulated widely. It's certainly well worth reading for every friend of the country. There is, however, one aspect of the amendments question that still needs to be considered and hasn't yet been presented to the public. I can't bring myself to close without examining it.
It seems to me provable beyond any doubt that it will be far easier to obtain amendments after the Constitution is adopted than before. The moment any change is made to the current plan, it becomes, for purposes of adoption, a new plan, and must undergo a fresh vote in every state. To be fully established across the Union, it would then require the agreement of all thirteen states. If, on the other hand, the Constitution as proposed is ratified by all the states as it stands, amendments can then be made at any time with the agreement of just nine states. The odds, then, are thirteen to nine [2] in favor of getting amendments after adoption rather than getting a whole new system adopted from scratch.
That's not all. Any Constitution for the United States must inevitably contain a great many specific provisions that must accommodate the interests, or perceived interests, of thirteen independent states. We can naturally expect that in any group charged with drafting such a document, different coalitions will form on different issues. Many who make up the majority on one question may find themselves in the minority on a second, and an entirely different combination may form the majority on a third. This makes it necessary to shape and arrange every detail of the whole in a way that satisfies all the parties to the agreement — and it creates an enormous multiplication of difficulties and obstacles in reaching collective agreement on a final product. The degree of that multiplication is obviously proportional to both the number of individual provisions and the number of parties involved.
But every amendment to the Constitution, once the Constitution is established, would be a single proposal that could be considered on its own. There would be no need for deal-making or compromise on other issues — no give and take. The will of the required number of states would immediately bring the matter to a decisive conclusion. And whenever nine — or more precisely, ten — states were united in wanting a particular amendment, that amendment would inevitably be adopted. There can therefore be no comparison between the ease of passing an amendment and the difficulty of establishing a complete Constitution from scratch.
Against the likelihood of subsequent amendments, it's been argued that the people placed in charge of the national government will always be reluctant to give up any portion of the power they hold. For my own part, I'm thoroughly convinced that any amendments that, upon careful reflection, are found to be worthwhile will relate to the organization of the government rather than to the scope of its powers. On that basis alone, I think this concern carries no weight. I also think it carries little weight for another reason. The sheer difficulty of governing thirteen states will, in my opinion, constantly push the national leaders toward a spirit of accommodation to the reasonable expectations of their constituents. But there's a further consideration that proves beyond any possibility of doubt that this concern is baseless. It's this: the national leaders, whenever nine states agree, will have no choice in the matter. Under the fifth article of the plan, Congress will be required "on the application of the legislatures of two thirds of the states (which currently amounts to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof." The language of this article is mandatory. Congress "shall call a convention." Nothing here is left to Congress's discretion. And so all the hand-wringing about officials' reluctance to change vanishes into thin air. And however difficult it may be to unite two thirds or three fourths of the state legislatures on amendments touching local interests, there's no reason to worry about such difficulty when it comes to issues that simply concern the general liberty or security of the people. We can safely count on the state legislatures' willingness to build barriers against encroachments by the national government.
If the argument I've just made is wrong, then I myself have been deceived by it — because in my view, it's one of those rare cases where a political truth can be tested with mathematical precision. Those who see the matter as I do, however eager they may be for amendments, must agree that adopting the Constitution first is the most direct road to their own goal.
The passion for trying to amend the Constitution before it's established must fade for anyone willing to accept the truth of the following observations by a writer who is both brilliant and profound: "To balance a large state or society," he writes, "whether monarchical or republican, on general laws, is a work of such great difficulty that no human genius, however expansive, is able to accomplish it by the sheer force of reason and thought alone. The judgments of many must come together in the work. Experience must guide their labor. Time must bring it to perfection. And the feeling of inconveniences must correct the mistakes they inevitably make in their first trials and experiments." [3] These wise reflections carry a lesson of moderation for all sincere friends of the Union, and should put them on guard against risking anarchy, civil war, a permanent alienation of the states from each other, and perhaps the military dictatorship of a victorious demagogue — all in pursuit of something they're unlikely to obtain except through time and experience. It may be a defect of political courage in me, but I confess that I can't share the calm composure of those who pretend that the dangers of continuing in our present situation are imaginary. A nation without a national government is, in my view, an awful spectacle. The establishment of a Constitution, in a time of profound peace, by the voluntary consent of a whole people, is a marvel — one I look forward to with trembling hope. I can't reconcile it with any rule of prudence to let go of the hold we now have, in so difficult an enterprise, over seven of the thirteen states, and — after having come so far — to start the whole journey over again. I dread the consequences of new attempts all the more because I know that powerful individuals, in this state and in others, are enemies of a strong national government in every possible form.
PUBLIUS
[1] Entitled "An Address to the People of the State of New York."
[2] It might more accurately be said ten, because although two thirds of the states can initiate the process, three fourths must ratify.
[3] Hume's Essays, Vol. I, p. 128: "The Rise of Arts and Sciences."