Conformity
of the Plan to Republican Principles
Independent
Journal
Wednesday, January 16, 1788
[James 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.
The next
relation is, to the sources from which the ordinary powers of government are to
be derived. The House of Representatives will derive its powers from the people
of America; and the people will be represented in the same proportion, and on
the same principle, as they are in the legislature of a particular
State. So far the government is national,
not federal. The Senate, on the other hand, will derive its powers
from the States, as political and coequal societies; and these will be
represented on the principle of equality in the Senate, as they now are in the
existing Congress. So far the government is federal,
not national. The executive power will be derived from a very
compound source. The immediate election of the President is to be made by the
States in their political characters. The votes allotted to them are in a
compound ratio, which considers them partly as distinct and coequal societies,
partly as unequal members of the same society. The eventual election, again, is
to be made by that branch of the legislature which consists of the national
representatives; but in this particular act they are
to be thrown into the form of individual delegations, from so many distinct and
coequal bodies politic. From this aspect of the government it appears to be of
a mixed character, presenting at least as many federal as national features.
The
difference between a federal and national government, as it relates to
the operation of the government, is supposed to consist in this,
that in the former the powers operate on the political bodies composing the
Confederacy, in their political capacities; in the latter, on the individual
citizens composing the nation, in their individual capacities. On trying the
Constitution by this criterion, it falls under the national, not
the federal character; though perhaps not so completely as has
been understood. In several cases, and particularly in the trial of
controversies to which States may be parties, they must be viewed and proceeded
against in their collective and political capacities only. So far the national countenance of the government on this side
seems to be disfigured by a few federal features. But this blemish is perhaps
unavoidable in any plan; and the operation of the government on the people, in
their individual capacities, in its ordinary and most essential proceedings,
may, on the whole, designate it, in this relation,
a national government.
But if
the government be national with regard to the operation of
its powers, it changes its aspect again when we contemplate it in relation to
the extent of its powers. The idea of a national government
involves in it, not only an authority over the individual citizens, but an
indefinite supremacy over all persons and things, so far as they are objects of
lawful government. Among a people consolidated into one nation, this supremacy
is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and
partly in the municipal legislatures. In the former case, all local authorities
are subordinate to the supreme; and may be controlled, directed, or abolished
by it at pleasure. In the latter, the local or municipal authorities form
distinct and independent portions of the supremacy, no more subject, within
their respective spheres, to the general authority, than the general authority
is subject to them, within its own sphere. In this relation, then, the proposed
government cannot be deemed a national one; since its
jurisdiction extends to certain enumerated objects only, and leaves to the
several States a residuary and inviolable sovereignty over all other objects.
It is true that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to be established
under the general government. But this does not change the principle of the
case. The decision is to be impartially made, according to the rules of the
Constitution; and all the usual and most effectual precautions are taken to
secure this impartiality. Some such tribunal is clearly essential to prevent an
appeal to the sword and a dissolution of the compact; and that it ought to be
established under the general rather than under the local governments, or, to
speak more properly, that it could be safely established under the first alone,
is a position not likely to be combated.
If we
try the Constitution by its last relation to the authority by which amendments
are to be made, we find it neither wholly national nor
wholly federal. Were it wholly national, the supreme and ultimate
authority would reside in the majority of
the people of the Union; and this authority would be competent at all times,
like that of a majority of every national society, to alter or abolish its
established government. Were it wholly federal, on the other hand, the
concurrence of each State in the Union would be essential to every alteration
that would be binding on all. The mode provided by the plan of the convention
is not founded on either of these principles. In requiring more than a
majority, and particularly in computing the proportion by States,
not by citizens, it departs from the national and
advances towards the federal character; in rendering the
concurrence of less than the whole number of States sufficient, it loses again
the federal and partakes of the national character.
The
proposed Constitution, therefore, [even when tested by the rules laid down by
its antagonists,][1] 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 the 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.
PUBLIUS
1. This phrase appears in the Rossiter edition, but not the
Cooke edition.