Madison addresses two questions: does the Constitution pass 1 the republicanism test and 2 the federalism test? The answer depends on how we define republicanism and federalism



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|| Federalist No. 39 ||




Jan 16, 1788:

Federalist Paper No. 39 (New York)






Madison addresses two questions: does the Constitution pass 1) the republicanism test and 2) the federalism test? The answer depends on how we define republicanism and federalism. These are the "great difficulties" of definition.

1) The "genius of the people of America," and "the fundamental principles of the Revolution," demand that we "rest all our political experiments on the capacity of mankind for self government." If the Constitution departs from the "strictly republican" standard, or "character," it must be rejected. What, then, is the definition of a republic? It is "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding office during good behavior." We learn that a) "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," and b) 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." Madison announces that the Constitution passes the test.





2) There are three tests to measure the federalism of the Constitution, the first of which—a) "the real character of the government"—is covered in the remainder of the essay. There are five "considerations" to ponder when dealing with the "real character" standard.

I) "The foundation on which it is to be established." Who ratifies the Constitution, the states or the people? II) "The sources from which its ordinary powers are to be drawn." Are the people or the states represented in the Congress? III) "The operation of those powers." Does the government "operate" directly on the people in their "individual capacities" or on the states in "their collective and political capacities?" IV) "The extent of '… the powers." Does the general government have "an indefinite supremacy over all persons and things," or does its jurisdiction extend "to certain enumerated objects only?" V) "The authority by which future changes in the government are to be introduced." Are amendments secured by a majority of the people or by the unanimity of the States?


Madison concludes that it is "in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national."




|| Federalist No. 51 ||




http://teachingamericanhistory.org/ratification/minus.gif Feb 6, 1788: Federalist Paper No. 51 (New York)




This is the last of fifteen essays written by Madison on "the great difficulty" of founding. There are ten paragraphs in the essay.

1. The way to implement the theory of separation of powers in practice is to so contrive "the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."

2. Accordingly, "each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others."

3. "It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices."

4.


A: "The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others… Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place."

B: Isn't relying on ambition and interest, "a reflection on human nature?" But, adds Madison, what is government itself but the greatest reflection on human nature? If men were angels, no government would be necessary."

C: "The Great Difficulty" of Founding: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions."



5. "This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public." Madison calls this policy "inventions of prudence."

6. "In republican government, the legislative authority necessarily predominates." Thus, it is "not possible to give to each department an equal power of self-defense." Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive a) with the power of a conditional veto and b) "some qualified connection" with the Senate.

7. The general government comes closer to passing the "self-defense" of each branch test than do the State governments.

8. "There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view."

9. First, America is a "compound republic," rather than a "single republic." This provides for a "double security… to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."



10. Second, there are only two ways to combat "the evil" of majority faction, a) "by creating a will in the community independent of the majority," or b) creating an authoritative source "dependent on the society," but, and here is the essence of the American experiment, the society "will be broken down into so many parts," that it contain a vast number and variety of interests.


To repeat, the American society will "be broken down into so many parts, interests and classes of citizens, that the rights of individuals, or the minority, will be in little danger from interested combinations of the majority." Echoing Federalist 10, Madison says "the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects." And both depend on "the extended republic." Let us not forget, adds Madison, that "justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit." Fortunately, in "the extended republic… a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good." We have rejected the "precarious security" provided by the "hereditary or self-appointed" alternative of "introducing into the government… a will independent of the society itself."





|| Federalist No. 10 ||




This is the first essay by Madison in The Federalist. It contains twenty-three paragraphs.

1. The "violence of faction" is the "mortal disease" of popular governments. The public assemblies have been infected with the vice of majority tyranny: "measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and overbearing majority."

2. What is a faction? "A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."

3. How can we cure "the mischiefs of faction?" We can either cure it by

I) "removing its causes," or

II) "controlling its effects."

4. There are "two methods of removing the causes of faction": I a) destroy "the liberty essential to its existence," or I b) give "to every citizen the same opinions, the same passions, and the same interests."

5. – 9. Madison explains in logical detail why removing the causes of faction is quite impossible.

10. Conclusion to I b) and the introduction to II. "The inference to which we are brought is that [I] the causes of faction cannot be removed and that relief is only to be sought in the means of [II] controlling its effects."




11. Further consideration of II) "controlling its effects." "The republican principle" of majority rule is the solution to minority faction. But what if we have majority faction? "To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great desideratum by which this form of government can be rescued from the opprobrium under which it has labored and be recommended to the esteem and adoption of mankind."

12. The introduction of II a) and II b) as the solutions to majority faction. "Either [II a)] the existence of the same passion or interest in a majority at the same time must be prevented, or [II b)] the majority having such coexistent passion or interest, must be rendered by their number and local situation, unable to concert and carry into effect schemes of oppression."

13. The introduction of III, the form of government, to implement the solution. Madison declares that III a) "pure democracy," works against solutions II a) and II b.

14. III b) "a republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking."

15. "The two great points of difference between a democracy and a republic."

16. The first difference III b)* is "to refine and enlarge the public views" by way of the election system. The question is do we choose "small (IVa) or extensive (IVb) republics?"

17. IV b) is better than IV a) because it provides "a greater probability of a fit choice" of representatives.

18. IV b) is better than IV a) because it "will be more difficult for unworthy candidates to practice the vicious arts by which elections are too often carried."

19. The Constitution "forms a happy combination" of IVa) and IVb): "the great and aggregate interests being referred to the national, the local and particular to the State legislatures."

20. The second difference III b)** "is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government."

21. III b)** clinches the case for IV b) over IV a).

22. "The influence of factious leaders may kindle a flame within their particular States but will be unable to spread a general conflagration through the other States."



23. "In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government."



|| Federalist No. 47 ||




This is the first of five essays on the difficulty of republicanism. He is interested in "the structure" of the government. Madison begins with a "political truth": "the accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny." The Antifederalists, relying on Montesquieu the "oracle" on the doctrine of separation of powers, claim that the Constitution violates the political truth or maxim, because the branches are not separate and "distinct." Madison argues 1) that Montesquieu wasn't advocating a complete "wall of separation" between the branches, but endorsed "partial agency," b) there isn't a strictly "distinct" separation of powers in the state constitutions and 3) the "political truth" really means that the separation of powers is violated when "the whole power of one department is exercised by the same hands which possess the whole power of another department," and not when one branch has a partial agency in another branch. In fact, partial agency in practice is needed to accomplish the separation of powers in theory.


|| Federalist No. 48 ||




Madison declares that "the most difficult task" is to provide "some practical" security for each branch against "the invasion of the others." The Madison "correction" of "the founders of our early republics," is this: Legislative tyranny is far more likely than executive tyranny "in a democracy." Virginia and Pennsylvania in the 1780s are proof for Madison that their Constitutions actually encourage the emergence of this new kind of tyranny. And, says Madison, Jefferson, in his Notes on the State of Virginia, came to recognize the reality of "elective despotism": "One hundred and seventy-three despots would surely be as oppressive as one." What "precautions" then shall be taken against this dangerous branch? More is needed than "a mere demarcation on parchment of the constitutional limits of the several departments."






|| Federalist No. 51 ||

This is the last of fifteen essays written by Madison on "the great difficulty" of founding. There are ten paragraphs in the essay.


1. The way to implement the theory of separation of powers in practice is to so contrive "the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."

2. Accordingly, "each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others."

3. "It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices."

4. A: "The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others… Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place."

B: Isn't relying on ambition and interest, "a reflection on human nature?" But, adds Madison, what is government itself but the greatest reflection on human nature? If men were angels, no government would be necessary."

C: "The Great Difficulty" of Founding: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions."

5. "This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public." Madison calls this policy "inventions of prudence."

6. "In republican government, the legislative authority necessarily predominates." Thus, it is "not possible to give to each department an equal power of self-defense." Accordingly, we need to add here and subtract there. We can divide the legislature into two branches and fortify the executive a) with the power of a conditional veto and b) "some qualified connection" with the Senate.

7. The general government comes closer to passing the "self-defense" of each branch test than do the State governments.

8. "There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view."



9. First, America is a "compound republic," rather than a "single republic." This provides for a "double security… to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."




10. Second, there are only two ways to combat "the evil" of majority faction, a) "by creating a will in the community independent of the majority," or b) creating an authoritative source "dependent on the society," but, and here is the essence of the American experiment, the society "will be broken down into so many parts," that it contain a vast number and variety of interests.


To repeat, the American society will "be broken down into so many parts, interests and classes of citizens, that the rights of individuals, or the minority, will be in little danger from interested combinations of the majority." Echoing Federalist 10, Madison says "the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects." And both depend on "the extended republic." Let us not forget, adds Madison, that "justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit." Fortunately, in "the extended republic… a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good." We have rejected the "precarious security" provided by the "hereditary or self-appointed" alternative of "introducing into the government… a will independent of the society itself."








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