FEDERALIST No. 39

The Conformity of the Plan to Republican Principles

For the Independent Journal.

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 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, 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.