The Federalist No. 39
Conformity of the Plan to Republican Principles
Independent Journal
Wednesday, January 16, 1788
[James Madison]
To the People of the State of New York:
THE
last paper having concluded the observations which were meant to introduce a
candid survey of the plan of government reported by the convention, we now
proceed to the execution of that part of our undertaking.
The first question that offers itself is, whether the general
form and aspect of the government be strictly republican. It is evident that no
other form would be reconcilable with the genius of the people of America; with
the fundamental principles of the Revolution; or with that honorable
determination which animates every votary of freedom, to rest all our political
experiments on the capacity of mankind for self-government. If the plan of the
convention, therefore, be found to depart from the republican character, its
advocates must abandon it as no longer defensible.
What, then, are the distinctive characters of the republican
form? Were an answer to this question to be sought, not by recurring to
principles, but in the application of the term by political writers, to the
constitution of different States, no satisfactory one would ever be found.
Holland, in which no particle of the supreme authority is derived from the
people, has passed almost universally under the denomination of a republic. The
same title has been bestowed on Venice, where absolute power over the great body
of the people is exercised, in the most absolute manner, by a small body of
hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in
their worst forms, has been dignified with the same appellation. The government
of England, which has one republican branch only, combined with an hereditary
aristocracy and monarchy, has, with equal impropriety, been frequently placed on
the list of republics. These examples, which are nearly as dissimilar to each
other as to a genuine republic, show the extreme inaccuracy with which the term
has been used in political disquisitions.
If we resort for a criterion to the different principles on which
different forms of government are established, we may define a republic to be,
or at least may bestow that name on, a government which derives all its powers
directly or indirectly from the great body of the people, and is administered by
persons holding their offices during pleasure, for a limited period, or during
good behavior. It is essential to such a government that it be derived
from the great body of the society, not from an inconsiderable proportion, or a
favored class of it; otherwise a handful of tyrannical nobles, exercising their
oppressions by a delegation of their powers, might aspire to the rank of
republicans, and claim for their government the honorable title of republic. It
is sufficient for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that they hold
their appointments by either of the tenures just specified; otherwise every
government in the United States, as well as every other popular government that
has been or can be well organized or well executed, would be degraded from the
republican character. According to the constitution of every State in the Union,
some or other of the officers of government are appointed indirectly only by the
people. According to most of them, the chief magistrate himself is so appointed.
And according to one, this mode of appointment is extended to one of the
co-ordinate branches of the legislature. According to all the constitutions,
also, the tenure of the highest offices is extended to a definite period, and in
many instances, both within the legislative and executive departments, to a
period of years. According to the provisions of most of the constitutions,
again, as well as according to the most respectable and received opinions on the
subject, the members of the judiciary department are to retain their offices by
the firm tenure of good behavior.
On comparing the Constitution planned by the convention with the
standard here fixed, we perceive at once that it is, in the most rigid sense,
conformable to it. The House of Representatives, like that of one branch at
least of all the State legislatures, is elected immediately by the great body of
the people. The Senate, like the present Congress, and the Senate of Maryland,
derives its appointment indirectly from the people. The President is indirectly
derived from the choice of the people, according to the example in most of the
States. Even the judges, with all other officers of the Union, will, as in the
several States, be the choice, though a remote choice, of the people themselves,
the duration of the appointments is equally conformable to the republican
standard, and to the model of State constitutions The House of Representatives
is periodically elective, as in all the States; and for the period of two years,
as in the State of South Carolina. The Senate is elective, for the period of six
years; which is but one year more than the period of the Senate of Maryland, and
but two more than that of the Senates of New York and Virginia. The President is
to continue in office for the period of four years; as in New York and Delaware,
the chief magistrate is elected for three years, and in South Carolina for two
years. In the other States the election is annual. In several of the States,
however, no constitutional provision is made for the impeachment of the chief
magistrate. And in Delaware and Virginia he is not impeachable till out of
office. The President of the United States is impeachable at any time during his
continuance in office. The tenure by which the judges are to hold their places,
is, as it unquestionably ought to be, that of good behavior. The tenure of the
ministerial offices generally, will be a subject of legal regulation,
conformably to the reason of the case and the example of the State
constitutions.
Could any further proof be required of the republican complexion
of this system, the most decisive one might be found in its absolute prohibition
of titles of nobility, both under the federal and the State governments; and in
its express guaranty of the republican form to each of the latter.
"But it was not sufficient," say the adversaries of the proposed
Constitution, "for the convention to adhere to the republican form. They ought,
with equal care, to have preserved the federal form, which regards the
Union as a Confederacy of sovereign states; instead of which, they have
framed a national government, which regards the Union as a
consolidation of the States." And it is asked by what authority this bold
and radical innovation was undertaken? The handle which has been made of this
objection requires that it should be examined with some precision.
Without inquiring into the accuracy of the distinction on which
the objection is founded, it will be necessary to a just estimate of its force,
first, to ascertain the real character of the government in question; secondly,
to inquire how far the convention were authorized to propose such a government;
and thirdly, how far the duty they owed to their country could supply any defect
of regular authority.
First. In order to ascertain the real character of the
government, it may be considered in relation to the foundation on which it is to
be established; to the sources from which its ordinary powers are to be drawn;
to the operation of those powers; to the extent of them; and to the authority by
which future changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that
the Constitution is to be founded on the assent and ratification of the people
of America, given by deputies elected for the special purpose; but, on the
other, that this assent and ratification is to be given by the people, not as
individuals composing one entire nation, but as composing the distinct and
independent States to which they respectively belong. It is to be the assent and
ratification of the several States, derived from the supreme authority in each
State, the authority of the people themselves. The act, therefore, establishing
the Constitution, will not be a national, but a federal act.
That it will be a federal and not a national act, as these terms
are understood by the objectors; the act of the people, as forming so many
independent States, not as forming one aggregate nation, is obvious from this
single consideration, that it is to result neither from the decision of a
majority of the people of the Union, nor from that of a majority of
the States. It must result from the unanimous assent of the several
States that are parties to it, differing no otherwise from their ordinary assent
than in its being expressed, not by the legislative authority, but by that of
the people themselves. Were the people regarded in this transaction as forming
one nation, the will of the majority of the whole people of the United States
would bind the minority, in the same manner as the majority in each State must
bind the minority; and the will of the majority must be determined either by a
comparison of the individual votes, or by considering the will of the majority
of the States as evidence of the will of a majority of the people of the United
States. Neither of these rules have been adopted. Each State, in ratifying the
Constitution, is considered as a sovereign body, independent of all others, and
only to be bound by its own voluntary act. In this relation, then, the new
Constitution will, if established, be a federal, and not a national
constitution.
The next relation is, to the sources from which the ordinary
powers of government are to be derived. The House of Representatives will derive
its powers from the people of America; and the people will be represented in the
same proportion, and on the same principle, as they are in the legislature of a
particular State. So far the government is national, not federal.
The Senate, on the other hand, will derive its powers from the States, as
political and coequal societies; and these will be represented on the principle
of equality in the Senate, as they now are in the existing Congress. So far the
government is federal, not national. The executive power will be
derived from a very compound source. The immediate election of the President is
to be made by the States in their political characters. The votes allotted to
them are in a compound ratio, which considers them partly as distinct and
coequal societies, partly as unequal members of the same society. The eventual
election, again, is to be made by that branch of the legislature which consists
of the national representatives; but in this particular act they are to be
thrown into the form of individual delegations, from so many distinct and
coequal bodies politic. From this aspect of the government it appears to be of a
mixed character, presenting at least as many federal as national
features.
The difference between a federal and national government, as it
relates to the operation of the government, is supposed to consist in
this, that in the former the powers operate on the political bodies composing
the Confederacy, in their political capacities; in the latter, on the individual
citizens composing the nation, in their individual capacities. On trying the
Constitution by this criterion, it falls under the national, not the
federal character; though perhaps not so completely as has been understood.
In several cases, and particularly in the trial of controversies to which States
may be parties, they must be viewed and proceeded against in their collective
and political capacities only. So far the national countenance of the government
on this side seems to be disfigured by a few federal features. But this blemish
is perhaps unavoidable in any plan; and the operation of the government on the
people, in their individual capacities, in its ordinary and most essential
proceedings, may, on the whole, designate it, in this relation, a national
government.
But if the government be national with regard to the operation
of its powers, it changes its aspect again when we contemplate it in relation to
the extent of its powers. The idea of a national government involves in
it, not only an authority over the individual citizens, but an indefinite
supremacy over all persons and things, so far as they are objects of lawful
government. Among a people consolidated into one nation, this supremacy is
completely vested in the national legislature. Among communities united for
particular purposes, it is vested partly in the general and partly in the
municipal legislatures. In the former case, all local authorities are
subordinate to the supreme; and may be controlled, directed, or abolished by it
at pleasure. In the latter, the local or municipal authorities form distinct and
independent portions of the supremacy, no more subject, within their respective
spheres, to the general authority, than the general authority is subject to
them, within its own sphere. In this relation, then, the proposed government
cannot be deemed a national one; since its jurisdiction extends to
certain enumerated objects only, and leaves to the several States a residuary
and inviolable sovereignty over all other objects. It is true that in
controversies relating to the boundary between the two jurisdictions, the
tribunal which is ultimately to decide, is to be established under the general
government. But this does not change the principle of the case. The decision is
to be impartially made, according to the rules of the Constitution; and all the
usual and most effectual precautions are taken to secure this impartiality. Some
such tribunal is clearly essential to prevent an appeal to the sword and a
dissolution of the compact; and that it ought to be established under the
general rather than under the local governments, or, to speak more properly,
that it could be safely established under the first alone, is a position not
likely to be combated.
If we try the Constitution by its last relation to the authority
by which amendments are to be made, we find it neither wholly national
nor wholly federal. Were it wholly national, the supreme and ultimate
authority would reside in the majority of the people of the Union; and
this authority would be competent at all times, like that of a majority of every
national society, to alter or abolish its established government. Were it wholly
federal, on the other hand, the concurrence of each State in the Union would be
essential to every alteration that would be binding on all. The mode provided by
the plan of the convention is not founded on either of these principles. In
requiring more than a majority, and principles. In requiring more than a
majority, and particularly in computing the proportion by States, not by
citizens, it departs from the national and advances towards the
federal character; in rendering the concurrence of less than the whole
number of States sufficient, it loses again the federal and partakes of
the national character.
The proposed Constitution, therefore,
[even when tested by the rules laid down by its antagonists,][1]
is, in strictness, neither a national nor a federal Constitution, but a
composition of both. In its foundation it is federal, not national; in
the sources from which the ordinary powers of the government are drawn, it is
partly federal and partly national; in the operation of these powers, it is
national, not federal; in the extent of them, again, it is federal, not
national; and, finally, in the authoritative mode of introducing amendments, it
is neither wholly federal nor wholly national.
PUBLIUS
1. This phrase appears in
the Rossiter edition, but not the Cooke edition.
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