Federalists 52 and 53

Some days I feel like John Jay. My apologies for the excessive lay-off.

Federalist 52 and 53 dealt with the House of Representatives and in particular the length of terms for Representatives. In Federalist 52*, Madison explored the history of British and Irish parliamentary terms, noting that the length of terms could be anywhere between three and seven years in Great Britain. The House of Commons was constitutionally required to sit more frequently, but the duration of terms was actually quite long. Closer to home in Virginia, before the war elections were septennial.

Here Madison laid the groundwork justifying the two-year length of terms for representatives, a duration considered too long by many opponents of the proposed Constitution. Madison addressed this concern more directly in the next essay, but first he wanted to provide historical context for his audience.

He concluded the essay thusly:

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Federalist 49 – Madison

In Federalist 49, James Madison tackles the problem of encroachments of one department of the government on the others.  In this essay he directly confronts a proposal put forward by Thomas Jefferson in the Notes on the State of Virginia.  In critiquing Jefferson’s proposal, Madison employs rhetoric that sounds like it could have been issued from the pen of Edmund Burke.  In fact this essay predates Thoughts on the Revolution in France by three years, so perhaps it was Burke who would later imitate Madison.  I mainly jest, but here is the document which demonstrates better than any other the philosophical differences between Jefferson and Madison.

Federalist 46 – Madison

James Madison continues his discussion of the balance of power between the state and federal governments in Federalist 46.  This is perhaps the most “populist” paper in the entire series as Madison implies that the citizens ultimately will decide where the balance of power will reside.   Right off the bat, Madison says, “Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States.”  He continues:

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.

Federalist 38 – Madison

Federalist 38 is one of the more interesting essays written by James Madison.  It is somewhat more polemical than any of the other essays he penned in this series.  Also, depending on how deeply between the lines one is willing to read, it is a strikingly Hamiltonian.

Madison spends a great deal of time at the outset discussing the history of constitutional development.  He notes that for most of human history constitutions were handed down by individuals.  The constitutional convention was truly a groundbreaking achievement, none the least of which because it produced a constitution created by a group of men rather than a single lawgiver.

There are several possible ways to interpret this mini history lesson.  One is to simply accept it at face value for what it is: a history lesson.  Of course it might be more than this.  Perhaps Madison wants to highlight the achievement of the Framers by placing it in historical context.  Also, he is quite possibly building upon the previous essay by showing that the Framers had an incredibly difficult job, and any perceived imperfections in the final document had to be understood in light of the fact that it was the product of a committee that had to compromise along the way, as opposed to men like Solon who handed down constitutions according to their own whims.

The fact that Madison proceeds to spend much of the rest of the paper running down the anti-Federalists and their inability to offer up any meaningful counter-proposals suggests an even more sinister possibility.  Maybe Madison is suggesting that the only alternative to the Constitution is chaos or tyranny (or both).  That might be taking interpretation too far, but it’s not unreasonable to suggest that Madison is once again engaging in a little bit of rhetorical trickery.  “If you guys are so smart, let’s see what you can do” seems to be the overriding theme of this paper.

At any rate, we should read Madison’s own words to understand what he’s trying to accomplish.

Federalist 37 – James Madison

James Madison takes up his pen in order to write Federalist 37, thus commencing the second part of the series.  From this point forward Publius is mainly concerned with analyzing the Constitution and defending it from anti-Federalist attacks.  In this paper, Madison lays the groundwork by taking a look at the difficulties faced by those in attendance at the constitutional convention.

His preamble is a lament that sounds familiar to modern ears as he complains about the lack of civility surrounding the debate over the proposed Constitution.

It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question.

Federalist 35 – Hamilton

We have finally almost reached the end of the first part of the Federalist Papers.  There are two more essays that deal with the issue of taxation, and in number 35 Hamilton describes how placing a limitation on the federal government’s taxing power would lead to great abuse of that power.

if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.

Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess.

If you confine the government’s sources of revenue, then the government will bleed that particular industry dry.  This will lead to the development of a black market, thus only exacerbating the problems.  It is better, therefore, to permit a broader range of tax powers so that the government doesn’t focus its attention too greedily on any one industry.  Perhaps Hamilton did not countenance the government attempting to suck everyone dry.

Federalist 34 – Hamilton

Alexander Hamilton continues his long train of articles on the subject of taxation in Federalist 34.  He trods much of the same ground that he covered earlier, again defending the idea that the states and the federal government have concurrent taxing powers.  He uses an example from Roman times to justify the idea that such a concurrent power can truly exist.

There is one element of this paper that deserves close attention.  An underlying theme of this particular number is the idea that the Constitution is meant to endure.  This is not an inconsequential notion.  There were those – Thomas Jefferson, for instance – who posited that constitutions should be re-formed and redone frequently.   I think that Hamilton’s words merit great attention, because they demonstrate that the Framers did believe that they were penning a constitution meant to endure for quite a long period of time.

Here is the key passage:

Federalist 33 – Hamilton

In Federalist 33, Hamilton tackles the issue of the necessary and proper clause.  Before delving into this essay, it’s worth noting that this clause would be the impetus behind the first major debate between the two principle authors of the Federalist Papers.  One of Hamilton’s first proposals as Secretary of the Treasury was the creation of a National Bank, a measure opposed by Madison.  Hamilton’s defense of the Bank revolved principally around a rather generous interpretation of the necessary and proper clause, something to keep in mind while reading this paper.

Hamilton largely dismisses the (in his mind) overwrought criticism of this clause, stating that it is merely declaratory.

They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.

Federalist 31 – Hamilton

Through the first thirty essays that we have covered, there have been plenty of examples of Hamilton’s penetrating logical analysis.  He had an ability to take issues and examine them point-by-point (almost like a modern-day blogger).  He was one of the greatest minds ever produced by America (or nearby islands). There have also been several example of Hamilton’s rhetorical excess.  He had an amazing ability to, in effect, completely dismiss his opponents’ arguments through grandiose rhetorical flourishes.  The reader is bedazzled by the weight of Hamilton’s words, but in the end all he has done is call his opponents stupid or crazy – but in a very elegant fashion.

Federalist 31 would be one of those works of great rhetorical excess, though it has a few moments of keen insight.

The first time I read this essay, I was somewhat befuddled by the opening paragraphs.   Hamilton embarks on a rather wordy philosophical disquisition about geometric and theoretical certainty.    This prologue – which runs to 526 words by my count – essentially serves to set up a zinger.

How else could it happen (if we admit the objectors to be sincere in their opposition), that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union, should have to encounter any adversaries among men of discernment?

Hamilton took a very long time to baldly assert that the “manifest the necessity of a general power of taxation in the government of the Union” was, in essence, a self-evident truth that only an ignoramus could possibly deny.

As alluded to above, Hamilton would have made an excellent blogger.

There is a bit more to this essay.  Hamilton makes a very sound logical case regarding the necessity of taxation:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.

As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community. As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

To put it more succinctly: the government needs to have some self-sustaining power to execute its laws, and there must be some method by which the government can draw revenues to sustain the national defense; therefore the government must have “unqualified power of taxation.”

Hamilton proceeds to knock down the counter-argument.  As he has done in previous entries, Hamilton dismisses the fears held by the Anti-Federalists about federal usurpation of state authority.

The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution.

Long story short: don’t worry your silly heads off.  Everything is going to be all right.

Hamilton then repeats another argument made elsewhere: the federal government has more to fear from the states than vice versa.

It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: and that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States.

Hamilton’s objective over the next few papers is to obviate these objections, and we will examine these shortly.