FReeper Book Club: The Debate over the Constitution, Federalist #14

The earnest professor of history turns to geography and lays out the dimensions of the country, explaining why a republic is possible. He also takes great pains to describe the differences between a democracy and a republic.

² We have seen the necessity of the Union as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction which have proved fatal to other popular governments and of which alarming symptoms have been betrayed by our own.

³ All that remains within this branch of our inquiries is to take notice of an objection that may be drawn from the great extent of country which the Union embraces.

⁴ A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitution are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administration in order to supply by imaginary difficulties the want of those solid objections which they endeavor in vain to find.

⁵ The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers.

⁶ I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former [reasoning] drawn from the nature of the latter.

⁷ The true distinction between these forms was also adverted to on a former occasion.

⁸ It is that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.

¹¹ To this accidental source of the error may be added the artifice of some celebrated authors whose writings have had a great share in forming the modern standard of political opinions.

¹² Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms by placing in comparison the vices and defects of the republican and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy.

¹³ Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only, and among others the observation that it can never be established but among a small number of people living within a small compass of territory.

¹⁴ Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species, and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular and founded at the same time wholly on that principle.

¹⁵ If Europe has the merit of discovering this great mechanical power in government by the simple agency of which the will of the largest political body may be concentered, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics.

¹⁶ It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.

¹⁷ As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions, so the natural limit of a republic is that distance from the center which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs.

¹⁹ It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the states have been almost continually assembled, and that the members from the most distant states are not chargeable with greater intermissions of attendance than those from the states in the neighborhood of Congress.

²⁰ That we may form a [more just] estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union.

²¹ The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second.

²³ Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half.

²⁴ Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three-fourths.

²⁵ The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles.

²⁶ On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable.

²⁷ It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled, or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power.

²⁸ Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union.

²⁹ Favorable as this view of the subject may be, some observations remain which will place it in a light still more satisfactory.

³⁰ In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws.

³¹ Its jurisdiction is limited to certain enumerated objects which concern all the members of the republic, but which are not to be attained by the separate provisions of any.

³² The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.

³³ Were it proposed by the plan of the Convention to abolish the governments of the particular states, its adversaries would have some ground for their objection, though it would not be difficult to show that if they were abolished, the general government would be compelled by the principle of self-preservation to reinstate them in their proper jurisdiction.

³⁴ A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive states, which we know to be practicable, and to add to them such other states as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable.

³⁵ The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier must be left to those whom further discoveries and experience will render more equal to the task.

³⁶ Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements.

³⁷ Roads will everywhere be shortened and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen states.

³⁸ The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country and which art finds it so little difficult to connect and complete.

³⁹ A fourth and still more important consideration is that as almost every state will on one side or other be a frontier and will thus find in regard to its safety an inducement to make some sacrifices for the sake of the general protection, so the states which lie at the greatest distance from the heart of the Union, and which of course may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations and will consequently stand on particular occasions in greatest need of its strength and resources.

⁴⁰ It may be inconvenient for Georgia or the states forming our western or northeastern borders to send their representatives to the seat of government, but they would find it more so to struggle alone against an invading enemy or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger.

⁴¹ If they should derive less benefit, therefore, from the Union in some respects than the less distant states, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.

⁴² I submit to you, my fellow citizens, these considerations in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect, and that you will never suffer difficulties, however formidable in appearance or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you.

⁴³ Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family, can no longer continue the mutual guardians of their mutual happiness, can no longer be fellow citizens of one great, respectable and flourishing empire.

⁴⁴ Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world, that it has never yet had a place in the theories of the wildest projectors, that it rashly attempts what it is impossible to accomplish.

⁴⁶ Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union and excite horror at the idea of their becoming aliens, rivals, enemies.

⁴⁷ And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces in order to preserve our liberties and promote our happiness.

⁴⁸ But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new?

⁴⁹ Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

⁵⁰ To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theater in favor of private rights and public happiness.

⁵¹ Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind.

⁵² Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course.

⁵³ They accomplished a revolution which has no parallel in the annals of human society.

⁵⁴ They reared the fabrics of governments which have no model on the face of the globe.

⁵⁵ They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate.

⁵⁷ If they erred most in the structure of the Union, this was the work most difficult to be executed, this is the work which has been new modeled by the act of your convention, and it is that act on which you are now to deliberate and to decide.

The reader encounters a flash of passion from James Madison, whose contributions heretofore have been marked by a dry and somewhat didactic approach. There is a good deal of the latter in the beginning of the essay, first from the political science that Madison had studied as a postgraduate at what would later become Princeton University, and then from the geography that he had pored over as a young man preparing for college. Last of all, there is a glimpse of Madison the patriot.

He and Hamilton were as different in personality as their writing would indicate: Hamilton the direct, the driven, nearly monomaniacal on occasion; Madison the many-faceted personality that his friends would term complex and his enemies inconstant. Indeed, through a career that was to take him from plantation to presidency, his thoughts on a number of political matters changed considerably. In his defense it was generally due to difficult lessons learned.

The reader is first treated to a brief declamation on why the form of government proposed was not, as certain anti-Federalists such as Federal Farmer had claimed, impossible due to the great distances present between citizen and representative.

⁵ The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers.

⁶ I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy…

Madison’s point is that there were known limits to the expectations that citizens would be able to assemble to discuss and vote directly on the issues surrounding day-to-day government (8), that a democracy, therefore, would be confined in size (9), and that a republic, wherein the citizen act through representatives and agents (8), was not so limited and could govern a country of considerable geographic area (10). He cites as an example the government of Germany (27), a somewhat inexact formulation inasmuch as that country was neither republic nor democracy at that point, nor was it to be united as a nation for nearly another century. However, it did possess a diet through which its citizens were nominally represented. He cites, as well, the former Commonwealth of Poland, whose diet endured in one form or another for over two centuries, and alludes to her “late dismemberment” – the first of three partitions of that country (1772) at the hands of what will now seem a familiar cast of characters: Russia, Prussia and Austria. As a further example, he cites Great Britain herself (28), whose members of Parliament also had to travel considerable distances to convene.

That objection would be settled only if such distances were comparable to those the new Union would embrace, and Madison, in 21 through 25, turns his attention to demonstrating that they were. He makes the further point that such distances would not necessarily interfere with the activities of day-to-day government because contrary to the objections of the anti-Federalists, state governments were not to be abolished in the new plan.

³¹ Its [the federal government’s] jurisdiction is limited to certain enumerated objects which concern all the members of the republic, but which are not to be attained by the separate provisions of any.

³² The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.

³³ Were it proposed by the plan of the Convention to abolish the governments of the particular states, its adversaries would have some ground for their objection…

But in fact that was nowhere proposed; it was a dire prediction made on questionable grounds. Suddenly the reader encounters Madison the visionary. It is a transition so seamless that one scarcely realizes what one is reading until the magnitude of it becomes manifest.

It is not the first time the country’s inevitable expansion has come into these discussions, but it is the first time one is treated to specifics, and from the arid pen of Madison, the transition to his vision of the new country is breathtaking.

³⁶ Let it be remarked…that the intercourse throughout the Union will be facilitated by new improvements.

This was no wild imagining, although the difficulty turned out to be somewhat greater than 38 seems to predict. Before Madison became President, the Erie Canal was first proposed, the critical link between the Atlantic district and its port of New York, and the western farmers of Pennsylvania and Ohio. Surveyed and designed by amateurs, carved out of the virgin forest of the Mohawk Valley, this remarkable achievement brought international trade to frontiersmen. It was to be completed and bustling with trade within Madison’s lifetime.

But completed by whom? By the new federal government – or those of its constituent states? Jefferson called it “little short of madness” and would have none of it, and when next it was proposed, the President who vetoed federal funding for the project would be Madison himself, on constitutional grounds. When he said the proposed government would be limited to the powers enumerated in the plan he had penned, he was absolutely serious. His successors would prove less scrupulous in the matter.

Yet the expansion, the building, the trade, would happen. One sees now that Union was far more to Madison than an academic exercise in political science. He moves on to the geo-strategic.

It is an advantage to union that, in Madison’s view, offsets the difficulties of travel, and it is more than that as well. The invaders to which he alludes (39) were Spain, France and Great Britain, as well as the numerous Native American tribes whose activities those nations had all, at one point or another, managed to inflame against the Colonies. It was a threat that would be ameliorated by a project Madison would soon take on for his friend, the third President, Thomas Jefferson: the acquisition of the Louisiana Territory from the French. At that point Madison’s vision of a unified mercantile nation bound by the Atlantic and the Mississippi (21) would be a giant step closer to fact.

But the vision would only become reality if the country were united under the proposed Constitution, and how much that meant to Madison may be seen in the language that is now torn from him concerning the threat he perceives to its ratification. He begs the reader to “hearken not to that unnatural voice” (43) “which petulantly tells you that the form of government recommended for your adoption is a novelty” (44); he terms it “unhallowed language” (45), “poison” (46), and that:

⁴⁷ …believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rendering us in pieces in order to preserve our liberties and promote our happiness.

Gone is the dusty linguistic armor of the academic. This is language that even the truculent Hamilton eschewed when he moved from his pen name Caesar to that of Publius. This is a passionate Madison and in many senses – readability comes to mind – a better one.

He ends by insisting that one objection, that the new plan is unprecedented, is as much strength as weakness. Speaking of the designers of the Confederation, he states:

⁵⁰ …posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theater in favor of private rights and public happiness.

One is left wondering: what has happened to the schoolteacher and who is this firebrand who has replaced him? But it is consummate Madison, a shy individual who was at the same time one of the more persuasive orators of his day. The dry and precise language in the terse sentences of the Constitution, the urgency of the visionary, and the imprecations hurled at his enemies were all in fact from the same mind.

Starting at 42, the tenor of Madison’s prose changes completely, arguing passionately for the Union, even though that which has preceded it has not led up to such a declamation. Something has happened.

Madison, like most of his contemporaries, had received a classical education, which included Latin and Greek. He had read Livy in the original and remembered the passionate rhetoric placed by the historian into the mouths of great Romans who had been dead for centuries. Madison’s tone suddenly takes on shades of Livy, which is most uncharacteristic. The political landscape has changed, and something has gotten Madison worried.

The Convention had disregarded the procedures for amendment enumerated in the Articles of Confederation, instead calling for the election of state ratifying conventions. Delaware, New Jersey and Pennsylvania had assembled their conventions, and momentum was moving toward ratification. However, the situation in Pennsylvania was a bit dicey, with those opposed to the Constitution preparing a minority report under the pen of the redoubtable Samuel Bryan (Centinel) for circulation among the other states. Outside the states centered about Philadelphia, opposition was stiffening. Madison was concerned that his, Hamilton’s and Jay’s work was about to meet the acid test and be found wanting, and this is the source of his concern.

As an early comment on your discussion topic, the novel mixed sovereignty of the Constitution was our early attempt at keeping a limited Federal Government.

With General government at the state level and limited federal government at the national level, we had the right mix to keep government responsible.

We see in Arizona an attempt to force the Federal Government to focus on the sphere it was intended to properly deal with in its laws and functions.

Almost from the first, at least by Madison's term as President, the expansion of the reach of the Federal Government was being dealt with by the members of the government. It soon became so complicated and factious that the Supreme Court staked out the issues of Constitutionality as their own — much to our regret today.

Why do I say “regret”? With the SC in total control of the issue, Congress and the Executive have given up on it as an area of their control and have for a hundred years considered themselves a General government instead of a limited government. They say, the Court will tell us where we go too far.

Mixed sovereignty was right — emasculated states are now the norm.

I appreciate your point about the bank, but I didn't feel in gave Washington much of a hiccup. Jefferson just jumped around the Louisiana Purchase issue as well. What I remember about Madison is his concern about public improvements (roads/canal issues) and of course, Marbury vs. Madison, the import of the decison coming only in its wake.

Madison's Veto for constitutionality:

Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
James Madison, President of the United States

While I believe there were other Presidential vetos later justified on a basis of constitionality, this is the last point where the President thought it was a duty of his office seperate and even preceding what the Supreme Court might find if the issue was brought to them by an action at law.

By the time we have Jackson vetoing the extension of the Bank we see the citation for political positioning as much as a sole duty and we are talking of a span of only 15 years.

The difference is that even though Marbury vs. Madison occured before the Madison veto, it took a decade or two before the issue became to be viewed as the primary playing field of the Supreme Court. The Marbury vs. Madison decision was in 1803 (I think) and the Majority Opinion cited reasons for the Court's empowerment in this area, but the decison itself was not directly about the Court having that power or not in a primary sense. It was only in practice that the power came to reside in the SC, IMHO.

At 33, Madison argues that had the states been abolished, it would have been necessary to reinvent them. But Hamilton, in his five hour Grand Design speech that opened the Convention, argued for keeping the states but stripping them of their sovereignty. Is Madison shading the truth here? How would Hamilton’s plan, if adopted, have changed the nature of the country? Did the results of the Civil War and New Deal do that, and to what degree?

I don't think Madison is "shading the truth" as HE understood things at the time but is worried that ratification opponents are close to gaining the upper hand in the debate because of what he feels to be sophistry on the part of the anti-federalist. He goes out of his way to define terms and lay out what he feels to be the limits of various forms of government so that the other side will not be able to so easily misstate things in their future articles.

If Hamilton's plan had been adopted there simply would have been no union so there is no point in discussing how it would have changed the nature of our union at that point. But Hamilton's plan HAS been adopted over time buy mostly fabian methods beginning with the decision written by John Marshal in Marbury vs Madison. It could not be fully implemented by those means however and the final touches of the conversion were applied at the cost of nearly a million lives between 1860 and 1873.

Hamilton, and the big money interests behind him, wanted a mercantile empire like the one England had become and that is what we now have in my humble opinion. For the last 150 odd years the states have behaved as if they WERE mere administrative districts instead of the sovereign states they originally were. Only very recently have we seen efforts at reassuming their intended roles by a few of them.

“In the next place, the state governments are, by the very theory of the constitution, essential constituent parts of the general government. They can exist without the latter, but the latter cannot exist without them.”

Joseph Story, Commentaries on the Constitution, 1833

On the other hand, the duty imposed upon him [the president] to take care, that the laws be faithfully executed, follows out the strong injunctions of his oath of office that he will "preserve, protect, and defend the constitution." The great object of the executive department is to accomplish this purpose; and without it, be the form of government whatever it may, it will be utterly worthless for offence, or defense; for the redress of grievances, or the protection of rights; for the happiness, or good order, or safety of the people.

Joseph Story, Commentaries on the Constitution, 1833

Isn’t this also the fault of the states, in part for allowing their own soveriegnity at the federal level to be removed, and for choosing poorly on the occasions when some states did stand up to the feds and say no?

We are now seeing some of the states alter their laws in manners designed to tell the federal government that it is beyond its boundaries. We see it with abortion laws, which hasn’t worked very well. We see it with state firearm acts, which also threatens very little. Arizone lit the most powerful fuse with its immigration law, and 0bama even admits that they did it because the feds have abrogated their responsibility.

Probably this will go nowhere, although the Arizona immigration law has some potential to survive challenges and affect at least the people who (legally) live in that state. In many cases, telling the feds to go to hell results in the loss of massive amounts of funding, and the state can’t refuse to pay the feds on some other grounds in order to cover the loss. That noose is very tight.

One potential way to affect the feds is to affect their ability to enforce the laws they’ve enacted. Did you know that your state has an exemption in its gun laws for federal cops? What if a state took that away? Suddenly, a machine gun toting team of feds is breaking the laws of state X, and very serious laws at that. Felony charges, even, regardless of their mission.

It might be possible to mount a constitutional challenge to extradition. Does a federal arrest violate extradition from a state? Can the state refuse to extradite to the federal court? Although this seems to be an opportunity for criminals to run free, remember that Arizona can also take its federal fugitives and send them to southern California, where the feds can go find them in the future. I hope some lawyer can answer this question.

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