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 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:

Federalist 47 – Madison

In Federalist 47 James Madison begins a discussion of the structure of the new federal government.  Here he discusses the concept of the separation of powers, and he defends the Constitution from charges by its critics that it violated this important concept.  Madison traces the promotion of this concept to Montesquieu, and he explains in some detail what motivated the great sage.

The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.

Indeed Montesquieu drew heavily from the British Constitution in discussing the ideal constitution, and in the Spirit of the Laws Montesquieu developed the concept of the separation of powers.  But as Madison notes, the different branches of government were not completely distinct.

On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.

As is the case with the U.S. Constitution, under the British Constitution the different branches carry out functions that one would assume ought to be carried out by other branches of government.  There is no clear line of demarcation.  Each branch has certain rights and duties that bleed over into the functions of other branches.

Madison concedes that Montesquieu believed that tyranny resulted when one person or entity controls all functions of government.  That does not mean that any mixing of powers is completely wrong.

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, or, if the power of judging be not separated from the legislative and executive powers, he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution.

In other words, the threat of tyranny came about only when one person or body of persons had complete and total control of ALL functions of the government.  “Partial agency” is not a concern, in fact it is a necessary component of a functioning government.  Essentially what Madison is talking about are checks and balances.  Each branch has some amount of oversight and authority within the other branch, and so long as no branch completely subsumes the others need we worry about dictatorial power.

From there Madison discusses the constitutions of the several states, going through them one by one to provide examples of the mixing of powers.  Several state constitutions, he observes, contain very strict language prohibiting the mixing of powers, yet nonetheless all of them violate this strict rule one way or the other.  Each and every state constitution provides examples of the legislature having certain judicial and/or executive functions, and so on and so forth.  As Madison concludes:

In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.

And said paper will be the topic of my next post.

 

Federalist 45 – Madison

Yes, it’s been a while.  Hopefully I can continue my series without taking months-long breaks in between.  I note that I am skipping Federalist Papers 42-44, not because they are unimportant, but because I really don’t have much to add to them in the way of analysis.  And rather than wait another month, let me just dive right back in with Federalist 45.

James Madison hits some themes that have occurred in previous Federalist papers.  With this essay Madison defends the Constitution from its critics, principally those who believe that the federal government will usurp the states.  As Alexander Hamilton has done previously, Madison flips the argument on its head and maintains that the federal government has more to fear from the states than vice versa.  Okay, neither he nor Hamilton was a prophet, but this paper illuminates the motivation behind their support for the proposed Constitution.