Federalist 39: The Government of the United States Has Both Federal and National Characteristics, and Is Republican
Characteristics of Republican Governments
WHAT ARE THE DISTINCTIVE CHARACTERISTICS of republican government? No satisfactory answer can be found in the application of the term by political writers to the constitutions of foreign governments. Holland is almost universally denominated a republic, yet no particle of its supreme authority is derived from its People. The same title is bestowed on Venice, but the absolute power over the great body of the people is exercised – in the most absolute manner – by a small body of hereditary nobles. Poland has been dignified with the same appellation, though it is a mixture of aristocracy and monarchy in their worst forms. With equal impropriety the government of England is frequently listed as a republic, though it has but one republican branch, combined with a hereditary aristocracy and monarchy. These examples – as dissimilar to each other as to a genuine republic – show the extremely inaccurate use of the term in political disquisitions. A far better definition of a republic is found by resorting to the different principles on which different forms of government are established.
The Best Definition of a Republic
A republic is a government deriving all its powers directly or indirectly from the great body of the People, and administered by persons holding their offices at the pleasure or the People, for either a limited period or during good behavior.
To qualify as a republic, it is essential the government must be derived from the great body of the society, and not from a limited proportion or a favored class of it. Were it otherwise, a handful of tyrannical nobles – exercising their oppressions by a delegation of their powers – might claim for their government the honorable title of republic.
The People Must Be the Ultimate Source of Power
Whether directly or indirectly, the People must appoint the persons who are to administer the government, and whose tenures must be limited to fixed periods or during good behavior. Were it otherwise, every popular government organized on republican principles would eventually be degraded.
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A republic is a government deriving all its powers directly or indirectly from the great body of the People, and administered by persons holding their offices at the pleasure or the People, for either a limited period or during good behavior.
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The constitutions of every one of the States require at least some of the officers of government be appointed by the People alone, albeit indirectly. In most of the States, the chief executive is so appointed. At least one state constitution extends this mode of appointment to a coordinate branch of the legislature. According to all the constitutions, the tenure of the highest offices is limited to a definite period. Appointments in the legislative and executive departments in many are limited to a period of years. And in most, the members of the judiciary are to retain their offices by the firm tenure of good behavior, a practice condoned by the most respectable and well-received opinions on the subject.
The Constitution Meets Republican Standards
On examining the Constitution, we at once perceive it conforms to the standards here stated. The House of Representatives is elected directly by the great body of the People, as is true in at least one branch of all the State legislatures. The Senate derives its appointment indirectly from the People. The President also is indirectly derived from the choice of the People, as is true with the executive magistrates in most States. Even the judges of the United States – along with all the other officers of the United States – will be the choice – though remote – of the People themselves.
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To qualify as a republic, the government must be derived from the great body of the society, and not from a limited proportion or a favored class of it. Were it otherwise, a handful of tyrannical nobles – exercising their oppressions by a delegation of their powers – might claim for their government the honorable title of republic.
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All Appointments Are for Limited Terms
The duration of their appointments is equally conformable to the republican standard as well as the model of State constitutions. The House of Representatives is periodically elective, as are the popular assemblies in all States. The terms of representatives are limited to two years, as in South Carolina.
Senators are elected to six-year terms, only one more than in the senate of Maryland, and two more than in the senates of New York and Virginia.
The President is to continue in office for the period of four years. In New York and Delaware, the chief executive is elected for three years, in South Carolina two, and in the other States annually.
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Whether directly or indirectly, the People must appoint the persons who are to administer the government, and whose tenures must be limited to fixed periods or during good behavior. Were it otherwise, every popular government organized on republican principles would eventually be degraded.
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Impeachment
Several of the States have no constitutional provision for impeachment of the chief executive, and in Delaware and Virginia the chief executive cannot be impeached until out of office. The President of the United States is impeachable at any time during his continuance in office, thereby more strongly advancing the republican principle that the People control their government.
Judges
Judges of the United States are to hold their places during good behavior, as unquestionably must be the case. The tenure of the ministerial offices in general will be a subject of legal regulations that conform to the reason of the case and the example of the State constitutions.
The Prohibition of Titles of Nobility Is a Republican Principle
If any further proof were required our republican form of government, the most decisive are the absolute prohibition of titles of nobility by both the Federal and State governments, and the Constitution’s express guaranty that every State enjoy a republican form of government.
The Government the Constitution Creates Is Both Federal and National
Adversaries of the Constitution say its adherence to the republican form of government is inadequate because it fails to preserve with equal care the federal form, which regards the United States as a confederacy of the sovereign States. They argue it frames a national government, which regards the United States as an impermissible consolidation of the sovereign States. And they ask: By what authority was this bold and radical innovation undertaken?
The objection requires a precise examination to form a just estimate of its force: first, to ascertain the real character of the government in question; second, to inquire how far the Constitutional Convention was authorized to propose such a government, and third, how far the duty they owed to their country could supply any defect of regular authority. The instant paper conducts the first inquiry. Federalist 40 conducts the other two inquiries.
In order to ascertain the real character of the government United States government, I will consider its relationship to the foundation on which it is established, the sources from which its ordinary powers are drawn, the operation and extent of those powers, and the authority by which future changes in that government are to be introduced.
As to the relationship of the government to its foundation, on the one hand it is founded on the assent and ratification of the People of America, given by their deputies elected for the special purpose. On the other hand, the People’s assent and ratification is given not as individuals composing one entire nation, but as individuals composing the distinct and independent States to which they belong. The Constitution Was Established as a Federal Act
The ultimate assent and ratification of the Constitution is by the several States, whose authority is in turn derived from the People themselves. Therefore, the act of establishing the Constitution is a federal act, not a national one. That ratification is a federal rather than national act is obvious upon viewing the requirement that ratification requires the unanimous assent of the several States that are parties to it. Ratification cannot result from either the decision of a majority of the People of the union or a majority of the States.
If in this transaction the People themselves were regarded as forming one nation, the will of the majority of the whole People of the United States would bind the minority, just as the majority in each State would bind the minority, with that national will being determined by the majority of individual votes or by the majority of States. But both of these approaches were rejected. In ratifying the Constitution, each State acts as a sovereign body – independent of all the others – and is bound only by its own voluntary act. Thus the Constitution is a federal one, not a national one.
The House of Representatives Is a National Body
The sources of the ordinary powers of the Constitution are both national and federal. The House of Representatives will derive its powers from the People of America. The People will be represented in the same proportion – and on the same principle – as they are in the legislature of each particular State. The House of Representatives will therefore be a national body rather than a federal one.
The Senate Is a Federal Body
The Senate, on the other hand, will derive its powers from the States as political and coequal societies. Each State will be represented on the principle of equality in the Senate. The Senate will therefore be a federal body rather than a national one.
Selection of a President Is Both Federal and National
The executive power embodied in the President will be derived from a compound of sources. The immediate election of the President is to be made by the States in their political characters. The votes allotted to each State will be the sum of the equal number of senators and unequal number of representatives to which each is entitled in the Congress. This compound ratio considers each State partly as distinct and coequal societies, and partly as unequal members of the same society. The eventual election of the President is in turn to be made by the national House of 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. The selection of the President is therefore of a mixed character, presenting at least as many federal as national features.
Federal and National Attributes in the Operation and Extent of the Federal Government
With respect to the operation of the government, it is federal to the extent its powers operate on the States in their capacities as political bodies, yet it is national to the extent its powers operate on the citizens of the United States in their individual capacities. In several cases – particularly the trial of controversies to which States may be parties – it may be viewed as federal, since such actions involve States in their collective and political capacities only. But on the whole, the operation of the government in its ordinary and most essential proceedings is upon the People in their individual capacities. Therefore, as to the operation of the government, the Constitution has almost exclusively a national character.
But this national aspect is reversed when we contemplate the extent of the government’s powers. The idea of a national government involves not only an authority over 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, in our case the Congress.
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In this relation, the United States Government cannot be deemed a national one. Its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. The only real exception to this residuary sovereignty of the States involves controversies relating to the boundary between two States.
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Federal Authority Is Limited to Enumerated Powers
Among communities united for particular purposes – such as States and local (county and municipal) governments – governmental power is vested partly in the State legislatures and partly in the local legislatures. Where certain powers are vested in lawful State legislatures, all local authorities are subordinate to the supremacy of the State legislatures, and may be controlled, directed, or abolished by those State legislatures at their pleasure. Conversely, where the local municipal authorities retain distinct and independent portions of the supremacy, they are not subject to State supremacy within those spheres. In this relation, the United States Government cannot be deemed a national one. Its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
The only real exception to this residuary sovereignty of the States involves controversies relating to the boundary between two States. In those disputes the tribunal ultimately deciding the question – the Supreme Court of the United States – derives its authority from the general government of the United States established pursuant to the Constitution. But this does not transform the United States government into a national one. The decision in such disputes is to be impartially made according to the rules of the Constitution, with all the usual and effectual precautions taken to secure this impartiality. Clearly some such tribunal is essential to prevent an appeal to the sword and a dissolution of the Constitution, and no one disputes the decision can be safely made under the national authority alone.
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But amendment of the Constitution is founded on neither of these principles. An amendment requires more than a majority, and it determines that majority by the votes of the States, rather than by the votes of individual citizens. In these respects it departs from the national and advances towards the federal character.
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Amendments Will Be Neither Wholly Federal nor National
Finally, if we examine the how the Constitution may be amended, 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 United States, and this authority would be competent at all times to alter or abolish its established government, as can be accomplished by a majority of every national society.
Were it wholly federal, the concurrence of all of the States would be essential to every alteration that would be binding on all.
But amendment of the Constitution is founded on neither of these principles. An amendment requires more than a majority, and it determines that majority by the votes of the States, rather than by the votes of individual citizens. In these respects it departs from the national and advances towards the federal character. Yet an amendment does not require a unanimous consent of all of the States to be binding upon all. In this respect it loses again the federal and partakes of the national character.
Therefore, the Constitution is 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 those powers, it is again federal, not national. And in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
Madisonoriginal Federalist 39
[Ed. note: How could Madison assert the adoption of the Constitution would be unanimous if the assent of only nine of the thirteen States was required for ratification? Article VII provides: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Thus, under Article VII, the Constitution would be unanimous as to the States so ratifying. Once New Hampshire became the ninth State to ratify, the assent was unanimous among the nine ratifying States. The same principle applied when Virginia became the tenth, New York the eleventh, North Carolina the twelfth, and Rhode Island the thirteenth State to ratify.]