On the Republican Form

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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