Federalist 63 – Madison

In Federalist 63, James Madison picks up where he left off in Federalist 62 to discuss the Senate. At the outset of the essay he continues to argue that the Senate would provide a form of stability in government that would be reassuring to foreign powers. Moreover, the Senate, with its longer tenure, would be a stabilizing force in the national character.

Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.

He proceeds to this next point, and in some ways it is a bit of a paradox, as Madison himself admits:

I add, as a sixth defect the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.

This is paradoxical because the Senate – due to the nature of elections and the length of tenure – would seem to be the anti-democratic institution, yet Madison is here arguing it would be more responsible to the people. But note he says responsible, not responsive. In fact it is its non-responsiveness that makes it, paradoxically, more responsible.

Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.

The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.

The next argument on this point is yet another fundamental revelation of Madison’s political philosophy.

To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

In order for democracy to survive there needs to be an element of the constitution checking the democratic impulse. In some ways this almost sounds a bit like Rousseau and his famous declaration that the the people “will forced to be free” under his social contract. This is perhaps not so cynical, and it echoes a recurrent theme in Madison’s writings, namely, that the momentary will of the majority is one the same majority may come to regret after a moment’s reflection. It would therefore be beneficial to have an institution which existed to curb the spontaneous outburst of the democratic will. Over time, if the popular will remains as it had been, then the Senate will reflect this popular appetetite,  but only after sufficient time has passed.

In the next paragraph Madison has to answer himself in order to justify this viewpoint.

It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.

This is another recurring theme. Sure an extended republic, as advocated in Federalist 10, provides a mechansim for curbing violent passions, but auxiliary precautions are needed. It is not enough to trust the nature of the extended republic to provide safeguards against democratic exuberance; rather, other institutional mechansisms will also be needed.

Madison proceeds to outline how all historical republics had a Senate, and how these institutions are relevant to the American case. He then answers the charge that the Senate would become an aristocratic form of tyranny by first noting that “liberty may be endangered by the abuses of liberty as well as by the abuses of power.” He then provides a more substantive response:

Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?

It is check upon check upon check. In order for the Senate to become corrupted, the state legislatures themselves would have to become corrupted. In other words, unless every single other institution becomes corrupted, there is little or no chance of the Senate becoming corrupted. Thisis a seemingly endless labyrinth of institutional safeguards, combined with the federlist nature of the government and the extended republic, all meant to protect liberty from itself.

Federalist 57 – Madison

Madison picks up where he left last time in Federalist 57 to defend the makeup of the House against charges it would elevate the few at the expense of the many. He offers up a five-fold argument, but first I wanted to examine this paragraph.

The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.

This sums up as well as anything Madison’s philosophy of governance. What undergirded Madison’s faith in the constitution and in the republic – likely even moreso than even Hamilton – was the expectation that virtuous citizens would generally be at the helm. These individuals would be not be motivated by self-interest, and would take a wide-ranging view of the common good. The constitution, he thought, was the best structural mechanism by which to ensure such individuals would be placed in positions of power. This assumption is a core one for Madison, and informs most of his work.

Now he’s not a naif. Federalist 51 aptly demonstrates his non-idealistic view of human nature. Enlightened statesman will not always be at the helm. This constitution places checks and balances to mange the ill effects of those circumstances. That said, Madison does have faith that, in the main, representatives will not be guided by ulterior motives.

Now let’s quickly examine Madison’s five main points.

Federalist 56 – Madison

The previous paper covered in this series – and I’m sure you all remember back four years ago when I discussed Federalist 55 – dealt with the size of the House of Representatives. Madison continued on the theme in the 56th Federalist Paper. Once again Madison was at pains to strike a careful balance, arguing that the House was large enough to accomodate representatives who would have adequate knowledge of their constituency, but not so large as to become an over-crowded mess, unable to accomplish anything ofg substance.

At the time of the Constitution’s ratification, a House district was designed to encompass approximately 30,000 people. Madison thinks this is a suitable size for a representative to understand the complexities of the district he represents. As he puts it:

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.

The implicit argument is the purview of the federal government will be quite limited, therefore a representative need only acquite expertise in subject matters that will directly impact his constituents. The representative did not need to be on a first-name basis with each of his constituents, nor did he need to be aware of every little bit of minutiae affecting them. He had to attain a general knowledge of those matters, and only those matters in which the federal government might have a say over the lives of the people he represents. Therefore he would not be spread too thin according to the original constitutional design.

So what are the areas of particular interest?

What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia.

A good representative will have to have some particular insight when it comes to regulation and taxation, but Madison did not think this required each state to have more than a handful of representatives, depending of course on the size of the state.

As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet with all the local codes before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it?

Madison adds that the national legislature will include a number of individuals who will have already served as state legislators, and therefore they will be able to convey local information into national debates over legislation. As for the militia, differences in discipline may differ from state-to-state, but will not differ within each state, so a representative does need to possess a specialized understanding of local circumstances on this subject.

In the next paragraph, Madison asserts that the intra-state similarities justify a smaller number of representatives. Districts will not vary significantly. Over time states will diversify, growing larger in population and in the types of people occupying it. The constitution addresses this by granting an increase in the number of representatives as the population grows and becomes more diffuse.

Whether Madison’s logic still holds 238 years later considering the manifold increase in both the issues over which the federal government claims dominion and in the population, where average district sizes are now over 20 times greater than at the time of ratification, is a subject worthy of debate. In a sense the logic still holds, even if the federal government oversees many more matters of interest, and even if the districts are much larger. Districts may be larger in population size, but a representative’s ability to gather information is also dramatically improved. And though we lament the decline in the number of “swing” districts, it does mean a representative is likely reflecting the will of most of his or her constituents, if nothing else.

-Paul

 

Federalist 55 – Madison

If you were to ask people to name their favorite Federalist Paper, or even what they considered to be the most famous or important, most would indicate either Federalist 10 or 51. Others might name number 68, or perhaps 9 or 14. To me, Federalist 55 is not only one of the most important of the essays penned by Hamilton, Madison, and Jay, it  is one of the foundational texts of modern political thought.

This essay is concerned with the number of representatives in the House of Representatives, particularly the concerns that the Constitution allowed for far too few representatives. To begin with, Madison examined the state legislative assemblies and the wide variation in how they apportioned legislators. Some states had huge legislative assemblies, allotting one representative for every thousand or so citizens. Yet certain states, such as Pennsylvania, had relatively small legislatures, and thereby each elected legislator represented far more people. In the end, no precise formula was perfect.

Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed.

What follows is a critical passage.

Federalist 54 – Madison

If there is one Federalist Paper that would cause modern readers to cringe, it is probably Federalist 54. In this essay. Madison discussed the apportionment of members of the House of Representative, in particular the notion that apportionment should be based on population. Most of the paper is focused specifically on the three-fifths clause. Madison defended the compromise, though he wrote not in his own voice but rather as “one of our Southern brethren.” This signals how uncomfortable Madison was with the topic of the compromise and with slavery in general. Frankly, it’s a bit uncomfortable reading some of the tortured logic.

We should probably back up a bit and discuss the three-fifths clause, because it has largely been misrepresented. It is a result of a compromise between northern and southern delegates. Southerners wanted slaves to count fully because it would increase the number of representatives allotted to slave-holding states. On the other hand, northern delegates wanted the slaves not to count at all. As they saw it, slaves were not free citizens, and considered as mere property by their masters. Why should this “property” count towards population and therefore benefit the slave states? The three-fifths compromise was therefore an attempt to split the difference between the two sides. It does not indicate that slaves were actually considered to be 3/5 of a human being.

Madison, speaking as the southern brethren, rebutted the idea that slaves should not be counted for apportionment purposes because they were ineligible to vote. Madison pointed out that franchise requirements were different in the various states; therefore this criticism doesn’t hold much weight.

“This objection is repelled by a single abservation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives. In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man.

Madison also noted that when it came to direct taxes, slaves would be considered property for purposes of apportioning these taxes. Thus, southerners would be adversely affected by any rule which did fully count slaves. In the end, the three-fifths compromise works out a delicate balance on a very thorny issue that works for all sides.

Madison’s logic was as sharp here as it normally was throughout these essays. That being said, Madison defended the three-fifths clause not merely as a compromise, but as the morally correct way to apportion slaves. As I said, none of the Framers necessarily viewed slaves as merely being three-fifths of a human being, but Madison did come close to making this point here.

But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.

It is worth repeating that Madison did not state that he believed this to be the case, but rather this is what a southerner might say in defense of the compromise. Then again, Madison was a southern slaveholder himself, so perhaps the above paragraph is not really supposition at all. Whatever the case may be, Madison offered up a logical defense of the three-fifths clause positing that it was inherently justified on its own merits, not because it was merely a good compromise. It was certainly not Madison’s finest moment.

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:

Federalist 51 – Madison

Federalist 51 is such a well-known essay that it would be possible to underestimate its importance.  Make no mistake about it, this essay represents the essence of Madison’s political thought.  It is a companion piece of sorts to Federalist 10 (which I covered here and here), and they are connected thematically.

Madison has been discussing for several essays in this series the means by which to keep the federal government within the confines of its constitutional powers.  He has rejected Jefferson’s idea to appeal to the populace in order to settle constitutional disputes.  With this essay he proposes the solution: checks and balances.

Federalist 50 – Madison

Federalist 50 is a relatively brief continuation of the topic James Madison explored in Federalist 49.  In the previous essay he had critiqued Thomas Jefferson’s proposal to resolve constitutional issues through frequent appeals to the populace.  In this essay, Madison addresses the idea of resolving these issues through periodical appeals to the population.  In other words, there would be fixed intervals at which the nation at large would get to address issues related to enforcing the Constitution (Madison acknowledges that this does not concern amending or altering the Constitution).  Madison rejects this idea, too, noting that there would be problems with either too short or too long periods.

 If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated.

Either the period would be too short, and therefore the issues too current to be settled reasonably, or the intervals would be too long to constrain bad actors.

Madison turns his attention to Pennsylvania, a state which actually developed a mechanism similar to the one under consideration here.  The Council of Censors was impaired by a number of circumstances that prevented it from doing its job fairly.  First of all, many of the individuals on the council “had also been active and leading characters in the parties which pre-existed in the State.”  More importantly, many of the individuals on the council had been members of the executive and legislative branches during the period under review, and therefore had a vested interest in the council’s deliberations.

On top of all this, the proceedings showed the fundamental shortcomings of this particular approach.

Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

The Council of Censors was thus dominated by the same partisan divisions that marked the proceedings of the legislature.  Instead of the council being a dispassionate reviewer of constitutional clashes, it was as beset by partisan wrangling as any other actor involved in the process.

Madison outlines two other problem with the council.  The council “misconstrue[d] the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.”  Finally, Madison doubted that the council’s decisi0ns “had any effect in varying the practice founded on legislative constructions.”  In one instance the legislature essentially ignored the council’s decision.  So not only was this council beset by partisan intrigues, it was ineffective in reigning in the political branches.

Madison has an argument ready for anyone wishing to assert that Pennsylvania is a special case in its partisan division.

Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.

Furthermore, it would be no solution to restrict council membership to people who had not been involved with the government’s decision during the period under consideration.

The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

Having thus rejected popular appeals as methods of dealing with encroachments of the constitution, what solution does Madison propose.  He provides the answer in Federalist 51.

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 48 – Madison

James Madison continues where he left off in Federalist 47 on the subject of the separation of powers.  As he discussed in the previous essay, Madison suggests that it is impossible for the three branches to remain completely independent of each other.  In fact Madison argues that it is absolutely necessary that some degree of intermingling of powers occur between the branches. es.

Madison begins by noting that some delineation of powers must be made; however, a precise outlining of where the authority of each branch begins and ends is impracticable.  Experience in the states shows that the legislative branches have become incredibly powerful, and had drawn all power into their “impetuous vortex.”  These state constitutions had jumped from one extreme – monarchy – to another: legislative despotism.  As Madison puts it: