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 constitutions 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 coordinate
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 has 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 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.
Signed "PUBLIUS"
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