Federalist 39 Paraphrased
The Federalist Number 39: Does the New Constitution Conform to Republican Principles? paraphrased into Modern English
'A Republic can be defined as a government that receives all of its authority either directly or indirectly from the large multitude of the people, and is carried out by individuals who hold their positions as long as the people want, for a limited period of time, or as long as they behave with integrity.'
by James Madison, January 16, 1788.
To: the people of New York,
In the last article, we ended our introduction, and now we'll take a candid survey of the kind of government outlined in the new Constitution.
The first question is whether the general structure and appearance of the government is strictly republican. Obviously, no other form of government would be compatible with the genius of the American people, or the foundational principles for which we fought the Revolution. Only a republican form of government would satisfy the noble resolve to trust our political experiment to the ability of mankind to govern themselves -- a resolve that inspires everyone who who is devoted to freedom. If the new Constitution does not conform to a republican model, then those who are promoting it should abandon it as invalid.
So then -- what are the distinctive characteristics of a republican form of government? If we were to look for an answer to this question by reading how political writers use the term as it relates to the various other countries' constitutions, we wouldn't find a satisfactory answer. Everyone calls Holland a Republic, but not the slightest part of the highest authority comes from its people. Venice is also considered a Republic, but her absolute power over most of the people consists in a small group of nobles who inherited their power. Poland has the worst kinds of aristocracy and monarchy combined as their highest authority, yet they also like to use the dignified label of Republic. England does have one branch of their government that's republican [House of Commons], but it's combined with an aristocracy [House of Lords] and monarchy who inherit their authority -- and they're often considered a Republic, too. None of these examples are anything like a genuine Republic. This shows how inaccurately the term has been used in political discussions.
Let's use a definition based on the different principles on which different forms of government are set up. A Republic can be defined as a government that receives all of its authority either directly [by popular vote] or indirectly [by allowing an elected representative to choose] from the large multitude of the people, and is carried out by individuals who hold their positions as long as the people want, for a limited period of time, or as long as they behave with integrity. It is essential for a republic that it be derived from a large group of society, not from some minority group, or some privileged class. It would be too easy for a handful of tyrannical nobles to oppress everyone else through their delegates, and then claim to be leading a government with the honored title of a Republic.
In a Republic, it is sufficient for the people administering the government to be appointed by the people, either directly or indirectly. It is enough that the administrators hold their positions for either a specific limited period of time, or as long as they behave with integrity. Without those two criteria, every government in the United States, as well as every popular government [pure democracy], no matter how well-organized or how well-implemented, would deteriorate from a republican nature. The constitutions of every State in the Union stipulate that some government positions are appointed by the people indirectly. In most of those constitutions, the chief magistrate [top executive or judicial position] is appointed in this way. One of the State constitutions uses this indirect method to appoint both branches of their legislature. Also, all of the State constitutions limit the time their highest officers can hold office to a definite period of time. In many cases, both the legislators and the executive [governor] are limited to a specific number of years. Most of the State constitutions allow their judges to keep their offices as long as they behave with integrity ["good behavior"], and this seems to be the most respected and accepted arrangement.
When we compare the new Constitution to the standards I just mentioned, we can see immediately that it conforms very well to republican principles in the strictest sense. The House of Representatives, like the Houses of Representatives in the State governments, is directly elected by the people collectively. The Senate, like the Congress we have now in the Articles of Confederation, and like Maryland's Senate, is appointed indirectly, by representatives that the people selected. The President is chosen indirectly through representatives that the people chose, using the method that most States use to appoint a Governor. Even the judges, like most other government officials in the Union, will be very indirectly chosen by representatives that the people elected, in the same way that judges are selected in the various States. The length of time the officials serve also fits a republican model, and matches the examples of the State constitutions. Members of the House of Representatives are elected at regular intervals, just like in the States. They are elected for a two-year term, like they are in South Carolina. Members of the Senate are elected for a six-year term. That's one year longer than Maryland's Senate, and two years longer than New York's and Virginia's Senates. The President will have a four-year term. In New York and Delaware, their chief magistrate [governor] serves a three-year term, and in South Carolina, he serves for two years. The other states elect their governors every year. Many of the States don't have any method for impeaching their chief magistrate outlined in their constitutions. In Delaware and Virginia, he can't be impeached until he's out of office(!) But under the new Constitution, the President of the Union can be impeached at any time during his term. The length of a term for judges is just what it ought to be: they serve as long as they continue to have good behavior [they can be impeached for misconduct]. Terms for ministerial officers [ambassadors, judges, and other officials that the President appoints as described in Article II of the Constitution] will serve for a length of time that will determined by legal regulation; it will depend on the office and the example already set by the various State constitutions.
If more proof is needed that the plan of government laid out in the new Constitution is truly Republican, the most convincing proof is that the Constitution specifically bans any titles of royalty, whether in the federal government or State governments, and the Constitution intentionally guarantees that the federal government and State governments must be republican forms of government.
Opponents of the new Constitution say that 'it wasn't enough for the Constitutional convention to stick to a republican form of government. They should have been just as careful to uphold a federal government that defines the Union as an alliance of several independent, sovereign States. But instead, they created a national government that defines the Union as a consolidated single federation that blends the States.' And they ask whose authority allowed such a bold and radical innovation. Let's examine this concern carefully since the opposers of the Constitution have latched onto it so fiercely.
Before we even ask whether the criticism is accurate, let's consider it at face value. That will help us to, first of all, assess the real character of the government laid out in the new Constitution, and, second, it will help us to determine who gave the authority to propose such a government, and, third, it will help us to think about whether a duty to the country was enough to provide that authority.
First. What is the real character of the government proposed in the new Constitution? Let's compare it to the foundation on which it will be set up, to the source from which its power will come, to how that power will be operated, and to the authority that will introduce changes in the government [in other words, the American people].
The foundation on which the government will be set is the consent and ratification [official approval] of the American people. They will choose delegated individuals who will be elected just for that purpose [to ratify the Constitution]. On the other hand, the consent and ratification won't be given by the people as a mass of individuals casting a popular vote. It will be done state by state, through individuals deliberating within the distinct and separate states they live in. Thus it will be the consent and ratification of the various States, which comes from the supreme authority in each State: the people themselves. Thus, ratifying the Constitution will be a federal [federation of parts] rather than a national [union of one large part] decision.
Ratifying the new Constitution will be a federal rather than a national action, and I'm using the terms in the same way that those who oppose the Constitution use them. It will be an action of the people within their independent States, not a simple majority vote of the collective Union as a whole. The fact that the choice will be by consent of the people is obvious because of this stipulation: the new Constitution won't be ratified by a majority of the population of the Union, or even by a majority of States. The Constitution can only be ratified by unanimous consent of those States that approve it. The only way this differs from a vote on any regular government matter is that this will be done through the representation of the people rather than decided by their State legislatures. If the vote was taken directly from the people of the Union rather than state by state, the will of the majority would restrict the minority, just as it does in States. In such cases, the will of the majority is determined either by counting individual votes in a popular election of the entire country, or by counting the votes of each State. But neither of those methods are being suggested to decide whether or not to ratify the Constitution. Instead, each State will act like a sovereign nation, independent of all the other States, and will make its own decision. In this respect, assuming the Constitution gets ratified [if nine or more states vote to ratify] then it will be a federal constitution, not a national one.
[Only those States that voted to ratify would be governed under the new Constitution. States that didn't ratify would continue to be under the Articles of Confederation. Nine of the thirteen states were required to ratify before the Constitution could take any effect at all. This was a 2/3 vote -- a super-majority. State legislators who stood to lose some power under the Constitution and thus had a conflict of interest were not the ones who decided whether to ratify or not; instead, the state legislatures were completely bypassed. The people elected representatives to assemble in state conventions to decide whether to ratify or not.]
Another way the Constitution is federal and not national is because of where it gets its ordinary powers of government. The House of Representatives will derive its power directly from the people [local vote], and the people will be represented in the same ratio and in the same principle as they are in their own State governments. In that respect, the government will be more national than federal. But the Senate will be different. It will get its power from the States, just as if all the States were politically equal societies. Each State's Senator will have equal voting power in the Senate, just as they do now under the Articles of Confederation [bigger, more populated states won't have more power than small states]. In that respect, the government is more federal than national. The executive's [President's] power will come from a mixture of sources. The direct election of the President will be done by the States, with the States that have larger populations having more representative power. The number of votes each State will have will be calculated using two factors, so that each State will be like a separate and co-equal sovereign society [each state will get two electoral college votes, just as they have two Senators], and, at the same time, each State will be like unequal members of the same society [larger states will have more electoral college votes, just like they have more Representatives]. The final decision [if no conclusive result can be determined from the Electoral College] will be made by the House of Representatives, but instead of different States getting as many votes as they have Representatives, each State will get one vote. Thus, the government outlined in new Constitution has features of both federal and national government.
[Article II Section 1 Clause 3, and the 12th Amendment designate the House of Representatives -- one Representative from each state -- to vote for President in case of a tie.]
When it comes to how the government is operated, the difference between a federal and national government is this: in a federal government, governmental authorities manage their duties on the various political bodies that make up the Confederacy [the central government controls the State governments], but in a national government, the governing authorities manage their duties directly on the individual citizens of the nation. Which of these is more like the government that the new Constitution lays out? In this respect, the new government is more like a national government than a federal government, although not as completely as people think. In some cases, especially court trials that involves States, the States would be viewed and treated only as collective political entities. So it appears that the new government will be mostly a national government with a few features of a federal government. But that can't be helped; no plan would be able to avoid that. Since the government will be carried out directly on the people as individuals, it's clear that the Constitution has designed a national government.
But even though the new government is a national government in the way it operates its powers, that's not the case when we consider the extent of its powers. When we think of a national government, we think of a government that has authority, not just over the individual citizens, but an unlimited sovereignty over all people and all things that are under its lawful jurisdiction. Among a people who are combined into one nation, all of this sovereign power is in the form of a central legislature [group of lawmakers controlling all people]. Among communities that have united for a specific purpose [states and cities], that sovereign power is divided -- it's partly in the general [central] legislature and partly in the municipal [local] legislature. Among a people who are combined into one nation [and not States], all local authority is subject to the supreme authority, and the supreme authority can control, direct, or even abolish it whenever it wants. But in the case of communities that have united for a specific purpose, the local authorities are distinct and independent parts that make up the supreme government. As long as they are operating within their own sphere [such as within their own State], they are no more subject to the supreme authority than the supreme authority is subject to them while it operates within its own jurisdiction. So in this respect, the government laid out in the new Constitution isn't really national, since it only has jurisdiction over a specific itemized list of objects [the list is in Article I Section 8 of the Constitution], and it leaves the States with abounding and invincible sovereignty over all other matters. Admittedly, when there are controversies over boundaries between State and national jurisdiction, the tribunal [judge or court] that ultimately makes the decision will be a national court [a Supreme Court] under the central government. But that doesn't change the principle. The decision will be made impartially, according to the rules that the Constitution specifies. We have taken all the customary and effective precautions to guarantee this impartiality. Obviously, some kind of tribunal is necessary to prevent disagreements from turning violent and dissolving the entire system. And, obviously, such a tribunal [one that decides which issues fall under State jurisdiction, and which fall under national jurisdiction] should be a national tribunal rather than a local [or State] tribunal. Or, to put it another way, the fact that a national tribunal should decide what falls under State control and what falls under national control isn't a point that's likely to be argued.
What if we test the new Constitution by looking at who has the authority to make amendments [changes] to the Constitution? In that regard, the Constitution is neither completely national, nor completely federal. If it were wholly national, the final and highest authority would be a majority of the American citizens, and the majority would be allowed to change or even abolish its established government at any time, just like the majority does in other national societies. On the other hand, if it were wholly federal, then every single State in the Union would have to unanimously agree to every change that would affect the entire population. But the method for making changes that is laid out in the new Constitution isn't like either of those. It's different in that any change requires more than a majority [a super-majority], and its principles are different. In requiring more than a majority, and especially in the way that the votes will be tallied by States rather than by individual citizens, it is more federal than national. But by requiring a super-majority of States rather than a unanimous consent, it becomes more national than federal.
So, strictly speaking, this new Constitution is neither a federal Constitution nor a national Constitution; it's a little of both. Its infrastructure is more federal than national. The source of its power and authority is partly federal and partly national. The way it carries out its authority is more national than federal. The extent of the government's powers is more federal than national. And, finally, because of who has the authority to introduce amendments, it's not wholly federal, nor wholly national.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, January-February 2019
All Federalist Paper paraphrases
'A Republic can be defined as a government that receives all of its authority either directly or indirectly from the large multitude of the people, and is carried out by individuals who hold their positions as long as the people want, for a limited period of time, or as long as they behave with integrity.'
by James Madison, January 16, 1788.
To: the people of New York,
In the last article, we ended our introduction, and now we'll take a candid survey of the kind of government outlined in the new Constitution.
The first question is whether the general structure and appearance of the government is strictly republican. Obviously, no other form of government would be compatible with the genius of the American people, or the foundational principles for which we fought the Revolution. Only a republican form of government would satisfy the noble resolve to trust our political experiment to the ability of mankind to govern themselves -- a resolve that inspires everyone who who is devoted to freedom. If the new Constitution does not conform to a republican model, then those who are promoting it should abandon it as invalid.
So then -- what are the distinctive characteristics of a republican form of government? If we were to look for an answer to this question by reading how political writers use the term as it relates to the various other countries' constitutions, we wouldn't find a satisfactory answer. Everyone calls Holland a Republic, but not the slightest part of the highest authority comes from its people. Venice is also considered a Republic, but her absolute power over most of the people consists in a small group of nobles who inherited their power. Poland has the worst kinds of aristocracy and monarchy combined as their highest authority, yet they also like to use the dignified label of Republic. England does have one branch of their government that's republican [House of Commons], but it's combined with an aristocracy [House of Lords] and monarchy who inherit their authority -- and they're often considered a Republic, too. None of these examples are anything like a genuine Republic. This shows how inaccurately the term has been used in political discussions.
Let's use a definition based on the different principles on which different forms of government are set up. A Republic can be defined as a government that receives all of its authority either directly [by popular vote] or indirectly [by allowing an elected representative to choose] from the large multitude of the people, and is carried out by individuals who hold their positions as long as the people want, for a limited period of time, or as long as they behave with integrity. It is essential for a republic that it be derived from a large group of society, not from some minority group, or some privileged class. It would be too easy for a handful of tyrannical nobles to oppress everyone else through their delegates, and then claim to be leading a government with the honored title of a Republic.
In a Republic, it is sufficient for the people administering the government to be appointed by the people, either directly or indirectly. It is enough that the administrators hold their positions for either a specific limited period of time, or as long as they behave with integrity. Without those two criteria, every government in the United States, as well as every popular government [pure democracy], no matter how well-organized or how well-implemented, would deteriorate from a republican nature. The constitutions of every State in the Union stipulate that some government positions are appointed by the people indirectly. In most of those constitutions, the chief magistrate [top executive or judicial position] is appointed in this way. One of the State constitutions uses this indirect method to appoint both branches of their legislature. Also, all of the State constitutions limit the time their highest officers can hold office to a definite period of time. In many cases, both the legislators and the executive [governor] are limited to a specific number of years. Most of the State constitutions allow their judges to keep their offices as long as they behave with integrity ["good behavior"], and this seems to be the most respected and accepted arrangement.
When we compare the new Constitution to the standards I just mentioned, we can see immediately that it conforms very well to republican principles in the strictest sense. The House of Representatives, like the Houses of Representatives in the State governments, is directly elected by the people collectively. The Senate, like the Congress we have now in the Articles of Confederation, and like Maryland's Senate, is appointed indirectly, by representatives that the people selected. The President is chosen indirectly through representatives that the people chose, using the method that most States use to appoint a Governor. Even the judges, like most other government officials in the Union, will be very indirectly chosen by representatives that the people elected, in the same way that judges are selected in the various States. The length of time the officials serve also fits a republican model, and matches the examples of the State constitutions. Members of the House of Representatives are elected at regular intervals, just like in the States. They are elected for a two-year term, like they are in South Carolina. Members of the Senate are elected for a six-year term. That's one year longer than Maryland's Senate, and two years longer than New York's and Virginia's Senates. The President will have a four-year term. In New York and Delaware, their chief magistrate [governor] serves a three-year term, and in South Carolina, he serves for two years. The other states elect their governors every year. Many of the States don't have any method for impeaching their chief magistrate outlined in their constitutions. In Delaware and Virginia, he can't be impeached until he's out of office(!) But under the new Constitution, the President of the Union can be impeached at any time during his term. The length of a term for judges is just what it ought to be: they serve as long as they continue to have good behavior [they can be impeached for misconduct]. Terms for ministerial officers [ambassadors, judges, and other officials that the President appoints as described in Article II of the Constitution] will serve for a length of time that will determined by legal regulation; it will depend on the office and the example already set by the various State constitutions.
If more proof is needed that the plan of government laid out in the new Constitution is truly Republican, the most convincing proof is that the Constitution specifically bans any titles of royalty, whether in the federal government or State governments, and the Constitution intentionally guarantees that the federal government and State governments must be republican forms of government.
Opponents of the new Constitution say that 'it wasn't enough for the Constitutional convention to stick to a republican form of government. They should have been just as careful to uphold a federal government that defines the Union as an alliance of several independent, sovereign States. But instead, they created a national government that defines the Union as a consolidated single federation that blends the States.' And they ask whose authority allowed such a bold and radical innovation. Let's examine this concern carefully since the opposers of the Constitution have latched onto it so fiercely.
Before we even ask whether the criticism is accurate, let's consider it at face value. That will help us to, first of all, assess the real character of the government laid out in the new Constitution, and, second, it will help us to determine who gave the authority to propose such a government, and, third, it will help us to think about whether a duty to the country was enough to provide that authority.
First. What is the real character of the government proposed in the new Constitution? Let's compare it to the foundation on which it will be set up, to the source from which its power will come, to how that power will be operated, and to the authority that will introduce changes in the government [in other words, the American people].
The foundation on which the government will be set is the consent and ratification [official approval] of the American people. They will choose delegated individuals who will be elected just for that purpose [to ratify the Constitution]. On the other hand, the consent and ratification won't be given by the people as a mass of individuals casting a popular vote. It will be done state by state, through individuals deliberating within the distinct and separate states they live in. Thus it will be the consent and ratification of the various States, which comes from the supreme authority in each State: the people themselves. Thus, ratifying the Constitution will be a federal [federation of parts] rather than a national [union of one large part] decision.
Ratifying the new Constitution will be a federal rather than a national action, and I'm using the terms in the same way that those who oppose the Constitution use them. It will be an action of the people within their independent States, not a simple majority vote of the collective Union as a whole. The fact that the choice will be by consent of the people is obvious because of this stipulation: the new Constitution won't be ratified by a majority of the population of the Union, or even by a majority of States. The Constitution can only be ratified by unanimous consent of those States that approve it. The only way this differs from a vote on any regular government matter is that this will be done through the representation of the people rather than decided by their State legislatures. If the vote was taken directly from the people of the Union rather than state by state, the will of the majority would restrict the minority, just as it does in States. In such cases, the will of the majority is determined either by counting individual votes in a popular election of the entire country, or by counting the votes of each State. But neither of those methods are being suggested to decide whether or not to ratify the Constitution. Instead, each State will act like a sovereign nation, independent of all the other States, and will make its own decision. In this respect, assuming the Constitution gets ratified [if nine or more states vote to ratify] then it will be a federal constitution, not a national one.
[Only those States that voted to ratify would be governed under the new Constitution. States that didn't ratify would continue to be under the Articles of Confederation. Nine of the thirteen states were required to ratify before the Constitution could take any effect at all. This was a 2/3 vote -- a super-majority. State legislators who stood to lose some power under the Constitution and thus had a conflict of interest were not the ones who decided whether to ratify or not; instead, the state legislatures were completely bypassed. The people elected representatives to assemble in state conventions to decide whether to ratify or not.]
Another way the Constitution is federal and not national is because of where it gets its ordinary powers of government. The House of Representatives will derive its power directly from the people [local vote], and the people will be represented in the same ratio and in the same principle as they are in their own State governments. In that respect, the government will be more national than federal. But the Senate will be different. It will get its power from the States, just as if all the States were politically equal societies. Each State's Senator will have equal voting power in the Senate, just as they do now under the Articles of Confederation [bigger, more populated states won't have more power than small states]. In that respect, the government is more federal than national. The executive's [President's] power will come from a mixture of sources. The direct election of the President will be done by the States, with the States that have larger populations having more representative power. The number of votes each State will have will be calculated using two factors, so that each State will be like a separate and co-equal sovereign society [each state will get two electoral college votes, just as they have two Senators], and, at the same time, each State will be like unequal members of the same society [larger states will have more electoral college votes, just like they have more Representatives]. The final decision [if no conclusive result can be determined from the Electoral College] will be made by the House of Representatives, but instead of different States getting as many votes as they have Representatives, each State will get one vote. Thus, the government outlined in new Constitution has features of both federal and national government.
[Article II Section 1 Clause 3, and the 12th Amendment designate the House of Representatives -- one Representative from each state -- to vote for President in case of a tie.]
When it comes to how the government is operated, the difference between a federal and national government is this: in a federal government, governmental authorities manage their duties on the various political bodies that make up the Confederacy [the central government controls the State governments], but in a national government, the governing authorities manage their duties directly on the individual citizens of the nation. Which of these is more like the government that the new Constitution lays out? In this respect, the new government is more like a national government than a federal government, although not as completely as people think. In some cases, especially court trials that involves States, the States would be viewed and treated only as collective political entities. So it appears that the new government will be mostly a national government with a few features of a federal government. But that can't be helped; no plan would be able to avoid that. Since the government will be carried out directly on the people as individuals, it's clear that the Constitution has designed a national government.
But even though the new government is a national government in the way it operates its powers, that's not the case when we consider the extent of its powers. When we think of a national government, we think of a government that has authority, not just over the individual citizens, but an unlimited sovereignty over all people and all things that are under its lawful jurisdiction. Among a people who are combined into one nation, all of this sovereign power is in the form of a central legislature [group of lawmakers controlling all people]. Among communities that have united for a specific purpose [states and cities], that sovereign power is divided -- it's partly in the general [central] legislature and partly in the municipal [local] legislature. Among a people who are combined into one nation [and not States], all local authority is subject to the supreme authority, and the supreme authority can control, direct, or even abolish it whenever it wants. But in the case of communities that have united for a specific purpose, the local authorities are distinct and independent parts that make up the supreme government. As long as they are operating within their own sphere [such as within their own State], they are no more subject to the supreme authority than the supreme authority is subject to them while it operates within its own jurisdiction. So in this respect, the government laid out in the new Constitution isn't really national, since it only has jurisdiction over a specific itemized list of objects [the list is in Article I Section 8 of the Constitution], and it leaves the States with abounding and invincible sovereignty over all other matters. Admittedly, when there are controversies over boundaries between State and national jurisdiction, the tribunal [judge or court] that ultimately makes the decision will be a national court [a Supreme Court] under the central government. But that doesn't change the principle. The decision will be made impartially, according to the rules that the Constitution specifies. We have taken all the customary and effective precautions to guarantee this impartiality. Obviously, some kind of tribunal is necessary to prevent disagreements from turning violent and dissolving the entire system. And, obviously, such a tribunal [one that decides which issues fall under State jurisdiction, and which fall under national jurisdiction] should be a national tribunal rather than a local [or State] tribunal. Or, to put it another way, the fact that a national tribunal should decide what falls under State control and what falls under national control isn't a point that's likely to be argued.
What if we test the new Constitution by looking at who has the authority to make amendments [changes] to the Constitution? In that regard, the Constitution is neither completely national, nor completely federal. If it were wholly national, the final and highest authority would be a majority of the American citizens, and the majority would be allowed to change or even abolish its established government at any time, just like the majority does in other national societies. On the other hand, if it were wholly federal, then every single State in the Union would have to unanimously agree to every change that would affect the entire population. But the method for making changes that is laid out in the new Constitution isn't like either of those. It's different in that any change requires more than a majority [a super-majority], and its principles are different. In requiring more than a majority, and especially in the way that the votes will be tallied by States rather than by individual citizens, it is more federal than national. But by requiring a super-majority of States rather than a unanimous consent, it becomes more national than federal.
So, strictly speaking, this new Constitution is neither a federal Constitution nor a national Constitution; it's a little of both. Its infrastructure is more federal than national. The source of its power and authority is partly federal and partly national. The way it carries out its authority is more national than federal. The extent of the government's powers is more federal than national. And, finally, because of who has the authority to introduce amendments, it's not wholly federal, nor wholly national.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, January-February 2019
All Federalist Paper paraphrases
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