1801 Examination 15 · Founding Made Plain

1THE EXAMINATION.

2Number XV.

3[New York, March 3, 1802]

4It is generally understood

5 that the Essays

6 under the Title of the Federalist,

7 which were published at New York,

8 while the plan

9 of our present Federal Constitution

10 was under the consideration

11 of the people,

12 were principally written by two persons*

13 who had been members

14 of the Convention

15 which devised that plan,

16 and whose names are subscribed

17 to the instrument containing it.

18In these Essays†

19 the principles advanced

20 in the last number

21 of this Examination

22 are particularly stated

23 and strongly relied upon

24 in defence of the proposed Constitution;

25 from which it is a natural inference

26 that they had influenced the views

27 with which the plan was digested.

28The full force of this observation

29 will be best perceived

30 by a recurrence to the work itself;

31 but it will appear clearly enough

32 from the following detached passages.

33"One of the principal objections

34 inculcated

35 by the more respectable adversaries

36 to the Constitution,

37 is its supposed violation

38 of the political maxim

39 that the Legislative, Executive

40 and Judiciary Departments

41 ought to be separate and distinct."

42"No political truth

43 is certainly of greater intrinsic value,

44 or is stamped with the authority

45 of more enlightened patrons of liberty,

46 than that on which the objection

47 is founded.

48The accumulation of all power,

49 Legislative, Executive, and Judiciary,

50 in the same hands,

51 whether of one, a few, or many;

52 whether hereditary,

53 self appointed or elective,

54 may justly be pronounced

55 the very definition of tyranny."‡

56"Neither of the three departments

57 ought to possess

58 directly or indirectly

59 an overruling influence over the others

60 in the administration

61 of their respective powers."

62"But the most difficult task

63 is to provide some practical security

64 for each,

65 against the invasion of the others.

66Experience assures us

67 that the efficacy of parchment barriers

68 has been greatly overrated,

69 and that some more adequate defence

70 is indispensably necessary

71 for the more feeble

72 against the more powerful members

73 of the government.

74The legislative department

75 is every where extending

76 the sphere of its activity,

77 and drawing all power

78 into its impetuous vortex."

79"In a representative republic,

80 where the executive magistracy

81 is carefully limited,

82 both in the extent

83 and the duration of its power;

84 and where the legislative power

85 is exercised by an assembly,

86 which is inspired

87 by a supposed influence over the people

88 with an intrepid confidence

89 in its own strength;

90 which is sufficiently numerous

91 to feel all the passions

92 which actuate a multitude;

93 yet not so numerous

94 as to be incapable of pursuing

95 the objects of its passions

96 by means which reason prescribes;

97 it is against

98 the enterprising ambition

99 of this department,

100 that the people ought to indulge

101 all their jealousy

102 and exhaust all their precaution."

103Again,

104 "The tendency of republican governments

105 is to an aggrandizement

106 of the legislative

107 at the expense

108 of the other departments."

109These passages recognize,

110 as a fundamental maxim

111 of free government,

112 that the three departments of power

113 ought to be separate and distinct;

114 consequently that neither of them

115 ought to be able to exercise,

116 either directly or indirectly,

117 an overruling influence

118 over any other.

119They also recognize as a truth,

120 indicated by the nature of the system

121 and verified by experience,

122 that in a representative republic,

123 the legislative department

124 is the "AARON'S ROD"

125 most likely to swallow up the rest,

126 and therefore to be guarded against

127 with particular care and caution:

128 and they inculcate

129 that parchment barriers

130 (or the formal provisions

131 of a Constitution

132 designating the respective boundaries

133 of authority),

134 having been found ineffectual

135 for protecting the more feeble,

136 against the more powerful members

137 of the government,

138 some more adequate defence,

139 some practical security,

140 is necessary.

141What this was intended to be,

142 will appear from subsequent passages.

143"To what expedient shall we finally resort

144 for maintaining in practice

145 the necessary partition of power

146 among the several departments

147 as laid down in the Constitution?"

148"As all exterior provisions

149 are found to be inadequate,

150 the defect must be supplied

151 by so contriving

152 the interior structure

153 of the government,

154 as that its several constituent

155 departments may,

156 by their mutual relations,

157 be the means of keeping each other

158 in their proper places."§

159These passages intimate

160 the "practical security"

161 which ought to be adopted

162 for the preservation

163 of the weaker

164 against the stronger members

165 of the government.

166It is so to be contrived

167 in its interior structure

168 that the constituent organs

169 may be able to keep each other

170 in their proper places;

171 an idea essentially incompatible

172 with that of making the existence

173 of one dependent

174 on the will of another.

175It will be seen afterwards,

176 how this structure is to be so contrived.

177"In order to lay a foundation

178 for that separate and distinct exercise

179 of the different powers of government,

180 which, to a certain extent,

181 is admitted on all hands

182 to be essential

183 to the preservation of liberty,

184 it is evident

185 that each department

186 should have a will of its own;

187 and consequently should be so constituted,

188 that the members of each

189 should have as little agency as possible

190 in the appointment

191 of the members of the others.

192This principle rigorously adhered to,

193 would require

194 that all the appointments

195 for the several departments

196 should be drawn

197 from the same fountain of authority,

198 the people."

199But in the constitution

200 of the judiciary department,

201 it might be inexpedient

202 to insist rigorously on the principle;

203 first, because peculiar qualifications

204 being essential in the members,

205 the primary consideration

206 ought to be to select that mode of choice,

207 which best secures these qualifications;

208 secondly, because the permanent tenure

209 by which the appointments are held

210 in that department,

211 must soon destroy all sense of dependence

212 on the authority conferring them.

213"It is equally evident,

214 that the members of each department

215 should be as little dependent as possible

216 on those of the others,

217 for the emoluments

218 annexed to their offices.

219Were the Executive Magistrate

220 or the judges

221 not independent of the legislature

222 in this particular,

223 their independence in every other

224 would be merely nominal."

225"The great security

226 against a concentration

227 of the several powers

228 in the same department,

229 consists in giving

230 to those who administer

231 each department

232 the necessary constitutional means

233 and personal motives

234 to resist encroachments

235 of the others."

236"But it is not possible

237 to give to each department

238 an equal power of self-defence.

239In republican governments

240 the legislative authority

241 necessarily predominates."

242The means held out as proper

243 to be employed,

244 for enabling the several departments

245 to keep each other

246 in their proper places, are:

247 1. To give to each such an organization

248 as will render them

249 essentially independent

250 of one another.

251 2. To secure to each a support

252 which shall not be

253 at the discretionary disposal

254 of any other.

255 3. To establish between them

256 such mutual relations of authority,

257 as will make one a check upon another,

258 and enable them reciprocally

259 to resist encroachments,

260 and confine one another

261 within their proper spheres.

262To accomplish the first end,

263 it is deemed material

264 that they should have

265 as little agency as possible

266 in the appointment of one another,

267 and should all emanate directly

268 from the same fountain of authority—

269 the people.

270And that it being expedient

271 to relax the principle,

272 in respect to the judiciary department,

273 with a view to a more select choice

274 of its organs—

275 this defect in the creation

276 ought to be remedied

277 by a permanent tenure of office;

278 which certainly becomes

279 nominal and nugatory,

280 if the existence of the office

281 rests on the pleasure

282 of the legislature.

283The principle

284 that the several organs

285 should have as little agency as possible

286 in the appointment of each other,

287 is directly opposed

288 to the claim in favor of one

289 of a discretionary agency

290 to destroy another.

291The second of the proposed ends

292 is designed to be effected

293 by the provisions

294 for fixing the compensations

295 of the executive

296 and judicial departments.

297The third,

298 by the qualified negative

299 of the executive

300 on the acts of the two houses

301 of Congress;

302 by the right of one of these houses

303 to accuse;

304 of the other to try and punish

305 the executive and judicial officers;

306 and lastly,

307 by the right of the judges,

308 as interpreters of the laws,

309 to pronounce unconstitutional acts void.

310These are the means

311 contemplated by the Constitution

312 for maintaining the limits

313 assigned to itself,

314 and for enabling

315 the respective organs

316 of the government

317 to keep each other

318 in their proper places,

319 so that they may not have it

320 in their power

321 to domineer

322 the one over the other,

323 and thereby in effect,

324 though not in form,

325 to concentrate the powers

326 in one department,

327 overturn the government,

328 and establish a tyranny.

329Unfortunate,

330 if these powerful precautions

331 shall prove insufficient

332 to accomplish the end,

333 and stem the torrent

334 of the impostor INNOVATION,

335 disguised in the specious garb

336 of patriotism!

337The views which prevailed

338 in the formation of the Constitution

339 are further illustrated

340 by these additional comments

341 from the same source.||

342"As liberty can have nothing to fear

343 from the judiciary alone,

344 but would have every thing to fear

345 from its union

346 with either of the other departments;

347 as all the effects of such a union

348 must ensue

349 from a dependence of the former

350 on the latter,

351 notwithstanding a nominal

352 and apparent separation;

353 as from the natural feebleness

354 of the judiciary,

355 it is in continual jeopardy

356 of being overpowered, awed

357 or influenced

358 by its co-ordinate branches;

359 and as nothing can contribute

360 so much to its firmness

361 and independence

362 as permanency in office,

363 this quality may therefore

364 be justly regarded

365 as an indispensable ingredient

366 in its Constitution;

367 and in a great measure

368 as the citadel of the public justice

369 and the public security."

370"The complete independence

371 of the courts of justice

372 is peculiarly essential

373 in a limited Constitution.

374Limitations can be preserved in practice

375 no other way,

376 than through the medium

377 of the courts of justice,

378 whose duty it must be

379 to declare all acts

380 contrary to the manifest tenor

381 of the Constitution void."

382Then follows a particular discussion

383 of the position,

384 that it is the right and the duty

385 of the courts

386 to exercise such an authority:

387 to repeat which,

388 would swell this number

389 to an improper size.

390The essence of the argument is,

391 that every act of a delegated authority,

392 contrary to the tenor

393 of the commission

394 under which it is exercised,

395 is void;

396 consequently that no legislative act,

397 inconsistent with the Constitution,

398 can be valid.

399That it is not a natural presumption

400 that the Constitution intended

401 to make the legislative body

402 the final and exclusive judges

403 of their own powers;

404 but more rational to suppose

405 that the courts were designed

406 to be an intermediate body

407 between the people

408 and the legislature,

409 in order, among other things,

410 to keep the latter

411 within the bounds

412 assigned to its authority:

413 that the interpretation of the laws

414 being the peculiar province

415 of the courts,

416 and a Constitution being in fact

417 a fundamental law,

418 superior in obligation to a statute,

419 if the Constitution and the statute

420 are at variance,

421 the former ought to prevail

422 against the latter;

423 the will of the people

424 against the will of the agents;

425 and the judges ought

426 in their quality

427 of interpreters of the laws,

428 to pronounce and adjudge the truth,

429 namely, that the unauthorized statute

430 is a nullity.

431"Nor (continues the commentator)

432 does this conclusion by any means

433 suppose a superiority

434 of the judicial

435 to the legislative power.

436It only supposes

437 that the power of the people

438 is superior to both;

439 and that where the will

440 of the legislature

441 declared in its statute,

442 stands in opposition

443 to that of the people

444 declared in the Constitution,

445 the judges ought to be governed

446 by the latter,

447 rather than the former.

448They ought to regulate their decisions

449 by the fundamental laws,

450 rather than by those

451 which are not fundamental."

452"If, then, the courts of justice

453 are to be considered

454 as the bulwarks

455 of a limited Constitution

456 against legislative encroachments,

457 this consideration will afford

458 a strong argument

459 for the permanent tenure

460 of judicial offices."

461But no proposition

462 can be more manifest

463 than that this permanency of tenure

464 must be nominal,

465 if made defeasible

466 at the pleasure of the legislature;

467 and that it is ridiculous

468 to consider it as an obstacle

469 to encroachments

470 of the legislative department,

471 if this department has a discretion

472 to vacate or abolish it

473 directly or indirectly.

474In recurring to the comments

475 which have been cited,

476 it is not meant to consider them

477 as evidence of any thing

478 but of the views

479 with which the Constitution

480 was framed.

481After all, the Instrument

482 must speak for itself.

483Yet, to candid minds,

484 the cotemporary explanation of it,

485 by men, who had had

486 a perfect opportunity

487 of knowing the views of its framers,

488 must operate

489 as a weighty collateral reason

490 for believing the construction

491 agreeing with this explanation

492 to be right,

493 rather than the opposite one.

494It is too cardinal a point,

495 to admit readily the supposition

496 that there was misapprehension;

497 and whatever motives

498 may have subsequently occurred

499 to bias the impressions

500 of the one or the other

501 of the persons alluded to,

502 the situation in which they wrote,

503 exempts both

504 from the suspicion

505 of an intention to misrepresent

506 in this particular.

507Indeed a course of argument

508 more accommodating

509 to the objections

510 of the adversaries

511 of the Constitution

512 would probably have been preferred

513 as most politic,

514 if the truth, as conceived at the time,

515 would have permitted a modification.

516Much trouble would have been avoided

517 by saying,

518 "The legislature will have

519 a complete control over the judges,

520 by the discretionary power

521 of reducing the number

522 of those of the Supreme Court,

523 and of abolishing the existing judges

524 of the inferior courts,

525 by the abolition

526 of the courts themselves."

527But this pretension

528 is a novelty reserved

529 for the crooked ingenuity

530 of after discoveries.

531Lucius Crassus.

532New-York Evening Post, March 3, 1802.

533* James Madison, now Secretary of State.

534 Alexander Hamilton,

535 formerly Secretary of the Treasury.

536† Particularly Nos. xlvii. to li. inclusive,

537 and Nos. lxxviii. to lxxxii. inclusive.

538‡ No. xlvii.

539§ No. li.

540|| No. lxxviii.