Federalist 39
I’ve argued that essays 37-39 are the hinge on which The Federalist turns. This is not by design since the papers were written by multiple authors who had minimal communication with each other and approached the writing with no pre-determined plan. And yet these three essays, so close to the middle, all written by Madison, deal with the basic framework of our Constitutional system. 37 tells us what it means to create a Constitution and the logistics involved. 38 deals with the basic difficulties involved in such a task. 39 takes on the most important issue of all: how to create a unified system out of disparate parts.
The language of “system” is not accidental. How are we to understand a nation, or a nationalized system of government? We typically use organic metaphors. Parts relate to the whole as members to a body. All the various parts are animated by a common source and they are of one substance. The state is to the nation as the branch is to the tree: subordinate and dependent. Another metaphor would that be of a family: all the members bound together by a natural tie.
Publius typically eschewed organic metaphors. Writing in the age of Newton, the framers of our Constitution were more inclined to view things mechanistically. Government was a giant machine that required inputs and outputs, and all the various parts were assembled to produce desired outcomes. The difference in metaphor resulted from different understandings of the basic problems of political life: how could you get things to grow together properly versus how you dealt with the friction created by parts constantly rubbing against each other? Are you a botanist or a mechanic?
This mechanistic approach worked fairly well when discussing systems of checks and balances and the problem of factions, but it proved less useful when discussing the relationship between the states and the union. In Federalist 39 Madison deals with the most consequential problem the convention addressed: how to accomplish the impossible task of divided and shared sovereignty.
Previous political philosophers and critics of the Constitution regarded the idea of divided sovereignty prior a solecism, a logical impossibility. A sovereign power implied a final decision-maker and you can’t have two final decision-makers. Whatever sympathy many Anti-federalists had for the constitutional revisions got dashed on this rock. How were they to regard the relationship between already sovereign states and a not yet sovereign nation? Why would the states sacrifice their sovereignty on the altar of an idea or a dream?
Living after the age of nation-building we are less inclined to see how territorial differences can be reconciled without a centralization of power. Many regard nation-states now with the same dismissive tone, seeing them as atavisms that block the path to a larger peace. In addition, the issue of slavery clouds our perception of how sovereignty was the decisive issue in American politics for the first 75 years of its existence and then persisted after that. Given the logical impossibility of the idea it’s a wonder states have retained any sovereignty whatsoever, nor should we puzzle at the fact that the issue eventually devolved into horrific violence.
Nowhere in the American context does anyone deal with the issue with more nuance and subtlety than Madison did in Federalist 39. Mind you, the issue calls for great subtlety, even to the point where critics might have seen it as sophistry. Madison began by trying to reassure them: after having conceded the “novelty” of the experiment, he nonetheless defended it on the grounds of republican principles, for nothing else which would have been “reconcileable with the genius of the American people” or consistent with “the fundamental principles of the revolution.”
What did Madison mean by “republican principles”? Although many countries called themselves republics Madison found little clarity in reviewing their features, leading him to conclude that the term had been used with “extreme inaccuracy.” Having identified a persistent bugaboo in politics — people using terms with little attention to meaning, much in the same way the word “democracy” gets thrown around these days — Madison attempted to sharpen the definition. Simply put, a republic is “a government that 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."
Essential to his definition was the idea that the powers be derived “from the great body” and not from a part or from “a favored class” of citizens, the latter of which would be an oligarchy. The key feature of a republic is that the citizens as a whole would have frequent opportunities to remove people from office. Granted, elections were necessary to place people in office, but using elections to remove officers was the primordial republican idea. As I like to say, elections are alternatives to assassination.
Turning his attention away from foreign nations and looking at the governments of the states, Madison was struck by how many of them resorted to indirect means of placing officials in offices, especially when it came to the chief magistrate. He saw in this no departure from the republican principle. His rhetorical point was clear: the Constitution could be defended on the basis of extant practices, its form not being significantly different from that found in many of the states. The critics who objected that the form of democracy in the Constitution wasn’t direct or popular enough needed to get their own houses in order first.
Not that Madison thought the states were mistaken in how they structured their government, but he did believe the federal Constitution was in many ways more republican than those in some of the states. He offered two clauses from the federal Constitution as evidence: the first barring the granting of titles of nobility, and the second guaranteeing to all the states a republican form of government. The first was fairly non-controversial and easy to enforce; the second, experience would show, proved dicier, and also raised the eyebrows of critics who worried about how such a guarantee might be enforced, particularly if the term were open to interpretation.
Having dispensed with arguments that the Constitution was not sufficiently republican, Madison turned his attention to whether it was sufficiently “federal.” Since Madison was throwing around terms whose meaning has changed over time it seems worth our while to clarify their meaning. When he used the word “federal” he meant a “confederacy of sovereign states” (such as in a limited military alliance) and when he used the work “national” he meant a consolidated government that would require the states to abrogate their sovereignty. No one disputed that the Constitution moved toward consolidation, but how far, and by what right? Taking up the questions of the Constitution's detractors, Madison regarded it as imperative “to ascertain the real character of the government,” to discover by what right “the convention were authorized to propose such a government,” and finally to determine whether it was a patriotic duty to replace the Articles with a more energetic system.
In past essays I’ve investigated the question of definition: how do we know what kind of thing a thing is? One way to investigate this is by looking at its origins, another is by examining its features and typical functions, and another one is to look at its principle of development. Madison applied this Aristotelian framework to the American context, with the last question in particular connected to the issue of what change in the future might look like.
The first question concerning origins might have seemed simple enough: the Constitution was a creation of “we the people.” We learned this in Schoolhouse Rock, even if the writers of that little ditty left out the key phrase "of the United States." But the convention was hardly a gathering of “the people,” nor was the ratification process, which was run “by deputies elected for the special purpose.” Madison then introduced a vital distinction that would be a source of endless mischief subsequently: the Constitution was not agreed to by the people “composing one entire nation,” but rather as “the distinct and independent states to which they respectively belong.” The Constitution, he made clear, was ratified by the states and not by “Americans.” In that sense, the Constitution was not “a national, but a federal act.” It was formed by the discrete acts of the people in their independent states and not the people “as forming one aggregate nation.” That idea was later articulated by Chief Justice Marshall and President Lincoln.
An important corollary to this idea relates to the persistent problem of majority rule. How could justice be served if a simple majority could impose its will on a recalcitrant minority? Could 51% of “Americans” force a system of government on the 49% who didn’t want it? Madison clearly thought not. Could the three most populous states force the hand of the nine less populated ones, or could seven states shackle six with a government to which they did not consent? That, too, Madison found unacceptable.
To protect the federal idea, then, Madison pivoted away from the majoritarian principle that is a typical feature of democracies to the demand for unanimity. No state would be required to join the union against its will. The Constitution required the ratification of nine states to go into effect, but the states that did not ratify it were simply left out of the system. No sovereign state could be forced to be part of a compact against its will. Lincoln’s rejection of this principle would ultimately commit the nation to a war against itself. Madison’s position was clear: “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.” Lincoln's position required a shifting of the metaphor: the American constitutional system was not a compact between independent states who could not be required to be in the compact against their will, but instead the Constitution reflected a founding that had already happened in 1776 and resulted in a covenant whereby, like a marriage, the separate bodies had become one flesh. Madison's mechanistic metaphor had been replaced by a marital one whereby one partner could not leave the union without the consent of all the partners. Lincoln turned the ratification process on its head.
Madison then turned his attention to specific features of the Constitution. Since the House of Representatives derived its powers “from the people of America” (a rather strange claim given the reality of congressional districts), he regarded the House as the embodiment of the “national” principle. He argued that the House of Representatives was the part of the federal government most tasked with taking on issues of national importance. The Senate, on the other hand, since representation there was distributed equally among the states, operated on the federal and not the national principle. The presidency formed a compound mix of the two principles: the states would be represented in the electoral college while the eventual election of the president would take place in the House of Representatives. The presidency would thus “be of a mixed character” that possessed both federal and national features.
Thus far the source of the federal government’s powers. But what of their operations? Were those powers to be exercised on a federal or national basis? Here I must return to what Hamilton regarded as the fundamental power of the federal government: that its powers were not limited in their exercise on the states but had to extend to each and every individual citizen. Madison conceded the point, but suggested it was not as extensive as Hamilton thought. Still, by extending its reach over citizens directly and not simply over the sovereign states, the operations of government power suggested the Constitution was a national act.
Here, Madison introduced a very fine distinction, realizing that the question of the actual operations of power mattered far more to the critics than did the question of power's source. Granted, Madison said, the operations of national power do extend over individual citizens, but the extent of those powers is limited. What did he mean by this distinction between “operations” and “extent”? The former referred to the objects of power (upon whom is power exercised?) while the latter referred to the actual matters concerning which those powers could be exercised (which powers will be exercised?). Granted, individual citizens could be the objects of the exercise of power, but the extent of that exercise was limited by the Article I section 8's enumeration of specific powers. Were the Constitutional system a consolidated one then there would be no other governments exercising any power; but the Constitution preserved the states and localities in their authority by listing exactly the things the federal government could do, leaving “to the several states a residuary and inviolable sovereignty over all other objects.” Inviolable, indeed.
The Anti-federalists were skeptical. Think about the pile of rubble left behind by the collapse of the twin towers: who had authority over that? Who was going to investigate? Clean up? Search for bodies? And when two authorities conflict with each other, which they inevitably will, each claiming a right to exercise what it regards as its legitimate power, who will resolve that conflict? The Anti-federalists feared that the federal courts would in those cases always rule in the favor of the federal government. Madison allowed the point, but believed it would not be that big a problem because “effectual precautions” were taken to secure the court’s “impartiality.” Without an impartial court, a final decision-maker, the constitutional experiment would devolve to “an appeal to the sword” and a “dissolution of the compact.” A federal court system was essential to preventing this possibility of dissolution, but only if those courts could remain disinterested and committed to upholding Constitutional limits on federal power. (To understand how tricky this problem is, the reader might want to compare the Court's decision in the infamous Dred Scott case with the equally celebrated Brown v Board of Education one, the former but not the latter of which could be defended on Madisonian grounds.)
The final issue was that of “development”: how was change to occur? Here, Madison turned his attention to the amendment process, which also was a compound of federal and national features. Were it “wholly national” a simple majority of citizens would have unlimited power “to alter or abolish its established government.” Were it completely federal, as under the Articles, any one state would have it at its power to block any change or progress. By requiring a ¾ majority of states rather than unanimity, the amendment process had a national and not a federal character, and in having approval come from states and not citizens directly it partook of the federal character.
The importance of Federalist 39 cannot be easily overstated, for it gives us the clearest defense of the idea of divided sovereignty, even if that defense is not fully convincing. But having dealt with that knotty problem, Madison would turn his attention next to another serious objection: that the convention had superseded its authority by not amending The Articles of Confederation but by replacing them. That was the topic of Federalist 40.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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