The Easy Federalist

The Federalist 39:

Written by James Madison

The final paper finished the observations which were designed to start a honest examination of the government plan reported by the convention. Now we move on to complete that part of our task.

The first thing to ask is: is the proposed government genuinely republican? It is clear that only a republican form of government would be compatible with the American ethos, as these principles fueled the revolution, and because a republican government is consistent with the belief in the ability of people to govern themselves—a belief held by all who value freedom. If the plan of the convention is not a republic, then it cannot be defended and must be abandoned.

What then are the features of a republic? If we rely on how the term has been used to describe various states, rather than sticking to its principles, we would never arrive at a clear definition. In Holland, the term “republic” is used despite the government not being derived from the people. Venice is another example where the term “republic” is used inaccurately, as the government is controlled by a small group of hereditary nobles. Poland is yet another example where the term “republic” is misapplied, given its mix of aristocracy and monarchy. England is a case where the term “republic” is used despite having a mixed government that includes a hereditary aristocracy and monarchy. These varied examples demonstrate the lack of precision in the use of the term “republic” in political discussions.

A republic should be defined as a government that derives its powers from the people and is administered by officials who serve for limited terms or based on good conduct. For a government to be a true republic, it must represent the broad society, not just a privileged class, to avoid becoming a tyranny under the guise of a republic. As long as officials are appointed directly or indirectly by the people and hold their positions based on the criteria mentioned, the government can be considered a republic. In every U.S. state, some government officials are indirectly appointed by the people, aligning with this definition of a republic. In most states, even the highest official is indirectly appointed.. In one state, this indirect appointment even extends to the legislative branch. All state constitutions specify term lengths for high offices, often spanning years. In most state constitutions, judges hold their positions based on good conduct.

• Discussion: Do you believe that the government represents the broad society?

The proposed constitution aligns closely with the republican principles we have defined. The House of Representatives is directly elected by the people, similar to at least one chamber in all state legislatures. The Senate is indirectly elected, similar to the current Congress and Maryland’s Senate, meeting the republican criterion of indirect appointment. The President is also indirectly elected, aligning with the practice in most states. Even the judges and other officers are indirectly chosen by the people, similar to the state-level practice. The term lengths for federal offices align with republican principles and state practices. The House has two-year terms, similar to South Carolina’s practice. The Senate has six-year terms, which is close to the term lengths in Maryland, New York, and Virginia. The President serves a four-year term, which is comparable to the chief magistrates in New York, Delaware, and South Carolina (in other states, the chief magistrate is elected annually). Some states, however, lack provisions for impeaching their chief executive, and in Delaware and Virginia, the chief executive can only be impeached after leaving office. In this Constitution, the U.S. President can be impeached at any time while in office, providing a check on power. Federal judges hold their positions based on good behavior, aligning with republican principles. Other federal offices will have their tenures defined by law, in line with state practices and reason.

The proposed Constitution explicitly bans titles of nobility at both federal and state levels, reinforcing its commitment to republican principles that oppose hereditary privilege. It also explicitly guarantees that each state must maintain a republican form of government, further emphasizing its adherence to republican ideals.

Critics argue that adhering to a republican form of government is not enough; the convention should have also maintained the federal structure of the union, regarded as a confederations of states rather than a consolidation into a single entity. Critics further question the legitimacy of such a significant change, asking what authority the convention had to make this shift from a federal to a national system. This objection has been used as a significant point of criticism and therefore warrants a detailed examination.

• Discussion: Do you consider the United States currently more of a confederation, or more of a singular entity?

Before delving into the validity of the objection itself, it’s crucial to first understand the actual nature of the proposed government. Secondly, we must examine the extent to which the convention had the authority to propose this kind of government. Lastly, we must consider whether the convention’s duty to the well-being of the country could make up for any lack of formal authority they might have had.

To determine the true nature of the government, it is necessary to look at how it was created, the source of its powers, how those powers work, the extent of those powers, and what authority is allowed to make changes to the government.

One aspect of the new constitution is that it will be based on the approval and formal ratification of the American people. This approval will be given through representatives who are specifically elected to decide on the Constitution. This approval will not come from the American people as a single, unified entity. Instead, the approval will come from people as members of their individual states. The act, therefore of establishing the constitution will not be a national act, but a federal one.

The act of establishing the Constitution will be a federal act because the approval for the constitution will not come from a simple majority of all people in the union or from a majority of the states, it must instead be unanimously approved by all states involved. This approval is unique because it comes directly from the people, not from the legislative bodies of the states. If the Constitution were considered a national act, then the majority of people in the entire country would have the power to bind the minority. This majority could be determined either by counting individual votes or by considering the majority of states, but neither of these rules has been adopted. Each state is considered a separate, sovereign entity that voluntarily chooses whether or not to approve the Constitution. Given these considerations, the new Constitution should be viewed as a federal document, not a national one.

The next point of discussion is about where the government derives its powers. The House of Representatives will get its authority directly from the people, similar to how state legislatures are formed. It represents a national aspect of the government, not a federal one. The Senate, however, will get its authority from the states, and each state will have equal representation, making this a federal feature. The executive branch, or the presidency, will have a complex origin for its authority: the states, acting as individual political entities, will have a role in the immediate election of the president. The voting power of the states in the presidential election is complex, recognizing them both as independent entities and as parts of a larger whole. The final decision in the presidential election will be made by the House of Representatives, but in this act, they represent individual states, not the nation as a whole. The government, as proposed, has a balanced mix of both federal and national elements.

Critics outline that in a federal system, the government’s powers act on states as political entities, while in a national system, the powers act directly on individual citizens. When evaluated based on this criterion, the proposed constitution leans more towards a national character rather than a federal one, although not entirely. There are specific instances, such as legal disputes involving states, where states are treated as collective political entities, which is a federal feature. However, in most routine and essential functions, the government will operate on individuals, making it, in the eyes of its critics, more of a national government.

If the government appears national in how it operates, it takes on a different character when considering the scope of its powers. A truly national government would have not just authority over individuals but also unlimited power over all matters within its jurisdiction. In a unified nation, this ultimate authority resides entirely in the national legislative body. n a federation, the authority is divided between the central government and the local or state governments. In a national system, local governments are entirely subordinate to the central authority, while in a federal system, local governments maintain a level of sovereignty and are not completely subject to the central authority. The proposed U.S. government is not purely national because it has limited, enumerated powers, while states retain sovereignty in other areas. It is true that when their are conflicts between the two jurisdictions, the federal courts will ultimately decide, but this does not alter the fundamental nature of the government’s structure. Decisions about jurisdiction will be made impartially, following constitutional guidelines. Such a tribunal is necessary to prevent conflict and because it makes more sense for this body to be part of the federal government rather than local governments.

When examining how amendments are made to the Constitution, it becomes clear that the system is neither entirely national nor entirely federal. If the system were purely national, the majority of the people in the union would have the ultimate authority to change or even abolish the government at any time. Conversely, if it were purely federal, every state would have to agree to any changes for those changes to be binding on the entire union. The actual method for amending the Constitution, as laid out by the framers, doesn’t strictly adhere to either the wholly national or wholly federal principles. The amendment process requires more than a simple majority and considers states rather than individual citizens, which makes it more federal in nature. However, because not all states have to agree for an amendment to pass, this aspect of the process is more national in nature.

Even when evaluated by the criteria set by its critics, the Constitution is neither purely national nor purely federal, but a mix of both. The Constitution’s foundational principles are federal in nature, as it is based on the agreement of individual states rather than a single national entity. In the legitimacy of the sources of its powers, it is partly federal and partly national. In the operation of these powers, it is national, not federal; but in the extent of them, it is federal, not national. Lastly, the process for amending the Constitution is a blend of federal and national elements.

• Discussion: What roles of government do you think ought to be federalized versus nationalized?

The Federalist 40:

Written by James Madison

The second point to discuss is if the Convention was authorized to create and offer this mixed Constitution.

The authority of the Constitutional Convention should be precisely defined by looking at the mandates or commissions given to its delegates by their respective states. all the commissions given to the delegates referred to one of two key recommendations: one from the Annapolis meeting in 1786 and the other from Congress in 1787. Examining these two recommendations is enough to understand the scope of the Constitutional Convention’s authority.

The Annapolis meeting suggests that commissioners should be appointed to evaluate the state of the U.S. and to come up with additional provisions to make the federal government more effective. These provisions should then be reported to Congress and, if approved by Congress, should be ratified by each state’s legislature to become effective.

Congress says that the Articles of Confederation allows for changes to be made with the approval of both the U.S. Congress and the legislatures of the individual states. Experience has shown there are flaws in the existing Articles of Confederation, and to address these flaws, several states, notably New York, have explicitly instructed their delegates in Congress to propose a convention. Holding a convention seems to be the most likely way to establish a strong national government across the states.

Congress has resolved that it would be advisable to hold a convention in Philadelphia on the second Monday of the upcoming May. The delegates for this convention would be appointed by the individual states with the express goal to revise the existing Articles of Confederation. The convention is to report any proposed changes or provisions to both the U.S. Congress and the legislatures of the individual states in order to make the federal constitution sufficient for the needs of effective governance and the unity of the states.

The first goal of the convention was to create a strong national government across the states. Second, that it should be capable of maintaining the union and meeting its needs. Third, that these goals were to be achieved either by modifying the existing Articles of Confederation, as stated by Congress, or by adding whatever provisions were deemed necessary, as suggested by the Annapolis act. Fourth, that any changes or new provisions would need to be reported back to both Congress and the individual state legislatures. These changes would then need to be approved by Congress and ratified by the states.

The authority granted to the convention can be understood by carefully comparing and interpreting the language used in the acts from Annapolis and Congress. They were to frame a national government that could meet the needs of the union and to modify the Articles of Confederation to meet these objectives.

There are two fundamental principles for interpreting legal or formal texts. These principles are based on both common sense and established legal concepts. The first states that every part of a text should be interpreted in a way that gives it meaning and contributes to a common goal or purpose. The second states that if there are conflicting parts in a text, the less important elements should yield to the more important ones. Essentially, the ultimate goal or “end” of the text should take precedence over the specific “means” or methods described to achieve that end.

Suppose that the authorities given to the Constitutional Convention were in conflict with each other, that the Convention might have found it impossible to create a sufficient national government by merely amending the existing Articles of Confederation. In this case, which aspect of the conflicting mandates should be prioritized? Which is more important, the means or the ends? Let the most aggressive objectors to the Constitution answer these questions. Let them declare what is most crucial for the well-being of the American people: maintaining the Articles of Confederation or establishing a more effective government to preserve the union. Let them declare whether preserving the Articles of Confederation is an end within itself, or a means to the end.

But is it necessary to think that these ideas are completely incompatible? Is it impossible to make changes to the Articles of the Confederation to create a national government that resembles the one recommended by the Convention?

We can assume that few would object that renaming the Articles of Confederation wouldn’t be considered an overreach of the Convention’s authority. The Convention was explicitly given the authority to make changes to the Articles and to add new provisions. So thee power to rename, change, and add are all part of the authorized powers. Must we necessarily conclude that the power is being infringed if the old Articles of Confederation remain? Those who say yes should draw a line for what is authorized or unauthorized. Will they say that changes ought not have touched the substance of the Articles? But the states would never have appointed such a serious Convention unless significant changes were to be made. Will someone further object that if not the substance, than at least the principles ought to remain untouched? I ask then, what are these principles? Do they require that the states should be regarded as distinct and independent sovereigns? Well, they are regarded so by the proposed Constitution. Do they require that the members of the government should derive their appointment from the legislatures, rather than the people? One branch of the new government will be appointed this way. Do they require that the powers of government should act upon states as opposed to upon individuals? In some instances it acts upon states, in others upon individuals. Do these principles require that no taxes should be levied without state-level intervention? Well the Articles themselves allow for some direct taxation by the government (for example, the post-office). Do these principles require that the federal government’s powers be limited, with states retaining their sovereignty? Both the new and old governments limit the powers of the federal government, leaving states sovereign in matters not specifically enumerated.

The truth is that the principles underlying the proposed Constitution are not entirely new but are rather an expansion of the principles already present in the Articles of Confederation. The problem with the Articles of Confederation is that its principles are too weak and limited, leading to criticisms about its inefficiency. These weaknesses necessitate significant changes, making the new Constitution appear as if a complete transformation of the old system.

In one instance the Constitutional Convention did deviate from its specific mandate; they proposed a Constitution that could be ratified by nine states, rather than requiring unanimous approval from all states. Despite this being the most plausible objection, it is the least emphasized in the arguments against the Convention. This is probably because people recognize it would be absurd for a single state to hold the other twelve hostage—one 1/60 of the people of America could then block the will of 59/60 of the people, unacceptable especially given recent experiences. Since critics have largely avoided this objection, there’s no need to address it further.

The third point to look into is whether the sense of duty or the urgency of the situation could justify actions that might not have been explicitly authorized.

The previous discussions have scrutinized the Constitutional Convention’s actions as if they had the ultimate authority to establish a new constitution. Even when held to this high standard, the actions of the Convention have stood up to scrutiny. We should remember now that the Convention’s powers were actually just advisory in nature, as intended by the states that sent delegates, and that the proposed constitution has no authority unless it is approved by the states. It’s a draft subject to ratification. Understanding the advisory nature of the Convention’s powers provides a different perspective for evaluating its actions.

Let’s look at the ground the convention stood on. The delegates were acutely aware of the urgent situation facing the country, which had led to the Convention as a means to correct systemic flaws. The delegates were equally convinced that the changes they proposed were essential for fulfilling their mandate, and they knew the public was anxiously awaiting the outcome of their work. They had every reason to believe that enemies of the U.S., both foreign and domestic, held opposing views. They noted how quickly states had responded to Virginia’s call for amending the Articles of Confederation. The Annapolis Convention, which had a different mandate, had nonetheless successfully recommended significant changes, supported by nearly all the states. Congress had previously assumed powers beyond its mandate in less critical situations, and the public had accepted this. In times of great change, the substance of governance should take precedence over formalities, to preserve the people’s right to change their government. Given the difficulty for the entire populace to act in unison, it’s necessary for a smaller group of citizens to initiate changes. The delegates would have remembered that it was through such informal actions that the states first united against British rule, that various bodies were formed to focus efforts and defend rights, leading to the current state constitutions. Nor could it have been forgotten that who insisted on strict adherence to formalities often had ulterior motives against the changes being proposed. They would remember that the ultimate authority lay with the people, who could approve or disapprove the new constitution, and that failing to act, or proposing insufficient measures, could be as problematic as exceeding their mandate.

Imagine if the Constitutional Convention, instead of acting boldly to propose a new system, chose to disappoint the public by sticking rigidly to existing forms and delaying action. How would anyone with a sense of patriotism or virtue consider the world’s judgment on such a timid and ineffective assembly? For those men who cannot help but condemn, let me then ask what judgment they would levy on the twelve states that sent delegates to an unauthorized convention, or upon Congress which recommended this unauthorized assembly, or upon New York in particular which initially pushed for the convention and then participated in it, despite its unauthorized nature?

For the sake of argument, consider if the Constitutional Convention was neither formally authorized nor justified by the situation to propose a new constitution: does it then follow that the Constitution ought to be rejected for that reason alone? If it’s considered wise to accept good advice even from enemies, would we be foolish enough to reject good advice when it comes from friends? The focus should be on the quality of the advice (i.e. the Constitution), rather than the source of it.

In summary, the main accusation against the Constitutional Convention—that it exceeded its powers—is largely unfounded, except for one minor point that critics don’t emphasize much. Even if the convention had exceeded its formal powers, the circumstances warranted such action. They were obligated to act in the best interests of the nation. And finally, even if the convention had overstepped both its powers and obligations, the proposed constitution should still be accepted if it serves the well-being and aspirations of the American people. The key question moving forward is whether the proposed constitution actually meets the criteria of serving the well-being and aspirations of the American people.

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