The Federalist Papers Summaries

These summaries were prepared by this site’s principal writer. They are not original with the Federalist Papers themselves. They are not a substitute for reading the papers, but rather a means by which one might decide to read or not read a particular paper. However, they do provide a useful digest to get a flavor of the Papers in general. It would not be intellectually offensive to read through them first to decide where to apply one’s attention to the real thing. They are also useful reminders of what was said in any particular essay. Few minds have the capacity to remember all the details or where any one detail might have actually been written.

The Federalist No. 1

In the inaugural essay Hamilton asks the crucial question: can a people decide its own government from reflection and choice, or be doomed to government forced upon them. His hope of course is that the Constitution will be ratified, and in so being will realize reflection and choice. He announces the decision as among the most important in the world, and then spends a number of paragraphs diminishing the opposition as self-serving demagogues. He congratulates the readers on their own good sense, and then announces his program, to discuss: the utility of the union; the insufficiency of the Articles of Confederation; the need for a strong central government; how the proposed constitution conforms to basic republican principles; the analogy of the proposed constitution to the constitution of New York; and the means by which the new constitution will preserve liberty. The papers never get around to the last two topics until they receive cursory treatment in the final essay.

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The Federalist No. 2

The people must take a comprehensive and serious view of the subject. The people must cede some rights to be governed at all. The question is how much, and to what topological extent. Union has been generally assumed, but some now insist on a plurality of unions. The country has been blessed with large extent, all natural necessities, a common language and culture, common ancestry, a common religion, and a hard-won independence. The first hurried effort at government (the Articles) was understandably deficient. A new effort was reached by a distinguished group motivated by nothing more than the love of their country; they offer the new version for approbation with unanimous consent. Yet even as the earliest Congress was resisted by those pursuing objects incommensurate with the public good, the people have generally supported a strong central, single union. In the following papers are reasons to do so.

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The Federalist No. 3

A well-informed people seldom persevere in a course adverse to their interests. Of paramount national interest is safety. A united nation with a single presence will be more effective in reducing or bargaining out of just wars, and of preventing states and others from engaging in unjust wars, as the national government, attracting chaste and enlightened leaders, will more coolly decide questions of state and violence than the more insensitive and unruly men elected at local levels. Furthermore, a strong central state has far more bargaining power than several weaker ones when dealing with other strong states.

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The Federalist No. 4

Natural commercial interests and the inclination of monarchs to war for its own sake make the prospect of war a continuing threat. A united single nation has a much better chance of not provoking or inviting hostilities than any larger number of entities dividing up the people, in part because it will speak with one reasonable voice, and in part because it can raise and manage the largest military force compared to any smaller entity.

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The Federalist No. 5

Britain, which gained considerable unity and power by combining over time England, Wales, and Scotland, may teach us some things without paying their price. Dividing the country into several “nations,” even if it could be done initially on an equitable basis, would inevitably lead to differences in power among them and in interests they exert relative to the rest of the world, reducing thereby their collective power and increasing thereby the chances for internal as well as international conflict and war.

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The Federalist No. 6

People are by nature ambitious, vindictive, rapacious, and power hungry. When at the head of state, unencumbered, they exercise these features to the detriment of others and often themselves. Numerous historical examples including three from recent history in the United States suggest that separate states are far more likely to fight with one another than exist in amity.

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The Federalist No. 7

Setting aside the general nature of mankind that brings separate states to war, the present United States have many circumstances which, without some governing central authority, would no doubt erupt into bloodshed. Numbered among these are the allocation of western land, the settlement of existing monetary disputes, jealousies arising from disparity in commercial possibilities from one state to the next, allocating and collecting on the public debt weighing now on all states from the war, and the diversity of laws of contract.

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The Federalist No. 8

Should the states remain separated or under a weak federal government, and inevitably end in violence, the ensuing wars would be devastating. Unlike Europe, where professional armies and long-standing fortifications have rendered war almost useless as a means of acquiring new territory, American states would be defenseless against a determined attack. The prospect of continuous warfare would expense those hard-won institutions of liberty in favor of ones offering security at any cost, especially a standing military. We cannot take modern Britain as an example, as its insularity allows it to enjoy relative safety without huge military resources. The continent of Europe is a more comparable situation. If we are united, we enjoy even more than England the benefits of distance and insularity. If we are divided, we will fight with one another and be prey to all the offensives of invaders from abroad.

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The Federalist No. 9

The science of politics has moved along with time. The idea of a republic, with powers separated into three branches, checked and balanced against one another, judicial offices for life, and elected representatives, is largely new. Quoting at length from Montesquieu, this essay gives the first lengthy defense of a federal form or confederated republics (it uses both titles) that the new U.S. constitution constructs. Beginning with the observation that the states were already too large to qualify as singular republics under Montesquieu’s understanding, the essay argues that a confederation in which the individual republics cede certain powers to the central authority but retain others would provide security and commercial power to the individual states and the whole. This form is neither an “association” nor a “consolidation,” but rather one in which the states form “constituent parts of the national sovereignty . . . (but) in possession (of) certain exclusive and very important portions of the sovereign power.”

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The Federalist No. 10

“As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.” Those with common opinions will form factions, either one against another or one against the interests of the whole. The most common cause of such factions is inequitable distribution of property (which itself is inevitable). Even enlightened statesmen will not be able to force all to the public good. Thus factions cannot be eliminated. Controlling them while retaining the spirit and form of popular government then becomes a principal aim of civic orders. The democratic form, in which citizens administer government in person, will only lead through factions to turbulence, contention, and violence. But a republican form, with elected representatives and a greater sphere, will by its nature provide the best guard against the tyranny of majority factions. By finding a mean between too few and too many electors (the former given to protecting local interests, the latter unable to make decisions), as the proposed Constitution does, extending the central government over a large enough territory that no faction can be consolidated within its power structure, and empowering the states with as much energy as safety and commercial considerations warrant, will douse the kindled flames of factions and prevent factions taking control of the larger forms. [No simple summary can capture the depth of this essay.]

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The Federalist No. 11

Commercial interests must be high in considering the new Constitution. Without a strong central government, foreign powers will dictate terms of trade to our substantial disadvantage, moving profits from us to them. With a strong central government which adopts a position of neutrality, foreign powers will be played one against another for American markets, and American products will more freely flow into foreign countries, particularly if we have a central navy and maritime presence. We also must consider carefully the protection of our western interests, fisheries, and waterway access, all under the jealous eyes of France, Britain, and Spain. Individual states will be impuissant against such foreign powers, whereas a central force can dictate or negotiate terms favorable to each state and the whole. We owe this to the human race, under the constant threat and heel of Europe.

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The Federalist No. 12

Governments must have revenue. The possibilities for government revenue are proportional to the health of the economy, itself dependent upon “the quantity of money in circulation and the celerity with which it circulates.” However, direct taxation, excise taxes, and use or sales taxes have proved to be impractical to collect in volume, difficult to estimate fairly for the agricultural side of the economy, and offensive to the people. The twenty thousand men employed in France to this end suggests the inherent difficulty. The answer then to government revenue is import duties. These are difficult to collect state by state, and individual states would be hard pressed to avoid all the illegal entries and cabals such a condition would inspire. On the other hand, a union could establish common fees, patrol the seaboard at low expense, and minimize illegal entry. Should this not be sufficient, taxes on land are next, which are very difficult to collect.

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The Federalist No. 13

For various reasons, one common government will cost less than each state acting on its own relative to actions undertaken by the central government. The same is obviously true of any division of the thirteen states into larger combinations smaller than the whole, which combinations by a logical sequence would almost certainly be two blocs, a northern one ending with Pennsylvania and a southern one beginning with Maryland. Any such combination costs more, and injures relative to a single union the country’s economy, tranquility, revenues, and liberty.

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The Federalist No. 14

To counter the persistent if specious argument that the United States is too vast to support a republican government, let these answers suffice. A democracy must be confined to a small region; a republic may (and from Federalist 10, must) be extended over a large region. We cannot avert to historical examples, because no republic of the sort envisioned by the Constitution has ever existed. The objection of extent alone is refuted by the existing confederation in which representatives travel to a central location in time to discharge their duties. The country (he gives its boundaries) is not much larger than Germany. Moreover: (1) the federal government is charged with limited and enumerated duties; (2) expansion of the states will be no less practicable; (3) a federal establishment will improve interstate roads, making travel easier; (4) those states on the periphery, adjacent to foreign and potentially hostile forces, will compensate for the distance from the seat of government by the security offered by its successful operation. We are a nation of one people united by shared experience; to keep them separated on the grounds of liberty is to expense the security a union provides. We should not shy away from what is new. “Posterity will be indebted for the possession, and the world will for the example, of the numerous innovations displayed on the American theater, in favor of private rights and public happiness.” Church bells ring at the final paragraph.

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The Federalist No. 15

Even though the deficiencies of the Articles of Confederation are admitted by all, with ill consequences of all sorts in obvious abundance, some still promote the principles on which the Articles were constructed, obliging a studied review of just these principles. The basic problem arose from assuming a weak sovereign entity could manage subordinate strong sovereign entities. In such a system there are no forces for compliance other than military coercion. States will not comply from common interest, nor can agreement among them be easily reached when unanimity is required, nor will states which do comply continue when others do not. Governments were formed after all because people’s passions overrule their reason, a circumstance magnified in collectives. The only sensible alternative is to consider the objects of the federal government to be the people, not other sovereign entities.

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The Federalist No. 16

The problems with the Articles have been universally experienced by other loose confederations. Delinquencies accumulate, triggering military force, leading to civil war. If the central authority cannot afford a military force (by implication the case for the United States), states may create alliances of compliance, themselves inevitably destructive. But the more normal avenue is passive non-compliance, which is then imitated by all other member states. Even if states were willing to finance a large national army, the country’s dimensions and size of member states makes the idea infeasible. The only sensible alternative is a federal government applied directly to the people rather than one required to go through state legislatures. If states objected, they could only do so through military forces, an obvious usurpation almost certainly unacceptable to other member states. Opposition from individuals may be handled as states handle them; opposition from factions may require more extensive remedies; a violent popular paroxysm may unsettle the whole, but providing for its eventually is beyond the reach of any civic order.

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The Federalist No. 17

Federal powers will not encroach on state prerogatives because the objects of their interests are largely distinct, the federal concerned with interstate commerce, national finance, treaty negotiation, and war. But even if their domains overlapped, the states would always have greater power derived from their people, who are physically and emotionally closer to the state. This applies particularly to the administration of civil and criminal justice, the stronger area of attachment to the people, and the exclusive province of local government. History supports this conclusion, such as the experience of feudal barons relative to their monarchs.

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The Federalist No. 18

If we look to analogies from the past, the two leagues formed in Greece provide useful insights. The Amphictyon Council (containing Athens and Sparta among many others) never had enough power to control its member cities, which even in peace time wrangled with each other, the stronger taking advantage of the weaker. Athens first asserted authority, but it was then defeated in a civil war by Sparta, which internal weakness made the whole vulnerable to Alexander of Macedon. The Achaean League, while more successful in some ways, owing in part to the same laws, measures, and customs operating in its member cities, nevertheless still succumbed to internal dissentions and, as a weak league ever in search of successful external alliances, eventually to foreign enemies, the last of which, Rome, obliterated any remnant of the League.

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The Federalist No. 19

The Germanic League, whose history begins with consolidation under Charlemagne, then followed by gradual dissolution between 1000 and 1400, then into a loose confederation under an emperor and some centralized powers, nevertheless suffered all the disabilities of a sovereignty attempting to govern lesser sovereignties instead of the people directly. There were wars within, the last one devastating. There was internal exploitation and recriminations, and inevitably poor military preparations, making them vulnerable to any foreign incursion. The recent efforts to create internal subdivisions of government have just recreated the same problems in a new form. Poland and the Swiss Cantons also illustrate the point.

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The Federalist No. 20

The final example is modern Netherlands, uniting in a loose confederation seven sovereign states with equal station and unanimous consent required for important decisions. Its States-General has significant power, and its titular leader, a hereditary prince with considerable prerogatives, holds the business together. But it is torn from within, unable at times to collect money without force of arms, and assaulted from without, and now faces great peril on both counts. Experience is the oracle of truth. These examples demonstrate the consummate infelicity of a sovereign entity attempting to govern inferior sovereign entities without recourse

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The Federalist No. 21

Other than the general principle, we may see three important defects in the Articles. One is its utter failure to provide explicit powers of sanctions for non-compliance, combined with the provision (the second article and first substantive article of the Articles) that the states retain all powers not “expressly” granted the federal establishment. The second is the lack of mutual security for the states, leaving them entirely vulnerable to insurrection and mischiefs. The third concerns taxation by quotas, a form most difficult to collect, impossible to equitably estimate, and thus a source of acute grievance all by itself. A national authority must be able to raise its own revenues (rather than rely upon assessment to state legislatures), which revenues should derive principally from tariffs and excise taxes, that is, indirect taxes on the consumption of goods, rather than on the capricious and contentious direct taxes on land or per capita.

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The Federalist No. 22

Other infirmities may be identified. The legal bar on central regulation of commerce makes foreign trade agreements all but impossible to negotiate and then manage, and invites rancor and slow trade between the states themselves. The manner of raising armies precludes an adequate defense and creates great inequities in performance. The rule of supermajority for important legislation creates a tyranny of the minority, which in the end actually works to the disadvantage of the smaller states, as nothing really gets done of importance. Supermajority decision making also means there are fewer to bribe, inviting greater foreign intrigues. The crowning blow is the lack of judicial power, without which laws are all but meaningless, particularly when the structure itself favors the parts over the whole. The system is so radically vicious and unsound that it cannot be fixed from within, but must be completely overhauled. Finally, the Articles were never ratified by the people, leading some to believe that it may be repealed by individual legislatures; the fabric of the American empire should rest on the consent of the people.

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The Federalist No. 23

The means supplied in the constitution to affect its goals must be commensurate with the goals. With respect to national defense, the means must be unlimited, as the dangers are unlimited. Relative to other responsibilities—internal peace, regulating internal and external commerce, foreign affairs—the powers must also be unencumbered by state constraints. Indeed, the laws must extend to the people, not the states. The powers granted the federal government in the new constitution are required and not too extensive. A multiplicity of unions, or a return to confederacy, makes no sense.

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The Federalist No. 24

The only specific complaint lodged against the proposed constitution regarding its military provisions has been its lack of a prohibition on peacetime standing armies. However, these oppositions have not been attended by any argument in their favor. If we imagined one, it would see the power lodged with the executive, found in state constitutions, or in the Articles of Confederation. The power is lodged with the popularly elected legislature, is found in only two state constitutions, and not at all in the Articles. Indeed, prohibiting peacetime armies invites grave dangers in the face of possible military adventures by European countries and by Indians and their allies on the western border. Peacetime navies are also a must.

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The Federalist No. 25

Transferring responsibility for defense to the states contravenes a basic principle of union and the common defense. States would have inequitable requirements relative to dangers which are common to all, which would lead to animosities and perhaps conflict between the states themselves. The Constitution is right to bar states from having ships or troops without congressional consent. An army, once commissioned, is hard to decommission if any form of danger persists (and they will); timing, to what degree, with what perception to other nations? A prohibition on raising armies in peacetime makes us easy prey. The late war has revealed the weakness of relying upon state militias for national defense. Even those states such as Pennsylvania with soft prohibitions on standing armies now have them for local defense.

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The Federalist No. 26

Any stable government must find the right balance between power and liberty. All but two states recognize the necessity of military power as an instrument of security; these states do not prohibit standing armies, they just warn against them, a warning of no value once they raise standing armies to repel expected troubles. Note that our resistance to standing armies arises from the English rules around the 1688 Glorious Revolution, which rules require the parliament to approve any standing armies. This is exactly what our constitution does, with the further limitation that funding can be for no more than two years, an interval sufficiently short to prevent a large army amassing before review and resistance would build within the legislature, state governments, and the people. If an army is raised which in fact usurps popular liberties, it was raised for a reason, which reason justified its existence, and about which we could do nothing. However, this is far less likely than the opposite problem, of being insufficiently prepared and giving our liberties to a foreign power.

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The Federalist No. 27

Obedience to the law is likely proportional to the quality of governance. The wider amplitude, a Senate composed of select individuals with greater knowledge and practice given its terms, and a greater immunity to factions augers well for federal performance. Given its range and power, there is less danger for popular revolt against the federal than against state governments. If the people are closely connected to its government, they are less likely to require compulsion to comply; the new constitution, addressing the people directly, creates circumstances for such engagement. In time the people will see federal and state authorities on equal footing, but will grant the federal higher ground as it can marshal national resources and operate as the Supreme Law of the Land, conditions more conducive to popular support than insurrection.

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The Federalist No. 28

A peaceable kingdom lasting forever is utopian; there will be revolts requiring military force to suppress. Small uprisings may be handled by state militias, but larger revolts will require a real army, either by the state or by the federal, as Massachusetts and Pennsylvania have discovered. Under the proposed system, however, the people are the final security against military abuse by the government. Should the government betray the people, a revolt against the federal authority would have better prospects than against a state, where proximity and speed of reaction would be decisive. But our federal system gives great power to the people, who would prevail by organizing the states against the federal, or the federal against the states, winning with either combination. The large extent of the country would also favor a combination of the states and the people. Note as well that present resources preclude a large enough army to be oppressive, and as resources grow, so will the people and their strength, likely never reaching a point where the federal authority has a natural advantage.

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The Federalist No. 29

Public defense requires a trained and discipline militia across all states. The constitution gives Congress powers to organize, arm, and discipline militias, with states reserving the power of appointing officers and training. A strong militia is the best guard against a standing national army. The Constitution’s silence on the question of ad hoc military groups to deal with local situations does not deprive Congress of creating them as is necessary. A militia cannot be a danger to liberty. It would take far too much to create and coordinate them at the federal level, their commissions would weaken the economy, and they would revolt anyway. However, a select, disciplined corps would be a strength for national security. Considering the militia a danger to our liberties is like fables of grotesques.

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The Federalist No. 30

The federal authority must raise money through taxation. Without adequate revenue, the state must either resort to plunder—witness the Ottoman empire—or perish—witness our own Confederation. The system of requisitions and quotas upon the states has clearly failed for want of compliance by the states; the federal authority must have its own taxing power. But it must be a general power, sufficient to the need, not restricted to import duties. Otherwise, when the inevitable exigency such as war happens, demanding federal borrowing, the government will find no willing lenders on sensible terms.

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The Federalist No. 31

Disquisitions must begin from first principles, like geometry. Even though morals and politics are less certain, they are more certain than many believe; obscurity more often reflects the person than the subject. How else to explain the irrational opposition to a general taxing power. Governments must have power commensurate with their responsibilities. Defense alone requires the capacity for indefinite resources. As the states have shown they cannot comply with requisitions, taxing is the only alternative. An argument against this claim is that unlimited federal taxing power would eventually eliminate state taxing power. If based on the prospect of federal usurpation, the argument fails for want of any credible construction of successful federal usurpation; state usurpation of the federal is more likely.

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The Federalist No. 32

Even though states have more power, they should be granted unlimited taxing power on their own, except on imports and exports, which powers are not abridged by the Constitution. Constitutional limitations on state sovereignty take three forms: exclusive grant to the federal, grant to federal and prohibition to the state, and grant to the federal which logically excludes the states. All others are assumed to be either exclusive to the states or shared between the two sovereign levels. The taxing power is of the latter form, a concurrent power. This is implied by the Constitution’s general grant of taxing power to the federal and the specific prohibition on state’s taxing imports and exports—every other object of taxation must be accessible to both federal and state authorities. Inconveniences may arise from this construction, but the Constitution warrants it.

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The Federalist No. 33

Neither the “necessary and proper” clause nor the “supreme law of the land” clause add any powers to the federal government which are not implied by the nature of constitutions. The “necessary and proper” clause was probably added to forestall state usurpation of the federal domain, the greater danger, by leaving nothing to construction. Who judges where a law is necessary and proper is first the Congress itself and lastly the people. The laws generated under any constitution are necessarily supreme within the ambit of its powers. However, in a country with mixed sovereignties, the supremacy clause does not give Congress powers beyond those enumerated in the Constitution. Any law passed outside the ambit of its power constitutes usurpation.

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The Federalist No. 34

Concurrent jurisdictions for taxing gives states ample resources for income, particularly considering their more limited needs. Any theoretical objections to concurrency fall before the historical record, such as ancient Rome, where concurrent legislatures had mutual nullification powers. These do not apply here, allowing the system to reach a natural balance over time. State needs are relatively constrained, but federal needs are potentially unlimited. We must consider the future as well as the present in structuring the government, and create capacities to meet unknown future contingencies, although we can be all but certain that among these will be defense against a great power, requiring massive funding and debt. These can only be supported by access to all objects of taxation at the federal level. Assigning objects of taxation to a jurisdiction a priori either cripples the states or cripples the federal authority. The convention made the right choice in concurrency.

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The Federalist No. 35

Restricting the objects of taxation available to the federal authority would lead inevitably to inequities and insufficient resources at times. Limiting taxes to imports, for example, would promote smuggling, economic dislocation, and inequitable burdens by merchant and state. Even though import taxes are self-limiting (at some point imports cease), if they were the only resource inventions would be applied which would be inevitably unfavorable. On this subject relative to concern that the House is too small to represent all constituents (treated in detail in 55-58): a one-to-one representation is impossible, and unlikely given voter preferences for someone other than their own specific class to represent them, merchants being the general choice of mechanics and manufacturers. The learned professions when elected tend to mediate other interests, and the landed interests tend to elect from their own moderate owners. Taxation as a topic requires the most to learn and understand, from which a natural interest in constituent interests will flow.

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The Federalist No. 36

Exceptions to the pattern of merchants, land proprietors and lawyers as representatives does not mitigate the principle. Even a very large representative body cannot directly represent every class or interest. Some object that federal taxing authorities will not have enough local knowledge. We say that local knowledge is accessible, that the predominant form of federal taxation—duties—do not require local knowledge particularly, that land and houses must be assessed locally but which information is then easily found (the administration only required to specify and hire assessors), and if these fail the federal authority may work through the state authority. Adding requisitions as a possibility in the Constitution would encourage their use, which use has been a disaster for the Confederation. Duplicate taxes are unlikely for want of significant duplication of objects, undue federal influence on states is less likely than undue state influence on the federal, and double taxation also unlikely for want of duplication of objects. If the federal authority requires indirect taxes, it will so far as possible secure them from the wealthy. While poll taxes are invidious, they should not be prohibited in the Constitution; national emergencies may require all available means.

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The Federalist No. 37

After an appeal to candor (an open mind), this essay begins by stating that “a faultless plan was not to be expected.” The effort was novel, the past failed efforts at republics only warning against known errors rather than lighting the way to a better future. Among the obstacles to overcome were the inherent tensions between national security and the blessings of liberty, the division of powers between the federal and state establishments, and the rivalries between larger and smaller states. The way forward was further impeded by the natural limitations upon human enquiry—a complex world that has to date refused full elucidation or even classification, a human mind as much given to error as truth, and a language incapable of giving voice to every complex idea or thing. Experience indeed has shown that no generalization such as a law can be considered clear or valid until it has been pressed into particular and practical uses. Faced both with these limitations and practical matters imposed by the peculiar circumstances of the United States at the time, the Convention “must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.” What is to wonder at is not the infirmities of the proposed document, but that it is so remarkably good. To have achieved this, the men at the Convention must have set aside “the pestilential influence of party animosities” and sacrificed “private opinion and partial interests to the public good.”

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The Federalist No. 38

By some peculiar historical circumstance, many societies turned the making of a new government over to a single person. We can admire our improved processes (of a committee) but we must admit as well the risks of any such effort. In particular, we may note that not a single voice was raised in the ratification of the Articles of Confederation regarding its greatest fault (no power to compel payment of fees). As a sick patient must expect agreement among several doctors before accepting a cure, so must we expect agreement among our constituents regarding the constitution. Yet a survey of complaints against it reveals a contradictory lot, including problems clearly manifest in the Articles. (The list is long and instructive.) It is not necessary that the Constitution be perfect (an impossibility); it is only necessary that it be considerably better. In this respect, it must be noted the number of ways in which the present confederate government has exceeded its constitutional limits trying to fulfill its obvious duties (again, the list is interesting).

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The Federalist No. 39

Is the plan republican? “Republican” requires popular election of some officials, indirect election or appointment for others, for limited terms or subject to removal. All state constitutions are republican in this sense. The proposed Constitution, with directly or indirectly officers, for limited terms, or subject to impeachment, qualifies. That it prohibits titles of nobility and guarantees republic government to every state seals the deal. On the question of federalism, the Constitution’s ratification is a federal act, making the Constitution federal in this sense. Its powers are derived from popular and state forces, hence mixed national and federal. Its operations take the people not the states as it object, hence is national. But its relationship to the states is federal, its powers limited to those enumerated in the Constitution, all residuals conferred upon the inviolable sovereignty of the states. The form of amendment is also mixed, requiring the people, but organized by state, without unanimity as a condition.

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The Federalist No. 40

“The charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.” (last paragraph of Federalist 40)

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The Federalist No. 41

Madison finally addresses the question of Constitutional power (for the next ten essays), divided between total power and distribution of power within the government.  This essay deals with military power.  Granting the inherent dangers of a standing army, the essay insists that history proves the necessity of one (unless other governments can be shown to curtail theirs), but that the Constitution’s implications for union enables an adequate force but forestalls internal warfare, and the two-year limit on military funding prevents military control of the government or the country.  The navy is all important, as is the country’s favorable geopolitical position, comparable to Great Britain’s, of a formidable ocean between it and potential enemies.  The power to tax, necessary to the functioning of government, is inherently limited by several constitutional provisions, including the limitations on federal powers implied by the syntax of the constitution’s coupling of the taxing power to the enumerated powers which follow; the “general welfare” comprises the list following, and no more.

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The Federalist No. 42

On foreign relations. Unlike the Articles, the new constitution provides for consuls as well as ambassadors. It is right that Congress shall have the power to define felonies at sea, a mishmash otherwise. While allowing slave importation for twenty years is regrettable, we may end that barbaric practice at the end, one hopes. On Commerce. Prohibiting state tariffs reduces smuggling, increases good will, and creates a level field with disadvantages to no one. Other countries have profited from this practice. Removing legislative constraints from our dealings with the Indian nations removes contradictory requirements from Articles. The various provisions regarding money, weights and measures, and counterfeiting install proper regulation to minimize monetary chaos. Uniform naturalization corrects inconsistencies and harmonizes the many disparate state laws which have paradoxical consequences. Equally propitious are uniform rules for bankruptcy, the manner of public acts, records, and judicial proceedings in the states, and the business of postal roads.

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The Federalist No. 43

Paper covers many specific provisions: (1) intellectual property protection: (2) complete authority over the seat of federal government; (3) treason; (4) admitting new states; (5) territories; (6) republican form guaranteed for each state; (7) debts contracted before the Constitution; (8) amendments; and (9) ratification. Interesting arguments attach to why the federal government has the right to interfere in violence within a state committed by a majority of people from that state, which reasons the essay admits are contrary to republican principles but justified by historical fact, and a construction of the Articles of Confederation as a treaty rather than a constitution, and hence void on the abrogation of any of its members. The essay has nothing to offer any state refusing to ratify if nine others do, but to hope for future amity based upon past relationships, justice, the claims of humanity, and common interest.

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The Federalist No. 44

Reviews prohibitions on states: (1) treaties, war powers, coining money, bills of credit, bills of attainder, ex post facto laws, laws impairing contracts, and titles of nobility; and (2) prohibition of imposts and duties. All but the two rights questions fall under the general requirement that foreign policy and interstate commerce must not only be centralized, they must be exclusively federal for them to have the necessary effect. The two rights issues are in many state constitutions, but would realize uniformity of application in federal hands. Other powers: (1) the Necessary and Proper clause is both required (to give the Constitution any effect at all) and the right degree of power to provide adequate means for legitimate ends of legislation and protection against abuse, which protection is augmented by executive and judicial restraints (veto power and judicial review), and ultimately by the people (throw the bums out and repeal the laws). The Supreme Law of the Land clause is also necessary; without both its substance and form the Constitution would be rendered no more efficacious than the Articles of Confederation. State officers are made to pledge support for the Constitution while federal officers are not made to make similar oaths regarding the states because federal officers have no agency in the states, whereas states have much to do with the federal.

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The Federalist No. 45

Having shown that the proposed constitution is essential to union and its protection, that the union is essential to the public good, and that some state powers must be compromised to empower the federal to attain this end, does the new constitution endanger the state powers remaining? In short, no. History of confederacies have shown that dangers flow in the opposite direction, state dissentions or ambitions overpowering the central government. State governments are independent, while the federal government depends upon the states for the President and the Senate, among others. Many more people will be involved in state government compared to the federal, giving them great advantage with the people. Federal powers are few and limited, devoted largely to foreign affairs and interstate commerce; state powers are many and unlimited, taking care of everything else. In fact, the new constitution is less about new powers than giving some effect to powers already conferred upon the federal authority by the Articles of Confederation.

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The Federalist No. 46

State governments enjoy no more independence than the federal; both serve the people and must be judged in that respect, and that respect alone. However, if we measure the relative powers of the two levels, the states clearly have the greater. They are closer to the people and would enjoy their preference in a dispute. The federal authority is only interesting to the people regarding a small number of issues. Biases and partisanship, the bane of effective government but unavoidable in practice, always run to the local, clearly favoring the state over federal establishments. There is little to resist state encroachments on federal power, the massing of states and the people there to resist federal encroachments of state power. Military threats are chimerical—they would take too long to create without popular notice and objection, and they would never be sufficient to overcome state militias. The government either depends upon the people, or not. If so, the people will restrain any schemes against their interests; if not, such schemes will be easily defeated by state government who have the people’s support.

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The Federalist No. 47

Separation of powers does not require absolute isolation. According to Montesquieu, the condition of separation means that no one of the three branches can perform the duties of the other in total. His model, the constitution of Great Britain, contains many interconnections, such as judges acting as legislative advisors, the king in effect a part of the legislative branch, and the House of Lords as a final appellate court. All state constitutions include similar interconnections, even those declaring the principle itself to be inviolable. State constitutions show signs of haste and inexperience in their formation, and some go overboard, in theory and in practice, but none separate powers strictly.

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The Federalist No. 48

Having shown that separation of powers does not require full disconnection, we move to the requirement for some such interconnections. It is agreed that no department should have overruling power over another. But as power tends to desire increase, restraints must be installed to avoid de facto encroachments of one branch over another. The great problem to be solved is what restraints shall be put in place to curb prospective encroachment. Just demarking departments in detail does not avert de facto usurpation of one to another. Neither the founders nor any state constitution, focused as they were on the problems of monarchy and pure democracy, seem aware of the internal problems of control within a republican system. As can be shown in theory and in practice, the legislative branch is the most likely to infringe on the powers of the other branches, owing in part to its size and capacity to accumulate power, in part because its limits are the most difficult to define, and in part because they control the purse, of the country and of all those officers serving in the other branches.

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The Federalist No. 49

Jefferson proposed a public amendment convention if called by two-thirds of two of the three branches as a brake on usurpation of one department by another. While the people are the final arbiter of civic performance, this plan has many drawbacks. It does not comprehend a cabal of two departments against a third. Its frequent use would dissipate the authority and popular support for government generally.

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The Federalist No. 50

A periodic popular review does no better. If frequent, it occurs near events to be reviewed, making its behavior indistinguishable from conventions called for a purpose. If infrequent, the power of restraint is feeble, the abuses will have run their course, and may have been so rooted in the system that they cannot be rounded up. Pennsylvania actually tried popular review councils; they included members of the legislature under review and the proceedings divided into rancorous parties whose memberships changed not a person during the course of events, suggesting prior position rather than real deliberations shaped the council. In one case they were ignored anyway. This is the normal behavior of public councils, which we would not want changed necessarily, because they only operate differently when a major crisis is afoot (a war) or when power is in the hands of one or a very few, the conditions of despotism. The most likely violator, the legislature, would by its size and nature as the popular force have strong influence on any outcome, making a party the judge in its own case. Finally, popular conventions by their nature are forums of passion, not reason; such matters should be subjected to rational not emotional considerations. So we find that paper limitations are ineffective, and popular controls are ineffective.

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The Federalist No. 51

As all exterior forces fail, a structural solution must be found to keep separated departments in their place. In a perfect world no department would appoint members of another, relying upon popular elections for all; this is impractical for various reasons, particularly in the judiciary, which requires specialized knowledge and life terms. Pay should also be independent. The greatest security is constitutional checks—ambition met with ambition—in the form of self-regulation through opposing of rival interests. There are two houses of Congress created on different terms, and qualified veto by the executive (see next for list). Two other thoughts. In our compound republic, double security obtains from division among sovereign units and thence each sovereign unit structured with separated powers. Society must also protect minorities against repressive majorities. In a country as large and diverse as the United States, dominate majority factions are unlikely to form, except by coalitions serving the public good, thereby obviating any independent central force for controlling them.

Not given in Federalist 51 are the various interconnections that operate as checks within the Constitution. They are:
1. Two Houses of Congress, one with two-year terms, one with six-year terms, proportioned and elected differently, the one by the people, the other by the states.
2. Impeachment of any federal officer is brought and tried by the Congress, not the Judiciary.
3. Money bills must originate in the House.
4. Only the Congress can borrow money; only the executive branch can spend it.
5. The Congress decides on the structure of the inferior federal court system, including its jurisdictions.
6. The President has a qualified veto over new laws passed by Congress, one which the Congress may override by 2/3 vote.
7. The President is commander-in-chief, but the Congress has the power to declare war, controls the militia and navies, and has power of the purse.
8. Treaties are made by the President but must be confirmed by 3/4 vote of Senate.
9. Key executive appointments must be approved by the Senate.
10. The Vice President has a deciding vote should the Senate be tied (recognizing that the Senate will always have an even number of potential votes).
11. The President appoints the Supreme Court and all inferior federal court justices with Senate confirmation.
12. The Supreme Court may judge a law passed by the Congress void by conflict with the Constitution (not explicit, but put into practice as judicial review, and according to Federalist 78, entailed by the Supremacy clause).
13. Pay for Congress and the President may not be changed during terms of office, and pay for Supreme Court justices may not be reduced during terms of office.

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The Federalist No. 52

The Convention could do no better than adopt voter qualifications for the House equivalent to that of the legislature of each state given that a uniform formula imposed from above would never be accepted. The small number of qualifications for elected representatives enables individuals to hold office regardless of place of birth, age, wealth, or religious preference. However, when examining the past to justify the term of two years, the experiences of the ancients, of Britain, of Ireland, and of the colonies before the Revolution are too diverse and too disconnected from putative benefits to use them as guides.

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The Federalist No. 53

The proverb that “where annual elections end, tyranny begins” applies not in the case of a state with a fixed constitution which sets limits immune to legislative alteration and the injudicious expedient such alteration has been often put. The terms of existing state constitutions, ranging from six months to two years, cannot help for want of uniformity. Under these conditions two years would seem to be safe. Two-year terms also promote the kind of understanding of politics the federal office requires compared to the more narrow confines of the state, considering the needs to understand all states, foreign policy, and the more complex matters of the union. More experience in office also inures the assembly against corruption. Distance between home and the capital and the length of time it takes to detect election fraud also argues for two-year terms.

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The Federalist No. 54

Making representation and taxes based on proportion to population of each state makes the best of a difficult case. Madison says here that an argument can be made that allowing the southern states to count their slaves as 3/5 of a person for each may be defended in four ways. One is that slaves are not just property, they are also persons in some respects, which this rule honors. A second is that if slaves are to be counted for tax purposes they should be counted for representation. A third is that, as states decide voter qualifications for federal office, slave states could count slaves as whole persons; the 3/5th rule compromise satisfies the potential conflict. And a fourth is that property really should be factored into representation, as it is in New York, in which case the counting of slaves more accurately reflects the economic relationships of the South to the North. Indeed, it would be better if representation generally reflected real state wealth in addition to per capita proportionality. Finally, back to representation and taxation, combining the two will minimize state interests in exaggerating or diminishing their populations during census taking. (Madison opens the major arguments here with arguments that “may be offered on the opposite side,” a transition to the subjunctive that excuses him from attachment to the arguments themselves.)

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The Federalist No. 55

Several arguments have been advanced against the supposedly small size of the house, on grounds of safety, inadequate knowledge of local circumstances, they would be elite, and increasing disproportionate. Principle however will not yield an exact number. The states have wildly varying proportions, relative to each other and within. Distance and the limited powers of the federal government conduce to a smaller number. However, the number will grow, to as much as 400 (from 65) over the next 50 years as the population increases. However, our political safety is not endangered by the number 65 when they serve for such short terms. We managed under the Articles with fewer who could operate in secret. The barriers to corruption in the proposed system are strong and well-distributed; to suspect the system to still be endangered is to place so low a level of trust in human virtue that only despotism can restrain them from self-destruction.

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The Federalist No. 56

Regarding the putative lack of local knowledge such a small number of Representatives are likely to possess, three conditions should mitigate the concern. The interests of the federal House are limited to commerce, taxation, and the militia. These require limited local understanding, if any. The commerce issues relate to state and interstate matters; tax codes may be accumulated from state codes which Representatives will know from experience, and the militia requires almost no locally dependent information to manage. The greater difficulty will be Representatives learning the regulations of states other than their own, a challenge give the wide diversity of states, their interests, and their governments. Finally, we can look to England for some security—the House of Commons has direct representatives proportioned at about the same degree as the Constitution (one for every 30,000 persons), without losing their liberty or their shirts.

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The Federalist No. 57

This essay, constructed largely in the interrogative, argues that the constitution provides sufficient safeguards against electing members to the House who will promote the interests of the elite, the “few” on the ruins of the “many. Electors are qualified regardless of background, wealth, or education. Qualifications for office are no more than citizenship in effect, with no wealth, religious, birthright, or professional restriction. There are psychological barriers to corruption: representatives will assume they deserve the people’s trust; public service creates a spirit of honesty and benevolence; pride of office promotes constituents’ interests; frequent elections create frequent review; and those in the House are subject to the laws they pass. Republican principles, now manifest in every state, may be insufficient against human depravity, but one will search in vain for better principles. The larger size of the electorate cannot matter, as a larger size limits the prospects of personal ambition and bribes, and seems to work in England. Many states have districts as large as the districts for federal office; have they succumbed? Connecticut has no districts at all.

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The Federalist No. 58

While population growth without growth in House membership would be a serious problem, it is most unlikely. The Constitution requires re-examination every ten years, but Congress and the President must agree to increases in number (it requires a law). The House will naturally want an increase, as they have in all state legislatures. The Senate will likely concur because the House is the superior organ of Congress (the power of purse among others), its position would be right and reasonable, and the Senate benefits from augmented proportionality of new states. Note that size alone does not secure liberty; the House could get too large, turning into a mob controlled by just a few leaders. On another subject, the idea that votes should be supermajority or quorums should be a supermajority violates the principle of republican rule, for any such requirement is equivalent to minority rule.

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The Federalist No. 59

Congress has the power to alter the time, place, or manner of elections, a provision attacked by some who are otherwise supportive.  But this was the best compromise between state control alone or federal control alone.  Every government must have the means to preserve itself.  Times change.  Leaving elections in state hands without option invites future tribulations and potential suspension of the House by state’s withholding elections.  That the Senate is completely in state hands does not imply the same power should be applied to the House.  The former is a necessary but inconvenient component of federalism, one with limited realistic power to suspend the Senate.  There is no logical reason to apply the same principle to the House, whose ruin could be more easily accomplished given the two-year election cycle and the weight some states have over the House.

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The Federalist No. 60

While uncontrolled power of elections by the states incurs certain dangers, few hazards attend a temporary federal alteration. Any systematic exclusion of a class of voters would cause a riot. Diversity in the people reflected in the diversity of the Congress renders that group’s interest in privileging one group unlikely. Federal regulation of Senate elections does not involve place, so has no power to mischief. The classes which might be privileged by such a process are themselves too diverse to warrant national interest, and would be better applying themselves to controlling local elections. Agricultural interests, which will naturally dominate the membership of Congress, will not step on themselves, and have no vested interest in stepping on commercial interests. The idea that some aristocracy would profit from such controls wants for the controls themselves to have any beneficial effect for the aristocracy. Finally, only military intervention would enable useful control anyway, which intervention would amount to a kind of martial law whose use would surely be put to much more important ends.

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The Federalist No.61

Some object that the constitution does not require voters to vote in the county in which they live. This seems of little consequence either way, but state constitutions provide great latitude regarding place, and there seems to be no reason to suppose they have sacrificed the people’s liberty in so doing. On a positive note, the constitution provides a service in requiring elections in each state at the same time. It is not a disadvantage that the constitution does not specify a specific date; whatever date may have been proposed may have been found wanting, now or later, and changing it by amendment would be difficult, the date having no theoretical importance.

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The Federalist No. 62

The Senate imposes higher qualifications for Senators, justified by more mature demands, including foreign policy. Appointment by state legisltures was a compromise, but it likely improves selection and links state and federal authorities together. Two per state was also a compromise, the best available considering; even the large states benefit to the extent that the compromise promotes state power. Two houses with different forms of representation on balance produce better and more deliberate (slow) laws. Two houses double the security against legislative abuses and raise barriers to temporary impulses and violent passions any one house will from time to time succumb to. Longer terms minimize legislative errors—the most common form of government blunder (from the head not the heart)—improves capabilities to govern well, and adds stability to the statute rolls. Inconsistency in government leads to foreign distrust and exploitation. A collection of voluminous and impenetrable laws by that fact alone poisons liberty, creates harm to private initiatives dependent upon public policy, and destroys the people’s confidence in their own government.

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The Federalist No. 63

1. The Senate creates a sense of national character, which is necessary to our esteem to other nations, which in turn augments their interest in working with us and even helping us in our own moments of trial. Building a national character requires a smaller and durable body. 2. Paradoxically, longer terms also promote responsibility to the people. Governments take on short-term and long-term projects. If the project extends significantly beyond the term of the agency, they cannot hold interest in its progress. A second legislative body with much longer terms gives both perspectives a play. Longer terms also filter the transient passions of the shorter-term body. 3. Also paradoxically, a republic extended over a great territory minimizes the power of factions, but also extends their duration. Older systems of representative senates, some with life terms, were effective at controlling factions. 4. While liberties are more endangered in America by abuses of liberty than abuses of government, we can nevertheless say that a Senate growing into tyranny from its indirect appointment and long term is obviated by its presence in a complete chain of governance the entire of which must be corrupted for the Senate to have effective corruption. The House will in the end control anyway. (Last Madison Paper)

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The Federalist No. 64

Treaties are most effectively lodged within a representative government in its most durable and qualified reaches, hence in those departments indirectly elected by selected committees or state legislatures. The longer and staggered terms of the President and Senate enable them to acquire the knowledge and skills international treaty making requires, which must be cautiously formed and steadily pursued. As secrecy is often required, it is sensible that the President negotiate treaties, the Senate only asked to advise and consent. Treaties have the power of law, as all acts of any branch of government has the power of law; where this not so, no one would conclude a treaty with us. The nature of the presidency and the Senate assures the highest level of responsibility and accountability, and makes corruption virtually impossible.

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The Federalist No. 65

As impeachments arise from political crimes, they are best tried in a body as removed from political intrigue as possible, suggesting a body indirectly elected and of enough size to mitigate personal animosities, hence the Senate. Impeachment in the House and trial in the Senate conforms to the British model and that of several states. The Supreme Court is too small and removed to be effective, and may well be the court of last resort for any convictions an impeached civil servant may suffer outside impeachment (which only casts the criminal out of office). Combining the Court and the Senate does not solve that problem, but some effect is gained by having the Chief Justice preside at impeachment trials. An ad hoc impeachment committee would have to look like the Senate, which would be both expensive and in the end unaccountable for its actions. However, objections to the constitution’s impeachment provisions do not rise to an indictment of the whole. No constitution will be free of defects; opponents must oppose the whole, not rest their case on a fragment.

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The Federalist No. 66

Lodging impeachment in the legislature, with both houses involved, is a valid application of intermixed branches, and the greatest barrier to abuse. It is illogical to cumulate the three special powers of the Senate, each of which is justified, to a claim of aristocratic influence. Forget not that the House is the superior organ of government, always acting aa a final check on the Senate, particularly considering their unique powers of originating spending bills, instituting impeachments, and settling presidential elections when electors fail to achieve a majority. As the Senate does not have the power to choose those appointed by the President, but only confirms, it is unlikely that they would from that fact alone have unnatural biases in an accused favor. Should a treaty reached through corruption be the cause of impeachment, the Senate as a whole, or its two-thirds majority, is exempt from prosecution by a constitutional provision valid in all constitutions, and its sense of betrayal would mitigate any tendencies to pardon an accused senator or executive officer who promulgated a corrupt treaty.

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The Federalist No. 67

The Papers now turn to the Executive branch. This branch may have been the most difficult to configure, but has also attracted the most venomous and irresponsible criticisms, which shall require in reply a careful disquisition of the office and its powers. Some have rashly compared the office to those of kings and potentates, opulent and given to the pomp of majesty. An example of the great length opponents seem willing to go is radical misconstruction of the constitution itself. Some author has acquired fame (Cato in his essay number V) by accusing the constitution of giving the President the power to fill vacancies in the Senate, when the language of the Constitution clearly limits that power to state governors, giving the President only the power to fill vacancies in offices for which the Senate must confirm nominations when the Senate is in recess. Shame, Shame, Shame.

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The Federalist No. 68

The manner of appointing a President is optimum, as it reflects the people’s choice yet provides the best chance to name someone with the best ability and virtue for the office without corruption or foreign influence. An indirect election also limits the tumult a popular election would engender. Electing the Vice President the same way is justified by his role as President of the Senate but only voting to break ties, and the chance he will be required to discharge the duties of the President in emergencies.

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The Federalist No. 69

This paper is a recital of the powers of the President as given in the Constitution, with each power shown to be less than the comparable power of the King of England, and often equal to or less than the comparable power of state governors. There is no reasonable construction on this office that would merit the name of aristocracy, monarchy, or despotism.

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The Federalist No. 70

Despite some legitimate concerns, a republican government requires a strong chief executive. The ingredients are unity, duration, support, and competent powers. This essay deals with unity. The safety and functioning of a republic depend upon a single executive rather than a plural executive or an executive oversight council. By contrast, the legislature must have large enough numbers to prevent internal abuse, and operate slowly, allowing its dissentions to force delay and more deliberation. The former excels regarding speed and quality of decision and execution of those decisions, is less easily compromised by internal dissensions, may be made more accountable and thus more easily controlled by the people, by removal if necessary, is less susceptible to corruption and abuse, and even if corrupt is less powerfully so than a cabal, and a plural executive is too expensive.

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The Federalist No. 71

The President must be given tenure of sufficient length to assure his commitment to the office and time to enact his agenda. A longer term also enables a President to filter out the periodic turbulence of the people, who are excitable and can operate at variance to their own best interests. The President must also be independent of the legislature, for which a longer term provides some security. An optimum term suiting all requirements is not likely to be found, but four years seems long enough to permit effective and committed action on the part of the President without his actions creating insuperable dangers to the people.

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The Federalist No. 72

Given the propensity of new administrations to replace all key officers of the administration, a longer term conduces to greater stability. As long as the people are satisfied, the President should be allowed to remain in office. Term limits have some superficial appeal, but on consideration are ill-founded. The prospect of continuing in office will realize the best from the President. Forcing him out will encourage corruption and self-dealing. An ambitious man will attempt to keep power in other ways, impairing the integrity of government itself. Term limits deprive the office of accumulated experience, and may remove a man crucial to a circumstance at just the wrong moment. Term limits would also force alterations in policy when none were needed. Even partial exclusions would have the same effect. Annoying the people by removing a popular President might be more insecure than requiring the people to choose a new one every so often.

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The Federalist No. 73

Fixing the President’s income for his term is an effective means of denying Congress the power of his income as a form of influence. The qualified veto power of the President maintains the separation of the executive from the legislative branch, and erects barriers to legislative abuse and control by factions. It allows the President to protect himself, offers another voice in legislation which will avert hasty or corrupt decisions, and adds weight to a desirable slowness in new legislation, adding stability to government. As with the king of England, the President cannot afford to use the veto power more often than he feels is necessary without severing the good will required between himself and Congress. The greater danger may be using the power too little. But the qualified veto system both encourages and limits use, creating suitable boundaries on a necessary and effective tool for effective governance. Even opponents from New York have seen how well the New York system has worked, and become advocates. The federal system follows Massachusetts rather than New York because the New York system blurs the line between the judicial and executive branches

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The Federalist No. 74

Naming a single person, the President, as commander-in-chief, brooks little argument, as the direction of war requires a common strength, best placed in a single hand. The presidential power to require opinions in writing is likely redundant with necessity and has engendered no complaints. The presidential power to pardon is also necessary to avert specific injustices, and in the hands of one person rather than a committee has the best chance of avoiding influence and abuse. The power to pardon treasons also belongs in presidential hands, even though a case can be made for legislative involvement, in particular because a pardon may be necessary to still a local rebellion, which the president may grant immediately, but the dilatory process of Congress may let the opportunity disastrously slip away.

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The Federalist No. 75

Complaints against the constitution’s treaty provisions vary from those wanting the President alone to negotiate and confirm, to those wanting the Senate alone to negotiate and confirm, plus those wanting the House involved. Treaties are neither law nor the execution of the law, a hybrid that should have the involvement of both branches. The President alone, with a four-year term, cannot have believable staying power; the Senate, as a large agency, cannot have reliable powers of representation. The short terms and large numbers in the House, plus the addition of a third entity to the process, makes it undesirable as a party. The two-thirds rule, problematic in the sense that it implies minority rule, should nevertheless be operative over members present rather than the whole or a stipulated quorum, both of which add problems to a problem.

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The Federalist No. 76

Granting the President the sole power to nominate ambassadors and other public ministers assures optimum selections compared to nominations from the people or from committees, the former too removed and uninformed, the latter too subject to secondary considerations and internal negotiations compared to real qualifications. Requiring the Senate to approve such appointments, but at the same time precluding the Senate from nominations themselves, pressures the President to offer the best, least self-serving choice. The entire mechanism combined with human nature limits the power the President may have over the Senate regarding his nominations.

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The Federalist No. 77

Senate approval of presidential appointments will add stability to government. The process favors neither the President nor the Senate regarding the prospect of undue influence. The new constitution’s plan, of Senate approval of key executive officers, is far superior to the New York process of a council, with the governor a guaranteed member. Any such council is a magnet for corruption and intrigue. Adding the House as an approving body makes no sense given its flux and size. The residual duties of the President—state of the union address, convening Congress in emergencies, receiving ambassadors, faithfully executing the laws, and commissioning officers—have excited little controversy. The combined constraints on the President offer adequate guards against abuse.

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The Federalist No. 78

A federal judiciary is not in dispute; it remains to argue its form of construction and extent. The mode of appointing judges has been discussed. Life tenure is a barrier to encroachments by the legislature and secures steady, upright, and impartial administration of the laws, particularly valuable as the judiciary is the weakest branch. As the Constitution imposes limitations on the Congress, the judiciary must have the power to review congressional acts relative to the Constitution. Any act contrary to the Constitution must be void; otherwise the Congress becomes superior to the Constitution. The Constitution did not give the power of review to the Congress; hence it must reside in an independent body, the Supreme Court. When deciding between conflicting laws, the practice favors the most recently enacted; but when a conflict concerns two instruments, the superior instrument must prevail. Life tenure provides the highest assurance of judicial independence, a benefit to safeguard minority rights granted in the Constitution from temporary violations by a majority in the community or in Congress, and against the occasional unjust law which may not itself violate the Constitution. Life tenure also creates immunity to corruption and enables jurists to comprehend the complexity and volume of the civil code which they must master to be effective.

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The Federalist No. 79

As power over a man’s income is power over his will, the incomes of Court justices must be as independent as possible from the Congress, which sets salaries. The constitution’s provision, of a fixed lower bound but no upper bound during term of service works. As judges serve for life, they are entitled to raises as general economic circumstances affect real income. Impeachment provides the public’s recourse for judicial misbehavior in office. Any other form of accountability must in the application be more arbitrary and perhaps mischievous than a sensible assessment of justice or the public good. The New York system of dismissing judges at age 60 is both unwarranted and cruel, throwing public servants into the cold without provisions when they are least able to find alternatives

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The Federalist No. 80

Any federal court should address five general categories of disputes or cases: (1) arising from the laws of the United States; (2) arising from the Constitution itself; (3) between the United States and a state or citizen of a state; (4) between two or more states or any individual state and another nation, or any individual in one state and another state, or individuals in different states; (5) maritime and admiralty disputes. The Constitution clearly provides for all of these. Issues at equity will also arise in any of these circumstances which require a federal tribunal as much as issues at law.

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The Federalist No. 81

“The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.”

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The Federalist No. 82

It will take time to mature any new government combining and retaining distinct sovereign units. An issue in such maturation is exclusive or concurrent court jurisdictions. States retain all pre-existing authorities not expressly abridged by the new constitution. As states are not exempt from federal jurisdictions, the constitution supports concurrent jurisdictions for causes falling within the ambit of federal cognizance, either pre-existing or new. As any judicial system must be seen as a whole, causes within concurrent jurisdictions tried by a state court can be appealed to the Supreme Court, or any federal inferior court if the Congress so orders.

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The Federalist No. 83

Silence in the Constitution regarding trial by jury for civil cases does not imply prohibition; it means no more than the question is for the legislature, which can require them or not. For silence to prohibit trial by jury would violate the rule of enumerated powers, which deprives anybody of positive or negative powers outside those specified. Our liberties are generally served by restrictions such as habeas corpus and mandatory jury trials on criminal cases. The preponderance of civil cases will arise in state courts anyway, which are not affected by the Constitution. It is all but impossible to find a uniform notion of the exact arrangements of civil cases which could be amenable to jury trials—some clearly are not, and the states have a diverse array of court organizations. Good government depends upon the general character of the government rather than any particular provision anyway.

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The Federalist No. 84

This penultimate paper takes up four issues. The absence of a Bill of Rights is defended on grounds that the Constitution contains the crucial rights in its body or is itself a declaration of citizen rights, enforced through self-regulation and limitations; any additional limitations would arrogate to the federal establishment powers not granted it by the Constitution itself, hence would abrogate the principal of enumerated powers. The putative remoteness of the federal government will not confound popular knowledge, for such knowledge will be available in the same forms serving state governments, and state governments acting in natural sentinel capacities will ensure information access to federal operations to an extent likely greater than they are willing to divulge on their own. The Constitution will not dissolve state debts; it is an accepted rule that states neither lose their rights nor discharge their debts by a change in form. Finally, expenses of the new government will likely increase, but with compensatory reductions elsewhere, and in some ways the total of federal and state government will be more efficient than the government under the articles, minimizing the added costs.

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The Federalist No. 85

The two topics not covered explicitly—the analogy with the constitution of New York and the degree to which the new constitution secures personal liberty—have been covered in the interstices so thoroughly that no more words are needed. Relative to the New York constitution, many deficiencies claimed for the new federal constitution by New Yorkers also obtain in the New York constitution.  Personal liberty derives from the inherent limitations and constraints of the federal establishment under the proposed constitution.  After once again assailing his opponents for vicious motives and declaring his own innocence of such motives, Hamilton addresses the vexed question of amendments before ratification.  Prior amendments would be very difficult to achieve in a new convention, that new amendments would only require nine states to approve whereas a new constitution requires all states to approve (if all states approve), and that individual amendments would be easier to approve than a wholesale revision of the document itself.  Finally, time and experiece must be obliged to find and revise infirmities in the present admittedly imperfect document, though it be the best every written by man.

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