Federalist 62 – Madison

If you’re keeping score at home, yes I am skipping ahead. It’s not that Federalists 58-61 are not unimportant, but they cover a lot of the same ground about the manner and place of elections. I would like to move ahead to slightly meatier territory.

With Federalist 62 Publius (here Madison) turns his attention to the Senate. Madison first addresses the qualifications of a Senator as distinguished from a Representative, noting a Senator must be at least 30 years of age (25 for a Representative) and at least nine years a citizen versus seven for a Representative. This added age and residency reflects the weightier position, which generally requires more knowledge and a greater amount of time apart from foreign influence.

With regards to the mode of election, Madison states, “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” This one sentence provides a crucial bit of understanding of the Federalist mindset. The lofitier stature of the Senate necessitates an indirect mode of election. This mode of election lessens the democratic nature of the Senate, while simultaneously providing a greater say to the states in the representation of Congress. This is a critical element in the federalist design, which would be undermined later by passage of the 17th Amendment.

Madison then turns to the equal representation of the Senate. Here he essentially concedes this is a political compromise and not necessarily a reflection of deeper political thought:

The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but “of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.

One could make the case that the compound nature of the republic – partly national, partly federal – recommends the mixed nature of Congressional represenatation. Instead Madison seems content to acknowledge that there was no way the constitution would have been adopted without this compromise, so better to make due with an imperfect system – and Madison absolutely did not readily accede to equal respresentation in the Senate, and fought it for as long as he could at the convention. Madison thus openly acknowledges a compromise has been made, but one necessary to keep the project moving forward.

That being said, there is an important principle being preserved with equality of representation:

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

This compound method of representation also provides an additonal bulwark against hastily conceived legislation.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.

Congress is therefore a perfect reflection of the republic itself, in that there is a voice for for the demos in the House of Representatives, and a voice for the states as corporate entities in the Senate. Once again, the 17th Amendment significantly transformed this relationship, but that’s a discussion for another time.

Madison turns his attention to the number of Senators. First, he re-emphasizes the importance of having a salutary check on democracy. The next couple of paragrpahs are an excellent distillation of Madison’s political philosophy, so I will quote both in their entirety.

First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.

Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.

Madison’s great fear of the turbulence wrought by democracy is on full display here. This is a common theme, repeated throughout these papers and throughout most of Madison’s writings. It reflects a view of human nature akin to that of David Hume. Clearly he does not share Thomas Jefferson’s generally more optimistic appraisal of mankind. On the other hand, Madison attempted to tackle the problems of democratic governance through insitutional mechanisms. This is what puts him apart from men like John Adams, whose quasi-puritanical political philosophy sought much more direct means of control to temper popular passions. Madison believed this system of government with its multiplicity of checks and balances – and here, specifically, with checks and balances within a branch of government – were the cure to the ills of populism.

Madison then posits that the Senate provides another salutary service, namely in serving as a repository for more wisened legislators. Senators, through their term of service, will be more familiar with the laws and the internal machinations of government.

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.

Masdison repeats builds upon this point and notes the importance of stability:

The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.

This stability in government is important on a couple of fronts. First, it provides assurance to foreign governments that they will not be dealing with ever-changing circumstances in their dealings with the United States. More importantly, a continual change in laws is destabilizing for its citizens.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Here are faint echoes of Federlist 49, in which Madison writes:

In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.

So here is another recurring theme for Madison: stability. The mutability of laws (and constitutions) creates chaos and disorder. The Senate is thus another institutional mechanism designed to provide a surer means of stability.

All of this can be interpreted as being anti-democratic and anti-poulist, and to an extent it is. Madison does want to put a brake on popular passions and retsrain the demos from instituting rapid changes. But he believes this is a necessary benefit to the people at large.

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

This is evident today, as increasing regulations tend to benefit large corporations, who have the means to deal with these regulations, while medium-sized firms struggle to navigate the maze of regulations. Ordinary citizens cannot hope to gain a handle on pages and pages of statutory language impacting their daily lives.

Madison closes the paper on a somewhat Hamiltonian note, observing that a society replete with mutable laws will provide no guarantees to farmers and merchants, and thus dampen commercial activity. As he writes, “In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.”

The underlying themes of Federalist 62 thus run beyond the Senate and help highlight Madison’s animating principles.


Published in: on August 26, 2016 at 1:17 pm  Comments Off on Federalist 62 – Madison  
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