FEDERALIST No. 31
The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday, January 1, 1788.
HAMILTON
To the People of the State of New York:
IN DISQUISITIONS of every kind, there are certain primary truths, or
first principles, upon which all subsequent reasonings must depend.
These contain an internal evidence which, antecedent to all reflection
or combination, commands the assent of the mind. Where it produces not
this effect, it must proceed either from some defect or disorder in the
organs of perception, or from the influence of some strong interest, or
passion, or prejudice. Of this nature are the maxims in geometry, that
"the whole is greater than its part; things equal to the same are equal
to one another; two straight lines cannot enclose a space; and all right
angles are equal to each other." Of the same nature are these other
maxims in ethics and politics, that there cannot be an effect without a
cause; that the means ought to be proportioned to the end; that every
power ought to be commensurate with its object; that there ought to be
no limitation of a power destined to effect a purpose which is itself
incapable of limitation. And there are other truths in the two latter
sciences which, if they cannot pretend to rank in the class of axioms,
are yet such direct inferences from them, and so obvious in themselves,
and so agreeable to the natural and unsophisticated dictates of
common-sense, that they challenge the assent of a sound and unbiased
mind, with a degree of force and conviction almost equally irresistible.
The objects of geometrical inquiry are so entirely abstracted from those
pursuits which stir up and put in motion the unruly passions of the
human heart, that mankind, without difficulty, adopt not only the more
simple theorems of the science, but even those abstruse paradoxes which,
however they may appear susceptible of demonstration, are at variance
with the natural conceptions which the mind, without the aid of
philosophy, would be led to entertain upon the subject. The INFINITE
DIVISIBILITY of matter, or, in other words, the INFINITE divisibility of
a FINITE thing, extending even to the minutest atom, is a point agreed
among geometricians, though not less incomprehensible to common-sense
than any of those mysteries in religion, against which the batteries of
infidelity have been so industriously leveled.
But in the sciences of morals and politics, men are found far less
tractable. To a certain degree, it is right and useful that this should
be the case. Caution and investigation are a necessary armor against
error and imposition. But this untractableness may be carried too far,
and may degenerate into obstinacy, perverseness, or disingenuity. Though
it cannot be pretended that the principles of moral and political
knowledge have, in general, the same degree of certainty with those of
the mathematics, yet they have much better claims in this respect than,
to judge from the conduct of men in particular situations, we should be
disposed to allow them. The obscurity is much oftener in the passions
and prejudices of the reasoner than in the subject. Men, upon too many
occasions, do not give their own understandings fair play; but, yielding
to some untoward bias, they entangle themselves in words and confound
themselves in subtleties.
How else could it happen (if we admit the objectors to be sincere in
their opposition), that positions so clear as those which manifest the
necessity of a general power of taxation in the government of the Union,
should have to encounter any adversaries among men of discernment?
Though these positions have been elsewhere fully stated, they will
perhaps not be improperly recapitulated in this place, as introductory
to an examination of what may have been offered by way of objection to
them. They are in substance as follows:
A government ought to contain in itself every power requisite to the
full accomplishment of the objects committed to its care, and to the
complete execution of the trusts for which it is responsible, free from
every other control but a regard to the public good and to the sense of
the people.
As the duties of superintending the national defense and of securing the
public peace against foreign or domestic violence involve a provision
for casualties and dangers to which no possible limits can be assigned,
the power of making that provision ought to know no other bounds than
the exigencies of the nation and the resources of the community.
As revenue is the essential engine by which the means of answering the
national exigencies must be procured, the power of procuring that
article in its full extent must necessarily be comprehended in that of
providing for those exigencies.
As theory and practice conspire to prove that the power of procuring
revenue is unavailing when exercised over the States in their collective
capacities, the federal government must of necessity be invested with an
unqualified power of taxation in the ordinary modes.
Did not experience evince the contrary, it would be natural to conclude
that the propriety of a general power of taxation in the national
government might safely be permitted to rest on the evidence of these
propositions, unassisted by any additional arguments or illustrations.
But we find, in fact, that the antagonists of the proposed Constitution,
so far from acquiescing in their justness or truth, seem to make their
principal and most zealous effort against this part of the plan. It may
therefore be satisfactory to analyze the arguments with which they
combat it.
Those of them which have been most labored with that view, seem in
substance to amount to this: "It is not true, because the exigencies of
the Union may not be susceptible of limitation, that its power of laying
taxes ought to be unconfined. Revenue is as requisite to the purposes of
the local administrations as to those of the Union; and the former are
at least of equal importance with the latter to the happiness of the
people. It is, therefore, as necessary that the State governments should
be able to command the means of supplying their wants, as that the
national government should possess the like faculty in respect to the
wants of the Union. But an indefinite power of taxation in the LATTER
might, and probably would in time, deprive the FORMER of the means of
providing for their own necessities; and would subject them entirely to
the mercy of the national legislature. As the laws of the Union are to
become the supreme law of the land, as it is to have power to pass all
laws that may be NECESSARY for carrying into execution the authorities
with which it is proposed to vest it, the national government might at
any time abolish the taxes imposed for State objects upon the pretense
of an interference with its own. It might allege a necessity of doing
this in order to give efficacy to the national revenues. And thus all
the resources of taxation might by degrees become the subjects of
federal monopoly, to the entire exclusion and destruction of the State
governments."
This mode of reasoning appears sometimes to turn upon the supposition of
usurpation in the national government; at other times it seems to be
designed only as a deduction from the constitutional operation of its
intended powers. It is only in the latter light that it can be admitted
to have any pretensions to fairness. The moment we launch into
conjectures about the usurpations of the federal government, we get into
an unfathomable abyss, and fairly put ourselves out of the reach of all
reasoning. Imagination may range at pleasure till it gets bewildered
amidst the labyrinths of an enchanted castle, and knows not on which
side to turn to extricate itself from the perplexities into which it has
so rashly adventured. Whatever may be the limits or modifications of the
powers of the Union, it is easy to imagine an endless train of possible
dangers; and by indulging an excess of jealousy and timidity, we may
bring ourselves to a state of absolute scepticism and irresolution. I
repeat here what I have observed in substance in another place, that all
observations founded upon the danger of usurpation ought to be referred
to the composition and structure of the government, not to the nature or
extent of its powers. The State governments, by their original
constitutions, are invested with complete sovereignty. In what does our
security consist against usurpation from that quarter? Doubtless in the
manner of their formation, and in a due dependence of those who are to
administer them upon the people. If the proposed construction of the
federal government be found, upon an impartial examination of it, to be
such as to afford, to a proper extent, the same species of security, all
apprehensions on the score of usurpation ought to be discarded.
It should not be forgotten that a disposition in the State governments
to encroach upon the rights of the Union is quite as probable as a
disposition in the Union to encroach upon the rights of the State
governments. What side would be likely to prevail in such a conflict,
must depend on the means which the contending parties could employ
toward insuring success. As in republics strength is always on the side
of the people, and as there are weighty reasons to induce a belief that
the State governments will commonly possess most influence over them,
the natural conclusion is that such contests will be most apt to end to
the disadvantage of the Union; and that there is greater probability of
encroachments by the members upon the federal head, than by the federal
head upon the members. But it is evident that all conjectures of this
kind must be extremely vague and fallible: and that it is by far the
safest course to lay them altogether aside, and to confine our attention
wholly to the nature and extent of the powers as they are delineated in
the Constitution. Every thing beyond this must be left to the prudence
and firmness of the people; who, as they will hold the scales in their
own hands, it is to be hoped, will always take care to preserve the
constitutional equilibrium between the general and the State
governments. Upon this ground, which is evidently the true one, it will
not be difficult to obviate the objections which have been made to an
indefinite power of taxation in the United States.
PUBLIUS
FEDERALIST No. 32
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Independent Journal.
Wednesday, January 2, 1788.
HAMILTON
To the People of the State of New York:
ALTHOUGH I am of opinion that there would be no real danger of the
consequences which seem to be apprehended to the State governments from
a power in the Union to control them in the levies of money, because I
am persuaded that the sense of the people, the extreme hazard of
provoking the resentments of the State governments, and a conviction of
the utility and necessity of local administrations for local purposes,
would be a complete barrier against the oppressive use of such a power;
yet I am willing here to allow, in its full extent, the justness of the
reasoning which requires that the individual States should possess an
independent and uncontrollable authority to raise their own revenues for
the supply of their own wants. And making this concession, I affirm that
(with the sole exception of duties on imports and exports) they would,
under the plan of the convention, retain that authority in the most
absolute and unqualified sense; and that an attempt on the part of the
national government to abridge them in the exercise of it, would be a
violent assumption of power, unwarranted by any article or clause of its
Constitution.
An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and
whatever powers might remain in them, would be altogether dependent on
the general will. But as the plan of the convention aims only at a
partial union or consolidation, the State governments would clearly
retain all the rights of sovereignty which they before had, and which
were not, by that act, EXCLUSIVELY delegated to the United States. This
exclusive delegation, or rather this alienation, of State sovereignty,
would only exist in three cases: where the Constitution in express terms
granted an exclusive authority to the Union; where it granted in one
instance an authority to the Union, and in another prohibited the States
from exercising the like authority; and where it granted an authority to
the Union, to which a similar authority in the States would be
absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to
distinguish this last case from another which might appear to resemble
it, but which would, in fact, be essentially different; I mean where the
exercise of a concurrent jurisdiction might be productive of occasional
interferences in the POLICY of any branch of administration, but would
not imply any direct contradiction or repugnancy in point of
constitutional authority. These three cases of exclusive jurisdiction in
the federal government may be exemplified by the following instances:
The last clause but one in the eighth section of the first article
provides expressly that Congress shall exercise "EXCLUSIVE LEGISLATION"
over the district to be appropriated as the seat of government. This
answers to the first case. The first clause of the same section empowers
Congress "to lay and collect taxes, duties, imposts and excises"; and
the second clause of the tenth section of the same article declares
that, "NO STATE SHALL, without the consent of Congress, lay any imposts
or duties on imports or exports, except for the purpose of executing its
inspection laws." Hence would result an exclusive power in the Union to
lay duties on imports and exports, with the particular exception
mentioned; but this power is abridged by another clause, which declares
that no tax or duty shall be laid on articles exported from any State;
in consequence of which qualification, it now only extends to the DUTIES
ON IMPORTS. This answers to the second case. The third will be found in
that clause which declares that Congress shall have power "to establish
an UNIFORM RULE of naturalization throughout the United States." This
must necessarily be exclusive; because if each State had power to
prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but which is
in fact widely different, affects the question immediately under
consideration. I mean the power of imposing taxes on all articles other
than exports and imports. This, I contend, is manifestly a concurrent
and coequal authority in the United States and in the individual States.
There is plainly no expression in the granting clause which makes that
power EXCLUSIVE in the Union. There is no independent clause or sentence
which prohibits the States from exercising it. So far is this from being
the case, that a plain and conclusive argument to the contrary is to be
deduced from the restraint laid upon the States in relation to duties on
imports and exports. This restriction implies an admission that, if it
were not inserted, the States would possess the power it excludes; and
it implies a further admission, that as to all other taxes, the
authority of the States remains undiminished. In any other view it would
be both unnecessary and dangerous; it would be unnecessary, because if
the grant to the Union of the power of laying such duties implied the
exclusion of the States, or even their subordination in this particular,
there could be no need of such a restriction; it would be dangerous,
because the introduction of it leads directly to the conclusion which
has been mentioned, and which, if the reasoning of the objectors be
just, could not have been intended; I mean that the States, in all cases
to which the restriction did not apply, would have a concurrent power of
taxation with the Union. The restriction in question amounts to what
lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and
an AFFIRMANCE of another; a negation of the authority of the States to
impose taxes on imports and exports, and an affirmance of their
authority to impose them on all other articles. It would be mere
sophistry to argue that it was meant to exclude them ABSOLUTELY from the
imposition of taxes of the former kind, and to leave them at liberty to
lay others SUBJECT TO THE CONTROL of the national legislature. The
restraining or prohibitory clause only says, that they shall not,
WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to
understand this in the sense last mentioned, the Constitution would then
be made to introduce a formal provision for the sake of a very absurd
conclusion; which is, that the States, WITH THE CONSENT of the national
legislature, might tax imports and exports; and that they might tax
every other article, UNLESS CONTROLLED by the same body. If this was the
intention, why not leave it, in the first instance, to what is alleged
to be the natural operation of the original clause, conferring a general
power of taxation upon the Union? It is evident that this could not have
been the intention, and that it will not bear a construction of the
kind.
As to a supposition of repugnancy between the power of taxation in the
States and in the Union, it cannot be supported in that sense which
would be requisite to work an exclusion of the States. It is, indeed,
possible that a tax might be laid on a particular article by a State
which might render it INEXPEDIENT that thus a further tax should be laid
on the same article by the Union; but it would not imply a
constitutional inability to impose a further tax. The quantity of the
imposition, the expediency or inexpediency of an increase on either
side, would be mutually questions of prudence; but there would be
involved no direct contradiction of power. The particular policy of the
national and of the State systems of finance might now and then not
exactly coincide, and might require reciprocal forbearances. It is not,
however a mere possibility of inconvenience in the exercise of powers,
but an immediate constitutional repugnancy that can by implication
alienate and extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases results from
the division of the sovereign power; and the rule that all authorities,
of which the States are not explicitly divested in favor of the Union,
remain with them in full vigor, is not a theoretical consequence of that
division, but is clearly admitted by the whole tenor of the instrument
which contains the articles of the proposed Constitution. We there find
that, notwithstanding the affirmative grants of general authorities,
there has been the most pointed care in those cases where it was deemed
improper that the like authorities should reside in the States, to
insert negative clauses prohibiting the exercise of them by the States.
The tenth section of the first article consists altogether of such
provisions. This circumstance is a clear indication of the sense of the
convention, and furnishes a rule of interpretation out of the body of
the act, which justifies the position I have advanced and refutes every
hypothesis to the contrary.
PUBLIUS
FEDERALIST No. 33
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Independent Journal.
Wednesday, January 2, 1788.
HAMILTON
To the People of the State of New York:
THE residue of the argument against the provisions of the Constitution
in respect to taxation is ingrafted upon the following clause. The last
clause of the eighth section of the first article of the plan under
consideration authorizes the national legislature "to make all laws
which shall be NECESSARY and PROPER for carrying into execution THE
POWERS by that Constitution vested in the government of the United
States, or in any department or officer thereof"; and the second clause
of the sixth article declares, "that the Constitution and the laws of
the United States made IN PURSUANCE THEREOF, and the treaties made by
their authority shall be the SUPREME LAW of the land, any thing in the
constitution or laws of any State to the contrary notwithstanding."
These two clauses have been the source of much virulent invective and
petulant declamation against the proposed Constitution. They have been
held up to the people in all the exaggerated colors of misrepresentation
as the pernicious engines by which their local governments were to be
destroyed and their liberties exterminated; as the hideous monster whose
devouring jaws would spare neither sex nor age, nor high nor low, nor
sacred nor profane; and yet, strange as it may appear, after all this
clamor, to those who may not have happened to contemplate them in the
same light, it may be affirmed with perfect confidence that the
constitutional operation of the intended government would be precisely
the same, if these clauses were entirely obliterated, as if they were
repeated in every article. They are only declaratory of a truth which
would have resulted by necessary and unavoidable implication from the
very act of constituting a federal government, and vesting it with
certain specified powers. This is so clear a proposition, that
moderation itself can scarcely listen to the railings which have been so
copiously vented against this part of the plan, without emotions that
disturb its equanimity.
What is a power, but the ability or faculty of doing a thing? What is
the ability to do a thing, but the power of employing the MEANS
necessary to its execution? What is a LEGISLATIVE power, but a power of
making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS?
What is the power of laying and collecting taxes, but a LEGISLATIVE
POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the
propermeans of executing such a power, but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by which
to judge of the true nature of the clause complained of. It conducts us
to this palpable truth, that a power to lay and collect taxes must be a
power to pass all laws NECESSARY and PROPER for the execution of that
power; and what does the unfortunate and culumniated provision in
question do more than declare the same truth, to wit, that the national
legislature, to whom the power of laying and collecting taxes had been
previously given, might, in the execution of that power, pass all laws
NECESSARY and PROPER to carry it into effect? I have applied these
observations thus particularly to the power of taxation, because it is
the immediate subject under consideration, and because it is the most
important of the authorities proposed to be conferred upon the Union.
But the same process will lead to the same result, in relation to all
other powers declared in the Constitution. And it is EXPRESSLY to
execute these powers that the sweeping clause, as it has been affectedly
called, authorizes the national legislature to pass all NECESSARY and
PROPER laws. If there is any thing exceptionable, it must be sought for
in the specific powers upon which this general declaration is
predicated. The declaration itself, though it may be chargeable with
tautology or redundancy, is at least perfectly harmless.
But SUSPICION may ask, Why then was it introduced? The answer is, that
it could only have been done for greater caution, and to guard against
all cavilling refinements in those who might hereafter feel a
disposition to curtail and evade the legitimatb authorities of the
Union. The Convention probably foresaw, what it has been a principal aim
of these papers to inculcate, that the danger which most threatens our
political welfare is that the State governments will finally sap the
foundations of the Union; and might therefore think it necessary, in so
cardinal a point, to leave nothing to construction. Whatever may have
been the inducement to it, the wisdom of the precaution is evident from
the cry which has been raised against it; as that very cry betrays a
disposition to question the great and essential truth which it is
manifestly the object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as fully
upon the simple grant of those powers as upon the declaratory clause;
and I answer, in the second place, that the national government, like
every other, must judge, in the first instance, of the proper exercise
of its powers, and its constituents in the last. If the federal
government should overpass the just bounds of its authority and make a
tyrannical use of its powers, the people, whose creature it is, must
appeal to the standard they have formed, and take such measures to
redress the injury done to the Constitution as the exigency may suggest
and prudence justify. The propriety of a law, in a constitutional light,
must always be determined by the nature of the powers upon which it is
founded. Suppose, by some forced constructions of its authority (which,
indeed, cannot easily be imagined), the Federal legislature should
attempt to vary the law of descent in any State, would it not be evident
that, in making such an attempt, it had exceeded its jurisdiction, and
infringed upon that of the State? Suppose, again, that upon the pretense
of an interference with its revenues, it should undertake to abrogate a
landtax imposed by the authority of a State; would it not be equally
evident that this was an invasion of that concurrent jurisdiction in
respect to this species of tax, which its Constitution plainly supposes
to exist in the State governments? If there ever should be a doubt on
this head, the credit of it will be entirely due to those reasoners who,
in the imprudent zeal of their animosity to the plan of the convention,
have labored to envelop it in a cloud calculated to obscure the plainest
and simplest truths.
But it is said that the laws of the Union are to be the SUPREME LAW of
the land. But what inference can be drawn from this, or what would they
amount to, if they were not to be supreme? It is evident they would
amount to nothing. A LAW, by the very meaning of the term, includes
supremacy. It is a rule which those to whom it is prescribed are bound
to observe. This results from every political association. If
individuals enter into a state of society, the laws of that society must
be the supreme regulator of their conduct. If a number of political
societies enter into a larger political society, the laws which the
latter may enact, pursuant to the powers intrusted to it by its
constitution, must necessarily be supreme over those societies, and the
individuals of whom they are composed. It would otherwise be a mere
treaty, dependent on the good faith of the parties, and not a goverment,
which is only another word for POLITICAL POWER AND SUPREMACY. But it
will not follow from this doctrine that acts of the large society which
are NOT PURSUANT to its constitutional powers, but which are invasions
of the residuary authorities of the smaller societies, will become the
supreme law of the land. These will be merely acts of usurpation, and
will deserve to be treated as such. Hence we perceive that the clause
which declares the supremacy of the laws of the Union, like the one we
have just before considered, only declares a truth, which flows
immediately and necessarily from the institution of a federal
government. It will not, I presume, have escaped observation, that it
EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in the
convention; since that limitation would have been to be understood,
though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United States
would be supreme in its nature, and could not legally be opposed or
controlled, yet a law for abrogating or preventing the collection of a
tax laid by the authority of the State, (unless upon imports and
exports), would not be the supreme law of the land, but a usurpation of
power not granted by the Constitution. As far as an improper
accumulation of taxes on the same object might tend to render the
collection difficult or precarious, this would be a mutual
inconvenience, not arising from a superiority or defect of power on
either side, but from an injudicious exercise of power by one or the
other, in a manner equally disadvantageous to both. It is to be hoped
and presumed, however, that mutual interest would dictate a concert in
this respect which would avoid any material inconvenience. The inference
from the whole is, that the individual States would, under the proposed
Constitution, retain an independent and uncontrollable authority to
raise revenue to any extent of which they may stand in need, by every
kind of taxation, except duties on imports and exports. It will be shown
in the next paper that this CONCURRENT JURISDICTION in the article of
taxation was the only admissible substitute for an entire subordination,
in respect to this branch of power, of the State authority to that of
the Union.
PUBLIUS
FEDERALIST No. 34
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Independent Journal.
Saturday, January 5, 1788.
HAMILTON
To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last number that the
particular States, under the proposed Constitution, would have COEQUAL
authority with the Union in the article of revenue, except as to duties
on imports. As this leaves open to the States far the greatest part of
the resources of the community, there can be no color for the assertion
that they would not possess means as abundant as could be desired for
the supply of their own wants, independent of all external control. That
the field is sufficiently wide will more fully appear when we come to
advert to the inconsiderable share of the public expenses for which it
will fall to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate authority cannot
exist, is to set up supposition and theory against fact and reality.
However proper such reasonings might be to show that a thing OUGHT NOT
TO EXIST, they are wholly to be rejected when they are made use of to
prove that it does not exist contrary to the evidence of the fact
itself. It is well known that in the Roman republic the legislative
authority, in the last resort, resided for ages in two different
political bodies not as branches of the same legislature, but as
distinct and independent legislatures, in each of which an opposite
interest prevailed: in one the patrician; in the other, the plebian.
Many arguments might have been adduced to prove the unfitness of two
such seemingly contradictory authorities, each having power to ANNUL or
REPEAL the acts of the other. But a man would have been regarded as
frantic who should have attempted at Rome to disprove their existence.
It will be readily understood that I allude to the COMITIA CENTURIATA
and the COMITIA TRIBUTA. The former, in which the people voted by
centuries, was so arranged as to give a superiority to the patrician
interest; in the latter, in which numbers prevailed, the plebian
interest had an entire predominancy. And yet these two legislatures
coexisted for ages, and the Roman republic attained to the utmost height
of human greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there is
little reason to apprehend any inconvenience; because, in a short course
of time, the wants of the States will naturally reduce themselves within
A VERY NARROW COMPASS; and in the interim, the United States will, in
all probability, find it convenient to abstain wholly from those objects
to which the particular States would be inclined to resort.
To form a more precise judgment of the true merits of this question, it
will be well to advert to the proportion between the objects that will
require a federal provision in respect to revenue, and those which will
require a State provision. We shall discover that the former are
altogether unlimited, and that the latter are circumscribed within very
moderate bounds. In pursuing this inquiry, we must bear in mind that we
are not to confine our view to the present period, but to look forward
to remote futurity. Constitutions of civil government are not to be
framed upon a calculation of existing exigencies, but upon a combination
of these with the probable exigencies of ages, according to the natural
and tried course of human affairs. Nothing, therefore, can be more
fallacious than to infer the extent of any power, proper to be lodged in
the national government, from an estimate of its immediate necessities.
There ought to be a CAPACITY to provide for future contingencies as they
may happen; and as these are illimitable in their nature, it is
impossible safely to limit that capacity. It is true, perhaps, that a
computation might be made with sufficient accuracy to answer the purpose
of the quantity of revenue requisite to discharge the subsisting
engagements of the Union, and to maintain those establishments which,
for some time to come, would suffice in time of peace. But would it be
wise, or would it not rather be the extreme of folly, to stop at this
point, and to leave the government intrusted with the care of the
national defense in a state of absolute incapacity to provide for the
protection of the community against future invasions of the public
peace, by foreign war or domestic convulsions? If, on the contrary, we
ought to exceed this point, where can we stop, short of an indefinite
power of providing for emergencies as they may arise? Though it is easy
to assert, in general terms, the possibility of forming a rational
judgment of a due provision against probable dangers, yet we may safely
challenge those who make the assertion to bring forward their data, and
may affirm that they would be found as vague and uncertain as any that
could be produced to establish the probable duration of the world.
Observations confined to the mere prospects of internal attacks can
deserve no weight; though even these will admit of no satisfactory
calculation: but if we mean to be a commercial people, it must form a
part of our policy to be able one day to defend that commerce. The
support of a navy and of naval wars would involve contingencies that
must baffle all the efforts of political arithmetic.
Admitting that we ought to try the novel and absurd experiment in
politics of tying up the hands of government from offensive war founded
upon reasons of state, yet certainly we ought not to disable it from
guarding the community against the ambition or enmity of other nations.
A cloud has been for some time hanging over the European world. If it
should break forth into a storm, who can insure us that in its progress
a part of its fury would not be spent upon us? No reasonable man would
hastily pronounce that we are entirely out of its reach. Or if the
combustible materials that now seem to be collecting should be
dissipated without coming to maturity, or if a flame should be kindled
without extending to us, what security can we have that our tranquillity
will long remain undisturbed from some other cause or from some other
quarter? Let us recollect that peace or war will not always be left to
our option; that however moderate or unambitious we may be, we cannot
count upon the moderation, or hope to extinguish the ambition of others.
Who could have imagined at the conclusion of the last war that France
and Britain, wearied and exhausted as they both were, would so soon have
looked with so hostile an aspect upon each other? To judge from the
history of mankind, we shall be compelled to conclude that the fiery and
destructive passions of war reign in the human breast with much more
powerful sway than the mild and beneficent sentiments of peace; and that
to model our political systems upon speculations of lasting
tranquillity, is to calculate on the weaker springs of the human
character.
What are the chief sources of expense in every government? What has
occasioned that enormous accumulation of debts with which several of the
European nations are oppressed? The answers plainly is, wars and
rebellions; the support of those institutions which are necessary to
guard the body politic against these two most mortal diseases of
society. The expenses arising from those institutions which are relative
to the mere domestic police of a state, to the support of its
legislative, executive, and judicial departments, with their different
appendages, and to the encouragement of agriculture and manufactures
(which will comprehend almost all the objects of state expenditure), are
insignificant in comparison with those which relate to the national
defense.
In the kingdom of Great Britain, where all the ostentatious apparatus of
monarchy is to be provided for, not above a fifteenth part of the annual
income of the nation is appropriated to the class of expenses last
mentioned; the other fourteen fifteenths are absorbed in the payment of
the interest of debts contracted for carrying on the wars in which that
country has been engaged, and in the maintenance of fleets and armies.
If, on the one hand, it should be observed that the expenses incurred in
the prosecution of the ambitious enterprises and vainglorious pursuits
of a monarchy are not a proper standard by which to judge of those which
might be necessary in a republic, it ought, on the other hand, to be
remarked that there should be as great a disproportion between the
profusion and extravagance of a wealthy kingdom in its domestic
administration, and the frugality and economy which in that particular
become the modest simplicity of republican government. If we balance a
proper deduction from one side against that which it is supposed ought
to be made from the other, the proportion may still be considered as
holding good.
But let us advert to the large debt which we have ourselves contracted
in a single war, and let us only calculate on a common share of the
events which disturb the peace of nations, and we shall instantly
perceive, without the aid of any elaborate illustration, that there must
always be an immense disproportion between the objects of federal and
state expenditures. It is true that several of the States, separately,
are encumbered with considerable debts, which are an excrescence of the
late war. But this cannot happen again, if the proposed system be
adopted; and when these debts are discharged, the only call for revenue
of any consequence, which the State governments will continue to
experience, will be for the mere support of their respective civil list;
to which, if we add all contingencies, the total amount in every State
ought to fall considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we ought, in
those provisions which are designed to be permanent, to calculate, not
on temporary, but on permanent causes of expense. If this principle be a
just one our attention would be directed to a provision in favor of the
State governments for an annual sum of about two hundred thousand
pounds; while the exigencies of the Union could be susceptible of no
limits, even in imagination. In this view of the subject, by what logic
can it be maintained that the local governments ought to command, in
perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent
of two hundred thousand pounds? To extend its power further, in
EXCLUSION of the authority of the Union, would be to take the resources
of the community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could have
no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon the
principle of a repartition of the objects of revenue, between the Union
and its members, in PROPORTION to their comparative necessities; what
particular fund could have been selected for the use of the States, that
would not either have been too much or too little too little for their
present, too much for their future wants? As to the line of separation
between external and internal taxes, this would leave to the States, at
a rough computation, the command of two thirds of the resources of the
community to defray from a tenth to a twentieth part of its expenses;
and to the Union, one third of the resources of the community, to defray
from nine tenths to nineteen twentieths of its expenses. If we desert
this boundary and content ourselves with leaving to the States an
exclusive power of taxing houses and lands, there would still be a great
disproportion between the MEANS and the END; the possession of one third
of the resources of the community to supply, at most, one tenth of its
wants. If any fund could have been selected and appropriated, equal to
and not greater than the object, it would have been inadequate to the
discharge of the existing debts of the particular States, and would have
left them dependent on the Union for a provision for this purpose.
The preceding train of observation will justify the position which has
been elsewhere laid down, that "A CONCURRENT JURISDICTION in the article
of taxation was the only admissible substitute for an entire
subordination, in respect to this branch of power, of State authority to
that of the Union." Any separation of the objects of revenue that could
have been fallen upon, would have amounted to a sacrifice of the great
INTERESTS of the Union to the POWER of the individual States. The
convention thought the concurrent jurisdiction preferable to that
subordination; and it is evident that it has at least the merit of
reconciling an indefinite constitutional power of taxation in the
Federal government with an adequate and independent power in the States
to provide for their own necessities. There remain a few other lights,
in which this important subject of taxation will claim a further
consideration.
PUBLIUS
FEDERALIST No. 35
The Same Subject Continued
(Concerning the General Power of Taxation)
For the Independent Journal.
Saturday, January 5, 1788
HAMILTON
To the People of the State of New York:
BEFORE we proceed to examine any other objections to an indefinite power
of taxation in the Union, I shall make one general remark; which is,
that if the jurisdiction of the national government, in the article of
revenue, should be restricted to particular objects, it would naturally
occasion an undue proportion of the public burdens to fall upon those
objects. Two evils would spring from this source: the oppression of
particular branches of industry; and an unequal distribution of the
taxes, as well among the several States as among the citizens of the
same State.
Suppose, as has been contended for, the federal power of taxation were
to be confined to duties on imports, it is evident that the government,
for want of being able to command other resources, would frequently be
tempted to extend these duties to an injurious excess. There are persons
who imagine that they can never be carried to too great a length; since
the higher they are, the more it is alleged they will tend to discourage
an extravagant consumption, to produce a favorable balance of trade, and
to promote domestic manufactures. But all extremes are pernicious in
various ways. Exorbitant duties on imported articles would beget a
general spirit of smuggling; which is always prejudicial to the fair
trader, and eventually to the revenue itself: they tend to render other
classes of the community tributary, in an improper degree, to the
manufacturing classes, to whom they give a premature monopoly of the
markets; they sometimes force industry out of its more natural channels
into others in which it flows with less advantage; and in the last
place, they oppress the merchant, who is often obliged to pay them
himself without any retribution from the consumer. When the demand is
equal to the quantity of goods at market, the consumer generally pays
the duty; but when the markets happen to be overstocked, a great
proportion falls upon the merchant, and sometimes not only exhausts his
profits, but breaks in upon his capital. I am apt to think that a
division of the duty, between the seller and the buyer, more often
happens than is commonly imagined. It is not always possible to raise
the price of a commodity in exact proportion to every additional
imposition laid upon it. The merchant, especially in a country of small
commercial capital, is often under a necessity of keeping prices down in
order to a more expeditious sale.
The maxim that the consumer is the payer, is so much oftener true than
the reverse of the proposition, that it is far more equitable that the
duties on imports should go into a common stock, than that they should
redound to the exclusive benefit of the importing States. But it is not
so generally true as to render it equitable, that those duties should
form the only national fund. When they are paid by the merchant they
operate as an additional tax upon the importing State, whose citizens
pay their proportion of them in the character of consumers. In this view
they are productive of inequality among the States; which inequality
would be increased with the increased extent of the duties. The
confinement of the national revenues to this species of imposts would be
attended with inequality, from a different cause, between the
manufacturing and the non-manufacturing States. The States which can go
farthest towards the supply of their own wants, by their own
manufactures, will not, according to their numbers or wealth, consume so
great a proportion of imported articles as those States which are not in
the same favorable situation. They would not, therefore, in this mode
alone contribute to the public treasury in a ratio to their abilities.
To make them do this it is necessary that recourse be had to excises,
the proper objects of which are particular kinds of manufactures. New
York is more deeply interested in these considerations than such of her
citizens as contend for limiting the power of the Union to external
taxation may be aware of. New York is an importing State, and is not
likely speedily to be, to any great extent, a manufacturing State. She
would, of course, suffer in a double light from restraining the
jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the import
duties being extended to an injurious extreme it may be observed,
conformably to a remark made in another part of these papers, that the
interest of the revenue itself would be a sufficient guard against such
an extreme. I readily admit that this would be the case, as long as
other resources were open; but if the avenues to them were closed, HOPE,
stimulated by necessity, would beget experiments, fortified by rigorous
precautions and additional penalties, which, for a time, would have the
intended effect, till there had been leisure to contrive expedients to
elude these new precautions. The first success would be apt to inspire
false opinions, which it might require a long course of subsequent
experience to correct. Necessity, especially in politics, often
occasions false hopes, false reasonings, and a system of measures
correspondingly erroneous. But even if this supposed excess should not
be a consequence of the limitation of the federal power of taxation, the
inequalities spoken of would still ensue, though not in the same degree,
from the other causes that have been noticed. Let us now return to the
examination of objections.
One which, if we may judge from the frequency of its repetition, seems
most to be relied on, is, that the House of Representatives is not
sufficiently numerous for the reception of all the different classes of
citizens, in order to combine the interests and feelings of every part
of the community, and to produce a due sympathy between the
representative body and its constituents. This argument presents itself
under a very specious and seducing form; and is well calculated to lay
hold of the prejudices of those to whom it is addressed. But when we
come to dissect it with attention, it will appear to be made up of
nothing but fair-sounding words. The object it seems to aim at is, in
the first place, impracticable, and in the sense in which it is
contended for, is unnecessary. I reserve for another place the
discussion of the question which relates to the sufficiency of the
representative body in respect to numbers, and shall content myself with
examining here the particular use which has been made of a contrary
supposition, in reference to the immediate subject of our inquiries.
The idea of an actual representation of all classes of the people, by
persons of each class, is altogether visionary. Unless it were expressly
provided in the Constitution, that each different occupation should send
one or more members, the thing would never take place in practice.
Mechanics and manufacturers will always be inclined, with few
exceptions, to give their votes to merchants, in preference to persons
of their own professions or trades. Those discerning citizens are well
aware that the mechanic and manufacturing arts furnish the materials of
mercantile enterprise and industry. Many of them, indeed, are
immediately connected with the operations of commerce. They know that
the merchant is their natural patron and friend; and they are aware,
that however great the confidence they may justly feel in their own good
sense, their interests can be more effectually promoted by the merchant
than by themselves. They are sensible that their habits in life have not
been such as to give them those acquired endowments, without which, in a
deliberative assembly, the greatest natural abilities are for the most
part useless; and that the influence and weight, and superior
acquirements of the merchants render them more equal to a contest with
any spirit which might happen to infuse itself into the public councils,
unfriendly to the manufacturing and trading interests. These
considerations, and many others that might be mentioned prove, and
experience confirms it, that artisans and manufacturers will commonly be
disposed to bestow their votes upon merchants and those whom they
recommend. We must therefore consider merchants as the natural
representatives of all these classes of the community.
With regard to the learned professions, little need be observed; they
truly form no distinct interest in society, and according to their
situation and talents, will be indiscriminately the objects of the
confidence and choice of each other, and of other parts of the
community.
Nothing remains but the landed interest; and this, in a political view,
and particularly in relation to taxes, I take to be perfectly united,
from the wealthiest landlord down to the poorest tenant. No tax can be
laid on land which will not affect the proprietor of millions of acres
as well as the proprietor of a single acre. Every landholder will
therefore have a common interest to keep the taxes on land as low as
possible; and common interest may always be reckoned upon as the surest
bond of sympathy. But if we even could suppose a distinction of interest
between the opulent landholder and the middling farmer, what reason is
there to conclude, that the first would stand a better chance of being
deputed to the national legislature than the last? If we take fact as
our guide, and look into our own senate and assembly, we shall find that
moderate proprietors of land prevail in both; nor is this less the case
in the senate, which consists of a smaller number, than in the assembly,
which is composed of a greater number. Where the qualifications of the
electors are the same, whether they have to choose a small or a large
number, their votes will fall upon those in whom they have most
confidence; whether these happen to be men of large fortunes, or of
moderate property, or of no property at all.
It is said to be necessary, that all classes of citizens should have
some of their own number in the representative body, in order that their
feelings and interests may be the better understood and attended to. But
we have seen that this will never happen under any arrangement that
leaves the votes of the people free. Where this is the case, the
representative body, with too few exceptions to have any influence on
the spirit of the government, will be composed of landholders,
merchants, and men of the learned professions. But where is the danger
that the interests and feelings of the different classes of citizens
will not be understood or attended to by these three descriptions of
men? Will not the landholder know and feel whatever will promote or
insure the interest of landed property? And will he not, from his own
interest in that species of property, be sufficiently prone to resist
every attempt to prejudice or encumber it? Will not the merchant
understand and be disposed to cultivate, as far as may be proper, the
interests of the mechanic and manufacturing arts, to which his commerce
is so nearly allied? Will not the man of the learned profession, who
will feel a neutrality to the rivalships between the different branches
of industry, be likely to prove an impartial arbiter between them, ready
to promote either, so far as it shall appear to him conducive to the
general interests of the society?
If we take into the account the momentary humors or dispositions which
may happen to prevail in particular parts of the society, and to which a
wise administration will never be inattentive, is the man whose
situation leads to extensive inquiry and information less likely to be a
competent judge of their nature, extent, and foundation than one whose
observation does not travel beyond the circle of his neighbors and
acquaintances? Is it not natural that a man who is a candidate for the
favor of the people, and who is dependent on the suffrages of his
fellow-citizens for the continuance of his public honors, should take
care to inform himself of their dispositions and inclinations, and
should be willing to allow them their proper degree of influence upon
his conduct? This dependence, and the necessity of being bound himself,
and his posterity, by the laws to which he gives his assent, are the
true, and they are the strong chords of sympathy between the
representative and the constituent.
There is no part of the administration of government that requires
extensive information and a thorough knowledge of the principles of
political economy, so much as the business of taxation. The man who
understands those principles best will be least likely to resort to
oppressive expedients, or sacrifice any particular class of citizens to
the procurement of revenue. It might be demonstrated that the most
productive system of finance will always be the least burdensome. There
can be no doubt that in order to a judicious exercise of the power of
taxation, it is necessary that the person in whose hands it should be
acquainted with the general genius, habits, and modes of thinking of the
people at large, and with the resources of the country. And this is all
that can be reasonably meant by a knowledge of the interests and
feelings of the people. In any other sense the proposition has either no
meaning, or an absurd one. And in that sense let every considerate
citizen judge for himself where the requisite qualification is most
likely to be found.
PUBLIUS
FEDERALIST No. 36
The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday, January 8, 1788.
HAMILTON
To the People of the State of New York:
WE HAVE seen that the result of the observations, to which the foregoing
number has been principally devoted, is, that from the natural operation
of the different interests and views of the various classes of the
community, whether the representation of the people be more or less
numerous, it will consist almost entirely of proprietors of land, of
merchants, and of members of the learned professions, who will truly
represent all those different interests and views. If it should be
objected that we have seen other descriptions of men in the local
legislatures, I answer that it is admitted there are exceptions to the
rule, but not in sufficient number to influence the general complexion
or character of the government. There are strong minds in every walk of
life that will rise superior to the disadvantages of situation, and will
command the tribute due to their merit, not only from the classes to
which they particularly belong, but from the society in general. The
door ought to be equally open to all; and I trust, for the credit of
human nature, that we shall see examples of such vigorous plants
flourishing in the soil of federal as well as of State legislation; but
occasional instances of this sort will not render the reasoning founded
upon the general course of things, less conclusive.
The subject might be placed in several other lights that would all lead
to the same result; and in particular it might be asked, What greater
affinity or relation of interest can be conceived between the carpenter
and blacksmith, and the linen manufacturer or stocking weaver, than
between the merchant and either of them? It is notorious that there are
often as great rivalships between different branches of the mechanic or
manufacturing arts as there are between any of the departments of labor
and industry; so that, unless the representative body were to be far
more numerous than would be consistent with any idea of regularity or
wisdom in its deliberations, it is impossible that what seems to be the
spirit of the objection we have been considering should ever be realized
in practice. But I forbear to dwell any longer on a matter which has
hitherto worn too loose a garb to admit even of an accurate inspection
of its real shape or tendency.
There is another objection of a somewhat more precise nature that claims
our attention. It has been asserted that a power of internal taxation in
the national legislature could never be exercised with advantage, as
well from the want of a sufficient knowledge of local circumstances, as
from an interference between the revenue laws of the Union and of the
particular States. The supposition of a want of proper knowledge seems
to be entirely destitute of foundation. If any question is depending in
a State legislature respecting one of the counties, which demands a
knowledge of local details, how is it acquired? No doubt from the
information of the members of the county. Cannot the like knowledge be
obtained in the national legislature from the representatives of each
State? And is it not to be presumed that the men who will generally be
sent there will be possessed of the necessary degree of intelligence to
be able to communicate that information? Is the knowledge of local
circumstances, as applied to taxation, a minute topographical
acquaintance with all the mountains, rivers, streams, highways, and
bypaths in each State; or is it a general acquaintance with its
situation and resources, with the state of its agriculture, commerce,
manufactures, with the nature of its products and consumptions, with the
different degrees and kinds of its wealth, property, and industry?
Nations in general, even under governments of the more popular kind,
usually commit the administration of their finances to single men or to
boards composed of a few individuals, who digest and prepare, in the
first instance, the plans of taxation, which are afterwards passed into
laws by the authority of the sovereign or legislature.
Inquisitive and enlightened statesmen are deemed everywhere best
qualified to make a judicious selection of the objects proper for
revenue; which is a clear indication, as far as the sense of mankind can
have weight in the question, of the species of knowledge of local
circumstances requisite to the purposes of taxation.
The taxes intended to be comprised under the general denomination of
internal taxes may be subdivided into those of the DIRECT and those of
the INDIRECT kind. Though the objection be made to both, yet the
reasoning upon it seems to be confined to the former branch. And indeed,
as to the latter, by which must be understood duties and excises on
articles of consumption, one is at a loss to conceive what can be the
nature of the difficulties apprehended. The knowledge relating to them
must evidently be of a kind that will either be suggested by the nature
of the article itself, or can easily be procured from any well-informed
man, especially of the mercantile class. The circumstances that may
distinguish its situation in one State from its situation in another
must be few, simple, and easy to be comprehended. The principal thing to
be attended to, would be to avoid those articles which had been
previously appropriated to the use of a particular State; and there
could be no difficulty in ascertaining the revenue system of each. This
could always be known from the respective codes of laws, as well as from
the information of the members from the several States.
The objection, when applied to real property or to houses and lands,
appears to have, at first sight, more foundation, but even in this view
it will not bear a close examination. Land taxes are co monly laid in
one of two modes, either by ACTUAL valuations, permanent or periodical,
or by OCCASIONAL assessments, at the discretion, or according to the
best judgment, of certain officers whose duty it is to make them. In
either case, the EXECUTION of the business, which alone requires the
knowledge of local details, must be devolved upon discreet persons in
the character of commissioners or assessors, elected by the people or
appointed by the government for the purpose. All that the law can do
must be to name the persons or to prescribe the manner of their election
or appointment, to fix their numbers and qualifications and to draw the
general outlines of their powers and duties. And what is there in all
this that cannot as well be performed by the national legislature as by
a State legislature? The attention of either can only reach to general
principles; local details, as already observed, must be referred to
those who are to execute the plan.
But there is a simple point of view in which this matter may be placed
that must be altogether satisfactory. The national legislature can make
use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying
and collecting this species of taxes in each State can, in all its
parts, be adopted and employed by the federal government.
Let it be recollected that the proportion of these taxes is not to be
left to the discretion of the national legislature, but is to be
determined by the numbers of each State, as described in the second
section of the first article. An actual census or enumeration of the
people must furnish the rule, a circumstance which effectually shuts the
door to partiality or oppression. The abuse of this power of taxation
seems to have been provided against with guarded circumspection. In
addition to the precaution just mentioned, there is a provision that
"all duties, imposts, and excises shall be UNIFORM throughout the United
States."
It has been very properly observed by different speakers and writers on
the side of the Constitution, that if the exercise of the power of
internal taxation by the Union should be discovered on experiment to be
really inconvenient, the federal government may then forbear the use of
it, and have recourse to requisitions in its stead. By way of answer to
this, it has been triumphantly asked, Why not in the first instance omit
that ambiguous power, and rely upon the latter resource? Two solid
answers may be given. The first is, that the exercise of that power, if
convenient, will be preferable, because it will be more effectual; and
it is impossible to prove in theory, or otherwise than by the
experiment, that it cannot be advantageously exercised. The contrary,
indeed, appears most probable. The second answer is, that the existence
of such a power in the Constitution will have a strong influence in
giving efficacy to requisitions. When the States know that the Union can
apply itself without their agency, it will be a powerful motive for
exertion on their part.
As to the interference of the revenue laws of the Union, and of its
members, we have already seen that there can be no clashing or
repugnancy of authority. The laws cannot, therefore, in a legal sense,
interfere with each other; and it is far from impossible to avoid an
interference even in the policy of their different systems. An effectual
expedient for this purpose will be, mutually, to abstain from those
objects which either side may have first had recourse to. As neither can
CONTROL the other, each will have an obvious and sensible interest in
this reciprocal forbearance. And where there is an IMMEDIATE common
interest, we may safely count upon its operation. When the particular
debts of the States are done away, and their expenses come to be limited
within their natural compass, the possibility almost of interference
will vanish. A small land tax will answer the purpose of the States, and
will be their most simple and most fit resource.
Many spectres have been raised out of this power of internal taxation,
to excite the apprehensions of the people: double sets of revenue
officers, a duplication of their burdens by double taxations, and the
frightful forms of odious and oppressive poll-taxes, have been played
off with all the ingenious dexterity of political legerdemain.
As to the first point, there are two cases in which there can be no room
for double sets of officers: one, where the right of imposing the tax is
exclusively vested in the Union, which applies to the duties on imports;
the other, where the object has not fallen under any State regulation or
provision, which may be applicable to a variety of objects. In other
cases, the probability is that the United States will either wholly
abstain from the objects preoccupied for local purposes, or will make
use of the State officers and State regulations for collecting the
additional imposition. This will best answer the views of revenue,
because it will save expense in the collection, and will best avoid any
occasion of disgust to the State governments and to the people. At all
events, here is a practicable expedient for avoiding such an
inconvenience; and nothing more can be required than to show that evils
predicted to not necessarily result from the plan.
As to any argument derived from a supposed system of influence, it is a
sufficient answer to say that it ought not to be presumed; but the
supposition is susceptible of a more precise answer. If such a spirit
should infest the councils of the Union, the most certain road to the
accomplishment of its aim would be to employ the State officers as much
as possible, and to attach them to the Union by an accumulation of their
emoluments. This would serve to turn the tide of State influence into
the channels of the national government, instead of making federal
influence flow in an opposite and adverse current. But all suppositions
of this kind are invidious, and ought to be banished from the
consideration of the great question before the people. They can answer
no other end than to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain. The wants
of the Union are to be supplied in one way or another; if to be done by
the authority of the federal government, it will not be to be done by
that of the State government. The quantity of taxes to be paid by the
community must be the same in either case; with this advantage, if the
provision is to be made by the Union that the capital resource of
commercial imposts, which is the most convenient branch of revenue, can
be prudently improved to a much greater extent under federal than under
State regulation, and of course will render it less necessary to recur
to more inconvenient methods; and with this further advantage, that as
far as there may be any real difficulty in the exercise of the power of
internal taxation, it will impose a disposition to greater care in the
choice and arrangement of the means; and must naturally tend to make it
a fixed point of policy in the national administration to go as far as
may be practicable in making the luxury of the rich tributary to the
public treasury, in order to diminish the necessity of those impositions
which might create dissatisfaction in the poorer and most numerous
classes of the society. Happy it is when the interest which the
government has in the preservation of its own power, coincides with a
proper distribution of the public burdens, and tends to guard the least
wealthy part of the community from oppression!
As to poll taxes, I, without scruple, confess my disapprobation of them;
and though they have prevailed from an early period in those States[1]
which have uniformly been the most tenacious of their rights, I should
lament to see them introduced into practice under the national
government. But does it follow because there is a power to lay them that
they will actually be laid? Every State in the Union has power to impose
taxes of this kind; and yet in several of them they are unknown in
practice. Are the State governments to be stigmatized as tyrannies,
because they possess this power? If they are not, with what propriety
can the like power justify such a charge against the national
government, or even be urged as an obstacle to its adoption? As little
friendly as I am to the species of imposition, I still feel a thorough
conviction that the power of having recourse to it ought to exist in the
federal government. There are certain emergencies of nations, in which
expedients, that in the ordinary state of things ought to be forborne,
become essential to the public weal. And the government, from the
possibility of such emergencies, ought ever to have the option of making
use of them. The real scarcity of objects in this country, which may be
considered as productive sources of revenue, is a reason peculiar to
itself, for not abridging the discretion of the national councils in
this respect. There may exist certain critical and tempestuous
conjunctures of the State, in which a poll tax may become an inestimable
resource. And as I know nothing to exempt this portion of the globe from
the common calamities that have befallen other parts of it, I
acknowledge my aversion to every project that is calculated to disarm
the government of a single weapon, which in any possible contingency
might be usefully employed for the general defense and security.
[I have now gone through the examination of such of the powers proposed
to be vested in the United States, which may be considered as having an
immediate relation to the energy of the government; and have endeavored
to answer the principal objections which have been made to them. I have
passed over in silence those minor authorities, which are either too
inconsiderable to have been thought worthy of the hostilities of the
opponents of the Constitution, or of too manifest propriety to admit of
controversy. The mass of judiciary power, however, might have claimed an
investigation under this head, had it not been for the consideration
that its organization and its extent may be more advantageously
considered in connection. This has determined me to refer it to the
branch of our inquiries upon which we shall next enter.][E1]
[I have now gone through the examination of those powers proposed to be
conferred upon the federal government which relate more peculiarly to
its energy, and to its efficiency for answering the great and primary
objects of union. There are others which, though omitted here, will, in
order to render the view of the subject more complete, be taken notice
of under the next head of our inquiries. I flatter myself the progress
already made will have sufficed to satisfy the candid and judicious part
of the community that some of the objections which have been most
strenuously urged against the Constitution, and which were most
formidable in their first appearance, are not only destitute of
substance, but if they had operated in the formation of the plan, would
have rendered it incompetent to the great ends of public happiness and
national prosperity. I equally flatter myself that a further and more
critical investigation of the system will serve to recommend it still
more to every sincere and disinterested advocate for good government and
will leave no doubt with men of this character of the propriety and
expediency of adopting it. Happy will it be for ourselves, and more
honorable for human nature, if we have wisdom and virtue enough to set
so glorious an example to mankind!][E1]
PUBLIUS
1. The New England States.
E1. Two versions of this paragraph appear in different editions.
FEDERALIST No. 37
Concerning the Difficulties of the Convention in Devising a Proper
Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.
MADISON
To the People of the State of New York:
IN REVIEWING the defects of the existing Confederation, and showing that
they cannot be supplied by a government of less energy than that before
the public, several of the most important principles of the latter fell
of course under consideration. But as the ultimate object of these
papers is to determine clearly and fully the merits of this
Constitution, and the expediency of adopting it, our plan cannot be
complete without taking a more critical and thorough survey of the work
of the convention, without examining it on all its sides, comparing it
in all its parts, and calculating its probable effects. That this
remaining task may be executed under impressions conducive to a just and
fair result, some reflections must in this place be indulged, which
candor previously suggests.
It is a misfortune, inseparable from human affairs, that public measures
are rarely investigated with that spirit of moderation which is
essential to a just estimate of their real tendency to advance or
obstruct the public good; and that this spirit is more apt to be
diminished than promoted, by those occasions which require an unusual
exercise of it. To those who have been led by experience to attend to
this consideration, it could not appear surprising, that the act of the
convention, which recommends so many important changes and innovations,
which may be viewed in so many lights and relations, and which touches
the springs of so many passions and interests, should find or excite
dispositions unfriendly, both on one side and on the other, to a fair
discussion and accurate judgment of its merits. In some, it has been too
evident from their own publications, that they have scanned the proposed
Constitution, not only with a predisposition to censure, but with a
predetermination to condemn; as the language held by others betrays an
opposite predetermination or bias, which must render their opinions also
of little moment in the question. In placing, however, these different
characters on a level, with respect to the weight of their opinions, I
wish not to insinuate that there may not be a material difference in the
purity of their intentions. It is but just to remark in favor of the
latter description, that as our situation is universally admitted to be
peculiarly critical, and to require indispensably that something should
be done for our relief, the predetermined patron of what has been
actually done may have taken his bias from the weight of these
considerations, as well as from considerations of a sinister nature. The
predetermined adversary, on the other hand, can have been governed by no
venial motive whatever. The intentions of the first may be upright, as
they may on the contrary be culpable. The views of the last cannot be
upright, and must be culpable. But the truth is, that these papers are
not addressed to persons falling under either of these characters. They
solicit the attention of those only, who add to a sincere zeal for the
happiness of their country, a temper favorable to a just estimate of the
means of promoting it.
Persons of this character will proceed to an examination of the plan
submitted by the convention, not only without a disposition to find or
to magnify faults; but will see the propriety of reflecting, that a
faultless plan was not to be expected. Nor will they barely make
allowances for the errors which may be chargeable on the fallibility to
which the convention, as a body of men, were liable; but will keep in
mind, that they themselves also are but men, and ought not to assume an
infallibility in rejudging the fallible opinions of others.
With equal readiness will it be perceived, that besides these
inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred to
the convention.
The novelty of the undertaking immediately strikes us. It has been shown
in the course of these papers, that the existing Confederation is
founded on principles which are fallacious; that we must consequently
change this first foundation, and with it the superstructure resting
upon it. It has been shown, that the other confederacies which could be
consulted as precedents have been vitiated by the same erroneous
principles, and can therefore furnish no other light than that of
beacons, which give warning of the course to be shunned, without
pointing out that which ought to be pursued. The most that the
convention could do in such a situation, was to avoid the errors
suggested by the past experience of other countries, as well as of our
own; and to provide a convenient mode of rectifying their own errors, as
future experiences may unfold them.
Among the difficulties encountered by the convention, a very important
one must have lain in combining the requisite stability and energy in
government, with the inviolable attention due to liberty and to the
republican form. Without substantially accomplishing this part of their
undertaking, they would have very imperfectly fulfilled the object of
their appointment, or the expectation of the public; yet that it could
not be easily accomplished, will be denied by no one who is unwilling to
betray his ignorance of the subject. Energy in government is essential
to that security against external and internal danger, and to that
prompt and salutary execution of the laws which enter into the very
definition of good government. Stability in government is essential to
national character and to the advantages annexed to it, as well as to
that repose and confidence in the minds of the people, which are among
the chief blessings of civil society. An irregular and mutable
legislation is not more an evil in itself than it is odious to the
people; and it may be pronounced with assurance that the people of this
country, enlightened as they are with regard to the nature, and
interested, as the great body of them are, in the effects of good
government, will never be satisfied till some remedy be applied to the
vicissitudes and uncertainties which characterize the State
administrations. On comparing, however, these valuable ingredients with
the vital principles of liberty, we must perceive at once the difficulty
of mingling them together in their due proportions. The genius of
republican liberty seems to demand on one side, not only that all power
should be derived from the people, but that those intrusted with it
should be kept in independence on the people, by a short duration of
their appointments; and that even during this short period the trust
should be placed not in a few, but a number of hands. Stability, on the
contrary, requires that the hands in which power is lodged should
continue for a length of time the same. A frequent change of men will
result from a frequent return of elections; and a frequent change of
measures from a frequent change of men: whilst energy in government
requires not only a certain duration of power, but the execution of it
by a single hand.
How far the convention may have succeeded in this part of their work,
will better appear on a more accurate view of it. From the cursory view
here taken, it must clearly appear to have been an arduous part.
Not less arduous must have been the task of marking the proper line of
partition between the authority of the general and that of the State
governments. Every man will be sensible of this difficulty, in
proportion as he has been accustomed to contemplate and discriminate
objects extensive and complicated in their nature. The faculties of the
mind itself have never yet been distinguished and defined, with
satisfactory precision, by all the efforts of the most acute and
metaphysical philosophers. Sense, perception, judgment, desire,
volition, memory, imagination, are found to be separated by such
delicate shades and minute gradations that their boundaries have eluded
the most subtle investigations, and remain a pregnant source of
ingenious disquisition and controversy. The boundaries between the great
kingdom of nature, and, still more, between the various provinces, and
lesser portions, into which they are subdivided, afford another
illustration of the same important truth. The most sagacious and
laborious naturalists have never yet succeeded in tracing with certainty
the line which separates the district of vegetable life from the
neighboring region of unorganized matter, or which marks the ermination
of the former and the commencement of the animal empire. A still greater
obscurity lies in the distinctive characters by which the objects in
each of these great departments of nature have been arranged and
assorted.
When we pass from the works of nature, in which all the delineations are
perfectly accurate, and appear to be otherwise only from the
imperfection of the eye which surveys them, to the institutions of man,
in which the obscurity arises as well from the object itself as from the
organ by which it is contemplated, we must perceive the necessity of
moderating still further our expectations and hopes from the efforts of
human sagacity. Experience has instructed us that no skill in the
science of government has yet been able to discriminate and define, with
sufficient certainty, its three great provinces the legislative,
executive, and judiciary; or even the privileges and powers of the
different legislative branches. Questions daily occur in the course of
practice, which prove the obscurity which reins in these subjects, and
which puzzle the greatest adepts in political science.
The experience of ages, with the continued and combined labors of the
most enlightened legislatures and jurists, has been equally unsuccessful
in delineating the several objects and limits of different codes of laws
and different tribunals of justice. The precise extent of the common
law, and the statute law, the maritime law, the ecclesiastical law, the
law of corporations, and other local laws and customs, remains still to
be clearly and finally established in Great Britain, where accuracy in
such subjects has been more industriously pursued than in any other part
of the world. The jurisdiction of her several courts, general and local,
of law, of equity, of admiralty, etc., is not less a source of frequent
and intricate discussions, sufficiently denoting the indeterminate
limits by which they are respectively circumscribed. All new laws,
though penned with the greatest technical skill, and passed on the
fullest and most mature deliberation, are considered as more or less
obscure and equivocal, until their meaning be liquidated and ascertained
by a series of particular discussions and adjudications. Besides the
obscurity arising from the complexity of objects, and the imperfection
of the human faculties, the medium through which the conceptions of men
are conveyed to each other adds a fresh embarrassment. The use of words
is to express ideas. Perspicuity, therefore, requires not only that the
ideas should be distinctly formed, but that they should be expressed by
words distinctly and exclusively appropriate to them. But no language is
so copious as to supply words and phrases for every complex idea, or so
correct as not to include many equivocally denoting different ideas.
Hence it must happen that however accurately objects may be
discriminated in themselves, and however accurately the discrimination
may be considered, the definition of them may be rendered inaccurate by
the inaccuracy of the terms in which it is delivered. And this
unavoidable inaccuracy must be greater or less, according to the
complexity and novelty of the objects defined. When the Almighty himself
condescends to address mankind in their own language, his meaning,
luminous as it must be, is rendered dim and doubtful by the cloudy
medium through which it is communicated.
Here, then, are three sources of vague and incorrect definitions:
indistinctness of the object, imperfection of the organ of conception,
inadequateness of the vehicle of ideas. Any one of these must produce a
certain degree of obscurity. The convention, in delineating the boundary
between the federal and State jurisdictions, must have experienced the
full effect of them all.
To the difficulties already mentioned may be added the interfering
pretensions of the larger and smaller States. We cannot err in supposing
that the former would contend for a participation in the government,
fully proportioned to their superior wealth and importance; and that the
latter would not be less tenacious of the equality at present enjoyed by
them. We may well suppose that neither side would entirely yield to the
other, and consequently that the struggle could be terminated only by
compromise. It is extremely probable, also, that after the ratio of
representation had been adjusted, this very compromise must have
produced a fresh struggle between the same parties, to give such a turn
to the organization of the government, and to the distribution of its
powers, as would increase the importance of the branches, in forming
which they had respectively obtained the greatest share of influence.
There are features in the Constitution which warrant each of these
suppositions; and as far as either of them is well founded, it shows
that the convention must have been compelled to sacrifice theoretical
propriety to the force of extraneous considerations.
Nor could it have been the large and small States only, which would
marshal themselves in opposition to each other on various points. Other
combinations, resulting from a difference of local position and policy,
must have created additional difficulties. As every State may be divided
into different districts, and its citizens into different classes, which
give birth to contending interests and local jealousies, so the
different parts of the United States are distinguished from each other
by a variety of circumstances, which produce a like effect on a larger
scale. And although this variety of interests, for reasons sufficiently
explained in a former paper, may have a salutary influence on the
administration of the government when formed, yet every one must be
sensible of the contrary influence, which must have been experienced in
the task of forming it.
Would it be wonderful if, under the pressure of all these difficulties,
the convention should have been forced into some deviations from that
artificial structure and regular symmetry which an abstract view of the
subject might lead an ingenious theorist to bestow on a Constitution
planned in his closet or in his imagination? The real wonder is that so
many difficulties should have been surmounted, and surmounted with a
unanimity almost as unprecedented as it must have been unexpected. It is
impossible for any man of candor to reflect on this circumstance without
partaking of the astonishment. It is impossible for the man of pious
reflection not to perceive in it a finger of that Almighty hand which
has been so frequently and signally extended to our relief in the
critical stages of the revolution.
We had occasion, in a former paper, to take notice of the repeated
trials which have been unsuccessfully made in the United Netherlands for
reforming the baneful and notorious vices of their constitution. The
history of almost all the great councils and consultations held among
mankind for reconciling their discordant opinions, assuaging their
mutual jealousies, and adjusting their respective interests, is a
history of factions, contentions, and disappointments, and may be
classed among the most dark and degraded pictures which display the
infirmities and depravities of the human character. If, in a few
scattered instances, a brighter aspect is presented, they serve only as
exceptions to admonish us of the general truth; and by their lustre to
darken the gloom of the adverse prospect to which they are contrasted.
In revolving the causes from which these exceptions result, and applying
them to the particular instances before us, we are necessarily led to
two important conclusions. The first is, that the convention must have
enjoyed, in a very singular degree, an exemption from the pestilential
influence of party animosities the disease most incident to deliberative
bodies, and most apt to contaminate their proceedings. The second
conclusion is that all the deputations composing the convention were
satisfactorily accommodated by the final act, or were induced to accede
to it by a deep conviction of the necessity of sacrificing private
opinions and partial interests to the public good, and by a despair of
seeing this necessity diminished by delays or by new experiments.
PUBLIUS
FEDERALIST No. 38
The Same Subject Continued, and the Incoherence of the Objections
to the New Plan Exposed
From the Independent Journal.
Saturday, January 12, 1788.
MADISON
To the People of the State of New York:
IT IS not a little remarkable that in every case reported by ancient
history, in which government has been established with deliberation and
consent, the task of framing it has not been committed to an assembly of
men, but has been performed by some individual citizen of preeminent
wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of Crete,
as Zaleucus was of that of the Locrians. Theseus first, and after him
Draco and Solon, instituted the government of Athens. Lycurgus was the
lawgiver of Sparta. The foundation of the original government of Rome
was laid by Romulus, and the work completed by two of his elective
successors, Numa and Tullius Hostilius. On the abolition of royalty the
consular administration was substituted by Brutus, who stepped forward
with a project for such a reform, which, he alleged, had been prepared
by Tullius Hostilius, and to which his address obtained the assent and
ratification of the senate and people. This remark is applicable to
confederate governments also. Amphictyon, we are told, was the author of
that which bore his name. The Achaean league received its first birth
from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in their
respective establishments, or how far they might be clothed with the
legitimate authority of the people, cannot in every instance be
ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with
indefinite powers to reform its government and laws. And Solon,
according to Plutarch, was in a manner compelled, by the universal
suffrage of his fellow-citizens, to take upon him the sole and absolute
power of new-modeling the constitution. The proceedings under Lycurgus
were less regular; but as far as the advocates for a regular reform
could prevail, they all turned their eyes towards the single efforts of
that celebrated patriot and sage, instead of seeking to bring about a
revolution by the intervention of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the Greeks
were of their liberty, should so far abandon the rules of caution as to
place their destiny in the hands of a single citizen? Whence could it
have proceeded, that the Athenians, a people who would not suffer an
army to be commanded by fewer than ten generals, and who required no
other proof of danger to their liberties than the illustrious merit of a
fellow-citizen, should consider one illustrious citizen as a more
eligible depositary of the fortunes of themselves and their posterity,
than a select body of citizens, from whose common deliberations more
wisdom, as well as more safety, might have been expected? These
questions cannot be fully answered, without supposing that the fears of
discord and disunion among a number of counsellors exceeded the
apprehension of treachery or incapacity in a single individual. History
informs us, likewise, of the difficulties with which these celebrated
reformers had to contend, as well as the expedients which they were
obliged to employ in order to carry their reforms into effect. Solon,
who seems to have indulged a more temporizing policy, confessed that he
had not given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus, more
true to his object, was under the necessity of mixing a portion of
violence with the authority of superstition, and of securing his final
success by a voluntary renunciation, first of his country, and then of
his life. If these lessons teach us, on one hand, to admire the
improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on the
other, to admonish us of the hazards and difficulties incident to such
experiments, and of the great imprudence of unnecessarily multiplying
them.
Is it an unreasonable conjecture, that the errors which may be contained
in the plan of the convention are such as have resulted rather from the
defect of antecedent experience on this complicated and difficult
subject, than from a want of accuracy or care in the investigation of
it; and, consequently such as will not be ascertained until an actual
trial shall have pointed them out? This conjecture is rendered probable,
not only by many considerations of a general nature, but by the
particular case of the Articles of Confederation. It is observable that
among the numerous objections and amendments suggested by the several
States, when these articles were submitted for their ratification, not
one is found which alludes to the great and radical error which on
actual trial has discovered itself. And if we except the observations
which New Jersey was led to make, rather by her local situation, than by
her peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system. There is
abundant reason, nevertheless, to suppose that immaterial as these
objections were, they would have been adhered to with a very dangerous
inflexibility, in some States, had not a zeal for their opinions and
supposed interests been stifled by the more powerful sentiment of
selfpreservation. One State, we may remember, persisted for several
years in refusing her concurrence, although the enemy remained the whole
period at our gates, or rather in the very bowels of our country. Nor
was her pliancy in the end effected by a less motive, than the fear of
being chargeable with protracting the public calamities, and endangering
the event of the contest. Every candid reader will make the proper
reflections on these important facts.
A patient who finds his disorder daily growing worse, and that an
efficacious remedy can no longer be delayed without extreme danger,
after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable
of administering relief, and best entitled to his confidence. The
physicians attend; the case of the patient is carefully examined; a
consultation is held; they are unanimously agreed that the symptoms are
critical, but that the case, with proper and timely relief, is so far
from being desperate, that it may be made to issue in an improvement of
his constitution. They are equally unanimous in prescribing the remedy,
by which this happy effect is to be produced. The prescription is no
sooner made known, however, than a number of persons interpose, and,
without denying the reality or danger of the disorder, assure the
patient that the prescription will be poison to his constitution, and
forbid him, under pain of certain death, to make use of it. Might not
the patient reasonably demand, before he ventured to follow this advice,
that the authors of it should at least agree among themselves on some
other remedy to be substituted? And if he found them differing as much
from one another as from his first counsellors, would he not act
prudently in trying the experiment unanimously recommended by the
latter, rather than be hearkening to those who could neither deny the
necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment. She
has been sensible of her malady. She has obtained a regular and
unanimous advice from men of her own deliberate choice. And she is
warned by others against following this advice under pain of the most
fatal consequences. Do the monitors deny the reality of her danger? No.
Do they deny the necessity of some speedy and powerful remedy? No. Are
they agreed, are any two of them agreed, in their objections to the
remedy proposed, or in the proper one to be substituted? Let them speak
for themselves. This one tells us that the proposed Constitution ought
to be rejected, because it is not a confederation of the States, but a
government over individuals. Another admits that it ought to be a
government over individuals to a certain extent, but by no means to the
extent proposed. A third does not object to the government over
individuals, or to the extent proposed, but to the want of a bill of
rights. A fourth concurs in the absolute necessity of a bill of rights,
but contends that it ought to be declaratory, not of the personal rights
of individuals, but of the rights reserved to the States in their
political capacity. A fifth is of opinion that a bill of rights of any
sort would be superfluous and misplaced, and that the plan would be
unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly against
the unreasonable equality of representation in the Senate. An objector
in a small State is equally loud against the dangerous inequality in the
House of Representatives. From this quarter, we are alarmed with the
amazing expense, from the number of persons who are to administer the
new government. From another quarter, and sometimes from the same
quarter, on another occasion, the cry is that the Congress will be but a
shadow of a representation, and that the government would be far less
objectionable if the number and the expense were doubled. A patriot in a
State that does not import or export, discerns insuperable objections
against the power of direct taxation. The patriotic adversary in a State
of great exports and imports, is not less dissatisfied that the whole
burden of taxes may be thrown on consumption. This politician discovers
in the Constitution a direct and irresistible tendency to monarchy; that
is equally sure it will end in aristocracy. Another is puzzled to say
which of these shapes it will ultimately assume, but sees clearly it
must be one or other of them; whilst a fourth is not wanting, who with
no less confidence affirms that the Constitution is so far from having a
bias towards either of these dangers, that the weight on that side will
not be sufficient to keep it upright and firm against its opposite
propensities. With another class of adversaries to the Constitution the
language is that the legislative, executive, and judiciary departments
are intermixed in such a manner as to contradict all the ideas of
regular government and all the requisite precautions in favor of
liberty. Whilst this objection circulates in vague and general
expressions, there are but a few who lend their sanction to it. Let each
one come forward with his particular explanation, and scarce any two are
exactly agreed upon the subject. In the eyes of one the junction of the
Senate with the President in the responsible function of appointing to
offices, instead of vesting this executive power in the Executive alone,
is the vicious part of the organization. To another, the exclusion of
the House of Representatives, whose numbers alone could be a due
security against corruption and partiality in the exercise of such a
power, is equally obnoxious. With another, the admission of the
President into any share of a power which ever must be a dangerous
engine in the hands of the executive magistrate, is an unpardonable
violation of the maxims of republican jealousy. No part of the
arrangement, according to some, is more inadmissible than the trial of
impeachments by the Senate, which is alternately a member both of the
legislative and executive departments, when this power so evidently
belonged to the judiciary department. "We concur fully," reply others,
"in the objection to this part of the plan, but we can never agree that
a reference of impeachments to the judiciary authority would be an
amendment of the error. Our principal dislike to the organization arises
from the extensive powers already lodged in that department." Even among
the zealous patrons of a council of state the most irreconcilable
variance is discovered concerning the mode in which it ought to be
constituted. The demand of one gentleman is, that the council should
consist of a small number to be appointed by the most numerous branch of
the legislature. Another would prefer a larger number, and considers it
as a fundamental condition that the appointment should be made by the
President himself.
As it can give no umbrage to the writers against the plan of the federal
Constitution, let us suppose, that as they are the most zealous, so they
are also the most sagacious, of those who think the late convention were
unequal to the task assigned them, and that a wiser and better plan
might and ought to be substituted. Let us further suppose that their
country should concur, both in this favorable opinion of their merits,
and in their unfavorable opinion of the convention; and should
accordingly proceed to form them into a second convention, with full
powers, and for the express purpose of revising and remoulding the work
of the first. Were the experiment to be seriously made, though it
required some effort to view it seriously even in fiction, I leave it to
be decided by the sample of opinions just exhibited, whether, with all
their enmity to their predecessors, they would, in any one point, depart
so widely from their example, as in the discord and ferment that would
mark their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as
Lycurgus gave to that of Sparta, by making its change to depend on his
own return from exile and death, if it were to be immediately adopted,
and were to continue in force, not until a BETTER, but until ANOTHER
should be agreed upon by this new assembly of lawgivers.
It is a matter both of wonder and regret, that those who raise so many
objections against the new Constitution should never call to mind the
defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold,
because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building,
because the latter had not a porch to it, or because some of the rooms
might be a little larger or smaller, or the ceilings a little higher or
lower than his fancy would have planned them. But waiving illustrations
of this sort, is it not manifest that most of the capital objections
urged against the new system lie with tenfold weight against the
existing Confederation? Is an indefinite power to raise money dangerous
in the hands of the federal government? The present Congress can make
requisitions to any amount they please, and the States are
constitutionally bound to furnish them; they can emit bills of credit as
long as they will pay for the paper; they can borrow, both abroad and at
home, as long as a shilling will be lent. Is an indefinite power to
raise troops dangerous? The Confederation gives to Congress that power
also; and they have already begun to make use of it. Is it improper and
unsafe to intermix the different powers of government in the same body
of men? Congress, a single body of men, are the sole depositary of all
the federal powers. Is it particularly dangerous to give the keys of the
treasury, and the command of the army, into the same hands? The
Confederation places them both in the hands of Congress. Is a bill of
rights essential to liberty? The Confederation has no bill of rights. Is
it an objection against the new Constitution, that it empowers the
Senate, with the concurrence of the Executive, to make treaties which
are to be the laws of the land? The existing Congress, without any such
control, can make treaties which they themselves have declared, and most
of the States have recognized, to be the supreme law of the land. Is the
importation of slaves permitted by the new Constitution for twenty
years? By the old it is permitted forever.
I shall be told, that however dangerous this mixture of powers may be in
theory, it is rendered harmless by the dependence of Congress on the
State for the means of carrying them into practice; that however large
the mass of powers may be, it is in fact a lifeless mass. Then, say I,
in the first place, that the Confederation is chargeable with the still
greater folly of declaring certain powers in the federal government to
be absolutely necessary, and at the same time rendering them absolutely
nugatory; and, in the next place, that if the Union is to continue, and
no better government be substituted, effective powers must either be
granted to, or assumed by, the existing Congress; in either of which
events, the contrast just stated will hold good. But this is not all.
Out of this lifeless mass has already grown an excrescent power, which
tends to realize all the dangers that can be apprehended from a
defective construction of the supreme government of the Union. It is now
no longer a point of speculation and hope, that the Western territory is
a mine of vast wealth to the United States; and although it is not of
such a nature as to extricate them from their present distresses, or for
some time to come, to yield any regular supplies for the public
expenses, yet must it hereafter be able, under proper management, both
to effect a gradual discharge of the domestic debt, and to furnish, for
a certain period, liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered by individual
States; and it may with reason be expected that the remaining States
will not persist in withholding similar proofs of their equity and
generosity. We may calculate, therefore, that a rich and fertile
country, of an area equal to the inhabited extent of the United States,
will soon become a national stock. Congress have assumed the
administration of this stock. They have begun to render it productive.
Congress have undertaken to do more: they have proceeded to form new
States, to erect temporary governments, to appoint officers for them,
and to prescribe the conditions on which such States shall be admitted
into the Confederacy. All this has been done; and done without the least
color of constitutional authority. Yet no blame has been whispered; no
alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is
passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to
an INDEFINITE NUMBER, and appropriate money to their support for an
INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been
silent spectators of this prospect, but who are advocates for the system
which exhibits it; and, at the same time, urge against the new system
the objections which we have heard. Would they not act with more
consistency, in urging the establishment of the latter, as no less
necessary to guard the Union against the future powers and resources of
a body constructed like the existing Congress, than to save it from the
dangers threatened by the present impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the measures
which have been pursued by Congress. I am sensible they could not have
done otherwise. The public interest, the necessity of the case, imposed
upon them the task of overleaping their constitutional limits. But is
not the fact an alarming proof of the danger resulting from a government
which does not possess regular powers commensurate to its objects? A
dissolution or usurpation is the dreadful dilemma to which it is
continually exposed.
PUBLIUS
FEDERALIST No. 39
The Conformity of the Plan to Republican Principles
For the Independent Journal.
Wednesday, January 16, 1788
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
FEDERALIST No. 40
On the Powers of the Convention to Form a Mixed Government Examined
and Sustained
For the New York Packet.
Friday, January 18, 1788.
MADISON
To the People of the State of New York:
THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution.
The powers of the convention ought, in strictness, to be determined by
an inspection of the commissions given to the members by their
respective constituents. As all of these, however, had reference, either
to the recommendation from the meeting at Annapolis, in September, 1786,
or to that from Congress, in February, 1787, it will be sufficient to
recur to these particular acts.
The act from Annapolis recommends the "appointment of commissioners to
take into consideration the situation of the United States; to devise
SUCH FURTHER PROVISIONS as shall appear to them necessary to render the
Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE
UNION; and to report such an act for that purpose, to the United States
in Congress assembled, as when agreed to by them, and afterwards
confirmed by the legislature of every State, will effectually provide
for the same."
The recommendatory act of Congress is in the words following: "WHEREAS,
There is provision in the articles of Confederation and perpetual Union,
for making alterations therein, by the assent of a Congress of the
United States, and of the legislatures of the several States; and
whereas experience hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States, and
PARTICULARLY THE STATE OF NEW YORK, by express instructions to their
delegates in Congress, have suggested a convention for the purposes
expressed in the following resolution; and such convention appearing to
be the most probable mean of establishing in these States A FIRM
NATIONAL GOVERNMENT:
"Resolved, That in the opinion of Congress it is expedient, that on the
second Monday of May next a convention of delegates, who shall have been
appointed by the several States, be held at Philadelphia, for the sole
and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and
reporting to Congress and the several legislatures such ALTERATIONS AND
PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed
by the States, render the federal Constitution ADEQUATE TO THE
EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION."
From these two acts, it appears, 1st, that the object of the convention
was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that
this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF
GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes
were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
CONFEDERATION, as it is expressed in the act of Congress, or by SUCH
FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the
recommendatory act from Annapolis; 4th, that the alterations and
provisions were to be reported to Congress, and to the States, in order
to be agreed to by the former and confirmed by the latter.
From a comparison and fair construction of these several
modes of expression, is to be deduced the authority under which the
convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to
the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the
articles of Confederation into such form as to accomplish these
purposes.
There are two rules of construction, dictated by plain reason, as well
as founded on legal axioms. The one is, that every part of the
expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several
parts cannot be made to coincide, the less important should give way to
the more important part; the means should be sacrificed to the end,
rather than the end to the means.
Suppose, then, that the expressions defining the authority of the
convention were irreconcilably at variance with each other; that a
NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of
the convention, be affected by ALTERATIONS and PROVISIONS in the
ARTICLES OF CONFEDERATION; which part of the definition ought to have
been embraced, and which rejected? Which was the more important, which
the less important part? Which the end; which the means? Let the most
scrupulous expositors of delegated powers; let the most inveterate
objectors against those exercised by the convention, answer these
questions. Let them declare, whether it was of most importance to the
happiness of the people of America, that the articles of Confederation
should be disregarded, and an adequate government be provided, and the
Union preserved; or that an adequate government should be omitted, and
the articles of Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a reform
of the government was to be introduced as the means; or whether the
establishment of a government, adequate to the national happiness, was
the end at which these articles themselves originally aimed, and to
which they ought, as insufficient means, to have been sacrificed.
But is it necessary to suppose that these expressions are absolutely
irreconcilable to each other; that no ALTERATIONS or PROVISIONS in the
articles of the confederation could possibly mould them into a national
and adequate government; into such a government as has been proposed by
the convention?
No stress, it is presumed, will, in this case, be laid on the TITLE; a
change of that could never be deemed an exercise of ungranted power.
ALTERATIONS in the body of the instrument are expressly authorized. NEW
PROVISIONS therein are also expressly authorized. Here then is a power
to change the title; to insert new articles; to alter old ones. Must it
of necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
TRANSMUTATION of the government. Will it be said that the alterations
ought not to have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some SUBSTANTIAL reform
had not been in contemplation. Will it be said that the FUNDAMENTAL
PRINCIPLES of the Confederation were not within the purview of the
convention, and ought not to have been varied? I ask, What are these
principles? Do they require that, in the establishment of the
Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do they
require that the members of the government should derive their
appointment from the legislatures, not from the people of the States?
One branch of the new government is to be appointed by these
legislatures; and under the Confederation, the delegates to Congress MAY
ALL be appointed immediately by the people, and in two States[1] are
actually so appointed. Do they require that the powers of the government
should act on the States, and not immediately on individuals? In some
instances, as has been shown, the powers of the new government will act
on the States in their collective characters. In some instances, also,
those of the existing government act immediately on individuals. In
cases of capture; of piracy; of the post office; of coins, weights, and
measures; of trade with the Indians; of claims under grants of land by
different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be inflicted
without the intervention of a jury, or even of a civil magistrate; in
all these cases the powers of the Confederation operate immediately on
the persons and interests of individual citizens. Do these fundamental
principles require, particularly, that no tax should be levied without
the intermediate agency of the States? The Confederation itself
authorizes a direct tax, to a certain extent, on the post office. The
power of coinage has been so construed by Congress as to levy a tribute
immediately from that source also. But pretermitting these instances,
was it not an acknowledged object of the convention and the universal
expectation of the people, that the regulation of trade should be
submitted to the general government in such a form as would render it an
immediate source of general revenue? Had not Congress repeatedly
recommended this measure as not inconsistent with the fundamental
principles of the Confederation? Had not every State but one; had not
New York herself, so far complied with the plan of Congress as to
recognize the PRINCIPLE of the innovation? Do these principles, in fine,
require that the powers of the general government should be limited, and
that, beyond this limit, the States should be left in possession of
their sovereignty and independence? We have seen that in the new
government, as in the old, the general powers are limited; and that the
States, in all unenumerated cases, are left in the enjoyment of their
sovereign and independent jurisdiction.
The truth is, that the great principles of the Constitution proposed by
the convention may be considered less as absolutely new, than as the
expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been, that
these principles are so feeble and confined as to justify all the
charges of inefficiency which have been urged against it, and to require
a degree of enlargement which gives to the new system the aspect of an
entire transformation of the old.
In one particular it is admitted that the convention have departed from
the tenor of their commission. Instead of reporting a plan requiring the
confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a
plan which is to be confirmed by the PEOPLE, and may be carried into
effect by NINE STATES ONLY. It is worthy of remark that this objection,
though the most plausible, has been the least urged in the publications
which have swarmed against the convention. The forbearance can only have
proceeded from an irresistible conviction of the absurdity of subjecting
the fate of twelve States to the perverseness or corruption of a
thirteenth; from the example of inflexible opposition given by a
MAJORITY of one sixtieth of the people of America to a measure approved
and called for by the voice of twelve States, comprising fifty-nine
sixtieths of the people an example still fresh in the memory and
indignation of every citizen who has felt for the wounded honor and
prosperity of his country. As this objection, therefore, has been in a
manner waived by those who have criticised the powers of the convention,
I dismiss it without further observation.
The THIRD point to be inquired into is, how far considerations of duty
arising out of the case itself could have supplied any defect of regular
authority.
In the preceding inquiries the powers of the convention have been
analyzed and tried with the same rigor, and by the same rules, as if
they had been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner they
have borne the trial even on that supposition. It is time now to
recollect that the powers were merely advisory and recommendatory; that
they were so meant by the States, and so understood by the convention;
and that the latter have accordingly planned and proposed a Constitution
which is to be of no more consequence than the paper on which it is
written, unless it be stamped with the approbation of those to whom it
is addressed. This reflection places the subject in a point of view
altogether different, and will enable us to judge with propriety of the
course taken by the convention.
Let us view the ground on which the convention stood. It may be
collected from their proceedings, that they were deeply and unanimously
impressed with the crisis, which had led their country almost with one
voice to make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that they
were no less deeply and unanimously convinced that such a reform as they
have proposed was absolutely necessary to effect the purposes of their
appointment. It could not be unknown to them that the hopes and
expectations of the great body of citizens, throughout this great
empire, were turned with the keenest anxiety to the event of their
deliberations. They had every reason to believe that the contrary
sentiments agitated the minds and bosoms of every external and internal
foe to the liberty and prosperity of the United States. They had seen in
the origin and progress of the experiment, the alacrity with which the
PROPOSITION, made by a single State (Virginia), towards a partial
amendment of the Confederation, had been attended to and promoted. They
had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and critical
object, wholly foreign to their commission, not only justified by the
public opinion, but actually carried into effect by twelve out of the
thirteen States. They had seen, in a variety of instances, assumptions
by Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects infinitely
less urgent than those by which their conduct was to be governed. They
must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid
adherence in such cases to the former, would render nominal and nugatory
the transcendent and precious right of the people to "abolish or alter
their governments as to them shall seem most likely to effect their
safety and happiness,"[2] since it is impossible for the people
spontaneously and universally to move in concert towards their object;
and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have recollected
that it was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their
ancient government; that committees and congresses were formed for
concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering to
ordinary forms, were anywhere seen, except in those who wished to
indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be
framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might even
have occurred to them, that where a disposition to cavil prevailed,
their neglect to execute the degree of power vested in them, and still
more their recommendation of any measure whatever, not warranted by
their commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the national
exigencies.
Had the convention, under all these impressions, and in the midst of all
these considerations, instead of exercising a manly confidence in their
country, by whose confidence they had been so peculiarly distinguished,
and of pointing out a system capable, in their judgment, of securing its
happiness, taken the cold and sullen resolution of disappointing its
ardent hopes, of sacrificing substance to forms, of committing the
dearest interests of their country to the uncertainties of delay and the
hazard of events, let me ask the man who can raise his mind to one
elevated conception, who can awaken in his bosom one patriotic emotion,
what judgment ought to have been pronounced by the impartial world, by
the friends of mankind, by every virtuous citizen, on the conduct and
character of this assembly? Or if there be a man whose propensity to
condemn is susceptible of no control, let me then ask what sentence he
has in reserve for the twelve States who USURPED THE POWER of sending
deputies to the convention, a body utterly unknown to their
constitutions; for Congress, who recommended the appointment of this
body, equally unknown to the Confederation; and for the State of New
York, in particular, which first urged and then complied with this
unauthorized interposition?
But that the objectors may be disarmed of every pretext, it shall be
granted for a moment that the convention were neither authorized by
their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution
ought, for that reason alone, to be rejected? If, according to the noble
precept, it be lawful to accept good advice even from an enemy, shall we
set the ignoble example of refusing such advice even when it is offered
by our friends? The prudent inquiry, in all cases, ought surely to be,
not so much FROM WHOM the advice comes, as whether the advice be GOOD.
The sum of what has been here advanced and proved is, that the charge
against the convention of exceeding their powers, except in one instance
little urged by the objectors, has no foundation to support it; that if
they had exceeded their powers, they were not only warranted, but
required, as the confidential servants of their country, by the
circumstances in which they were placed, to exercise the liberty which
they assume; and that finally, if they had violated both their powers
and their obligations, in proposing a Constitution, this ought
nevertheless to be embraced, if it be calculated to accomplish the views
and happiness of the people of America. How far this character is due to
the Constitution, is the subject under investigation.
PUBLIUS
1. Connecticut and Rhode Island.
2. Declaration of Independence.