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Is it an unreasonable conjecture, that the errors which may be contained
in the plan of the convention are such as have resulted rather from the
defect of antecedent experience on this complicated and difficult
subject, than from a want of accuracy or care in the investigation of
it; and, consequently such as will not be ascertained until an actual
trial shall have pointed them out? This conjecture is rendered probable,
not only by many considerations of a general nature, but by the
particular case of the Articles of Confederation. It is observable that
among the numerous objections and amendments suggested by the several
States, when these articles were submitted for their ratification, not
one is found which alludes to the great and radical error which on
actual trial has discovered itself. And if we except the observations
which New Jersey was led to make, rather by her local situation, than by
her peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system. There is
abundant reason, nevertheless, to suppose that immaterial as these
objections were, they would have been adhered to with a very dangerous
inflexibility, in some States, had not a zeal for their opinions and
supposed interests been stifled by the more powerful sentiment of
selfpreservation. One State, 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. Nor
was her pliancy in the end effected by a less motive, than the fear of
being chargeable with protracting the public calamities, and endangering
the event of the contest. Every candid reader will make the proper
reflections on these important facts.

A patient who finds his disorder daily growing worse, and that an
efficacious remedy can no longer be delayed without extreme danger,
after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable
of administering relief, and best entitled to his confidence. The
physicians attend; the case of the patient is carefully examined; a
consultation is held; they are unanimously agreed that the symptoms are
critical, but that the case, with proper and timely relief, is so far
from being desperate, that it may be made to issue in an improvement of
his constitution. They are equally unanimous in prescribing the remedy,
by which this happy effect is to be produced. The prescription is no
sooner made known, however, than a number of persons interpose, and,
without denying the reality or danger of the disorder, assure the
patient that the prescription will be poison to his constitution, and
forbid him, under pain of certain death, to make use of it. Might not
the patient reasonably demand, before he ventured to follow this advice,
that the authors of it should at least agree among themselves on some
other remedy to be substituted? And if he found them differing as much
from one another as from his first counsellors, would he not act
prudently in trying the experiment unanimously recommended by the
latter, rather than be hearkening to those who could neither deny the
necessity of a speedy remedy, nor agree in proposing one?

Such a patient and in such a situation is America at this moment. She
has been sensible of her malady. She has obtained a regular and
unanimous advice from men of her own deliberate choice. And she is
warned by others against following this advice under pain of the most
fatal consequences. Do the monitors deny the reality of her danger? No.
Do they deny the necessity of some speedy and powerful remedy? No. Are
they agreed, are any two of them agreed, in their objections to the
remedy proposed, or in the proper one to be substituted? Let them speak
for themselves. This one tells us that the proposed Constitution ought
to be rejected, because it is not a confederation of the States, but a
government over individuals. Another admits that it ought to be a
government over individuals to a certain extent, but by no means to the
extent proposed. A third does not object to the government over
individuals, or to the extent proposed, but to the want of a bill of
rights. A fourth concurs in the absolute necessity of a bill of rights,
but contends that it ought to be declaratory, not of the personal rights
of individuals, but of the rights reserved to the States in their
political capacity. A fifth is of opinion that a bill of rights of any
sort would be superfluous and misplaced, and that the plan would be
unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly against
the unreasonable equality of representation in the Senate. An objector
in a small State is equally loud against the dangerous inequality in the
House of Representatives. From this quarter, we are alarmed with the
amazing expense, from the number of persons who are to administer the
new government. From another quarter, and sometimes from the same
quarter, on another occasion, the cry is that the Congress will be but a
shadow of a representation, and that the government would be far less
objectionable if the number and the expense were doubled. A patriot in a
State that does not import or export, discerns insuperable objections
against the power of direct taxation. The patriotic adversary in a State
of great exports and imports, is not less dissatisfied that the whole
burden of taxes may be thrown on consumption. This politician discovers
in the Constitution a direct and irresistible tendency to monarchy; that
is equally sure it will end in aristocracy. Another is puzzled to say
which of these shapes it will ultimately assume, but sees clearly it
must be one or other of them; whilst a fourth is not wanting, who with
no less confidence affirms that the Constitution is so far from having a
bias towards either of these dangers, that the weight on that side will
not be sufficient to keep it upright and firm against its opposite
propensities. With another class of adversaries to the Constitution the
language is that the legislative, executive, and judiciary departments
are intermixed in such a manner as to contradict all the ideas of
regular government and all the requisite precautions in favor of
liberty. Whilst this objection circulates in vague and general
expressions, there are but a few who lend their sanction to it. Let each
one come forward with his particular explanation, and scarce any two are
exactly agreed upon the subject. In the eyes of one the junction of the
Senate with the President in the responsible function of appointing to
offices, instead of vesting this executive power in the Executive alone,
is the vicious part of the organization. To another, the exclusion of
the House of Representatives, whose numbers alone could be a due
security against corruption and partiality in the exercise of such a
power, is equally obnoxious. With another, the admission of the
President into any share of a power which ever must be a dangerous
engine in the hands of the executive magistrate, is an unpardonable
violation of the maxims of republican jealousy. No part of the
arrangement, according to some, is more inadmissible than the trial of
impeachments by the Senate, which is alternately a member both of the
legislative and executive departments, when this power so evidently
belonged to the judiciary department. "We concur fully," reply others,
"in the objection to this part of the plan, but we can never agree that
a reference of impeachments to the judiciary authority would be an
amendment of the error. Our principal dislike to the organization arises
from the extensive powers already lodged in that department." Even among
the zealous patrons of a council of state the most irreconcilable
variance is discovered concerning the mode in which it ought to be
constituted. The demand of one gentleman is, that the council should
consist of a small number to be appointed by the most numerous branch of
the legislature. Another would prefer a larger number, and considers it
as a fundamental condition that the appointment should be made by the
President himself.

As it can give no umbrage to the writers against the plan of the federal
Constitution, let us suppose, that as they are the most zealous, so they
are also the most sagacious, of those who think the late convention were
unequal to the task assigned them, and that a wiser and better plan
might and ought to be substituted. Let us further suppose that their
country should concur, both in this favorable opinion of their merits,
and in their unfavorable opinion of the convention; and should
accordingly proceed to form them into a second convention, with full
powers, and for the express purpose of revising and remoulding the work
of the first. Were the experiment to be seriously made, though it
required some effort to view it seriously even in fiction, I leave it to
be decided by the sample of opinions just exhibited, whether, with all
their enmity to their predecessors, they would, in any one point, depart
so widely from their example, as in the discord and ferment that would
mark their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as
Lycurgus gave to that of Sparta, by making its change to depend on his
own return from exile and death, if it were to be immediately adopted,
and were to continue in force, not until a BETTER, but until ANOTHER
should be agreed upon by this new assembly of lawgivers.

It is a matter both of wonder and regret, that those who raise so many
objections against the new Constitution should never call to mind the
defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold,
because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building,
because the latter had not a porch to it, or because some of the rooms
might be a little larger or smaller, or the ceilings a little higher or
lower than his fancy would have planned them. But waiving illustrations
of this sort, is it not manifest that most of the capital objections
urged against the new system lie with tenfold weight against the
existing Confederation? Is an indefinite power to raise money dangerous
in the hands of the federal government? The present Congress can make
requisitions to any amount they please, and the States are
constitutionally bound to furnish them; they can emit bills of credit as
long as they will pay for the paper; they can borrow, both abroad and at
home, as long as a shilling will be lent. Is an indefinite power to
raise troops dangerous? The Confederation gives to Congress that power
also; and they have already begun to make use of it. Is it improper and
unsafe to intermix the different powers of government in the same body
of men? Congress, a single body of men, are the sole depositary of all
the federal powers. Is it particularly dangerous to give the keys of the
treasury, and the command of the army, into the same hands? The
Confederation places them both in the hands of Congress. Is a bill of
rights essential to liberty? The Confederation has no bill of rights. Is
it an objection against the new Constitution, that it empowers the
Senate, with the concurrence of the Executive, to make treaties which
are to be the laws of the land? The existing Congress, without any such
control, can make treaties which they themselves have declared, and most
of the States have recognized, to be the supreme law of the land. Is the
importation of slaves permitted by the new Constitution for twenty
years? By the old it is permitted forever.

I shall be told, that however dangerous this mixture of powers may be in
theory, it is rendered harmless by the dependence of Congress on the
State for the means of carrying them into practice; that however large
the mass of powers may be, it is in fact a lifeless mass. Then, say I,
in the first place, that the Confederation is chargeable with the still
greater folly of declaring certain powers in the federal government to
be absolutely necessary, and at the same time rendering them absolutely
nugatory; and, in the next place, that if the Union is to continue, and
no better government be substituted, effective powers must either be
granted to, or assumed by, the existing Congress; in either of which
events, the contrast just stated will hold good. But this is not all.
Out of this lifeless mass has already grown an excrescent power, which
tends to realize all the dangers that can be apprehended from a
defective construction of the supreme government of the Union. It is now
no longer a point of speculation and hope, that the Western territory is
a mine of vast wealth to the United States; and although it is not of
such a nature as to extricate them from their present distresses, or for
some time to come, to yield any regular supplies for the public
expenses, yet must it hereafter be able, under proper management, both
to effect a gradual discharge of the domestic debt, and to furnish, for
a certain period, liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered by individual
States; and it may with reason be expected that the remaining States
will not persist in withholding similar proofs of their equity and
generosity. We may calculate, therefore, that a rich and fertile
country, of an area equal to the inhabited extent of the United States,
will soon become a national stock. Congress have assumed the
administration of this stock. They have begun to render it productive.
Congress have undertaken to do more: they have proceeded to form new
States, to erect temporary governments, to appoint officers for them,
and to prescribe the conditions on which such States shall be admitted
into the Confederacy. All this has been done; and done without the least
color of constitutional authority. Yet no blame has been whispered; no
alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is
passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to
an INDEFINITE NUMBER, and appropriate money to their support for an
INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been
silent spectators of this prospect, but who are advocates for the system
which exhibits it; and, at the same time, urge against the new system
the objections which we have heard. Would they not act with more
consistency, in urging the establishment of the latter, as no less
necessary to guard the Union against the future powers and resources of
a body constructed like the existing Congress, than to save it from the
dangers threatened by the present impotency of that Assembly?

I mean not, by any thing here said, to throw censure on the measures
which have been pursued by Congress. I am sensible they could not have
done otherwise. The public interest, the necessity of the case, imposed
upon them the task of overleaping their constitutional limits. But is
not the fact an alarming proof of the danger resulting from a government
which does not possess regular powers commensurate to its objects? A
dissolution or usurpation is the dreadful dilemma to which it is
continually exposed.

PUBLIUS

____

FEDERALIST No. 39

The Conformity of the Plan to Republican Principles
For the Independent Journal.
Wednesday, January 16, 1788

MADISON

To the People of the State of New York:

THE last paper having concluded the observations which were meant to
introduce a candid survey of the plan of government reported by the
convention, we now proceed to the execution of that part of our
undertaking.

The first question that offers itself is, whether the general form and
aspect of the government be strictly republican. It is evident that no
other form would 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. If the plan of the convention, therefore, be found to
depart from the republican character, its advocates must abandon it as
no longer defensible.

What, then, are the distinctive characters of the republican form? Were
an answer to this question to be sought, not by recurring to principles,
but in the application of the term by political writers, to the
constitution of different States, no satisfactory one would ever be
found. Holland, in which no particle of the supreme authority is derived
from the people, has passed almost universally under the denomination of
a republic. The same title has been bestowed on Venice, where absolute
power over the great body of the people is exercised, in the most
absolute manner, by a small body of hereditary nobles. Poland, which is
a mixture of aristocracy and of monarchy in their worst forms, has been
dignified with the same appellation. The government of England, which
has one republican branch only, combined with an hereditary aristocracy
and monarchy, has, with equal impropriety, been frequently placed on the
list of republics. These examples, which are nearly as dissimilar to
each other as to a genuine republic, show the extreme inaccuracy with
which the term has been used in political disquisitions.

If we resort for a criterion to the different principles on which
different forms of government are established, we may define a republic
to be, or at least may bestow that name on, a government which 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. It is ESSENTIAL to such a
government that it be derived from the great body of the society, not
from an inconsiderable proportion, or a favored class of it; otherwise a
handful of tyrannical nobles, exercising their oppressions by a
delegation of their powers, might aspire to the rank of republicans, and
claim for their government the honorable title of republic. It is
SUFFICIENT for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that they
hold their appointments by either of the tenures just specified;
otherwise every government in the United States, as well as every other
popular government that has been or can be well organized or well
executed, would be degraded from the republican character. According to
the constitution of every State in the Union, some or other of the
officers of government are appointed indirectly only by the people.
According to most of them, the chief magistrate himself is so appointed.
And according to one, this mode of appointment is extended to one of the
co-ordinate branches of the legislature. According to all the
constitutions, also, the tenure of the highest offices is extended to a
definite period, and in many instances, both within the legislative and
executive departments, to a period of years. According to the provisions
of most of the constitutions, again, as well as according to the most
respectable and received opinions on the subject, the members of the
judiciary department are to retain their offices by the firm tenure of
good behavior.

On comparing the Constitution planned by the convention with the
standard here fixed, we perceive at once that it is, in the most rigid
sense, conformable to it. The House of Representatives, like that of one
branch at least of all the State legislatures, is elected immediately by
the great body of the people. The Senate, like the present Congress, and
the Senate of Maryland, derives its appointment indirectly from the
people. The President is indirectly derived from the choice of the
people, according to the example in most of the States. Even the judges,
with all other officers of the Union, will, as in the several States, be
the choice, though a remote choice, of the people themselves, the
duration of the appointments is equally conformable to the republican
standard, and to the model of State constitutions The House of
Representatives is periodically elective, as in all the States; and for
the period of two years, as in the State of South Carolina. The Senate
is elective, for the period of six years; which is but one year more
than the period of the Senate of Maryland, and but two more than that of
the Senates of New York and Virginia. The President is to continue in
office for the period of four years; as in New York and Delaware, the
chief magistrate is elected for three years, and in South Carolina for
two years. In the other States the election is annual. In several of the
States, however, no constitutional provision is made for the impeachment
of the chief magistrate. And in Delaware and Virginia he is not
impeachable till out of office. The President of the United States is
impeachable at any time during his continuance in office. The tenure by
which the judges are to hold their places, is, as it unquestionably
ought to be, that of good behavior. The tenure of the ministerial
offices generally, will be a subject of legal regulation, conformably to
the reason of the case and the example of the State constitutions.

Could any further proof be required of the republican complexion of this
system, the most decisive one might be found in its absolute prohibition
of titles of nobility, both under the federal and the State governments;
and in its express guaranty of the republican form to each of the
latter.

"But it was not sufficient," say the adversaries of the proposed
Constitution, "for the convention to adhere to the republican form. They
ought, with equal care, to have preserved the FEDERAL form, which
regards the Union as a CONFEDERACY of sovereign states; instead of
which, they have framed a NATIONAL government, which regards the Union
as a CONSOLIDATION of the States." And it is asked by what authority
this bold and radical innovation was undertaken? The handle which has
been made of this objection requires that it should be examined with
some precision.

Without inquiring into the accuracy of the distinction on which the
objection is founded, it will be necessary to a just estimate of its
force, first, to ascertain the real character of the government in
question; secondly, to inquire how far the convention were authorized to
propose such a government; and thirdly, how far the duty they owed to
their country could supply any defect of regular authority.

First. In order to ascertain the real character of the government, it
may be considered in relation to the foundation on which it is to be
established; to the sources from which its ordinary powers are to be
drawn; to the operation of those powers; to the extent of them; and to
the authority by which future changes in the government are to be
introduced.

On examining the first relation, it appears, on one hand, that the
Constitution is to be founded on the assent and ratification of the
people of America, given by deputies elected for the special purpose;
but, on the other, that this assent and ratification is to be given by
the people, not as individuals composing one entire nation, but as
composing the distinct and independent States to which they respectively
belong. It is to be the assent and ratification of the several States,
derived from the supreme authority in each State, the authority of the
people themselves. The act, therefore, establishing the Constitution,
will not be a NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms are
understood by the objectors; the act of the people, as forming so many
independent States, not as forming one aggregate nation, is obvious from
this single consideration, that it is to result neither from the
decision of a MAJORITY of the people of the Union, nor from that of a
MAJORITY of the States. It must result from the UNANIMOUS assent of the
several States that are parties to it, differing no otherwise from their
ordinary assent than in its being expressed, not by the legislative
authority, but by that of the people themselves. Were the people
regarded in this transaction as forming one nation, the will of the
majority of the whole people of the United States would bind the
minority, in the same manner as the majority in each State must bind the
minority; and the will of the majority must be determined either by a
comparison of the individual votes, or by considering the will of the
majority of the States as evidence of the will of a majority of the
people of the United States. Neither of these rules have been adopted.
Each State, in ratifying the Constitution, is considered as a sovereign
body, independent of all others, and only to be bound by its own
voluntary act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution.