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