1787 Federalist 39 · Founding Made Plain

11787 Federalist No. 39

2The Conformity of the Plan

3to Republican Principles

4For the Independent Journal.

5MADISON

6To the People of the State of New York:

7THE last paper having concluded the observations

8 which were meant to introduce a candid survey

9 of the plan of government

10 reported by the convention,

11 we now proceed to the execution

12 of that part of our undertaking.

13The first question that offers itself is,

14 whether the general form and aspect

15 of the government be strictly republican.

16It is evident that no other form

17 would be reconcilable

18 with the genius of the people of America;

19 with the fundamental principles

20 of the Revolution;

21 or with that honorable determination

22 which animates every votary of freedom,

23 to rest all our political experiments

24 on the capacity of mankind for self-government.

25If the plan of the convention, therefore,

26 be found to depart from the republican character,

27 its advocates must abandon it

28 as no longer defensible.

29What, then, are the distinctive characters

30 of the republican form?

31Were an answer to this question to be sought,

32 not by recurring to principles,

33 but in the application of the term

34 by political writers,

35 to the constitution of different States,

36 no satisfactory one would ever be found.

37Holland, in which no particle

38 of the supreme authority is derived from the people,

39 has passed almost universally

40 under the denomination of a republic.

41The same title has been bestowed on Venice,

42 where absolute power over the great body

43 of the people is exercised,

44 in the most absolute manner,

45 by a small body of hereditary nobles.

46Poland, which is a mixture of aristocracy

47 and of monarchy in their worst forms,

48 has been dignified with the same appellation.

49The government of England,

50 which has one republican branch only,

51 combined with an hereditary aristocracy

52 and monarchy,

53 has, with equal impropriety,

54 been frequently placed on the list of republics.

55These examples,

56 which are nearly as dissimilar to each other

57 as to a genuine republic,

58 show the extreme inaccuracy

59 with which the term has been used

60 in political disquisitions.

61If we resort for a criterion

62 to the different principles

63 on which different forms of government

64 are established,

65 we may define a republic to be,

66 or at least may bestow that name on,

67 a government which derives all its powers

68 directly or indirectly

69 from the great body of the people,

70 and is administered by persons

71 holding their offices during pleasure,

72 for a limited period,

73 or during good behavior.

74It is ESSENTIAL to such a government

75 that it be derived from the great body

76 of the society,

77 not from an inconsiderable proportion,

78 or a favored class of it;

79 otherwise a handful of tyrannical nobles,

80 exercising their oppressions

81 by a delegation of their powers,

82 might aspire to the rank of republicans,

83 and claim for their government

84 the honorable title of republic.

85It is SUFFICIENT for such a government

86 that the persons administering it be appointed,

87 either directly or indirectly, by the people;

88 and that they hold their appointments

89 by either of the tenures just specified;

90 otherwise every government in the United States,

91 as well as every other popular government

92 that has been or can be well organized

93 or well executed,

94 would be degraded

95 from the republican character.

96According to the constitution of every State

97 in the Union,

98 some or other of the officers of government

99 are appointed indirectly only by the people.

100According to most of them,

101 the chief magistrate himself is so appointed.

102And according to one,

103 this mode of appointment is extended

104 to one of the co-ordinate branches

105 of the legislature.

106According to all the constitutions, also,

107 the tenure of the highest offices

108 is extended to a definite period,

109 and in many instances,

110 both within the legislative

111 and executive departments,

112 to a period of years.

113According to the provisions

114 of most of the constitutions, again,

115 as well as according to the most respectable

116 and received opinions on the subject,

117 the members of the judiciary department

118 are to retain their offices

119 by the firm tenure of good behavior.

120On comparing the Constitution

121 planned by the convention

122 with the standard here fixed,

123 we perceive at once

124 that it is, in the most rigid sense,

125 conformable to it.

126The House of Representatives,

127 like that of one branch at least

128 of all the State legislatures,

129 is elected immediately

130 by the great body of the people.

131The Senate, like the present Congress,

132 and the Senate of Maryland,

133 derives its appointment indirectly from the people.

134The President is indirectly derived

135 from the choice of the people,

136 according to the example in most of the States.

137Even the judges, with all other officers of the Union,

138 will, as in the several States,

139 be the choice, though a remote choice,

140 of the people themselves,

141 the duration of the appointments

142 is equally conformable to the republican standard,

143 and to the model of State constitutions

144The House of Representatives is periodically elective,

145 as in all the States;

146 and for the period of two years,

147 as in the State of South Carolina.

148The Senate is elective,

149 for the period of six years;

150 which is but one year more

151 than the period of the Senate of Maryland,

152 and but two more than that

153 of the Senates of New York and Virginia.

154The President is to continue in office

155 for the period of four years;

156 as in New York and Delaware,

157 the chief magistrate is elected for three years,

158 and in South Carolina for two years.

159In the other States the election is annual.

160In several of the States, however,

161 no constitutional provision is made

162 for the impeachment of the chief magistrate.

163And in Delaware and Virginia

164 he is not impeachable till out of office.

165The President of the United States

166 is impeachable at any time

167 during his continuance in office.

168The tenure by which the judges

169 are to hold their places,

170 is, as it unquestionably ought to be,

171 that of good behavior.

172The tenure of the ministerial offices generally,

173 will be a subject of legal regulation,

174 conformably to the reason of the case

175 and the example of the State constitutions.

176Could any further proof be required

177 of the republican complexion of this system,

178 the most decisive one might be found

179 in its absolute prohibition of titles of nobility,

180 both under the federal

181 and the State governments;

182 and in its express guaranty

183 of the republican form to each of the latter.

184"But it was not sufficient,"

185 say the adversaries of the proposed Constitution,

186 "for the convention to adhere

187 to the republican form.

188They ought, with equal care,

189 to have preserved the FEDERAL form,

190 which regards the Union as a CONFEDERACY

191 of sovereign states;

192 instead of which, they have framed

193 a NATIONAL government,

194 which regards the Union as a CONSOLIDATION

195 of the States."

196And it is asked by what authority

197 this bold and radical innovation was undertaken?

198The handle which has been made of this objection

199 requires that it should be examined

200 with some precision.

201Without inquiring into the accuracy

202 of the distinction

203 on which the objection is founded,

204 it will be necessary to a just estimate

205 of its force,

206 first, to ascertain the real character

207 of the government in question;

208 secondly, to inquire how far the convention

209 were authorized to propose such a government;

210 and thirdly, how far the duty they owed

211 to their country

212 could supply any defect of regular authority.

213First.

214In order to ascertain the real character

215 of the government,

216 it may be considered in relation

217 to the foundation on which it is to be established;

218 to the sources from which its ordinary powers

219 are to be drawn;

220 to the operation of those powers;

221 to the extent of them;

222 and to the authority

223 by which future changes in the government

224 are to be introduced.

225On examining the first relation,

226 it appears, on one hand,

227 that the Constitution is to be founded

228 on the assent and ratification

229 of the people of America,

230 given by deputies elected

231 for the special purpose;

232 but, on the other,

233 that this assent and ratification

234 is to be given by the people,

235 not as individuals composing one entire nation,

236 but as composing the distinct

237 and independent States

238 to which they respectively belong.

239It is to be the assent and ratification

240 of the several States,

241 derived from the supreme authority in each State,

242 the authority of the people themselves.

243The act, therefore, establishing the Constitution,

244 will not be a NATIONAL, but a FEDERAL act.

245That it will be a federal and not a national act,

246 as these terms are understood by the objectors;

247 the act of the people,

248 as forming so many independent States,

249 not as forming one aggregate nation,

250 is obvious from this single consideration,

251 that it is to result neither from the decision

252 of a MAJORITY of the people of the Union,

253 nor from that of a MAJORITY of the States.

254It must result from the UNANIMOUS assent

255 of the several States that are parties to it,

256 differing no otherwise from their ordinary assent

257 than in its being expressed,

258 not by the legislative authority,

259 but by that of the people themselves.

260Were the people regarded in this transaction

261 as forming one nation,

262 the will of the majority of the whole people

263 of the United States would bind the minority,

264 in the same manner as the majority in each State

265 must bind the minority;

266 and the will of the majority

267 must be determined either by a comparison

268 of the individual votes,

269 or by considering the will of the majority

270 of the States as evidence of the will

271 of a majority of the people

272 of the United States.

273Neither of these rules have been adopted.

274Each State, in ratifying the Constitution,

275 is considered as a sovereign body,

276 independent of all others,

277 and only to be bound by its own voluntary act.

278In this relation, then,

279 the new Constitution will, if established,

280 be a FEDERAL, and not a NATIONAL constitution.

281The next relation is,

282 to the sources from which the ordinary powers

283 of government are to be derived.

284The House of Representatives will derive its powers

285 from the people of America;

286 and the people will be represented

287 in the same proportion,

288 and on the same principle,

289 as they are in the legislature

290 of a particular State.

291So far the government is NATIONAL, not FEDERAL.

292The Senate, on the other hand,

293 will derive its powers from the States,

294 as political and coequal societies;

295 and these will be represented

296 on the principle of equality in the Senate,

297 as they now are in the existing Congress.

298So far the government is FEDERAL, not NATIONAL.

299The executive power will be derived

300 from a very compound source.

301The immediate election of the President

302 is to be made by the States

303 in their political characters.

304The votes allotted to them

305 are in a compound ratio,

306 which considers them partly

307 as distinct and coequal societies,

308 partly as unequal members of the same society.

309The eventual election, again,

310 is to be made by that branch of the legislature

311 which consists of the national representatives;

312 but in this particular act they are to be thrown

313 into the form of individual delegations,

314 from so many distinct and coequal bodies politic.

315From this aspect of the government

316 it appears to be of a mixed character,

317 presenting at least as many FEDERAL

318 as NATIONAL features.

319The difference between a federal

320 and national government,

321 as it relates to the OPERATION OF THE GOVERNMENT,

322 is supposed to consist in this,

323 that in the former the powers operate

324 on the political bodies

325 composing the Confederacy,

326 in their political capacities;

327 in the latter, on the individual citizens

328 composing the nation,

329 in their individual capacities.

330On trying the Constitution by this criterion,

331 it falls under the NATIONAL,

332 not the FEDERAL character;

333 though perhaps not so completely

334 as has been understood.

335In several cases,

336 and particularly in the trial of controversies

337 to which States may be parties,

338 they must be viewed and proceeded against

339 in their collective and political capacities only.

340So far the national countenance of the government

341 on this side seems to be disfigured

342 by a few federal features.

343But this blemish is perhaps unavoidable

344 in any plan;

345 and the operation of the government on the people,

346 in their individual capacities,

347 in its ordinary and most essential proceedings,

348 may, on the whole, designate it,

349 in this relation, a NATIONAL government.

350But if the government be national

351 with regard to the OPERATION of its powers,

352 it changes its aspect again

353 when we contemplate it

354 in relation to the EXTENT of its powers.

355The idea of a national government involves in it,

356 not only an authority over the individual citizens,

357 but an indefinite supremacy

358 over all persons and things,

359 so far as they are objects of lawful government.

360Among a people consolidated into one nation,

361 this supremacy is completely vested

362 in the national legislature.

363Among communities united for particular purposes,

364 it is vested partly in the general

365 and partly in the municipal legislatures.

366In the former case,

367 all local authorities are subordinate

368 to the supreme;

369 and may be controlled, directed, or abolished

370 by it at pleasure.

371In the latter,

372 the local or municipal authorities

373 form distinct and independent portions

374 of the supremacy,

375 no more subject, within their respective spheres,

376 to the general authority,

377 than the general authority is subject to them,

378 within its own sphere.

379In this relation, then,

380 the proposed government cannot be deemed

381 a NATIONAL one;

382 since its jurisdiction extends

383 to certain enumerated objects only,

384 and leaves to the several States

385 a residuary and inviolable sovereignty

386 over all other objects.

387It is true that in controversies

388 relating to the boundary between the two jurisdictions,

389 the tribunal which is ultimately to decide,

390 is to be established

391 under the general government.

392But this does not change the principle of the case.

393The decision is to be impartially made,

394 according to the rules of the Constitution;

395 and all the usual and most effectual precautions

396 are taken to secure this impartiality.

397Some such tribunal is clearly essential

398 to prevent an appeal to the sword

399 and a dissolution of the compact;

400 and that it ought to be established

401 under the general rather than

402 under the local governments,

403 or, to speak more properly,

404 that it could be safely established

405 under the first alone,

406 is a position not likely to be combated.

407If we try the Constitution by its last relation

408 to the authority by which amendments

409 are to be made,

410 we find it neither wholly NATIONAL

411 nor wholly FEDERAL.

412Were it wholly national,

413 the supreme and ultimate authority would reside

414 in the MAJORITY of the people of the Union;

415 and this authority would be competent at all times,

416 like that of a majority

417 of every national society,

418 to alter or abolish its established government.

419Were it wholly federal, on the other hand,

420 the concurrence of each State in the Union

421 would be essential to every alteration

422 that would be binding on all.

423The mode provided by the plan of the convention

424 is not founded on either of these principles.

425In requiring more than a majority,

426 and particularly in computing the proportion

427 by STATES, not by CITIZENS,

428 it departs from the NATIONAL

429 and advances towards the FEDERAL character;

430 in rendering the concurrence

431 of less than the whole number of States

432 sufficient,

433 it loses again the FEDERAL

434 and partakes of the NATIONAL character.

435The proposed Constitution, therefore,

436 is, in strictness,

437 neither a national nor a federal Constitution,

438 but a composition of both.

439In its foundation it is federal, not national;

440 in the sources from which the ordinary powers

441 of the government are drawn,

442 it is partly federal and partly national;

443 in the operation of these powers,

444 it is national, not federal;

445 in the extent of them, again,

446 it is federal, not national;

447 and, finally,

448 in the authoritative mode

449 of introducing amendments,

450 it is neither wholly federal

451 nor wholly national.

452PUBLIUS.