Federalist 39 – Madison

Federalist 39 is one of the most important of the Federalist papers as it reveals much about James Madison’s philosophy of government.  In it he discusses two objections to the Constitution: that it not sufficiently republican, and that it betrays the concept of federalism in creating a national rather than federal government.

In order to address the first charge Madison had to define the concept of republicanism.  He confesses that “no other form would be reconcilable with the genius of the people of America,” and so he undertakes to establish what the concept means.  While some European countries fashi0n themselves to be republics, the designation ill fits most of them, especially where absolute monarchs rule over the people.  So if the designation “republic” does not suit Holland or Poland, what does constitute a republic?  Madison’s answer provides and invaluable insight into how he views popular rule.

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.

This is a two pronged-answer.  At a minimum, a republican form of government requires consent of the governed.  To put it another way, the people must have a say in how their government functions.  Moreover, a form of government which only gave a say to the nobility or some sort of hereditary aristocracy would not qualify as a republic.

But the populace need not have a direct say.  It is sufficient that the governing class be elected directly or even indirectly by the people.  Now it should be noted that Madison does not rule out direct majority rule from qualifying as a type of republican government, though it is clear to anyone who has read the bulk of Madison’s work that direct majority rule is not something he remotely favors.

This narrow definition of republicanism does not fully conform with the broader democratic view.  Radical democrats see any departure from strict majority rule as a violation of the republican principle.  Not so Madison.  Even the Senate, a body whose members are elected indirectly, is to Madison a republican institution.  In fact most features of the US Constitution conform to the republican ideal, as he explains.

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.

Madison goes on to show how the Constitution is similar to most state constitutions when it comes to state constitutions and other republican ideals.  There are other elements in the Constitution that also demonstrate its fidelity to republicanism.

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.

Having dealt with that issue, Madison turns his attention to the federal vs. national debate.  The Anti-Federalists argued that the Constitution created a national, not a federal form of government.  Madison argues that it was a mixture of both, and he picks through the various elements to show which elements are national in character and which are federal.

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.

Ratification is therefore both a federal and national act.  Since the national populace must give its assent, it is somewhat national in character.  But the people as a whole do not give their consent, but rather give elect delegates who speak on behalf of the states, giving ratification a federal appeal.

There are more mixed elements in the 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.

What we say at work here is the delicate balancing act of the constitutional convention.  This is an essential element of the Madisonian system.  A little bit of this, a little bit of that – one aspect of the Constitution checking another.  The House represents the national interests, the Senate the federal, and other aspects of the government similarly demonstrate this mixture of the two.

Madison continues.  He notes that the Constitution is operationally national in power.

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 Constitution is operationally national in nature, the extent of its powers exemplify federalist principles.

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.

So long as the states retain sovereign authority in areas where the federal government has no enumerated powers (something later made more explicit via the tenth Amendment), then the United States government is truly a federal one.  The central government has supreme jurisdiction in areas where the Constitution grants it enumerated powers, but beyond that the states are free to establish laws as they see fit.

Madison concludes by summarizing the mixed federal and national elements of the Constitution.

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.

Note here that Madison’s argument would seem to suggest the idea that the federal government is completely a creature of the states is not particularly well-founded.  The Constitution is a compound document, and if one agrees with Madison’s interpretation of it, it would seem that a more temperate interpretation is called for.

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