In Federalist 39, Mr. Madison examines whether the new Constitution creates a republic. Anything else, he says, would not be "reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government."
This question requires us first to figure what makes a republic. Madison notes that lots of nations are called "republics," but they don't seem to have much in common. One characteristic Madison thinks must apply to a republic is that it "derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." No nation in those days derived its power from all the people, but, as Madison notes, this is not essential to be called a republic. So, anything that's not an absolute monarchy or a theocracy counts as republic -- I can predict already that the Constitution is going to pass muster by this loose standard.
And so, comparing the Constitution to other nations' systems, and to the state constitutions, Madison finds that all of the people elected under it are accountable, directly or indirectly, to the people. Voilà: a republic. But even with higher standards, the new nation's basic law should pass muster. For example, Madison notes that unlike those "republics" of Europe, our law prohibits titles of nobility.
He then discusses whether the republic envisioned under the Constitution is federal, as its supporters say, or national, as its detractors allege. While these words seem identical to modern Americans, at the time they were different. Madison asserts that the Constitution is quite federal, being ratified by the States, not by a national plebiscite. Further, all of the federal officials are elected by state, not in national elections (remember that the Electoral College was not yet considered a method for effecting a national election). He confesses that the Constitution has some national characteristics, like making laws that operate directly on its citizens, but says that this is unavoidable in any plan with a semblance of unity.
"The proposed Constitution," Madison concludes, "therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both." This seems altogether obvious today, to the extent that we use the words "federal" and "national" interchangeably when referring to our federal government. I guess it wasn't obvious at in 1788, but perhaps it is a success of the Constitution that 21st-century Americans can't conceive of a difference between the two.
Wednesday, February 27, 2008
Monday, February 04, 2008
The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed (No. 38)
The title of this latest Federalist Paper, while long, sounds like an exposé. Possibly, this is because it uses the word "exposed."
As with many of the Federalist Papers, in this one Madison starts with a lengthy discussion of the politics of ancient Greece. To the modern ear, this sounds tedious and not a little elitist, but the ancient Greek and Roman republics were important to our Founding fathers. For one thing, they were among the only examples of republics in human history -- to whom else would the infant republic turn for inspiration?
Here, Madison uses this history to answer one of the objections of the constitution's opponents. What is the objection? Madison doesn't say. As far as I can tell, he seems to be answering the objection that the Constitutional Convention had no authority to make a new Constitution. Madison finds the argument faulty. All the ancient Greek and Roman states had their constitutions written by one man, he writes. From where did they derive their power? Surely, if Solon and Lycurgus could write laws for Athens and Sparta, then an even more representative assembly of notables could write America's basic law.
The obvious answer is: we already had a constitution in the Articles of Confederation, and those articles contained a provision for their amendment. That provision should have been followed, the anti-Federalists said. True, Madison would say, but that provision was unworkable, since it required the agreement of all thirteen states. And it's hard to get all thirteen to agree to anything. "One State," writes Madison, "we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country." He tactfully refrains from naming this recalcitrant state, but we all know who he's taking about. Madison compares the Union under the Articles to a patient growing more and more ill, but refusing any remedy. The Union is near death, and the Constitution is its elixir.
Madison also spends an extremely long paragraph demonstrating that the Constitution's opponents all disagree with each other. His point, I believe, is "hate all you want, but you couldn't write one any better." Which, I suspect, is true, but unlikely to mollify the opposition. He also points out that it's better than what they've got. Again, true, but hardly an answer to any perceived defects. As to the question of the authority to make a new Constitution, Madison retorts that the Confederation Congress has passed the Northwest Ordinance, which divided the western lands in anticipation of admitting new states, even though nothing in the Articles gives them this power over lands that once belonged to the states. So, nothing's quite above board, and if they want to fix it, they're going to have to cut corners.
As with the Northwest Ordinance, the Constitution's authors were faced with a problem that had to be solved. They did so, and whether it followed the strictest forms of law or not, it was a solution, better than they'd had before. Is the Constitution legal? Madison doesn't say. Is it necessary? Without a doubt. And he's right -- if we'd followed the Articles, we'd still be waiting for Rhode Island to agree. They're seriously stubborn.
As with many of the Federalist Papers, in this one Madison starts with a lengthy discussion of the politics of ancient Greece. To the modern ear, this sounds tedious and not a little elitist, but the ancient Greek and Roman republics were important to our Founding fathers. For one thing, they were among the only examples of republics in human history -- to whom else would the infant republic turn for inspiration?
Here, Madison uses this history to answer one of the objections of the constitution's opponents. What is the objection? Madison doesn't say. As far as I can tell, he seems to be answering the objection that the Constitutional Convention had no authority to make a new Constitution. Madison finds the argument faulty. All the ancient Greek and Roman states had their constitutions written by one man, he writes. From where did they derive their power? Surely, if Solon and Lycurgus could write laws for Athens and Sparta, then an even more representative assembly of notables could write America's basic law.The obvious answer is: we already had a constitution in the Articles of Confederation, and those articles contained a provision for their amendment. That provision should have been followed, the anti-Federalists said. True, Madison would say, but that provision was unworkable, since it required the agreement of all thirteen states. And it's hard to get all thirteen to agree to anything. "One State," writes Madison, "we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country." He tactfully refrains from naming this recalcitrant state, but we all know who he's taking about. Madison compares the Union under the Articles to a patient growing more and more ill, but refusing any remedy. The Union is near death, and the Constitution is its elixir.
Madison also spends an extremely long paragraph demonstrating that the Constitution's opponents all disagree with each other. His point, I believe, is "hate all you want, but you couldn't write one any better." Which, I suspect, is true, but unlikely to mollify the opposition. He also points out that it's better than what they've got. Again, true, but hardly an answer to any perceived defects. As to the question of the authority to make a new Constitution, Madison retorts that the Confederation Congress has passed the Northwest Ordinance, which divided the western lands in anticipation of admitting new states, even though nothing in the Articles gives them this power over lands that once belonged to the states. So, nothing's quite above board, and if they want to fix it, they're going to have to cut corners.
As with the Northwest Ordinance, the Constitution's authors were faced with a problem that had to be solved. They did so, and whether it followed the strictest forms of law or not, it was a solution, better than they'd had before. Is the Constitution legal? Madison doesn't say. Is it necessary? Without a doubt. And he's right -- if we'd followed the Articles, we'd still be waiting for Rhode Island to agree. They're seriously stubborn.
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