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Patrick, John J.; And OthersJames Madison and The Federalist Papers."ERIC Clearinghouse for Social Studies/Social ScienceEducation, Bloomington, IN.; National Center forAmerica's Founding Documents,, Boston, MA.; NationalTrust for Historic Preservation, Washington, D.C.Office of Educational Research and Improvement (ED),Washington, DC.ISBN-0-941339-11-490

RI88062009R123B80011187p.

Publications Manager, ERIC Clearinghouse for SocialStudies/Social Science Education, Indiana University,2805 East Tenth Street, Bloomington, IN 47408.Guides - Classroom Use - Guides (For Teachers) (052)

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*Citizenship Education; *Constitutional History;Constitutional Law; Instructional Materials; LearningActivities; Political Issues; Political Science;Secondary Education; Social Studies; TeachingMethods; *United States History

IDENTIFIERS *Federalist Papers; *Madison (James)

ABSTRACT

A collection of resources for high school history andgovernment teachers and their students, this volume treats core ideason constitutional government in the United States. James Madison'sideas as found in "The Federalist Papers" are examined in conjunctionwith their counterpoints in essays of the Anti-Federalists. Thisvolume contains three main sections. Part 1 includes three papersthat provide background information and ideas for teachers, "TheFederalist Papers in the Curriculum" (John J. Patrick); "JamesMadison and the Founding of the Republic" (A. E. Dick Howard); and"The Constitutional Thought of the Anti-Federalists" (Murray Dry).Part 2 of the volume includes six lesson sets for high schoolstudents of U.S. history or government. Each lesson set consists of ateaching plan and accompanying lessons for students. Part 3 contains13 primary documents: 7 papers by Madison in "The Federalist" and 6papers by leading Anti-Federalists. A selected annotated bibliography(Earl P. Bell) provides teachers and students with additionalinformation on Madison and "The Federalist Papers." (DB)

***************************A************************?:*****************Reproductions supplied by EDRS are the best tl,?..t can be made

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EDUCATIONAL RESOURCESERIC)

INFORMATIONRESOURCES

)is document has been reproduced asreceived from the person or organizationoriginating it.

0 Minor changes have been made to improvereproduction quality.

Points of view or opinions stated in this dal/.ment do not necessarily represent officialOERI position or policy.

"PERMISSION TO REPRODUCE THISMATERIAL HAS BEEN GRANTED BY

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National Trust for Historic Preservationle 44% WITH

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Clearinghouse for Social Studies/Social Science EducationERIC

National Center for America's Founding Documents

James Madison and The Federalist Papers

John J. Patrick

National Trust for Historic PreservationWashington, DC

in association withthe ERIC Clearinghouse Social Studies/

Social Science Education, Indiana Universityand the National Center for America's Founding

Documents, Boston University1990

3

()

This publication can be ordered from the following source:The Publications Manager

ERIC Clearinghouse for Social Studies/Social Science Education (ERIC/ChESS)

Indiana University2805 East Tenth Street

Bloomington, Indiana 47408(812) 855-3838

ISBN 0-941339-11-4

© 1990 by the National Trust for Historic Preservation.

ERICThis publication was developed for the National Trust for Historic Preservation by the ERICClearinghouse for Social Studies/Social Science Education at Indiana University with sup-port from the Office of Educational Research and Improvement (OERI) of the U.S. De-partment of Education, under contract no. RI88062009 and grant no. R123B80011. Theopinions expressed do not necessarily reflect the positions or policies of OERI or the U.S.Department of Education.

ERIC, Educational Resources Information Center, is an information system sponsored bythe Office of Educational Research and Improvement, within th.? U.S. Department of Ed-ucation.

4

--=--_-_-::

Contents

About the Authors

About the National Trust for Historic Preservation

Acknowledgments

Introduction

Part One: Background Papers

iv

v

vi

1

7Paper 1. The Federalist Papers in the Curriculum 9

by John J. Patrick

Paper 2. James Madison and the Founding of the Republic 17by A.E. Dick Howard

Paper 3. The Constitutional Thought of the Anti-Federalists 27by Murray Dry

Part Two: Lessons 33The Federalist in the Debate on the Constitution 35

Majority Rule and Minority Rights in a Free Government 47Federalism and Republicanism 59Separation of Powers and Limited Government 77National Security and Personal Liberty 89James Madison, The Federalist, and the Bill of Rights 99

Part III: Documents111

Seven Papers by Madison in The Federalist, Documents 1-7 113Six Papers by Anti-Federalists, Documents 8-13 143

Select Annotated Bibliography 179ERIC Resources 185

Set I.

Set II.

Set III.

Set IV.

Set V.

Set VI.

5

iv

About the Authors

joh.i J. Patrick, the principal author and editorof this work: is director of the Social Studies Devel-opment Center at Indiana University, where he isalso a professor of education and director of the ERICClearinghouse for Social Studies/Social Science Ed-ucation. John Patrick is the author of the Introductionto this work, Background Paper 1, "The Federalist Pa-pers in the Curriculum," and Lessons 1-10 and 12.

Earl P: Bell is chairperson, department of his-tory, the University of Chicago Laboratory Schools.He is the author of Lesson 11 and the Select AnnotatedBibliography.

Murray Dry is a professor of political science atMiddlebury College. He is the author of BackgroundPaper 3, "The Constitutional Thought of the Anti-Federalists."

A.E. Dick Howard is the White Burkett MillerProfessor of law and public affairs, the Universityof Virginia. He is the author of Background Paper 2,"James Madison and the Founding of the Republic."

National Trust forHistoric Preservation

The National Trust for Historic Preservation isa private, nonprofit membership organization withmore than 220,00 individual and 3,000 organiza-tional member.. The National Trust was charteredby the U.S. Congress in 1949 to encourage the publicto participate in the preservation of America's his-tory and culture and to own historic properties.

The National Trust provides technical adviceand financial assistance to nonprofit organizationsand public agencies to help them carry out preser-vation activities. It advocates the country's heritagein the courts and with legislative and regulatoryagencies; and it operates special projects to showhow a preservation approach can be a central or-ganizing principle in community revitalization anddevelopment.

Montpelier, the home of James Madison, is oneof seventeen historic properties operated by the Na-tional Trust. It extends to 2,700 acres in the Piedmontof Virginia. After eighty years in the ownership ofthe Madisons, end a further sixty years when itpassed through the hands of six separate owners, itwas purchased in 1901 by William du Pont. The duPont family lived there for another eighty years,making many changes to the mansion and the land-scape; and in 1984, the estate was willed to the Na-tional Trust by Marion du Pont Scott.

The property is currently being assessed for thecreation of a master plan for the future. The planningprocess has been greatly aided by a substantial grantfrom the Congress through the Commission on theBicentennial of the United States Constitution.These funds were matched by the General Assemblyof Virginia. The combined funds will allow large-scale repairs to both the structure and infrastructureof the estate to be completed. Through gifts andgrants, the du Pont family continues to support thepreservation and restoration of the property.

The National Trust promotes education of thepublic about the heritage of the United States, in-cluding the education of teachers and elementaryand secondary school students. The Master ClassProgram at Montpelier is one of several educationalprograms sponsored or conducted by staff of theNational Trust for Historic Preservation.

The National Trust for Historic Preservation islocated at 1785 Massachusetts Avenue, N.W., Wash-ington, D.C. 20036; (202) 673-4000.

vi

Acknowledgments

This publication was developed with the asFis-tance of participants in the first Master Class forTeachers Program at Montpelier. The participantshelped in the conceptualization, planning, and eval-uation of this work. They are listed in the Introductionto this volume. Five of the participants were mem-bers of a curriculum planning team in preparationof this volume: Earl Bell, Louis Grigar, Carol Oliver,Richard Schubart, and Theodore Sharp.

Kathleen Hunter deserves special recognition.She is director of Federal Programs and EducationInitiatives at the National Trust for Historic Preser-vation. Ms. Hunter provided outstanding leadershipin planning and obtaining funding for the MasterClass for Teachers Program, and she served ably asdirector of this program. She also provided valuablesuggestions about the contents and design of thisvolume.

Dory Twitchell and Melanie Biermann also de-serve recognition for their leadership and servicesduring the summer of 1989. Ms. Twitchell served asassistant director of Montpelier and was alwaysthere to help participants in the Master Class forTeachers Program. Ms. Biermann served as coor-dinator of education programs at Montpelier; sheprovided useful ideas about the development of thisvolume.

Constance Burr, Promotion Editor for the Na-tional Trust for Historic Preservation, made very val-uable contributions to the editing and design of thisvolume. She was an indispensable partner in pro-duction of this volume.

Editorial assistance was provided by the follow-ing persons: Nita Levison, Vickie Schlene, and Do-rothy Taylor of the Social Studies DevelopmentCenter and ERIC Clearinghouse for Social Studies/Social Science Education; Wendy Pdpley of the Na-tional Trust for Historic Preservation;. and JohnDrisko of the National Center for America's Found-ing Documents.

The cover was designed by Tessa Tilden-Smith.The Master Class for Teachers Program and de-

velopment of this volume were supported withfunds from the U.S. Department of Education.Funds to support the printing and distribution ofthis volume were provided by the National Centerfor America's Founding Documents at Boston Uni-versity.

41111%./..11.

T X

FEDERALIST:A COLLECTION

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WRITTEN IN FAVOUR OT TINE

NEW CONSTITUTION,

AS AGREED UPON BY THE FEDERAL CONVENTION,SEPTEMBER 27, 174.

IN TWO VOLT/MESS

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N E W-Y 0 R K:PRINTED AND SOLD BY J. AND A. /4414A111

No. 41, HANOVERSQ/ADIe)430CC,LICXXVIIt.

Title page of the first edition of THE FEDERALIST, 1788.

10

Introduction

This volume, JAMES MADISON AND THE FED-ERALIST PAPERS, is a collection of resources forhigh school history and government teachers andtheir students. It is the product of the Master Classfor Teachers Program, conducted by the NationalTrust for Historic Preservation in association withthe Social Studies Development Center of IndianaUniversity.

In the summer of 1989, from June 21 to June 30,a select group of high school history and govern-ment teachers lived and worked for ten days atMontpelier, the historic home of our fourth presi-dent, James Madison, and one of seventeen historicproperties operated by the National Trust. Thisproperty, neap the town of Orange, extends to 2,700acres in the Piedmont of Virginia.

Each morning, the members of this; Master Classfor Teachers Program assembled in one wing of Ma-dison's house to participate in a seminar on his en-during ideas on constitutional government. Thedaily discussions on Madison's essays in The Feder-alist were led by two members of the faculty at SaintJohn's College, Annapolis, Maryland: Eva T.H.Brann and Thomas J. Slakey.

Each evening, a well-known scholar addressed thegroup on the political thought of James Madison.After dinner in Madison's dining room, the groupconvened on his back porch and adjoining patio toquestion the lecturer and discuss great political iueasand issues with him or her. The list of guest lecturersincluded James MacGregor Burns, Gordon Wood,Garry Wills, La .ce Banning, Herman Belz, MurrayDry, Fay Metcalf, John J. Patrick, and A.E. DickHoward.

During the afternoons, participants in this MasterClass for Teachers Program read assigned papers inThe Federalist and other books and papers about andby James Madison. They also met with guest speak-ers and discussion leaders who treated topics in so-cial history associated with the life of James Madisonand his home, Montpelier. In these settings, theydiscussed such topics as slavery in Virginia, the ma-terial culture and built environment of Montpelierand Virginia, and the arts in the era of Madison. (Acomplete list of guest lecturers and their topics isincluded at the end of this Introduction.)

1

The participants also focused on curriculum ay-plications of their experience at Montpelier. Theyparticipated in a curriculum seminar and contributedto the design and substance of this volume, JAMESMADISON AND THE FEDERALIST PAPERS, whichincludes teaching and learning materials for highschool courses in American history and government.Five participants were members of a curriculumteam that met with the principal author of this vol-ume to help him conceptualize and plan it. All ofthe participants served as evaluators of drafts of theteaching and learning materials in this volume, andthey advised the author about how to revise themfor publication. (A list of the participants, includingcurriculum team members, is included at the end ofthis Introductit,a.)

Purposes and SubjectsThere is a tight connection between the substance

of the Master Class for Teachers Program at Mont-pelier and the main ideas in this volume's learningmaterials for high school students. Topics addressedby the guest lecturers, for example, constitute mainthemes in the Teaching Plans and Lessons: majorityrule and minority rights, federalism and republican-ism, separation of powers in a limited government,and national security and personal liberty.

This volume, JAMES MADISON AND THE FED-ERALIST PAPERS, treats core ideas on constitutionalgovernment in the United States, as did the MasterClass for Teachers Program. These core civic ideas,re found in that classic of American political

thought, The Federalist by Alexander Hamilton,James Madison, and John Jay. In this volume of ma-terials for high school teachers and students, sevenof Madison's papers in The Federalist are selected asthe focal points for Teaching Plans and Lessons: num-bers 10, 14, 39, 41, 47, 48, 51.

Anti-Federalist ideas are also presented, becausewith ut them The Federalist Papers can neither befully understood nor appreciated. Herbert Storing,the late expert on political ideas of the foundingperiod, stressed the importance of both sides in thegreat debate of 1787-88: "If . . . the foundation ofthe American polity was laid by the Federalists, theAnti-Federalist reservations echo through American

11

2 James Madison and The Federalist Papers

history; and it is in the dialogue, not merely in theFederalist victory, that the country's principles areto be discovered."'

This volume is designed to link Madison', ideasin The Federalist to their counterpoints in essays ofthe Anti-Federalists. So the perennial questions andissues of constitutional government are addressedhere from the alternative perspectives of the antag-onists in the great debate about the Constitution of1787. An assumption of this work is that the civicideas and issues of the founding period are stall in-teresting and useful to citizens of the United States.

Overaniting goals of the Teaching Plans and Les-sons in this volume are to help students to

know the origins and purposes of The Federalistand the role of James Madison in producing it;acquire knowledge of central ideas and issues onconstitutional government in selected papers byMadison in The Federalist and in selected essays ofthe Anti-Federalists;analyze and appraise different positions on con-stitutional issues of Madison in papers of The Fed-eralist and of various Anti-Federalists;use evidence in primary documents to support orrefute arguments about constitutional issues;select and defend positions in response to con-stitutional issues raised by Madison's papers inThe Federalist and by papers of various Anti-Fed-eralists;connect principles and issues of constitutionalgovernment during the founding period with civicvalues in the United States today;develop reasons for commitment to core values ofconstitutional government in the United States,which are rooted in the fc, .ding period.

The preceding goals conform to curriculum guidesand the contents of secondary school courses inAmerican history and government. They are alsoconsistent with the long-standing overarching pur-pose of the social studies in American schoolsed-ucation for citizenship in a free society.

Contents

This volume has three major parts. Part One, Back-ground Papers, Part Two, Lessons, and Part Three, Doc-uments.

Part One includes three papers that provide back-ground information and ideas for teachers. Teachersate advised to read these three papers in preparationfor teaching one or more of the Lessons in this vol-ume.

The first paper in Part One, "The Federalist Papersin the Curriculum" by John J. Patrick, examines hiestatus of this American classic in high school historyand government courses. A rationale is provided forteaching The Federalist Papers, and effective teachingstrategies are discussed. The sect Id paper, "JamesMadison and the Founding of the Republic" by A.E.Di 'k Howard, provides important information aboutthe life of James Madison and his great contributionsto the establishment of constitutional government inthe United States. The third paper, "The Constitu-tional Thought of the Anti-Federalists" by MurrayDry, discusses main ideas of the political foes ofJames Madison in the debate on the Constitution of1787.

Part Two includes six Lesson Sets for high schoolstudents of American history or government. EachLesson Set consists of a pair of Teaching Plans andaccompanying Lessons for students. The Lessons treatthe following central topics and ideas on constitu-tional government in the United States: origin andpurposes of The Federalist Papers, differences be-tween Federalists and Anti-Federalists, majority ruleand minority rights, federalism and republicanism,separation of powers and checks and balances, lim-ited government and personal freedom, national se-curity and personal liberty, the Bill of Rights, andfree government. The political thought of JamesMadison is emphasized throughout the lessons.Teachers have permission to duplicate these lessonsand to distribute copies to students in their classes.

Part Three consists of thirteen primary documents.There are seven papers by Madison in The Federalist:numbers 10, 14, 39, 41, 47, 48, and 51. There are sixpapers by leading Anti-Federalists: two by Brutus,one by the Federal Farmer, one by Agrippa, one byCentinel, and one by "the Pennsylvania Minority."Excerpts from these primary documents are in-cluded in the Lessons for students. The completetexts of these documents in this volume providereadily available sources for teachers and students.Teachers may want to refer to these documents tosee how each excerpt in the Lessons fits into the com-plete text of the document from which it was taken.Teachers are advised to read the full text of eachdocument before teaching a Lesson in this ,,olumethat includes excerpts from the document.. 'urther-more, so.ne teachers may want to assign the com-plete texts of the documents to their best students.If so, they can easily make copies of the documentsin Part Three for distribution to their students.

There is a Select Annotated Bibliography at the endof this volume. This listing directs teachers to ad-ditional sources of information about James Madi-

12

Ir

Introduction 3

son, The Federalist Papers, and the writings of theAnti-Federalists.

Distinctive Characteristics of Materials inthis Volume

The following statements describe distinctivecharacteristics of the Teaching Plans and Lessons forstudents in this volume. These statements may as-sist teachers in appraising these materials and inusing them with their students.

1. These Teaching Plans and Lessons fit standardSecondary school courses in American history andgovernment. They treat central ideas on constitu-tional government in the United States, which areembedded in the curriculum guides and textbooksfor secondary school courses in American historyand government. Examples of these ideas are ma-jority rule and minority rights, federalism, republi-canism, separation of powers, checks and balances,national security, personal liberty, limited govern-ment, and the rule of law.

2. These Teaching Plans and Lessons extend andenrich standard textbook treatments of topics onconstitutional government; they do not duplicatetextbook treatments. Each Teaching Plan and Lessonenables teachers to provide detailed treatments oftopics and ideas that are merely mentioned or dis-cussed briefly in textbooks.

3. Each Teaching Plan and Lesson has clear state-ments of objectives and subject matter that pertainsto these objectives. Learning activities are includedthat require students to use the contents of eachLesson to answer questions and complete exercisesthat fit the objectives of the Lesson.

4. These Teaching Plans and Lessons encourage ap-plication of knowledge in the performance of variouskinds of lower- and higher-level cognitive tasks,from recall and comprehension to interpretatinn,analysis, synthesis, and evaluation. Students arechallenged to identify and comprehend main ideas,to clarify and analyze alternative positions on issues,and to take a stand in favor of or in opposition topositions on constitutional issues.

5. These materials emphasize the use of primarydocuments as sources of evidence for classroom dis-cussions, ,debates, and writing activities. Studentsare required to find and use information in primarysources to support or reject alternative viewpointson constitutional issues.

6. These Teaching Plans and Lessons conform to theoverarching goals of this volume, which are listedin this Introduction. In line with these goals, the ma-

terials emphasize central concepts and values ofAmerican constitutional government, which are dis-cussed in papers of The Federalist and of the Anti-Federalists. Furthermore, these materials highlightenduring issues of American constitutional govern-ment and require students to use primary docu-ments in their analyses and appraisals of theseissues.

How to Select and Use these Materials

These twelve Teaching Plans and accompanyingLessons for students are more than most teachers canuse in a single course, given the need to cover manyother topics in a limited period of time. The lessons,therefore, should be viewed as a pool of teachingresources, which different leachers will draw uponin different ways. Many teachers may select onlytwo or three of these twelve Lessons to supplementa single part of their textbook. Other teachers maydecide to use several of the Teaching Plans and Lessonsto provide in-depth treatments about the alternativeviews of Federalists and Anti-Federalists. Still otherteachers may use these materials only for referenceor for selection of interesting examples to incorpo-rate in their own originally designed instructionalunits.

Teachers are encouraged to use these materialsvariously to suit their own objectives. Variouschoices about how to use these Teaching Plans andLessons are possible, because each Lesson Set of ma-terials can be used singly, without reference to otlermaterials in this volume. The different Lesson Setscan also be taught in combination, because the ideasin each Lesson can be readily connected to everyother Lesson in this volume.

All materials needed to teach a Lesson are providedin this volume. However, teachers are encouragedto expand or improve upon these materials by ex-posing students to related learning materials. Teach-ers are also encouraged to adapt these Teaching Plansand Lessons to fit their styles of teaching, their per-ceptions of student needs, or their classroom cir-cumstances. Teaching Plans are presented as generalsuggestions, not as prescriptions.

Little time is needed to prepare to use a Lesson.Follow these steps:

Read the materials for students and the TeachingPlan, and read the relevant primary documents inPart Three of this volume.Make and distribute copies of the learning mate-rials for students.

13


F.. ,:mr or modify teaching suggestions for open-hot, developing, and concluding the Lesson, whichare presented in the Teaching Plan. It is likely thatmany teachers will modify the Teaching Plan andadjust their use of the accompanying Lesson forstudents to make the materials more useful in par-ticular situations.

These twelve Teaching Plans and -accompanyingLessons for students are a mere sampler of the richcontents in The Federalist Papers and the essays of theAnti-Federalists. 1 hese Teaching Plans and Lessonsare not meant to be a comprehensive treatment ofideas in The Federalist and essays of the Anti-Fed-eralists. Rather, they provide students with brief in-troductions to classic American writings onconstitutional government that may stiulate themto think about important political ideas and to readmore about these ideas.

The political thought of James Madison is high-lighted because of the connection of this project tohis historic home, Montpelier. There is additionaljustification, however, for this emphasis. No otherAmerican contributed more than Madison did to theestablishment of a workable constitutional govern-ment for the United States, not even Washington,Hamilton, or Jefferson. In recognition of Madison'squalities and achievements, the great Thomas Jef-ferson simply labelled him "the greatest man in theworld" (letter to Benjamin Rush in 1790).2 About twohundred years later, Madison's biographer, RobertRutland, concluded: "By the criteria of his own time,James Madison was our last great republican. By thecriteria of our own, Madison was the Founding Fa-ther."3

These Teaching Plans and Lessons reflect the great-ness of the political thought of James Madison, asdid the activities of the Master Class for TeachersProgram at Montpelier. However, neither the Mas-ter Class for Teachers Program nor these TeachingPlans and Lessons were designed to encouragethoughtless acceptance of any point of view. Rather,the purpose was and is to spark reflection, delib-eration, discourse, criticism, and interest in contin-uing inquiry about fundamentals of the Americancivic legacy, which can be found in the papers ofMadison in The Federalist, and in the papers of hisAnti-Federalist foes in the great debate of 1787-1788.

Notes

1. Herbert J. Storing, What the Antt-Federahsts Were For(Chicago: The University of Chicago Press, 1981), 72.

2. George W. Corner, ed., The Autobiography of BenjaminRush (Princeton, NJ: Princeton University Press, 1948),181.3. Robert A. Rutland, James Madison: The Founding Father(New York: Macmillan Publishing Company, 1987), 253.

Lists of Guest Lecturers and Participants

The guest lecturers and participants in the MasterClass for Teachers Program are listed below. Mem-bers of the curriculum planning team are indicatedby an asterisk (*).

Guest Lecturers

Lance BanningProfessor of HistoryUniversity of KentuckyTopic: "Separation of Powers and LimitedGovernment"

Herman BelzProfessor of HistoryUniversity of MarylandTopic: "National Security and PersonalFreedom"

James MacGregor BurnsSenior FellowCenter for Humanities and Social SciencesWilliams CollegeTopic: "The Context of The Federalist Papers"

Murray DryProfessor of Political ScienceMiddlebury CollegeTopic: "Constitutional Thought of the Anti-Federalists"

Rex EllisDirector of Afro-American Interpretation andPresentationColonial Williamsburg FoundationTopic: "Slavery, Virginia, and the Constitution"

John Douglas HallMusicologist and AssociateGatsby's Tavern MuseumAlexandria, VirginiaTopic: "The Performing Arts in Madison'sTime"

A.E. Dick HowardWhite Burkett Miller Professor of Law andPublic AffairsUniversity of VirginiaTopic: "The Legacy of Madison and TheFederalist Papers"

14

5

Introduction

Conover HuntGuest Curator for "James Madison and theSearch for Nationhood" at the Library ofCongressTopic: "Arts and Culture of Virginia inMadison's Time"

Fay D. MetcalfExecutive DirectorNational Commission on Social Studies in theSchoolsWashington, D.C.Topic: "Using Material Culture as a ClassroomResource"

Ann MillerExecutive DirectorOrange County Historical SocietyOrange, VirginiaTopic: "Living in Virginia's Piedmont inMadison's Time"

John J. Patrick*DirectorSocial Studies Development CenterProfessor of Education'ndiana UniversityTopic: "The Federalist Papers in the Curriculum"

Rueben RaineyProfessor, School of ArchitectureUniversity of VirginiaTopic: "The Virginia Landscape in Madison'sTime"

Garry WillsHenry R. Luce Professor of American Cultureand Public PolicyNorthwestern Universit-rTopic: "Majority Rule and Minority Rights"

Gordon WoodProfessor of HistoryBrown UniversityTopic: "Federalism in an Extended Republic"

Participants in the Program

Earl P. Bell*Chair, Department of HistoryUniversity of Chicago Laboratory SchoolsChicago, Illinois

Daniel Hugh Bt._ 'kSocial Studies TeacherVirgil Grissom High SchoolHuntsville, Alabama

Eva J. BrownSocial Studies TeacherKenwood AcademyChicago, Illinois

Stanley DeanSocial Studies Teacher and District ChairpersonEscondido Union High School DistrictEscondido, California

Frederick DrakeSocial Studies Teacher and DepartmentChairpersonDwight High SchoolDwight, Illinois

Robert GabrickAmerican History TeacherWhite Bear Lake SchoolsWhite Bear Lake, Minnesota

Joseph R. GotchySocial Studies TeacherThomas Jefferson High SchoolFederal Way School DistrictAuburn, Washington

Louis Grigar*Social Studies CoordinatorTexas State Education AgencyAustin, Texas

Nathaniel A. JobeHistory Department ChairpersonWoodberry Forest SchoolWoodberry Forest, Virginia

Ann T. KashiwaHistory TeacherMariner High SchoolEverett, Washington

Rita G. KomanSocial Studies TeacherOsbourn High SchoolManassas, Virginia

Thomas W. NewSocial Studies Department ChairpersonPlano High SchoolPlano, Texas

Carol Oliver*History TeacherCulpeper High SchoolCulpeper, Virginia

Simmie G. PlummerSocial Studies TeacherValley High SchoolAlbuquerque, New Mexico

Pamela RennerHistory TeacherIndependence High SchoolGlendale, Arizona

Richard D. Schubart*Director of HumanitiesPhillips-Exeter AcademyExeter, N..tw Hampshire

15

5

6 James Madison and The Fedexdist Papers

Theodore G. Sharp*SuperintendentFalmouth Public SchoolsFalmouth, Maine

NOTE: All descriptions of Guest Lecturers and Par-ticipants are based on the status of these individualsat the time of their involvement in the Master Classfor Teachers Program.

7

Part One: Background Papers

Part One consists of three background papersfor users of this volume:

1. "The Federalist Papers in the Curriculum"by John J. Patrick.

2. "James Madison and the Founding of the Re-public" by A.E. Dick Howard.

3. "The Constitutional Thought ofthe Anti-Federalists" by Murray Dry.

Background Paper 1 discusses the treatment ofThe Federalist in high school history and governmentcourses. The author provides a rationale and strat-egies for teaching The Federalist Papers to high schoolstudents.

Background Paper 2 presents a biographicalsketch of James Madison with emphasis upon hisrole in the Federal Convention of 1787, ratificationdebate of 1787-88, and framing of the Bill of Rightsin 1789. The author discusses central ideas of Mad-ison on constitutional government.

Background Paper 3 examines core ideas of theAnti-Federalists on constitutional government. Theauthor emphasizes Anti-Federalist positions on re-publicanism, federalism, separation of powers, anda bill of rights.

17

James Madison, fourth President of the United States of America, and co-author of The Federalist.

Source: Library of Congress

18

Background Paper 1

The Federalist Papers in the Curriculum

John J. Patrick

The Federalist is an American classic! Consider theaccolades that leading statesmen and scholars havegiven this collection of 85 papers by Publius on themerits of the Constitution of 1787.'

Shortly after publication of The Federalist, ThomasJefferson, proclaimed it "the best commentary onthe principles of government which ever was writ-ten."2

Later on, Jefferson's political foe, Chief JusticeJohn Mushall wrote: "It [The Federalist] is a completecommentary on our Constitution, and it is appealedto by all parties in the questions to which that in-strument gave birth."3

George Washington predicted that Tice Federalistwould transcend the time and circumstances of itspublication to become a generally admired treatiseon free government: "When the transiera circum-stances and fugitive performances which attendedthis Crisis shall have disappeared," said Washing-ton, "that Work will merit the Notice of Posterity;because in it are candidly and ably discussed theprinciples of freedom and the topics of government,which will be always interesting to mankind so longas they shall be connected in Civil Society."

Washington's prophecy has come true. From thefounding period to modern times, lawyers, judges,politicians, and scholars have used ideas in The Fed-eralist to guide their inquiries, deliberations, and de-cisions about principles and issues of constitutionalgovernment. Charles Beard, for example, praisedthese papers of Publius as "the most instructivework on political science ever written in the UnitedStates" and reported that he reread parts or all ofThe Federalist ever; year for fifty years. At each read-ing, Beard was newly informed, he said, "by thediscovery of ideas and suggestions which [he) hadpreviously overlooked or had failed to grasp in theirfull meaning."5 (Beard's critics probably would re-spond with regret that he did not read some of thepapers at least one more time, especially No. toremedy his misunderstanding of them.)6

Clinton Rossiter commented in his introduction toa recent edition of The Federalist "that it stands third

9

only to the Declaration of Independence and theConstitution itself among all the sacred writings ofAmerican political history."7 And during our bicen-tennial celebration of the U.S. Constitution, the ven-erable historian, Richard Morris, concluded that TheFederalist "has remained profound, searching, chal-lenging, and . . . everlastingly controversial."

This strong praise for The Federalist, across twocenturies of American history, might lead one toexpect a secure and prominent place for it in thecurricula and classrooms of our schools, as a stapleof courses in history and government and as an an-chor for citizenship education. But this is not so! Asignificant gap separates the educational realitiesfrom the elegant rhetoric about timeless truths inThe Federalist.

'Ad-us of The Federalist in Schools

Curriculum developers and textbook publishersseem to value The Federalist much less than the po-litical and academic luminaries who have so lavishlylauded it. This classic work is mentioned onlybriefly, if at all, in widely used high school textbookson American history, government, and civics.

The best-selling high school government text-book, Magruder's American Government, is also theleader in coverage of The Federalist, which makes thepreceding point about the paucity of coverage of thisdocument. Only five pages of this textbook includemention of The Federalist, with little or no discussionof the ideas in it; and one page has a quotation fromNo. 47 about separation of powers as a means tolimited government. In addition, the Appendix tothis book includes the complete text of Madison'spaper No. 10. However, the document is presentedwithout context or explanation; there is only a one-sentence introduction, which is cryptic and some-what misleading about the contents of the essay."

Other widely used textbooks mention The Feder-alist in one or two paragraphs in a section of thestandard chapter on the framing and ratifying of theConstitution.'" This lack of coverage in current text-


books is consistent with practices in the recent past.A 1959 study of high school textbooks revealed thatonly three civics textbooks even mentioned The Fed-eralist. In addition, "of seventeen history and gov-ernment textbooks, twelve made only minimalreference to the essays.""

Of course, abysmal ignorance is the inevitableconsequence of this kind of neglect. The 1987 na-tional assessment in history revealed that only 40%of 17-year-olds knew that The Federalist was writtento support ratification of the Constitution. Further-more, this national sample of.high school studentsachieved a dismal average score of 54.4% on a 19-item test about principles and issues of constitu-tional government in the United States.'2

Why is The Federalist treated so shabbily in ourhigh school textbooks and curricula? Three reasonsare offered to stimulate thought about this problem.

First, civic educators are committed to helping stu-dents know and deal with political reality. But sup-pose they believe that the central ideas of TheFederalist are archaic and no longer applicable to themodern political world. If these papers appear tocontribute little to the student's understanding ofthe current political system, then teachers will givelittle more than a passing historical reference tothem.

Second, educators may feel obligated to attend tothe goals ana subjects in the school's curriculumguide. But suppose they find little connection be-tween the contents of The Federalist and the second-ary school curriculum.. Well, if The Federalist does notseem to fit established curriculum patterns, then itwill not be taught.

Third, educators try to offer a curriculum that fitsthe general level of ability of their students. But sup-pose they think that ideas in The Federalist are toochallenging for most, if not all, members of theirhigh school classes. If this subject is judged as toodifficult for learners, then it will be avoided by teach-ers.

Critics and skeptics have claimed that The Feder-alist is too old, too arcane, and too difficult to meetthe interests and ne.3cis of modern students. Is it?Can these objections to The Federalist in the curric-ulum be met and turned aside? Or is there reallylittle or no justification for this venerated treatise inthe curriculum of today's secondary schools?

My answer is that a credible case can be made forteaching ideas and issues of The Federalist to studentsof high school courses in government and history.What are the essential elements of this case?

Why Teach The FederalistThere are three reasons for including ideas and

issues of The Federalist papers in the high school cur-riculum:

1. They are keys to knowledge of constitutional gov-ernment and citizenship in the United States.

2. They reflect core values in the civic culture.3. They art. connected to the curriculum in history,

government, and civics.

These three reasons are interrelated, and therefore,they are discussed concurrently in the case for TheFederalist in the curriculum, which follows.

A perennial goal of education in a free society isdevelopment of knowledge on government and cit-izenship. In a democratic republic, the preferredform of government in The Federalist, this goal hascritical importance; because without enlightened cit-izenship, a government of the people cannot en-dure. And enlightened citizenship can only be theproduct of enlightening scholarship in a system ofeducation accessible to the general public. Madisonpromulgated this point, as evidenced by his remarksin a letter to William T. Barry, the Lieutenant gov-ernor of Kentucky:

The liberal appropriations made by the Leg-islature of Kentucky for a general system ofEducation cannot be too much applauded. Apopular Government, without popular infor-mation, or the means of acquiring it, is but aPrologue to ayarce or a Tragedy; or, perhapsboth. Knowledge will forever govern igno-rance. And a people who mean to be their ownGovernors, must arm themselves with thepower which knowledge gives.13

Does The Fedeialist, in Madison's terms, provideto "people who mean to be their own governors . . .

the power which knowledge gives?" Yes! Publiusprofoundly examines the inescapable problems andissues of free government, which our students, ascitizens, must understand to exercise fully their re-sponsibilities and rights under the Constitution.

Consider the basic paradox of constitutional de-mocracy in modern times: how to have majority rulewith protection of the rights of individuals, all in-dividuals, including those who are members of un-popular minority groups. We accept and teach thisconception of democracy to our students. We readilyrecognize that both majority rule and minority rightsare values at the core of our civic culture and ourhigh school curriculum. Taken to its extreme, how-ever, majority rule would destroy the rights and lib-erty of individuals in the minority, as Madison

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Background Papers/Paper 1 11

sagely warned in The Federalist 10 and 51. Con-versely, unlimited rights and freedoms for individ-uals or minority groups would preclude majorityrule, and civil society too."

Majority rule and minority rightsthese contra-puntal values that define a constitutional democ-racyare inevitably in conflict. But if freegovernment is to endure, then the rival claims ofmajorities and minorities must somehow be limitedand accommodated. In several numbers of The Fed-eralist, Madison frames the problem and tells us howto deal with itknowledge our students need inpreparation for responsible citizenship in our con-stitutional democracy.

Majority rule with minority rights, however, is onlyone of several perennial predicaments of our con-stitutional democracy treated in The Federalist. Con-sider the overriding importance and enduringrelevance of three other examples.

Public order with private rightsthis paradox posesthe problem of finding a workable balance betweenpower and liberty in a government that is bothstrong and limited, with enough power to act effec-tively for the common good and sufficient limits toguard the liberty of individuals from abuses of publicpower. Ideas on public order and private rights per-meate The Federalist. However, numbers 10, 23, 37,44, and 47-51 provide especially useful commentar-ies for teachers and students on how to construct alimited government that is also sufficiently power-ful.

National sovereignty with states' rightsthis problemis the challenge of finding a workable division ofauthority and duties in a large federal republic thatincludes a sovereign and energetic national govern-ment and several state-level republics that also ex-ercise significant powers. Ideas on federalism,republicanism, and states' rights are treatedthroughout The Federalist; but teachers and studentsshould concentrate on numbers 9, 10, 14, and 39.

National security with personal libertyth;s probleminvolves simultaneous pi vision of common defensefor the society and protection of liberty for personsthreatened by overbearing defenders of the com-monweal. The best papers in The Federalist on thissubject are numbers .23, 24, and 41, especially No.41.

Each of these -andvoidable and paradoxical prob-lems cif our constitutional democracy challengesusas teachers, students, and citizensto conjoinopposing values to create a workable synthesis. Eachproblem requires a search for acceptable limits oncontending forces. Under what conditions, and atwhat point, should the law limit the majority to pro-

tect the rights of individuals in the minority? Andconversely, when and why should minority rightsbe limited by law to preserve the will of the majority?Responses to these generic questions will vary with'sues and their circumstances. But the civic valuesand principles in the problems, such as majority ruleand minority rightsthese are the constant char-acteristics of a constitutional democracy. If ,,etherone of the opposing civic values is sacrificed to theother, then the constitutional democracy is lost. Ourstudents need to learn this, and we can use TheFederalist to help them do it.

By turning to The Federalist, teachers and studentscan find insightful and provocative responses to theparadoxical problems of constitutional democracy:majority rule with minority rights, public order withprivate rights, national sovereignty with states'rights, and naaonal security with personal liberty.Teachers and students, for example, can examineMadison's model for a "well-constructed Union"that he hoped would effectively conjoin liberty andorder, majority rule with minority rights, and na-tional and state governments in a federal system.15These responses are not correct in every detail. Forexample, Publius' prediction in No. 78 about thefederal judiciary's weak position relative to the otherbranches of government does not fit our current con-stitutional system. Furthermore, many ideas in TheFederalist are debatable today, as they were duringthe founding period. However, these ideas remainvaluable, because they are indisputably applicableto the ongoing concerns of citizenship in our dem-ocratic republic.

Examination of perennial constitutional problemsposed in The Federalist, and the historical and currentissues associated with them, requires knowledge offirst principles of constitutional government in theUnited States, such as popular sovereignty, feder-alism, republicanism, separation of powers, checksand balances, limited government, rule of law, per-sonal liberty, private rights, common good, and soforth. These ideas of The Federalist are familiar to civicducators, because they are emphasized in state-

ments of educational goals and in syllabi for coursesin history and government. They are embedded inthe curricula of our schools.

At this point, the case for teaching The Federalistto high school students has been made. In summary,the contents can assist students to comprehend andanalyze our contemporary constitutional govern-ment. Central ideas of the document are compatiblewith the civic culture of the United States and stan-dard high school courses in United States historyand gotrnment. There is no need to create special

21


courses or units of study on The Federalist, unlessoiLa hz special desire or need to do so, becausethe contents of these papers are congruent with thecore curriculum of schools, the common learningexperiences required of all students as part of theirgeneral education for citizenship.

But critical questions remain. Can the contents ofthis classic work be taught successfully to highschool students? My answer: certainly ideas in thiswork Lan-be learned by a significant number of stu-dents, if not by all of them. Responsible educatorsshould not deprive anyone o. knowledge and skillsmerely because they cannot be mastered by every-one.

Will it be a formidable challenge to teach The Fed-eralist to willing and able high school students? Ofcourse, the materials are difficult, and teaching andlearning them will require sustained effort and in-telligence. But these obstacles to civic enlightenmentare not insurmountable. They certainly can he over-come by creative and resourceful teachers with com-mitment to maintaining the civic tradition of TheFederalist.

Strategies for Teaching The FederalistWhat strategies might be used to teach ideas in

The Federalist to high school students willing and ableto learn them? Consider these three generic strate-gies: (1) document-based teaching and learning, (2)issues-based teaching and learning, and (3) course-wide infusion of content. These three categories arenot presented as definitive; they do not exhaust thepedagogical possibilities. But they are likely to beuseful guides to the teaching and learning of ideasin The Federalist; and they may stimulate additionalthoughts about how to present these valuable butdifficult materials to high school students.

Document-based Teaching and Learning. Mosthigh school students will need careful guidance intheir initial confrontations with original text in TheFederalist. It is not advisable to require them, at first,to read the complete texts of selected papers. Rather,these essays should be abbreviated, annotated, andotherwise edited to aid the comprehension and in-terpretation of main ideas by high school students.Furthermore, each excerpt from a Federalist papershould be introduced with a carefully worded state-ment about the mainideas covered in the document.Finally, questions should be posed at the end of thedocument that require students to identify mainideas in it and demonstrate that they comprehendthem.

Selected papers from The Federalist should be ex-amined in context in order to maxi nize the student'sunderstanding of them and to minimize speciousinterpretations. Knowledge of the founding periodis a prerequisite to one's study of any portion of TheFederalist

James Madison apparently agreed with this point.He wrote about the necessity of interpreting docu-ments in their historical context. He insisted that aliteral rendering of the text, without adequateknowledge of the context in which it was writtenand used, inevitably would be inaccurate. The truth-seeking reader, according to Madison, must alwaysgo beyond the document to the time and place ofits origin to accurately interpret and assess it. Con-sider his words on this subject: "If the meaning ofthe text be sought in the changeable meaning of thewords composing it, it is evident that the shape andattributes of the Government [the object of discus-sion in the text] must partake of the charges towhich the words and phrases of all living languagesare constantly subject. What a: metamorphosis [inmeaning] would be produced."

So, a cardinal rule in using primary documents inThe Federalist, or any other source, is never to workwith them as discre' ....coding assignments, apartfrom some meaningful context. One type of context,already noted, is the period in which the documentoriginated. Another kind of context, one that mightbe used in a high school government or civics course,is a conceptual framework that subsumes main ideasof the document. For example, a detailed treatmentof the interrelated concepts of separation of powersand checks and balances in government could pro-vide an appropriate context for the study of paperNo. 47 of The Federalist. However, do not disregardthe level of historical knowledge that students bringto the investigation of the document, because thistype of conceptual context cannot be adequate totheir needs unless they have some minimal level ofknowledge about the time of origin of the document.

Given standard constraints of time, and the needto study other materials, only a few papers in TheFederalist can be included in the curriculum. At aminimum, I would advise use of numbers 1, 10, and51. Number 1 is valuable because it introduces thework; acid numbers 10 and 51 embody Madison'smost i.nportant statements about how to structure,- popular government that can both protect privaterights and provide public order and security. Ad-ditional papers recommended for the high schoolcurriculum, if time permits, are numbers 14, 15, 23,39, 41, 47, 48, 70, and 78. These papers are chosenbecause they treat principles and concepts of gov-

22

Background Papers/Paper 1

ernment embedded in standard high school coursesof study.

Teachers might decide that some of their studentsare able to work with the complete and uneditedversions of these papers. This is always best, if stu-dents can do it. If not, look for high-quality learningmaterials on these documents, which have been pre-pared for high school students; or create your ownmaterials, tailored to the special needs of your stu-dents.

Issues-based Teaching and Learning. Selectedpapers (A The Federalist are not only useful sourcesabout principles of constitutional government in theUnited States, but they also serve to illuminate theperennial issues, the classic controversies of our po-litical system, such as how to conjoin majority rulewith minority rights. These basic issues can be theobjects of lively classroom activities: roundtable dis-cussions, forums, and debates that involve delib-eration, discourse, and decisions on alternativepositions of the Federalists and their Anti- federalistfoes about ratification of the Constitution of 1787.

Issues-based teaching of The Federalist requires ex-amination by students of select papers of the Anti-Federalists. For example, Madison's position on fed-eralism and republicanism, in numbers 10, 14, and39 of The Federalis, can be countered with select Anti-Federalist writings on the same concepts: Letter IVof Agrippa, Letters I and XVII of the Federal Farmer,and Essay I of Brutus. Students might be asked toassess the contending positions during a roundtablediscussion and then to choose one side or the otherfor classroom debates about so.ne controversialproposition in the documents.

Amendments proposed by Anti-Federalists dur-ing the state ratifying conventions of 1787-1788 canbe stimulating foci for classroom debates today. Forexample, students might be asked to debate thisamendment proposed by the New York ratifyingconvention: "That the Senators and Representativesand all Executive and judicial Officers of the UnitedStates shall be bound by Oath or Affirmation not toinfringe or violate the Constitutions or Rights of therespective States. "" A classroom debate on thisproposition would require students to draw uponthe conflicting positions about federalism and re-publicanism in The Federalist and writings of theAnti-Federalists.

Here is another example of a possible topic forclassroom debate, which comes from the list ofamendments proposed by Anti-Federalists at thePennsylvania ratifying convention: "That the powerof organizing, arming and disciplining the militiaremain with the individual states, and that Congress

13

shall not have authority to call or march any of themilitia out of their own state, without the consentof such state, and for such length of time only asSuch state shall agree."'s The spirit of this proposalhas emerged in our time; recall the emphatic com-plaints and threats of resistance from Governor Du-kakis about the possibility of sending members ofthe Massachusetts state militia on a training missionto Central America.

Many of the Anti-Federalist ideas for amendingthe Constitution of 1787 have modern counterparts.For example, current proposals for one six-year pres-idential term of office can be traced to the Anti-Fed-eralists; so can calls for introducing to the nationallevel of government the recall of elected officials andthe referendum on legislation, which are employedin several state governments.

Issues-based teaching about The Federalist is notonly stimulating, interesting, and enlightening, butit also informs students about the fundamental im-portance of the Anti-Federalist side of the argument.Herbert Storing, the late expert on the Anti-Feder-alists, provides justification for teaching both sidesof the great debate on the Constitution of 1787: "If. . . the foundation of the American polity was laidby the Federalists," said Storing, "the Anti-Feder-alist reservations echo through American history;and it is in the dialogue, not merely in the Federalistvictory, that the country's principles are to be dis-covered."19

Course-wide Infusion of Content. In teachingideas of The Federalist and the Anti-Federalists, weshould begin with the origins of the United States.Lessons about these political foes should be parts ofinstructional units on ratification of the Constitutionin American government and history courses. JamesMadison would agree. He advised that the "key" tothe "legitimate meaning" of the Constitution wouldbe found "not in the opinions or intention of thebody which planned and proposed the Constitution,but in the sense attached to it by the people in theirrespective State Conventions, where it received allthe authority which it possesses."

However, teachers should not restrict their treat-ments of The Federalist and the Anti-Federalist writ-ings to the founding period. There are other entrypoints in the curriculum for these materials and theideas in them. For example, excerpts from these clas-sic documents are applicable to zeveral parts of thehigh school government course that focus on prin-ciples of constitutional democracy, such as the stan-dard lessons on separation of powers, checks andbalances, federalism, the presidency, the Congress,

23_


the federei judiciary, and the civil rights and libertiesof individuals.

High school teachers of United States history canrefer to The Federalist in their treatments of issuesabout states' rights and federalism that led directlyto the Civil War. Furthermore, the Civil War Amend-ments to the Constitution, especially the 14thAmendment, can be examined fruitfully from theperspective of The Federalist. The same point can bemade about the applicability of ideas in The Federalistto studies of constitutional changes from the Pro-gressive Era to our own time. Issues in landmarkcases of the Supreme Co, t can also be studied inrelationship to ideas in The Federalist, since theJustices often referred to these ideas as :hey formedopinions in these cases.

World history teachers might explore with stu-dents the European roots of ideas in The Federalist.They might also teach about connections of the En-lightenment in Europe to the theory and practice ofpolitics in 18th-century America. Finally, teachersand students of world history might explore theworldwide influence of American ideas on consti-tutional democracy, especially origin& ideas of TheFederalist about ordered liberty and free government.

ConclusionIf Madison were here today, he probably would

be pleased with this final recommendation about aglobal perspective on The Federalist. His faith in theAmerican concept of free government was so strongthat he dreamed of a time when it might spreadthroughout the world. He wrote: "The free systemof government we have established is so congenialwith reason, with common sense, and with a uni-versal feeling, that it must produce . . . a desire ofimitation. . . . Our Country, if it does justice toitself, will be the workshop of liberty to the . . .

World. "2'But "Our Country" cannot "be the workshop of

liberty" that Madison desired unless each new gen-eration in this country develops a reasoned com-mitment to the principles of free government in ourmost fundamental public documents, foremost ofwhich are the Declaration of Independence, theConstitution, and The Federalist. This reasoned com-mitment, of course, will be the consequence of ef-fective civic education. It can happen no other way.

Effective civic education requires recognition ofthe imperfections of free government (constitutionaldemocracy) at particular places and times and re-flective thought about how to improve it. This, too,Madison would approve. Near the end of his life,

he wrote: "No government of human device andhuman administration can be perfect. . . . rThe gov-ernment] which is the least imperfect is thereforethe best government. . . . [T]he abuses of all othergovernments have led to the preference of republi-can governments as the best of all governments,because the least imperfect/'22

Thus, education for constitutional democracy isnot an ideological exercise, not a means to blind faithin dogma. Rather, it is an extension to each newgeneration of citizens of the challenge confronted byMadison and others during the founding periodthe challenge of coping with the enduring issues ofconstitutional democracy, of improving the systemincrementally through responses to these issues,and of passing on the tradition of free government(and the issues inherent in it) to the next generation.Ideas in The Federalist can contribute to this kind ofeducation on the principles of free government.

If you accept this view of education for free gov-ernment, then you will take on the challenge ofteaching The Federalist in your classrooms and com-munities. And if you do this, take pleasure in thecertainty that James Madison would applaud yourefforts. "What spectacle can be more edifying ormore seasonable," he wrote, "than that of Liberty& Learning, each leaning on the other for their mu-tual & surest support?"23

Notes1. Alexander Hamilton, James Madison, and John Jay,

The Federalist. This colic^tion of 85 papers in support ofthe Constitution of 1787 was first published in 1788 byMcLean and Company of New York, NY. There are severalexcellent editions of The Federalist in print. Two examplesare Jacob E. Cooke, editor, The Federalist (Middletown, CT:Wesleyan University Press, 1961) and Isaac Kramnick, ed-itor, The Federalist Papers (New York: Viking Penguin Inc,1987).2. Letter from Thomas Jefferson to James Madison, 18

November 1788, quoted in Isaac Kramnick, "Editor's In-troduction," The Federalist Papers, 11.3. Cohens v. Virginia (1821), quoted in Roy P. Fairfield,

"Introduction," The Federalist Papers (Baltimore: JohnsHopkins University Press, 1981), xiii.4. Letter from Ceorge Washington to Alexander Ham-

ilton, 28 August 1788, in Saxe Commins, editor, Basic Writ-ings of George Washington (New York: Random House,1948), 546.5. Charles A. Beard, The Enduring Federalist (Garden City,

New York: Doubleday & Company, Inc. 1948), 9.6. Morton White, among others, is critical of Charles

Beard's interpretation of The Federalist No. 10 and No. 31;see Philosophy, The Federalist, and the Constitution (NewYork: Oxford University Press, 1987), 3-6.

24


7. Clinton Rossiter, "Introduction," The Federalist Papers(New York: New American Library, 1961), vii.8. Richard B. Morris, Witnesses at the Creation: Hamilton,

Madison, Jay and the Constitution (New York: Holt, Rine-hart, and Winston, 1985), 21.9. William A. McClenaghan, Magruder's American Gov-

ernment (Newton, MA: Allyn and Bacon, Inc., 1987), 50,51, 56, 343, 370-371; the complete text of The Federalist No.10 appears on pages 759-763.10. Other widely used high school government textbooks,which provide less coverage of The Federalist than doesMagruder's American Government, are listed by publisherand title: Coronado Publishers, Inc., We Are One (1986);McGraw-Hill Book Company, American Government (1983);Charles E. Merrill Publishing Company, American Govern-ment: Principles and Practices (1987); Scribner EducationalPublishers, Government in the United States (1987); Scott,Foresman and Company, Consent of the Governed (1987).High school history textbooks tend to provide even lesscoverage of The Federalist than the government textbooksdo. The introductory-level college government textbooksprovide more coverage of The Federalist than high schooltextbooks do, but they, too, seem rather limited in theirtreatr.cnts of this classic; see Danny M. Adkison and LisaMcNair Palmer, "American Government Textbooks andThe Federalist Papers," The Political Science Teacher 1 (Winter1988): 1, 15-17.11. Roy P. Fairfield, "Introduction," The Federalist Papers,xix.12. Diane Ravitch and Chester E. Finn, Jr., What Do Our17-Year-Olds Know? A Report on the First National Assessmentof History and Literature (New York: Harper & Row, Pub-lishers, 1987), 55-58.12 Letter from James Madison to William T. Barry, 4 Au-gust 1822, in Marvin Meyers, editor, The Mind of the Foun-der: Sources of the Political Thought of James Madison(Hanover, NH: University Press of New England, 1973),343-344.14. The Federalist 10 and 51 discuss the danger of major-itarian tyranny and how to deal with it; in addition, seeMadison's letter to Thomas Jefferson, 17 October 1788, inMarvin Meyers, editor, The Mind of the Founder, 156-160.

15. Several books abo'.t The Federalist are listed here thatmight be helpful to teachers interested in the paradoxesand perennial issues of constitutional democracy. MartinDiamond, The Founding of the Democratic Republic (Itasca,IL: F.E. Peacock Put. hers, Inc. 1981); Gottfried Dietze,The Federalist: A Classic on Federalism and Free Government(Baltimore: Johns Hopkins University Press, 1960); DavidF. Epstein, The Political Theory of The Federalist (Chicago:The University of Chicago Press, 1984); Adrienne Koch,Power, Morals, and the Founding Fathers. Essays in the Inter-pretation of the American Enlightenment (Ithaca, NY: CornellUniversity Press, 1961); Neal Riemer, James Madison. Cre-ating the American Constitution (Washington, DC: Con-gressional Quarterly, Inc., 1986), Morton White,Philosophy, The Federalist, and the Constitution (New York.Oxford University Press, 1987); and Garry Wills, Explain-ing America: The Federalist (Garden City, NY. Doubleday &Company, Inc., 1981).16. Letter from James Madison to Henry Lee, 25 June1824, in Adrienne Koch, editor, The American Enlightenment(New York: George Bmziller, Inc., 1965), 471.17. A complete list of constitutional amendments pro-posed by the New York ratifying convention is presentedin Linda Grant De Pauw, The Eleventh Pillar. New York Stateand the Federal Convention (Ithaca. NY. Cornell UniversityPress, 1966), 297-302.W. A complete list of constitutional amendments pro-posed by the Anti-Federalists at the Pennsylvania ratifyingconvention appears in a primary document, "The Addressand Reasons of Dissent of the Minority of the Conventionof Pennsylvania to Their Constituents," in Herbert Stor-ing, editor, The Anti-Federalist (Chicago. The University ofChicago Press, 1985), 201-223.19. Herbert J. Storing, What the Anti-Federalists Were For(Chicago: The University of Chicago Press, 1981), 72.20. Letter from James Madison to Thomas Ritchie, 15 Sep-tember 1821, quoted in Drew R. McC y, The Last of theFathers: James Madison and the Republican Legacy (Cam-bridge, England. Cambndge University Press, 1989), 76.21. Quoted in Adrienne Koch, Power, Morals, and theFounding Fathers (Ithaca, NY. Cornell University Press,1961), 105.22. Ibid., 115.23. Letter from James Madison to William T. Barry, 4 Au-gust 1822, in Marvin Meyers, The Mind of the Founder, 346.

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Background Paper 2

James Madison And The Founding of The Republic

A.E. Dick Howard

James Madisonby common consent, the Fatherof the nation's Constitutionwas in many ways anunlikely candidate for the historic role he played inthe founding of our republic. Madison was not whatwe today would call "charismatic;" indeed, forstrong personality, it is Dol ley, not James, that his-tory remembers.

Unprepossessing in appearancehe stood onlyfive feet six inches talland often in ill health duringhis early years, Madison lacked the majestic bearing,physical prowess, and martial skills of George Wash-ington. His prose, while copious :Ind competent,missed the bite. of Paine or the elegance'and lucidityof Jefferson. In an age when public speaking was ahighly prized political tool, Madison was plaguedby a weak voice and hobbled by self-consciousness.Madison was so unimpressive a public speaker thathe felt suited neither for the ministry nor the law asa profession (either of which would have been anatural vocation for a person of Madison's intellec-tual interests).

Madison more than made up for his shortcom-ings, however, w;th his rigorously logical mind, ap-petite for reading, and indefatigable industry. As hematured, he drew around nim a circle of importantfriends who recognized in him a quiet but keen senseof humor, a potential for iconoclasm, and unshak-able integrity and convictions.

History can appreciate how Madison's strengthscame to outweigh, by any measure, whatever mayhave been his limitations. For it is Madison who,more than any other founder, shaped our consti-tutional system of ,government. How this came tobehow Madison's ideas of politics and govern-ment were formed, and how he put those ideas toworkmakes a fascinating story.

Copyright 0 1985 by the author. Used by permission.

17

Madison was born to James Madison, Senior, andNally Conway Madison, '-oth from Virginia's landedgentry, on March 16, 1751, at the home of his ma-ternal gandmother at Port Conway on the Rappa-hannock River. Shortly after his birth, the familymoved west to the Rapidan Rivcr, in OrangeCounty. The trip was only fifty miles or so, but ittook the Madisons from the Tidewater to the Vir-ginia Piedmont at the foot of the Blue Ridge Moun-tains. Both in Madison's day, and for decades afterthe revolution, life and politic.. in Virginia wereheavily colored by differences in outlook condi-tioned by living in the east (where established powerlay) and in the more westerly regions.

James Madison thus grew up, as did Thomas Jef-ferson (who lived only thirty miles away), with thatstrange blend of rustic life and cultivated social andintellectual discourse that marked plantation life inthe Piedmont. At the same time, growl) up at thefamily seat at Montpelier, young James Wilson en-joyed the leisure purchased by slaverya leisureemployed in the education of a young Virginia gt.:-tleman.

After early education at home and at Donald Rob-ertson's school on the Mattapony, Madison enteredthe College of New Jersey (now Princeton Univer-sity), in 1769. Madison's choice of Princeton wasdistinctly unusual; a young Virginia gentleman wrislikely to attend the College of William and Mary atWilliamsburg. It seems that Madison was swayedby his admiration for Thomas Martin, a tutor :e-cently graduated from Princeton. Moreover, Madi-son (and his father) may also have been drawn byPrinceton's eighteenth-century reputation for relig-ious strictness and staunch patriotism. These qual-ities were exemplified in John Witherspoon, theEdinburgh-educated President, an active Presbyte-rian, who had come to Nassau Hall shortly beforeMadison became a student there.

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The decision to go to Princeton was a momentousone for Madison, for it brought him directly underthe influence of the ideas of the Scottisn Enlight-enment. At the college, Madison encountered anearly experiment with what would become a stapleof American education in the late eighteenth andearly nineteenth centuriesa curriculum heavily in-fluenced by the Scottish school. Edinburgh, whichproduced many of the intellectual leaders, of Madi-son's younger years, had emerged as the most pro-gressive English-speaking university. While thefigures associated with the Scottish Enlightenmentvaried considerably in their views, the general thrustwas an appeal to "common sense," a belief that allmen possess an innate sense that enables them todistinguish between good and bad, truth and false-hood, beauty and ugliness. The Scottish philoso-phers, especially Thomas Reid and FrancisHutcheson, combined their belief in "commonsense" with Whiggish patriotism, a "plain" rhetor-ical style, a plea for empirical investigation of nature(including human nature and political institutions),and a program for a more practical education.

John Witherspoon's Princeton was not friendly toall Scottish thinkers (certainly not free-thinking scep-tics like David Hume), and many vestiges of an ear-lier educational model remained. But Madisoneagerly entered into a remarkable political educa-tion. He was active in the newly founded AmericanWhig Society, a political club that included HughHenry Brackenridge, the gifted writer and jurist;Philip Freneau, soon to become American's leadingpoet; William Bradford, later attorney general underWashington; and John Henry of Maryland, later asenator and governor. Above all, Madison devotedhimself. to an intense study of "The Law of Natureand of Nations." With what he recalled as the "min-imum of sleep and the maximum of application," hefinished his bachelor studies in less than three years.

Madison was a diligent student, especially in his-tory and government. Following his graduation, hespent several more months studying Hebrew, law,and ethics under Witherspoon. MadiSon's Princetonyears brought him tutelage in such works as thoseof Locke, Montesquieu, Harrington, Grotius, andHobbes. Through his grounding in Scottish intellec-tual attitudes, Madison came to appreciate the no-t i ona fundamental assumption amongEnlightenment writersthat the study of historyyielded generalizations about human nature andthus furnished guidelines for the governance of hu-man affairs. Thus the stirrings of empiricism (partpolitical theory, part embryonic sociology) played an

important part in shaping Madison's thinking aboutlaws and constitutions.

Some years later, therefore, when Madison ar-gued in The Federalist for the ratification of the newConstitution, he stressed an appeal to "experience. . . that last best oracle of wisdom." Madison's ap-peal was no submission to the fetters of the past.Quite the contrary, Madison looked to experienceto illuminate a progressive future. As he said in Fed-eralist No. 14: "Is it not the glory of the people ofAmerica, that, whilst they have paid a decent regardto the upinions of former times and ohier nations,they have not suffered a blind veneration for an-tiquity, for custom, or for names, to overrule thesuggestions of their own good sense, the knowledgeof their own situation, and the lessons of their ownexperience?"

When Madison returned to Montpelier in 1772, hecontinued his studies and tutored his younger sib-lings while pondering his own future. Plagued withill health and depressed by the death of a close friendfrom Princeton, Madison brooded over his pros-pects. "I am too dull and infirm now," he wrote,"to look out for any extraordinary things in thisworld for I think my sensations for many monthspast have intimated to me not to expect a long orhealthy life."

Melancholia soon gave way to a passionate inter-est in public events, nurtured by his inquiring mind.One of the earliest controversies to engage Madi-son's attentionemblematic of his overarching con-cern for the freedom of tl-e human spiritconcernedreligious liberty. Local persecutions of Baptists andother dissenters moved Madison to write to a friendthat "well meaning men" were in jail for publishingtheir religio,-5 sentiments. He prayed "for Libertyof Conscience to revive among us." Correspondenceabout political events led to more active roles forMadison, including a seat on Orange County's com-mittee of safety.

In May 1774 Lord Dunmore dissolved Virginia'sassembly. The burgesses simply repaired to a nearbytavern and proceeded to form the first of a series ofconventions that functioned as the effective govern-ment of the colony. In 1776 Madison was elected tothe Virginia Convention, representing OrangeCounty. At twenty-five he was one of the youngestmembers. In May 1776 the convention took the mo-mentous step of instructing Virginia's delegates tothe Continental Congress, then meeting in Phila-delphia, to introduce a resolution calling for inde-pendence from Great Britain.

In moving for independence, the convention alsocreated a committee to draft a declaration of rights

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Background Papers! Paper 2 19

and a frame of government for Virginia. The prin-cipal draftsman of Virginia's new constitution wasGeorge Mason, a well-read and politically activeplanter from Fairfax County. In the debates over thenew charter, Madison's chief contribution camewhen the delegates took up the question of religiousfreedom. Mason's draft provided that "all Menshould enjoy the fullest Toleration in the Exercise ofReligion, according to the Dictates of Con-science. . . ." This approach, grounded in JohnLocke's Letter on Toleration, ensured only a limitedform of religious freedomtoleration of dissentersin a state where there was an established church.Madison, however, wanted stronger language. Hedrafted a substitute declaring that "all men areequally entitled to the full and free exercise of relig-ion"language sounding of natural right ratherthan toleration.

Madison's resolution also declared that "no manor class of men ought, on account of religion to beinvested with any peculiar emoluments or privi-leges. . . ." In the course of debate, however, Mad-ison was obliged to drop this clause, which wouldsurely have disestablished the Anglican Church inVirginia and probably also have barred state supportof religious sects generally. The question of dises-tablishment remained to be settled in 1786, with thepassage ofJefferson's Statute for Religious Freedom.

In 1777 Madison suffered the only defeat of hiselectoral career. It was customary at that time forcandidates for public office to ply the voters at thepolls with some rum or hard cider. Madison (per-haps with the shade of Witherspoon looking overhis shoulder) thought it "inconsistent with the pu-rity of moral and of republican principles" to sullyan election with the "corrupting influence of spiri-tuous liquors." The voters of Orange County seemto have been offended by this display of virtue.(They may well have decided Madison was beingarrogant or perhaps simply being tightfisted withhis money.)

Madison was not out of public office long. Re-membering the impression he had made at the Vir-ginia convention in Williamsburg, the leadership ofthe new state government chose Madison as one ofthe eight members of the Council of State, a bodythat worked closely with the governor in carryingout the Commonwealth's executive business.

Three years later, he served as a delegate to theContinental Congress. Between 1780 and 1783,when the Peace Treaty was signed with Great Brit-ain, Madison was immersed in national rather thanmerely regional politics. In 1780 he wrote the in-structions to John Jay, American minister to the

court of Spain, supplying Jay with arguments sup-porting free navigation of the Mississippi by theUnited States. Spain claimed a monopoly on navi-gation of the lower Mississippi, while the UnitedStates claimed the lands between the mountains andthe Mississippi, as well as navigation rights, derivedfrom England's 1763 treaty ending the last Frenchand Indian War.

In another "national" matter of great urgency,Madison took the leading role in fashioning the com-promise over western lands. Virginia, under its co-lonial charter, had vast territorial claims, assertingdominion over what are now the states of Kentucky,Ohio, Indiana, Michigan, Illinois, Wisconsin,parts of Pennsylvania and Minnesota. Other stateslikewise claimed western lands, and frequentlythese claims overlapped one another. Land com-panies, liberally doling out rum to Indian tribes,speculated with millions of acres of land. It was Mad-ison who, with parliamentary skill, steered throughCongress the terms by which the eastern stateswould cede land for the common benefit of theAmerican nation. The settlement fashioned by Mad-ison and his colleagues formed the basis for nationalland policy under which state after state would beadded to a union that ultimately would stretch fromocean to ocean.

Returning to his home at Montpelier in Deczmber1783, Madison carried on his intellectual pursuits,including the study of law. As if in training for thetask ahead of him in Philadelphia four years later,Madison made a particular study of confederations,ancient and modern. He wrote to Thomas Jefferson,then in Paris, asking his friend to buy him books,especially those throwing light on the "general con-stitution and droit public of the several confederacieswhich have existed"leagues such as those of an-dent Greece and Switzerland.

Jefferson, with his characteristic energy, saw to itthat a stream of books flowed westward to Madi-sonnearly 200 volumes in ail. Madison's readingranged from Plutarch and Polybius to Mably andMontesquieu. In the historians he found repeatedconfirmation of what was becoming a favorite Mad-isonian thesis; a confederacy could not hold togetherwithout a strong federal center. One by one, Mad-ison considered the strengths and weaknesses of theconfederacies, ancient and modernthe Lycian, theAmphictyonic, the Achaean, the Helvetic, the Bel-gic, the Germanic. Out of these musings came amanuscript of forty-one pages, describing these con-federacies, analyzing their federal nature, and sum-ming up each section with conclusions on "TheVices of the Constitution." Much of this essay, even

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Vices of the Constitution." Much of this essay, evento its actual language, Madison later carried forwardinto Nos. 18, 19, and 20 of The Federalist.

Elected in 1784 to the Virginia House of Delegates,Madison quickly became a leader in the General As-sembly. He had a hand in virtually every major pro-ject between 1784 and 1786development of thestate's resources, improvement in its commerce, andmodernization of its laws. Looking to the westernregions, he inaugurated a series of surveys to im-prove transmontane communications. Less success-fulthough unquestionably forward-lookingwere Madison's efforts on behalf of public educa-tion; he was unable to persuade the Assembly toestablish a general system of common schools asproposed by Jefferson's Bill for the More GeneralDiffusion of Knowledge. (It took another century fora statewide system of public education to be estab-lished, by the Constitution of 1870.)

A landmark of this period was Madison's role inhelping define the proper boundaries betweenchurch and state in a free society. In 1784 PatrickHenry and others proposed a general assessment tosupport ministers of religion. Madison, in reply,wrote his famous A Memorial and Remonstranceagainst Religious Assessmentsa document that fur-nished the intellectual roots of the First Amend-ment's ban on an establishment of religion.

Religion, said Madison, "must be left to the con-viction and conscience of every man," religious free-,Aom being an "unalienable right." Governmentsupport of religion, he argued, is not necessary forthe health of religion; to the contrary, its legacy hasbeen "superstition, bigotry, and persecution."Moreover, aiding religion at public expense would"destroy that moderation and harmony which theforbearance of our laws to intermeddle with Religionhas produced among its several sects."

Government's role, Madison concluded, is simple:"protecting every Citizen in the enjoyment of hisReligion with the same equal hand which protectshis person and his property; by neither invading theequal rights of any Sect, nor suffering any Sect toinvade those of another." Madison's spirited de-fense of religious freedom and of the separation ofchurch and state helped defeat Henry's bill. In itsplace the General Assembly enacted Jefferson's Billfor Religious Freedom.

On the national scene, the mid-eighties were atime of discouragement for those who cared aboutthe health of the American nation. The defects ofthe Articles of Confederation were increa_ ingly ap-parent. Under the Articles, Congress had neither thepower to tax nor to regulate commerce. The Articles

declared that "each state retains its sovereignty,freedom, and independence," and the states wereever quick to assert and promote their own interests,at the expense of the national welfare.

Commercial rivalries were especially sharp. Con-cerned with building its own prosperity, a state wasinclined to treat a sister state as it would a foreignnation. States without seaports were especially hardhit. New Jersey, finding itself between the ports ofNew York and Philadelphia, was, said Madison, likea "cask tapped at both ends." North Carolina, be-tween Virginia and South Carolina, resembled a"patient bleeding at both arms." Indeed, Madisonbelieved, most of the new nation's "political evilsmay be traced to our commercial ones."

The answer to these problems, Madison con-cluded, was to give Congress power to regulate com-merce. As he told James Monroe the states couldno more exercise this power separately "than theycould separately carry on war, or separately formtreaties of alliance or commerce." After the Virginialegislature emasculated a bill calling for an enlarge-ment of Congress's commercial powers, Madisondrafted a resolution that called for the states to ap-point commissioners to meet and consider "how fara uniform system in their commercial regulationsmay be necessary to their common interest and theirpermanent harmony. . . ."

Thinking it prudent to avoid intimations of influ-ence by either Congress or commercial interests, Vir-ginia proposed the meeting take place at Annapolis,in September 1786. Attendance was spotty; only fivestates were represented. Finding that they could ac-complish little, the delegates at Annapolis decidedthat stronger measures were necessitated. They re-solved that the states should appoint commissionersto meet at Philadelphia the following year "to devisesuch further provisions as shall appear to them nec-essary to render the constitution of the federal gov-ernment adequate to the exigencies of the Union"and to report such proposed changes to Congress.

No one who attended the great gathering at Phil-adelphia in 1787 was better prepared for the job ofconstitution-making than Madison, who came as amember of the Virginia delegation. His years ofstudy paid rich dividends. Before arrivinj, at Phila-delphia, Madison wrote "Notes on Ancient andModern Confederacies" and a paper on the "Vicesof the Political System of the United States." In"Vices," Madison noted that, lacking coercivepower, the federal system under the Articles lacked"the great vital principles of a Political Constitution"and was in fact "nothing more than a treaty of am-ity" between so many independent and sovereign

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states. Anticipating objections to centralizedpowerindeed, rehearsing the arguments he laterused in Federalist No. 10Madison argued that en-larging the sphere of government should lessen theinsecurity of private rights, as society would become"bioken into a greater variety of interests, of pur-suits, and of passions, which check each other." Inletters to Jefferson, Edmund Randolph, and GeorgeWashington, Madison set out his thinking about thenation's constitutional needs. The larger statesshould have fairer representation, and the nationalgovernment needed adequate authority to act inthose areas requiring uniformity. In particular, Mad-ison thought there should be national power, in-cluding authority in the federal courts, to overridestate laws in conflict with national legislation. ToWashington, Madison summed up his middleground: "Conceiving that an individual independ-ence of the States is utterly irreconcilable with theiraggregate sovereignty; and that' a consolidation ofthe whole into one simple republic would be as in-expedient as it is unattainable, have sought forsome middle ground, which may at once support adue supremacy of the national authority, and notexclude the local authorities whenPver they can besubordinately useful."

Although called merely to draft amendments tothe Articles of Confederation, the Philadelphia con-vention soon moved to more ambitious businessthe writing of a new constitution. Advocates of re-form had a head start. A caucus of Virginians pro-duced the "Virginia Plan," which Madison playedthe major role in shaping. Introduced by Randolphfour days after the convention opened, the VirginiaPlan proposed a national executive, a national ju-diciary, and a national legislature of two houses,apportioned according to population and empow-ered to legislate "in all cases to which the separateStates are incompetent." Madison's scheme also in-cluded a Council of Revision, drawn from the na-tional executive and judiciary, which could veto lawspassed by Congress or by the state legislatures.

All in all, the thirty-six-year-old Madison was thedominating spirit of the Philadelphia convention.Certainly his influence on the convention was suchthat he has been aptly described as the "master-builder of the Constitution." His winning ways, per-suasive powers, and command of constitutionalprinciples deeply impressed the other delegates.South Carolina's Pierce Butler later wrote that Mad-ison blended "the profound politician, with theScholar" and that in the "management of every greatquestion he evidently took the lead in the Conven-tion."

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Many of Madison's specific ideas, for example, therevisionary council to veto state and congressionallegislation, failed to be adopted. Yet, in addition tofurnishing the basis for discussion, his plan laiddown the basic features that distinguished the Con-stitution as finally agreed to by the convention--three branches in the federal government (thus in-stitutionalizing Montesquieu's notions of the sepa-ration of powers) and sufficient authority in thecentral government to provide national solutions fornational problems.

As if his intellectual contributions were notenough, Madison was also the convention's wain,if unofficial, recorder. Using a self-invented short-hand to speed his note taking, Madison carefullytranscribed each speech. As he reported later, "Ithappened, also, that I was not absent a single day,nor more than a casual fraction of an hour in anyday. so that I could not have lost a single speech,unless a very short one."

His account of the convention was not publisheduntil 1840, four years after his death. because Mad-ison scrupulously observed the secrecy imposed onconvention delegates. Once published, however, hisnotes provided a remarkably detailed account of theproceedings, adding, as Madison foresaw, an es-sential "contribution to the fund of materials for theHistory of a Constitution on which would be stakedthe happiness of a people great even in its infancy,and possibly the cause of liberty throughout theworld."

As the country turned to the debate over ratifi-cation of the proposed Constitution, Madison onceagain was a leader. Together with Alexander Ham-ilton and John Jay, Madison wrote essays for NewYork newspapers. The series of essays was intro-duced by Alexander Hamilton in the New York In-dependent Journal on October 27,1787. Madison's firstcontribution, Federalist No. 10, appeared on Novem-ber 22. Of the eighty-five essayspublished in 1788as The FederalistMadison wrote twenty-nine.

The Federalist has few competitors as America'ssingle most important contribution to political the-ory and to the art of governance. In Federalist No.10, Madison saw a central problem of governmentin terms that are uncannily prescientas being toreconcile rivalries among competing economicgroups. Madison looked to the new Constitution tocontrol the excesses of "faction"factions beingthose groups which, united by some common in-terest (such as landed or mercantile interests), pur-sue ends adverse to the rights of others or to thegreater good. "The regulation of these various andinterfering interests," says Madison, "forms the

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principal task of modern legislation"; left to theirown devices the most powerful factions must pre-vail. The variety of interests likely to be representedin the national legislature would furnish a safeguard:"The influence of factious leaders may kindle a flamewithin their particular States, but will be unable tospread a general conflagration through the otherStates."

As Federalist No. 10 reveals, Madison was underno illusions about the nature of man, even withinthe salubrious environment of a republic. "What isgovernment itself," he asked in Federalist No. 51,"but the greatest of all reflections on human nature?If men were.angels, no government would be nec-essary." Heir :to Enlightenment notions of naturalrights and limited government, Madisz:n realizedthat a popular government can be as tyrannical asa monarch. His pragmatic ideas about government,rooted in a Lockean empirical tradition, furnish astriking contrast to French revolutionary thought,which, combining the imperatives of Rousseau'sGeneral Will and the politics of popular sovereignty,ultimately propelled France into the Napoleonic era.

Throughout Madison's Federalist essays are founddevices for addressing the practical problems of gov-ernment. In Federalist No. 39, Madison emphasizedthe dual nature of the new government: "The pro-posed Constitution therefore is in strictness, neithera national nor a federal constitution; but a compo-sition of both. In its foundation, it is federal, notnational; in the sources from which the ordinarypowers of the Government are drawn, it is- partlyfederal, and partly national: in the operation of thesepowers, it is national, not federal: In the extent ofthem again, it is federal, not national: And finally,in the authoritative mode of introducing amend-ments, it is neither wholly federal, nor wholly na-tional."

Turning, in Federalist No. 48, to the relationsamong the several branches of the federal govern-ment, Madison pointed to the benefits of havingchecks and balances among those branches. Mere"parchment barriers"Madison's reference is ob-viously to the original state constitutionsare notenough to halt "the enroaching spirit of power." Asa total separation of powers is unworkable, the onlyway to avoid an undue concentration of powers inone branch of government is to have the severalbranches "so far connected and blended as to giveeach a constitutional control over the others . . . ."

The new Constitution, all in all, was one of bal-anceof states and the central government pro-tected in their respective interests, of powerdistributed among the branches of the federal gov-

ernment, of limits upon the opportunities of indi-viduals or factions to work their way in derogationof the common good or of the inalienable rights ofthe citizen.

As Madison and Hamilton added essay after essayto the New York debate, they did more than helpensure ratification of the new Constitution. Theygave American constitutionalism its first coherentbase in political theory. The Constitution owedmuch to the give and take of the Philadelphia con-vention, but Madison was able to make a virtue ofthat necessity. At first hehad resisted efforts to re-tain powers in the states; now he became an advo-cate for blended state and federal power.

So elegantly and thoroughly was Madison's de-fense of the proposed charter marshalled in The Fed-eralist that the essays quickly became, and haveremained, essential glosses on the Constitution. Jef-ferson prescribed The Federalist as part of the curric-ulum at his University of Virginia. Chancellor Kent,in his great Commentaries, praised the treatise, say-ing: "There is no work on the subject of the consti-tution, and on republican and federal governmentgenerally, that deserved to be more thoroughly stud-ied." More than simply a tract on American govern-ment, The Federalist is the first significant analysis ofmodern federalism. Hence it has attracted the atten-tion of intellectuals in other countries, for example,in England, Sir Henry Maine, James Bryce, and JohnStuart Mill.

In the contest between Federalist and Antifeder-alists over ratification of the Constitution, no state'svote was r.ore crucial than that of Virginia. In thatcommonwealth's ratifying convention, PatrickHenry and George Mason led a spirited oppositionto approval of the new document. Madison was alsoa member of the convention, and his quiet cogentreasoning contrasted with Henry's rococo oratory.The final vote was a close one, 89-79 in favor ofratification. Had the vote gone the other way, it ishard to say what might have become of the Consti-tution, in light of Virginia's crucial place in terms ofwealth, population, and influence in the nation.

An implicit conditio7. of ratification in Virginia andin some other states was the Federalists' undertak-ing to see that a bill of rights was added to the Con-stitution. Madison was at first apprehensive aboutsuch amendments, fearing that they might imply theexistence of powers never meant to be delegated tothe central government. Moreover, he was con-cerned that any attempt to list the rights of the cit-izen would be incomplete.

As he explained to Jefferson, however, Madisonsaw that a bill of rights could serve two powerful

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objectives. First, "the political tru.ns declared in thatsolemn manner acquire by degrees the character offundamental maxims of free Government, and asthey become incorporated with the national senti-ment, counteract the impulses of interest and pas-sion." Second, there might be occasions when a billof rights "will be a good ground for an appeal to thesense of the community."

When the first Congress met, Madison put asideany doubts he may have felt and led the battle forthe Bill of Rights. On June 8, 1789, he initiated dis-cussion of the issue by moving for a Committee ofthe Whole to receive the proposed amendments.Facing considerable opposition, he then brilliantlyengineered passage of the bill, drafting the propo-sitions, answering objections, and adroitly avoidingefforts by opponents to delay the votes or weakenthe proposals.

In the course of the debate, Madison respondedto the argument that the Bill of Rights would beineffectual. If the amendments were incorporatedinto the Constitution, he submitted, "independenttribunals of justice will consider themselves in a pe-culiar manner the guardian of these rights; they [thecourts] will be an impenetrable bulwark againstevery assumption of power in the Legislative or Ex-ecutive. . . ." This explicit forecast of the courts'power of judicial review bore fruit in 1803, whenChief Justice John Marshall, in Marbury v. Madison,declared the Supreme Court's power to refuse toenforce an act of Congress that it found to be un-constitutional.

In framing the amendments, Madison winnowedthe lists of proposals submitted by eight of the rat-ifying conventions. He largely ignored proposals(the work of-Henry) that would have restricted fed-eral power. Madison looked instead for inspirationto the twenty libertarian proposals drafted at theVirginia ratifying convention by Mason. As Madi-son's language wended its way through Congress,some provisions were revised, others dropped al-together (in particular, a proposal that would haveforbidden the states to violate rights of conscienceor press). But, in the end, Madison's propositionswere the basis for nearly all the provisions embodiedin the amendments ultimately adopted by Congress.Madison had won perhaps his most successful leg-islative battleand all in the service of a cause thathe had originally doubted.

In 1797 Madison voluntarily left public life, ex-pecting to devote his time to farming his Montpelierestate. He also expected to devote more time to hisnew bride. Dolley Payne Todd was a twenty-six-year-old widow of a Philadelphia lawyer when Mad-

ison married her in September 1794, just fourmonths after they were introduced. She was a vi-vacious and charming woman, whose social grace,beauty, and wit made her a political ass,. as well asa beloved and inseparable companion. Now Madi-son looked forward to a respite from the politicalconflict of Philadelphiaand to an opportunity tomonopolize his wife's company.

The Federalists were now in full control of thenational government. Madison, who had contrib-uted so much to achieving a federal government, bynow had become a recognized leader of the oppo-sition, the Jeffersonian party. A dark chapter in Fed-eralist rule was their enactment of the Alien andSedition Acts, which outlawed "any false, scandal-ous and malicious writing" against the government,and under which opposition newspaper editorswent to jail. The first victim was Congressman Mat-thew Lyon, of Vermont, who was jailed for pub-lishing in his newspaper a letter charging PresidentJohn Adams with a grasp for power and a thirst foradulation.

Federalist judges who tried cases under the Se-dition Act, especially Justice Samuel Chase, dis-played violent partisan bias against the accused.Madison's belief in "independent tribunals of jus-tice" as an "impenetrable bulwark" of the Bill ofRights was gravely undermined. Accordingly, Jef-ferson and Madison turned to another breastworkthe states. From Jefferson's pen came the KentuckyResolutions, from Madison's, the Virginia Resolu-tions. Both denounced the Alien and Sedition Actsas unconstitutional.

Jefferson's resolution was the more forceful, de-claring the two laws to be "altogether void and ofno force." Madison's language, though more mated,still called upon the states as the ultimate judges ofthe federal compact: "In case of a deliberate, pal-pable and dangerous exercise of other powers, notgranted by the said compact, the States who areparties thereto, have the right, and are in dutybound, to interpose for arresting the progress of theevil... ." The doctrine of "interposition"appealedto by South Carolinians in 1828appeared to callfor state nullification of federal legislation. But in1800, as a member of the Virginia legislature, Mad-ison wrote a 20,000-word report on the 1798 reso-lutions, in which he explained that thosedeclarations were simply "expressions of opinion,"for the purpose of "exciting reflection" on objec-tionable federal actions. However strongly under-stood, the Virginia Resolutions strikingly reflectMadison's sense of the need for balance wheels inthe federal system. The man who in 1787 saw greater


central authority as one of the ways to ensure thecommon good in 1798 looked to the states to resistfederal encroachment on individual rights.

The elections of 1800 brought Jefferson to the pres-idency, and Madison appeared once again in thenational spotlight. In his autobiography, Madisonrushed over his eight years of service under Jeffersonin a single sentence: "In 1801 he was appointed Sec-retary of State and remained such until 1809." Theseeight years, however, played a profound role in Ma-dison's later political fortunes, for during this periodhe not only cemented his political and personal tieswith Jefferson but also identified himself with pol-ides of the Jefferson administration.

In 1808 Madison was swept to the presidency byan electoral-margin of 122 to 47. His years in officewere dominated by the country's difficult relationswith Great Britain. Angry at the impressment ofAmerican sailors, the plunder of American ships onthe high seas, and threats by both England andFrance against neutrals venturing into a port of ei-ther nation's enemy, Jefferson's administration hadsecured enactment of embargo and non-importationmeasures. Committed to maintaining these eco-nomic pressures, Madison found himself dealingwith strong opposition from Federalists in theNortheast (where American ships and sailors wereidled by the economic warfare) as well as dissidentswithin the Jeffersonian Republican ranks.

For a short time it appeared as if negotiationsmight provide a solution. An agreement in 1809seemed to respond to American grievances, but itcollapsed when Britain's foreign secretary, GeorgeCanning, repudiated the negotiations of the Britishminister in Washington. By 1812 the diplomatic im-passe -eemed hopeless. With deep misgivings, Mad-ison called upon Congress to declare war. TheHouse supported him 79 to 49, the Senate by a moremodest margin of 19 to 13.

The War of 1812 was an indecisive tragi-comedyof errors. Ironically, five days after war had beendeclared, the British cabinet revoked the Orders inCouncil (the proclamation threatening neutral shipsentering French ports). But news traveled slowly inthose days, and the message came too late to averthostilities. The United States proved ill prepared forwar. An invasion of Canada proved a fiasco; Detroitfell to the British with hardly a shot being fired. Onlysome fine seamanship, especially the Constitution'scapture of the Guerriere in late summer, brightenedthe early war news.

By 1813 the Americans were shown some signif-icant military successes by Captain Oliver Perry onLake Erie and-General William Henry Harrison at

Detroit. But even though Madison had been ree-lected president in a race against "peace candidate"DeWitt Clinton of New York, Madison's opponentsin Congress frustrated the war effort. When on Au-gust 1814, the British invaded Washington andburned the Capitol and the White Housewith firstDolley, then the president, fleeing before themasymbolic low point in the war was reached.

Despite the mixed successes of British troops,Great Britain was not anxious to continue with thewar. Good news reached Washington on February14, 1815, that a treaty of peace had been signed atGhent. Days before, the nation's spirits had beenbuoyed as word spread of the Americans' greatestmilitary victory of the war, General Andrew Jack-son's decisive defeat of the British at New Orleans(a battle that hc. taken place after the peace treatyhad been signed but before report of that event hadreached America).

Although neither side conceded much in thetreaty, the war had produced new American heroes(and a national anthem) and had demonstratedAmerican resolve against British might in a "SecondWar of Independence." The Federalists, who hadmet in a convention in Hartford amid talk of nationaldisunity, saw their efforts to derail Madison's poli-des swallowed up in the national surge of patrioticfeeling. Peace brought renewed prosperity, andMadison could feel vindicated. Perhaps the mostgracious assessment of Madison's presidency camefrom an old Federalist, John Adams. "Notwithstand-ing a thousand Faults and blunders," Adams wroteto Jefferson, Madison's administration "has ac-quired more glory, and established more union; thanall his three predecessors put together"one ofthose presidents, of course, being Adams himself.

In 1817 Madison left office, returning to Mont-pelier. His last public appearance was in 1829, at theVirginia Constitutional Convention of 1829-30. Forall the dignitaries presentMadison, James Mon-roe, John Tyler, and John Marshall were among itsmembersthe convention must have struck Madi-son as a pale shadow of the Philadelphia gatheringof 1787. While the convention's debates make com-pelling readingthey have been called "the lastgasp of Jeffersonian America's passion for politicaldisputation"it accomplished little of the consti-tutional reform (of the franchise, legislative appor-tionment, and the self-perpetuating county courtsystem) for which Jefferson and others had beencalling for years.

The last two decades of Madison's life from 1817to 1836, were devoted largely to private pursuits. Anapostle of scientific agriculture, Madison urged his

33


fellow farmers to forego old practices that were ex-hausting the soil. Concerned about the problem ofslaveryan issue he and his fellow delegates at Phil-adelphia had left as unfinished businesshe ac-cepted the presidency of the American ColonizationSociety, which encouraged the manumission and re-turn of slaves to Africa. For the most part, Madisonspent his final years at Montpelier correspondingwith friends, entertaining travelers who passed hisway, and generally overseeing his plantation. Hislast public message, dictated to Do lley, showed con-cern about rising sectiohal tensions; it called uponhis fellow countrymen to ensure that "the Union ofthe States be cherished and perpetuated."

3 4

Background Paper 3

The Constitutional Thought of theAnti-Federalists

Murray Dry

Although they claimed to be the true federalistsand the true republicans, the men who opposed theConstitution's unconditional ratification in 1787-1788 were called Anti-Federalists. The leading op-ponents from the major states included PatrickHenry, George Mason, and Richard Henry Lee fromVirginia, George Clinton, Robert Yates, and Me-lancton Smith from New York, John Winthrop andEthridge Gerry from Massachusetts and Robert Whi-tehill, William Findley, and John Smilie from Penn-cylvania. They all agreed that the documentproduced by the Convention in Philadelphia wasunacceptable without some amendments. Sincemost state constitutions contained bills of rights, theneed for a similar feature for the national constitu-tion formed the Anti-Federalists' most effective ar-gument against unconditional ratification. Thenational Bill of Rights is the result of that dialogue.

Nevertheless, he Anti-Federalists' major contri-bution to the American founding lay more in theircritical examination of the new form of federalismand the new form of republican government thanin their successful campaign for a bill of rights. TheAnti-Federalists sought substantial restrictions onfederal power, which the amendments subsequentlyadopted did not provide. Suspicious of a strong na-tional government, these opponents neverthelessfailed to agree on an alternative constitutional ar-rangement. Still, the legacy of the Anti-Federalistspersists in our constitutional debates over federalismand republican government.

Anti-Federal constitutionalism finds its mostthoughtful and comprehensive expression in the Let-

Used by permission of the author and of Project '87 of the Amer-ican Historical Association and the American Political ScienceAssociation. This article appeared originally in Issue No. 16 ofthis Constitution: A Bicentennial Chronicle (Fall 1987): 10-14.

27

tens of the Federal Farmer and the Essays of Brutus,attributed to Richard Henry Lee and Robert Yates,respectively. Although authorship remains uncer-tain, these writers covered all major constitutionalquestions in a manner that required, and received,the attention of "Publius," the penname adopted byAlexander Hamilton, James Madison, and John Jay,authors of the famous Federalist papers.

This essay will discuss Anti-Federal constitution-alism in three parts: federalism, the separation ofpowers, and the bill of rights.

Republican Government and Federalisin

The Anti-Federalists claimed to be the trite fed-eralists because they were the true republicans. Con-sequently, we begin with their account of republicangovernment and its relation to federalism.

The Anti-Federalists believed that to maintain thespirit of republican government, which was the bestdefense against tyranny, individuals needed toknow one another, be familiar with their govern-ments, and have some direct experience in govern-ment. Only then would the citizenry possess agenuine love of country, which is the essence ofrepublican, or civic, virtue.

The Anti-Federalists espoused the then traditionalview of republican government, reflected in the firststate constitutions, which emphasized the legislativebranch of government. With the first federal con-stitution, the Articles of Confederation, the states,through their legislatures, retained effective controlof federal men and federal measures. The delegatesto Congress were chosen by the state legislaturesand were subject to being recalled. The federalpower to raise taxes and armies not only required avote of nine states, but, even after such a vote, it

35


depended on state requisitions, which meant thatthe federal government depended on the good willof the states to execute the 1Fay.

In stark contrast, the Ccnstitution nroposed bythe Federal Convention in' 1787 provic ed the basisfor a strong national government. Elections to theHouse of Representatives were by the people di-rectly, not the states, and the federal powers overtaxes and the raising of armies were completely in-dependent of the state governments. This new formof federalism necessarily produced a new 'form ofrepublicanism, the "large republic." Furthermore,Publius did not shrink from providing a positiveargument in support of it. Federalist 10 justified thenew form of republicanism, not only as the price ofunion but as the republican remedy to the diseaseof majority faction, or majority tyranny.

Because the Federalists saw a major danger notfrom the aggrandizing of the ruling few, but fromthe tyranny of the majority, they sought to restrainthe influence of that majority in order to secure in-dividual rights and the permanent and aggregateinterests of the community. Such restraint was to beachieved through a large extended sphere, i.e., theconstituencies of the federal government. Thesewould be larger and more diverse than the constit-uencies of the states, and so would make majoritytyranny more difficult, since more negotiation andcompromise would be needed for any single factionto become part of a majority. In addition, the in-creased competition for office would produce.betterrepresentatives and a more effective administrationthroughout the government.

Perhaps because he took republican governmentfor granted, as a given in America, Publius under-stood it L. require only that offices of governmentbe filled directly or indirectly by popular vote. Fur-thermore, the representation of the people was sat-isfied by the fact of election, regardless of thecontrast between the wealth and influence of theelected and the electorate.

To, the Anti-Federalists, the people would not befree for long if all they could do was vote for a rep-resentative whom they would not know anl whowould be very different from them.

Because the Anti-Federalists emphasized partici-pation in government, they argued that a small ter-ritory and a basically homogeneous population werenecessary for a notion of the "public good" to beagreed upon. The Anti-Federalists did not insist thatevery citizen exercise legislative power. But they didemphasize representation of the people in the leg-islatures and on juries. By "representation" theymeant that the number of people in a legislative

district must be small - enough and the number ofdistricts large enough so that the citizens will knowthe people they are voting for and be able to electone of their ownone of the "middling class." Thislatter phrase referred to the large number of farmersof modest means. A substantial representation ofthis agricultural middle class was possible even inthe large states and necessary for the character ofthe governors to reflect the governed. Under theproposed constitution, argued the Anti:Federalists,this kind of representation would be impossible atthe federal level, where the districts would containat least 30,000 people.

Likewise, by participating in local jury <trials, incivil as well as criminal cases, the people in theirstates acquired a knowledge of the laws and theoperation of government, and thereby, argued theAnti-Federalists, they become more responsible cit-izens. It was feared that this responsibility would belost when cases were appealed to the proposed na-tional supreme court, which had jurisdiction on ap-peal over all questions of law and fact.

Since the Anti-Federalists believed that republicangovernment was possible in the states but not in onesingle government for the entire country, only a con-federacy, that is, a federal republic, could safeguardthe nation's freedom. They understood such a formof government to have a limited purpose, primarilycommon defense. Hence, those who became Anti-Federalists originally favored limited amendmentsto the Articles of Confederation, rather than an en-tirely new constitution. When a new constitutionbecame inevitable, they hoped to limit the transferof political power from the states to the nationalgovernment. They claimed to be the true republicansand the true federalists because they understood re-publican government to require a closely knit peopleattached to their government. They sought to grantonly so much power to the federal government aswas absolutely necessary to provide for defense. Inthis way, the distribution of governmental power,as between the nation and the states, would corre-spond to the distribution of representation. Andwhile the Anti-Federalists did argue for an increasein the federal representatic hat by itself wouldnot have satisfied the requir....1 Jilt of republican gov-ernment, as they saw it, since the people wouldalways be more substan; :ally represented in theirstate governments. According to the Anti-Federal-ists, the Federalists were not federalists but conso-lidationists; and the ultimate effect of theConstitution would be to reduce the states to mereadministrative units, thereby eliminating republicanliberty.

36


Federalism and the Constitution: TheLegislative Powers

Already fearful of the Constitution's threat to re-publican liberty, the Anti-Federalists vehementlyobjected to the large number of specific powersgranted to Congress, especially the taxing powerand the power to raise armies. They found the un-defined grants of power in the "necessary andproper" and the "supremacy" clauses (1,8 and VI,2)alarming as well. The government, Brutus claimed,"so far as it extends, is a complete one, and not aconfederation," and "all that is reserved to the statesmust very soon be annihilated, except so far as theyare barely necessary to the organization of the gen-eral government.' With the power to tax virtuallyunchecked, Brutus lamented that "the idea of con-federation is totally lost, and that of one entire re-public is embraced." The Anti-Federalists attemptedto draw a line between federal and state powers,conceding to the federal government only thosepowers which were necessary for security and de-fense. Their most common tax proposal would havelimited the federal government to a tax on foreignimports, leaving internal taxes, both on individualsand on commodities, to the states. This limitationwould guarantee the states a source of revenue outof reach of the national government. If this federaltax source proved insufficient, the Anti-Federalistsproposed turning to the states for requisitions, aswas the case under the Articles of Confederation.

Brutus warned, as well, that the power "to raiseand support armies at pleasure . . . tend(s) not onlyto a consolidation of the government, but the de-struction of liberty." The Anti-Federalists generallytook the position that there should be no standingarmies in time of peace. Brutus proposed a limitedpower to raise armies to defend frontier posts andguard arsenals to respond to threats of attack orinvasion. Otherwise, he maintained, standing ar-mies should only be raised on the vote of two-thirdsof both houses.

Publius' rejection of this position was completeand uncompromising. The "radical vice" of the Con-federation had been precisely the dependence of thefederal power on the states. The universal axiom thatthe means must be proportional to the end requiredthat the national government's powers be adequateto the preservation of the union (Federalist 15, 23).

The Separation of Powers andRepublican Government

The separation of powers refers primarily to thedivision of power among the legislative, executive,

and judicial branches of government, but it also in-cludes bicameralism, or the division of the legisla-ture into a House of Representatives and a Senate.In this part, we begin with the Anti-Federalists' gen-eral approach to the separation of powers, whichwill be followed by accounts of their views on theSenate, the presidency, and the judiciary.

The Anti-Federalists attacked the Constitution'sseparation of powers from two different perspec-tives. Some, such as Centinel (a Pennsylvania Anti-Federalist), alleged that there was too much mixingand not enough separation; others, like PatrickHenry and the Maryland Farmer, asserted that therewere no genuine "checks" at all. The first positionopposed thespecial powers given to the Senate andthe executive. The second argued that a true sepa-ration of powers depended upon social divisions notavailable in the United States, such as an hereditarynobility as distinct from the common people. TheEnglish Constitution drew on such divisions; socialclass checked social class in a bicameral legislature,and each was checked, in turn, by an hereditarymonarch. While the Federalists celebrated the fillingof all offices by election directly or indirectly, someAnti-Federalists, including Patrick Henry, arguedthat such elections would result in the dom!' ationof the natural, or elected, aristocracy in all branchesof government, not a true "checks and balances"system.

The Senate

The Anti-Federalists feared that an aristocracywould emerge from the Senate, taking more than itsshare of power. A small number of individuals,elected by the state legislatures for six years, andeligible for reelection, shared in the appointmentand treaty-making powers with the executive, aswell as in the law-making process with the Houseof Representatives. In order to prevent Senatorsfrom becoming an entrenched aristocracy, the Anti-Federalists favored an amendment requiring rota-tion in office and permitting recall votes by the statelegislatures. They also favored a separately electedexecutive council, which would have relieved theSenate of its share in the appointment power. Noneof these proposals was adopted.

The Executive

Anti-Federal opposition to the office of presidentwas surprisingly limited. While Patrick Henry as-serted that the constitution "squints toward mon-


archy," most of the Anti-Federalists accepted theunitary office and the "electoral college" mode ofelection.

The eligibility of the president to run repeatedlyfor office, however, did provoke substantial oppo-sition, as did the absence of a special executive coun-cil, which. would have shared the appointmentpower. Whereas Publius had argued that re-eligi-bility provides a constructive use for ambition, Fed-eral Farmer replied that once elected a man willspend all his time and exercise all his influence tostay in office. The executive council would haveweakened the power of the Senate, which concernedthe Anti-Federalists even more than the president'spower.

No Anti - Federalist expressed concern about thegeneral phrase "the executive power," perhaps be-cause it was unclear whether this was a grant ofpower or merely the name of the office. Some ques-tioned the "commander-in-chief" clause, the par-doning power, and the authority to call either ofboth houses into special session. But in light of thedifficulties of governing without an independent ex-ecutive, which the country experienced under theArticles of Confederation, and the common expec-tation that George Washington would become thefirst president, the Anti-Federalists let their objec-tions go.

The JudiciaryWhile many Anti-Federalists failed to discuss it,

Brutus' account of the judicial power anticipated thefull development of judicial review as well as theimportance of the judicial branch as a vehicle for thedevelopment of the federal government's powers,both of which he opposed. By extending the judicialpower "to all cases, in law and equity, arising underthis Constitution," Article III permitted the courts"to give the constitution a legal construction." More-over, extending the judicial power to equity as wellas law (a division made originally in English law)gave the courts power "to explain the constitutionaccording to the reasoning spirit of it, without beingconfined to the words or letter." Hence, Brutus con-cluded that "the real effect of this syst..m will there-fore be brought home to the feelings of the peoplethrough the medium of the judicial power."

Under the judicial power, the courts would be ableto expand powers of the legislature and interpretlaws in a way Congress did not intend. Brutus in-terpreted the grant of judicial power to all cases aris-ing under the Constitution as a grant of "judicialeview." He opposed this grant, because he thought

the judges, who were appointed for life, shouldleave it to Congress to interpret the constitutionalreach of its powers. That way, if Congress misin-terpreted the Constitution by overextending its pow-ers, the people could repair the damages at the nextelection. Brutus approved of the framers' decision,following the English Constitution, to make thejudges independent by providing them with a life-time appointment, subject to impeachment, andfixed salaries. But he pointed out that the Englishjudges were nonetheless subject to revision by theHouse of Lords, on appeal, and to revision, in theirinterpretation of the constitution, by Parliament. Ex-tending the judicial power to the American Consti-tution meant that there would be no appeal beyondthe independent non-elected judiciary. Brutus didnot think that impeachment for high crimes and mis-demeanors would become an effective check, andwhile he did not mention it, he doubtless wouldhave regarded the amendment process also as un-satisfactory.

Anti-Federalists, including Brutus, objected aswell to the extensive appellate jurisdiction of thesupreme court. Article III section 2 may have guar-anteed a jury trial in criminal cases, but on appeal,the fate of the defendant would be up to the judges.The Anti-Federalists wanted to have the right of jurytrials extended to civil cases and to have the resultsprotected against appellate reconsideration.

Finally, Brutus objected to the "Madisonian com-promise," which authorized, but did not require,Congress to "ordain and establish" lower courts.Except for the limited grant of. original jurisdictionin the supreme court, judicial power, the Anti -Fed-eralists argued, should have been left to originate inthe states courts.

The Bill of RightsThe Anti-Federalists are best known for the Bill of

Rights, since the Constitution would not have beenratified without the promise to add it. But Billof Rights was as much a Federalist as an Anti-Fed-eralist achievement. The Anti-Federalists wanted abill of rights to curb the power of the national gov-ernment to intrude upon slate power; the Bill ofRights, as adopted, did not address this question.Instead, it limited the right of government to inter-fere with individuals, and, as such, included pro-visions similar to those in the bills of rights in manyof the state constitutions.

When the Federalists denied the necessity of afederal bill of rights, on the grounds that whateverpower was not enumerated could not be claimed,

38


the Anti-Federalists pointed to the Constitution's su-premacy and to the extensiveness of the enumeratedpowers to argue that there were no effective limi-tations on federal authority with respect to thestates. None of the actual amendments, wk 7,1 werewritten up and guided through the House by Mad-ison, followed the Anti-Federal proposals to restrictfederal powers, especially the tax and war powers.As for what became the tenth amendment, Madisonhimself said that it simply clarified the existing enu-meration of powers but changed nothing. Further-more, when an Anti-Federalist tried to get theadverb "expressly" inserted before "delegated" inthe amendment"The powers not delegated to theUnited States by the Constitution, nor prohibited byit to the States, are reserved to the States respec-tively, or to the people"his motion failed by a sub-stantial margin.

The Anti-Federalists' demand for a bill of rightsderived from their understanding of republican gov-ernment. Such a fo. in of government was mild inits operation and a public proclamation of theirrights kept the people aware of them. Consequently,the Bill of Rights, even in its Federalist form, reflectsAnti-Federal constitutionalism. But thr amend-ments did not restrict the major federal powers overtaxes, commerce, and war, or in any way limit im-plied powers. Furthermore, as Jefferson noted in aletter he wrote to Madison in 1789, by emphasizingindividual rights, the Bill of Rights put a legal checkin the hands of the judiciary. In other words, beforehe opposed the power of judicial review, Jeffersonseemed to take its existence for granted. He arguedthat writing a bill of rights into the Constitutionw^uld provide judicial protection of those rights.Neither Jefferson nor the Anti-Federalists seemed torealize how a federal bill of rights, by strengtheningthe federal courts, would thus serve to strengthenFederalist constitutionalism.

31

ConclusionThe Anti-Federalists lost the ratification debate be-

cause they failed to present a clear and convincingaccount of a constitutional plan that stood betweenthe Articles of Confederation, which they acknowl-edged was unable to provide for the requirementsof union, and the Constitution proposed by the Fed-eral Convention, which they feared would producea consolidation of power. And yet the periodic andcontemporary constitutional debates over federal-ism, over the extent of legislative and executivepower, and over individual rights and judicial re-view reflect the different conceptions of republicangovernment that were developed in the foundingdialogue over the Constitution.

Any strict construction of federal power has muchin common with Anti-Federalist constitutionalism.During the founding debate, opponents of a strongnational government wanted to amend the Consti-tution; after ratification, Anti-Federalists had nochoice but to interpret the Constitution to requirelimited federal government. The contemporary con-troversies over abortion, pornography, and sexualpractices among consenting adults, and the issuessurrounding the religion clauses of the First Amend-ment -veal disagreements over the scope of indi-vidual rights, on the one hand, and the legitimacyof government maintenance of community mannersand morals on the ether. These controversies resem-ble the founding debate over republicanism, wherethe Federalists focused on the security of individualrights and the Anti-Federalists expressed a greaterconcern for the character of republican citizenship,maintained in part through religion. Through suchdebates, Anti-Federalist constitutionalism, as ap-plied to governmental structure and to moral qual-ities necessary for free government, thus remains animportant part of our constitutional polity.

39 9

7

John Jay, co-author with James Madison of The Federalist, and first Chief Justiceof the United States of America.


40

Part Two: Lessons

Part Two consists of six Lesson Sets. Each LessonSet includes two Teaching Plans and two Lessons forstudents. Teachers have permission to copy the Les-sons and distribute these copies to students in theirclasses.

The six Lesson Sets and twelve Lessons are listedbelow:

I. The Federalist in the Debate on the Constitu-tion.1. Federalists versus Anti-Federalists.2. Publius Enters the Debate on the Consti-

tution.IL Majority Rule and Minority Rights in a Free

Government.3. Madison on Majority Rule and Minority

Rights.4. Brutus, the Anti-Federalist, on Free Gov-

ernment.III. Federalism and Republicanism.

5. Madison on Federalism and Republican-ism.

6. Anti-Federalists on Federalism and Repub-licanism.

IV. Separation of Powers and Limited Govern-ment.7. Madison on Separation of Powers.8. Centinel's Anti-Federalist Ideas.

V. National Security and Personal Liberty.9. Madison on National Security and Per-

sonal Liberty.10. The "Pennsylvania Minority" on Power

and Liberty.VI. James Madison, The Federalist, and the Bill of

Rights.11. Alternative Ideas on a Bill of Rights.12. Chronology of Major Political Events, 1787

1791.

th,

41

33

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7

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., 1,,

TN.

'0,rtN4 )Oft-

, .. ,S,.*.....strn-, .. ,,,,s. i 7,i7 ! no; ,:(

4

.:" ter -

Alexander Hamilton, co-author with James Madison of The Federalist, and first Secretary of theTreasury in tht. federal government of the United States of America.


42

Lesson Set IThe Federalist in the Debate on the Constitution

On his deathbed (June 1836) James Madison of-fered parting words to fellow Americans: "The ad-vice dearest to my heart and deepest in myconvictions is that the Union of the States be cher-ished and perpetuated."

No one had done more than Madison to constructthe political framework of the Union, embodied inthe Constitution that he and other framers forgedat the Federal Convention of 1787. During the rati-fication debate waged in the thirteen states during1787-1788, he was one of the Constitution's mostformidable defenders.

An-extraordinary legacy of the ratification debateis The Federalist, a set of eighty-five papers that ex-plained and supported the Constitution of 1787. Al-exander Hamilton was the originator of this workand wrote fifty-one of the papers. James Madisonwas an inspired collaborator. He wrote twenty-nineof The Federalist Papers, including numbers 10, 37,39, and 51, which are considered by many author-ities to be the best of the lot. And what a magnificentcollection of essays it was and is!

35

The Federalist has been judged in the past and pres-ent as the best work on first principles of constitu-tional government in the United States. ThomasJefferson, for example, called lt "the best commen-tary on the principles of government which ever waswritten." Two centuries later, Richard B. Morris, aneminent historian, concluded that The Federalist hascontinued to be judged as "profound, searching,challenging, and . . . everlastingly controversial."

This Lesson Set deals with the place of James Mad-ison and The Federalist Papers in the great debate onratification of the Constitution of 1787. The oppositepositions of the Federalists and Anti-Federalists arepresented as a backdrop to subsequent Lesson Sets(II-VI) that treat (a) core principles of constitutionalgovernment in The Federalist, (b) the contributionsof James Madison to development of these princi-ples, and (c) the alternative position of the Anti-Federalists.

This Lesson Set includes two Teaching Plans andaccompanying Lessons for students: (a) No. 1: Fed-eralists versus Anti-Federalists and (b) No. 2: Pub-lius Enters the Debate on the Constitution.

43

36 James -Madison and The Federalist Papers

Lesson 1: Teaching PlanFederalists versus Anti-Federalists

Objectives

Students are expected to1) explain the origin of the debate between Fed-

eralists and Anti-Federalists, 1787-1788;2) understand the positions of the Federalists and

Anti-Federalists in the debate on ratification ofthe Constitution of 1787;

3) distinguish examples of statements by Feder-alists from examples of statements by Anti-Fed-eralists;

4) interpret and analyze primary sources on ide .sof Federalists and Anti-Federalists.

Estimation of Time Needed to Complete This Lesson: NoMore Than Two Classroom Periods.

Opening the LessonWrite the following words and dates on the chalk-

board: Federalists, Anti-Federalists, 1787, 1788. Askstudents to comment about the relationships be-tween the words and the dates. Conduct a brief dis-cussion to focus attention on the objectives andcontent of this lesson. Assign the introd.iction to thelesson and the sections about two Anti-Federalists'objections to the Corstitution of 1787: ElbridgeGerry and Brutus (pseudonym for a writer whoprobably was Robert Yates of New York) Tell stu-dents they will read documents written by Gerryand Brutus t' ,. reveal central ideas inthe Anti -Fed-eralist position. Ask students to respond to the ex-ercises that follow each document in preparation fora class discussion.

Developing the LessonConduct a discussion on Elbridge Gerry's letter to

the Massachusetts General Court. Focus the discus-sion on responses to the exercise that follow thedocument. The correct answers to the exercise, thestatements that accurately describe Gerry's objec-tions to the Constitution, are 1, 3, and 5. Requirestudents to refer to relevant parts o: the documentas they discuss each of the seven items in this ex-ercise. They should be asked to justify their re-

sponses to each statement with specific evidencefrom the document. Thus, the statements in the ex-ercise become a means to careful and focused read-ing of the document by students. The students arerequired to respond with evidence from a primarysource.

Continue the discussion by turning to the exercisefollowing the essay by BrutUs. The correct answersto item 1, the statements that accurately describeBrutus' objections to the Constitution, are c, d, e.Answers to item 2 may vary, but must be based onthe contents of the two documents in this part ofthe lesson.

Assign the remaining pages of the lesson. Requirestudents to answer quesoris about James Madison'sletter to Thomas Jeffersona report on the ratifi-cation debateand to respond to the exercise at theend of the lesson, which tests their abilities to chs-tinguish Federalist from Anti-Federalist ideas.

Concluding the LessonCopduct a conclud'ng classroom discussion. Once

again require students to justify answers with ref-erences to documents in this lesson.

Take up the Madison document first. In responseto item 1, there is only one statementitem bthataccurately descril*es the contents of Madison's letter.Responses to item 2 will vary; require students tojustify their answers with references to the docu-ments in this lesson.

End the lesson with discussion of differences be-tween Federalists and Anti-Federalists. Correct an-swers to the concluding exercise are presentedbelow:

1. AF, Speech by Patrick Henry at the VirginiaRatifying Convention, June 1788.

2. AF, George Mason, newspaper article, No-vember 1787.

3. F, James Madison, letter to Jefferson, October1787.

4. X, Robespierre, leader of the French Revolu-tion, Speech to the National Convention, Feb-ruary 1794.

44

Lessons/Set f

Lesson 1Federalists versus Anti-Federalists

Introduction to the Debate on RatificationSEPTEMBER 17, 1787 (Philadelphia, PA): Forty-

two delegates from twelve states (all of the UnitedStates except Rhode Island) gathered for the finalmeeting of the Federal Convention. The U:S. Con-gress had instructed them to meet "for the sole andexpress purpose of revising the Articles of Confed-eration [in order to] render the federal constitutionadequate to the exigencies of Government & thepreservation of the Union." But they went beyondtheir instructions and created a new Constitution toreplace the Articles of Confederation. Now, at theend of a long, hot summer, they were ready to signthe product of their work and go home. Thirty-ninedelegates signed and three refused: Elbridge Gerryof Massachusetts and George Mason and EdmundRandolph of Virginia.

SEPTEMBER 28, 1787 (New York, NY): The Con-gress of the United States voted to send the pro-posed Constitution to the legislature of each of thethirteen States of the Union. CAigress asked eachState to convene a special convention to ratify (ap-prove) or reject the Constitution of 1787. If nineStates would ratify it, this Constitution would be-come the supreme law of these United States.

The Constitution of 1787 was the object of con-trovery soon after the people read about it, and readit, in the newspapers. Headlines in the daily pressgave notice of sharply divided public opinion:

LEADERS ARGUE ABOUT NEW CONSTITUTION.OPPOSITION TO THE CONSTITUTION GROWS.SUPPORTERS URGE NATIONAL UNITY.OPPONENTS FEAR LOSS OF STATES' RIGHTS.

James Madison expressed anxiety about the fateof the Constitution in a letter to Edmund Randolph(October 21, 1787): "We hear that opinions are var-ious in Virginia [and elsewhere] on the plan of theConvention. . . . The Newspapers in the middle &Northern States begin to teem with controversialpublications [articles for and against the Constitu-tion of 1787]. . I am far from considering the publicmind as fully known or finally settled on the sub-ject."

Supporters of the Constitution of 1787, such asJames Madison and George Washington, calledthemselves Federalists. Their opponents, such as El-bridge Gerry and George Mason, were called Anti-

37

Federalists. What were the Anti-Federalists' objec-tions to the Constitution of 1787?

Gerry's Objections to the Constitution

There were many Anti-Federalists with variousobjections to the Constitution of 1787. Some op-posed the new frame of government because theywanted to retain the Articles of Confederation with-out changes. Others wanted merely to revise theArticles, but not to throw them out in favor of an-other kind of government. Finally, many Anti-Fed-eralists, such as Elbridge Gerry of Massachusetts,were willing to accept the new Constitution if certainchanges were made in it. But they opposed the doc-ument signed on September 17 in Philadelphia.Gerry wrote the following objections to the Constitutionof 1787.

To the Massachusetts Ger..eral CourtFrom Elbridge Gerry

October 18, 1787

. . . To this system [Constitution of 1787] I gavemy dissent. . . .

It was painful for me, on a subject of -,uch nationalimportance, to differ from the respectable memberswho signed the constitution: But conceiving as I did,that the liberties of America were not secured by thesystem, it was my duty to oppose it.

My principal objections to the plan, are, that thereis no adequate provision for a representation of thepeople . . . that some of the powers of the Legislatureare ambiguous, and others are indefinite and dan-gerous [because they might be expanded and en-danger liberty]that the Executive is blended withand will have an undue influence over the Legisla-ture [the people are represented most directly in theLegislature, so it should be the dominant branch]that the judicial department will be oppressive [be-cause the judges are not accountable to the people]. . . and that the system is without the security [pro-tection for the people] of a bill of rights. . . .

The Constitution proposed has few, if any federalfeatures, but is rather a system of national govern-ment [the rights and powers of States are diminishedgreatly]. . . .

The question on this plan [to accept or reject it]involves others of the highest importance. . . .

45


Whether the several State Governments shall be soaltered, as in effect to be dissolved? . . . Whether inlieu of the federal and State Governments, thenationalConstitution now proposed shall be substituted [rat-ified] without amendment? Never perhaps were apeople called on to decide a question of greater mag-nitude. Should the citizens of America adopt theplan as it now stands, their liberties may be lost: Orshould they reject it altogether Anarchy may en-sue. . . .

I shall only add, that as the welfare of the Unionrequires a better Constitution than the [Articles of]Confederation, I shall think it my duty as a citizenof Massachusetts, to support that which shall befinally adopted. . . .

Which of the following statements are examplesof Elbridge Gerry's reasons for opposing the Con-stitution of 1787? Support your answer with evi-dence from Gerry's letter to the General Court[legislature] of Massachusetts.

1 The new Constitution creates a nationalgovernment that greatly diminishes powers andrights of the States.

2 It grants too little power to the executivebranch.

3 It gives too much power to the legislativebranch.

4 It gives too little power to the judicialbranch.

5 It lacks a Bill of Rights to protect tertainbasic liberties of the people.

6 It gives too much power to some Statesand not enough to others.

7. It has too many federal features.

Objections of BrutusIn a letter to Edmund Randolph (October 21,1787),

James Madison noted a new and able opponent ofthe Constitution, who had written an impressiveeditorial in the New York Journal (October 18, 1787).This Anti-Federalist signed his article with a pen-name, Brutus, thereby disguising his identity (Bru-tus was a defender of the ancient Roman Republicagainst the imperial designs of Julius Caesar). Mostscholars today believe that Brutus was Robert Yates,a delegate to the Federal Convention from New Yorkwho left the meeting in protest against its work.

Madison wrote that the newspapers were printingmany articles agairst the new Constitution. He said:

The' attacks seem. to be principally levelledagainst the organization of the government,

and the omission of provisions contended forin favor of the Press & Juries [and other partsof a complete Bill of Rights to protect libertiesof the people against a powerful government].A new Combatant however with considerableaddress and plausibility [persuasive skills],strikes at the foundation [of the Constitution].He [Brutus] represents [describes] the situa-tion of the U.S. to be such as to render anyGovt. improper & impracticable which formsthe States into one nation & is to operate di-rectly on the people. [Brutus argued that theUnited States could never be governed prop-erly by a national or consolidated governmentthat greatly diminished the powers and rightsof the State governments.] Judging from theNewspapers one would suppose that the ad-versaries were the most numerous & the mostin earnest.

Madison was anxious about the growing opposi-tion to ratification and seemed to fear the skills ofBrutus, whose ideas are stated below, in an editedexcerpt from the first in a series of newspaper articlesagainst the Constitution.

Essay I (Brutus)18 October 1787To the Citizens of the State of New York.

. . . The . . . question . . . is whether . . . thethirteen Unite 3 States should be reduced to onegreat republic, governed by one legislature, and un-der the direction of one executive and judicial [withlittle power for the State governments]?

This enquiry is important, because, although thegovernment reported by the convention [Constitu-tion of 1787] does not go to a perfect and entireconsolidation [unitary national government] . . . itapproaches so near to it, that it must, if executed,certainly and infallibly terminate in it.

This government is to possess absolute and un-controllable power, legislative, executive, and judi-cial, with respect to every object to which itextends. . . .

In every free government, the people must givetheir assent to the laws by which they are governed.This is the true criterion between a free governmentand an arbitrary one. The former are ruled by thewill of the [people], expressed in any manner theymay agree uprm; the latter by the will of one, or afew. . . . How, in a large extended country [likethe U.S.], it is impossible to have a representation[of the people] to declare [reflect] the minds of thepeople, without having it so numerous and un-

46

Lessons/Set I 39

wieldy, as to be [unable to function effec-tively]. . . .

In so extensive a republic, the great officers ofgovernment-would soon become above the controlof the people, and abuse their power to the purposeof aggrandizing themselves and oppressingthem. . . .

. . . [A] free republic cannot long subsist over acountry of the great extent of these states. If thenthis new constitution is calculated to cdnsolidate thethirteen states into one, as it evidently is, it oughtnot to be adopted. . . .

Brutus

Answer the following questions about Brutus' objectionsto the Constitution of 1787. Refer to the document tosupport and explain your answers.

1. Which of the items below is an accurate state-ment of Brutus' position in his essay of October 18,1787? More than one statement may be a correctanswer.

a The Constitution establishes a pure fed-eral republic.

b The Constitution equally divides powerbetween the general government and the State gov-ernments.

c The powers of government are too heav-ily weighted in favor of the general government andagainst the State governments.

d A free government is based on majorityrule of the people, which cannot be managed in alarge republic of the type proposed by the Consti-tution of 1787.

e Ir.:- large, consolidated republic, such asthe one established by the Constitution, there areinsufficient limits cn the powers of government of-ficials.

2. What are the similarities in the ideas of Brutus(probably Robert Yates) and Elbridge Gerry aboutthe Constitution of 1787? (State at least two similar-ities.)

Madison's Report to JeffersonJames Madison kept his friend Thomas Jefferson

informed about events in the United States. Jeffer-son was in Paris, where he represented the UnitedStates to the government of France. In the followingletter, Madison told Jefferson about the ratificationdebate.

James Madison to Thomas JeffersonOctober 24, 1787

. . . It was generally agreed [at the Federal Con-vention] that the objects of the Union could not besecured by any system founded on the principle ofa confederation of sovereign States. . . .

Hence was embraced the alternative of a Govern-ment which instead of operating on the States,should operate without their intervention on the in-dividuals composing them; and hence the change inthe principle and proportion of representation.

The ground-work being laid, the great objectswhich presented themselves were 1. to unite aproper energy [amount of power in government sothat it can carry out tasks the people expect of it]with the essential characters of Republican Govern-ment [limits on power to protect the liberties of thepeople] 2. to draw a line of demarkation whichwould give to the General Government [of theUnited States]_every power requisite for general pur-poses, and leave to the States every power whichmight be most beneficially administered bythem. . . .

It will not escape you that three names only fromVirginia are subscribed [signed] to the Act [Consti-tution]. Mr. Wythe did not return after the death ofhis lady. Dr. McClurg left the Convention some timebefore the adjournment. The Governor [EdmundRandolph] and Col. Mason refused to be parties toit. Mr. Gerry was the only other member who re-fused. The objections of the Governor turn princi-pally on the)atitude of the general powers. . . . Hewas not [unyielding] in his opposition. . . . Col.Mason left Philadelphia in an exceeding ill humourindeed. . . . He returned to Virginia with a fixeddisposition to prevent the adoption of the plan ifpossible. He considers the want of a Bill of Rightsas a fatal objection. His other objections [pertain] tothe powers of the Judiciary . . . to the smallness ofthe number of Representatives . . . and most of allprobably to the power [granted to Congress] of reg-ulating trade by a majority only of each House. . . .

The final reception which will be given by thepeople at large to the proposed System cannot yetbe decided. . . .

47


Answer the following questions about the contents ofMadison's letter of October 24, 1787 to Thomas Jefferson.

1. Which of the following items (a-e) accuratelydescribe Madison's views on the Constitution of1787 and the ratification debate? One or more of thefollowing statements may be correct. Be prepared tosupport your answers with evidence from the doc-ument.

a The Constitution of 1787 would not ba-sically change the relationships between the gov-ernment of the United States and the thirteen Stategovernments.

b Delegates at the Federal Conventiontried to create a Constitution that would balancestrong powers in the government and place strictlimitations on those powers.

c There was very little doubt that the Con-stitution would be easily ratified.

d George Mason was identified as a strongsupporter of the Constitution.

e Edmund Randolph was the only mem-ber of the Virginia delegation to the Federal Con-vention who did not sign the Constitution.

2. Compare Madison's views on the Constitutionof 1787 as revealed in his letter to Thomas Jeffersonwith the views of Elbridge Gerry and Brutus. (a)What is one difference between Madison and Gerry?(b) What is one difference between Madison andBrutus?

Federalist and Anti-Federalist Ideas

Both Federalists and Anti-Federalists had manyideas in common about what a constitutional gov-ernment should be. For example, both favored gov-ernment limited by the higher law of a constitution,and both opposed government that was not ac-countable to the people who lived under it. The Fed-eralists and Anti-Federalists wanted a republicanform of governmentone by elected representativesof the people. Both wanted some type of federal-ismdivision of powers between a central govern-ment and several state governments. Finally, bothFederalists and Anti-Federalists wanted a-free gov-ernment; that is, a government that would be re-sponsive to the will of the people and that wouldprotect the rights and liberties of individuals.

However, the Federalists and Anti-Federalists dif-fered about how to design a government that wouldbe limited, republican, federal, and free. Indeed, theFederalists and Anti-Federalists had different ideasabout the meaning of core principles, such as limitedgovernment, republican government, federal gov-

ernment, and free government. These differencesare elaborated upon in subsequent parts of this vol-ume.

Can you identify Federalist and Anti-Federalist state-ments in the list below about core principles of constitu-tional government? Write the letter "F" in the spacenext to each statement that fits the Federalist posi-tion. Write the letters "AF' in the space next to eachstatement that expresses the Anti-Federalist posi-tion. Write the letter "X" in the space next to eachstatement that fits neither the Federalist nor theAnti-Federalist position. Be prepared to provide rea-sons and evidence for your answers.

1 States are the characteristics and the soulof a confederation. If the States be not the agents ofthis compact, it must be one great consolidated Na-tional Government of the people of all the States.

2 There is no Declaration of Rights; andthe Laws of the General Government being para-mount to the Laws and Constitutions of the severalStates, the Declaration of Rights in the separateStates are no Security.

3 [T]he objects of the Union could not besecured by any system founded on the principle ofa confederation of sovereign States.

4 We must crush . . . the enemies of theRepublic, or perish with her. And in this situation,the first maxim of our policy should be to conductthe people by reason, and the enemies of the peopleby terror. . . . The government of a revolution is thedespotism of liberty against tyranny.

4.8

Lessons/Set I 41

Lesson 2: Teaching PlanPublius Enters the Debate on the Constitution

Objectives

Students are expected to1) identify The Federalist in the context of the de-

bate on ratification of the Constitution;2) identify the authors of The Federalist: Hamilton,

Madison, Jay and their contributions to thiswork;

3) explain the purposes of the authors in writingThe Federalist;

4) interpret main ideas in The FederaliS1 1;5) evaluate ideas in The Federalist 1.

Estimation- of Time Needed to Complete this Lesson: NoMore than Two Classroom Periods.

Opening the Lesson

Bring a copy of The Federalist to class and show itto students. Use the book as a prop to raise questionsand arouse curiosity about origins, purposes, andsignificance of The Federalist and to introduce mainpoints and objectives of this lesson. Ask students toreveal what they know about The Federalist in ad-vance of their study of this lesson.

Have students read the parts of the lesson, whichtreat the origin, authorship, and purposes of TheFederalist. Require them to respond to the exercisesin this portion of the lesson in preparation for class-room discussion. Focus their attention on the editedexcerpt from The Federalist 1, which presents Ham-ilton's views of the purposes of this work.

Developing the Lesson

Condu....., classroom discussion on the precedingassignment. Begin with the first exercise. Correctstatements about the origins and authorship of TheFederalist in the exercise are numbers 4, 7, 8, 10.Require students to explain what is incorrect aboutthe other statements and to report how they shouldbe changed in order to make them correct.

Have students turn to the exercise on The Federalist1. Answers to items 1-3 will vary, but must be jus-tified by references to the document. Correct an-swers to item 4 are statements b, c, d, and e. Requirestudents to support their answers with evidencefrom the document.

Encourage interaction among students by callingupon one student to provide an answer to an item

in an exercise and by calling upon other students toevaluate the first student's answer. Encourage stu-dents to challenge one another to give reasons fortheir answers and to use evidence from primarysources to support their answers.

Assign the remainder of the lesson and requirestudents to complete the exercise that appears at theend of the lesson. Divide the class into two groups:group one has the easier assignment of writing asummary of the purposes of The Federalist and grouptwo has the more difficult assignment of writing abrief editorial on this document.

Concluding the LessonBegin by calling on one student in group one to

read his/her summary of the purposes of The Fed-eralist. Then call upon other students to evaluate thesummary. Repeat this procedure several times inorder to involve several students in the process ofreporting and evaluating.

Conduct a concluding discussion on item 2. Callupon one student in group two to read his/her ed-itorial. Assign three students in group two to serveas a formal reaction panel. Advise reactors that theymight react with supportive statements, criticisms,alternative ideas, and/or questions. Allow the stu-dent who presented his/her editorial to respond tothe reaction panel. Advise this student that he/shemight agree or disagree with the reactors. Then callupon others in the class to address questions andcomments to the first speaker and to the reactionpanelists. Members of the class might also be sup-portive or critical of the first speaker or the panelists.

You might want to collect all of the papers andevaluate them for your students.

49


Lesson 2Publius Enters the Debate on the Constitution

The Origin of Publius and The FederalistSEPTEMBER 27, 1787 (New York, NY): A scathing

attack on the proposed Constitutionthe work- ofthe Federal Convention of Philadelphiawasprinted in the New York Journal. It was signed witha pseudonym, Cato.

Alexander Hamilton read Cato's article with alarmand anger. Hamilton had participated in the FederalConvention, where he was one of three delegatesfrom New York. He was disappointed, however, inthe Constitution produced by the Conventon be-cause he wanted a much stronger national govern-ment than it provided. Nonetheless, Hamiltonstrongly preferred the,proposed Constitution of 1787to the existing government under the Articles ofConfederation, and was among the thirty-nine del-egates who had signed it on September 17, 1787.

Hamilton resolved to campaign for ratificahon ofthe Constitution against strong opposition to it,which included his fellow delegates from New Yorkto the Federal Convention, John Lansing and RobertYates, and the powerful governor of New York,George Clinton. Hamilton suspected that Lansing,Yates, and Clinton were the authors of Cato's articleagainst the Constitution.

Hamilton was not the only New Yor.,er to be upsetby Cato's article. Arguments about it flared in thetaverns, clubhouses, and streetcorners of the city.Hamilton wrote to George Washington: "The con-stitution proposed has in this state warm friends andwarm enemies." He planned a series of essays torefute these "enemies" and influence I John Jay andJames Madison to join him. They were the authorsof papers that became The Federalista cnIlecfion ofeighty-five essays in support of the Cons: ::don of1787. Each paper was signed 1, fith a pset,tlonym,Publius, after Publius Valeriusa great detzw.. r ofthe ancient Roman Republic. Thus was born a war:that Thomas Jefferson called "the best commentaryon the principles of government which ever waswritten."

Most of Publius' papers were printed originally inNew York City newspapers. In 1738 they were pub-lished together as a two-volume book, The Federalist.

Authors of The FederalistJohn Jay, at forty-two, was the oldest of the three

authors of The Federalist. A New Yorker, he had

served his state and nation as principal author ofthe state constitution, member of a delegation thatnegotiated the Treaty of Pan, (1783) to officially endthe War of Independence, and head of foreign affairsunder the Articles of Confederation. In 1789, Jaybecame the first Chief Justice of the United States.

James Madison of Virginia was thirty-six years oldin 1787 and had been among the most prominentleaders in the Federal Convention. Later, he wascalled "father of the Constitution" because of thegreat part he played in shaping the Constitution. In1789, Madison was a Representative from Virginiato the first session of Congress under the Consti-tution. He proposed amendments that became thebasis for the Federal Bill of Rights. Later he wasSecretary of State under President Thomas Jeffersonand succeeded Jefferson as President of the UnitedStates.

Alexander Hamilton of New York, originator ofthe project to write The-Federalist, was the ycungestmember of the tear- -iirty-two years old in 1787.During the War of independence, he was an assis-tant to General Washington and rose to the rank oflieutenant colonel. He participated in the decisivebattle of Yorktown. Later, Hamilton and Madisonwere primary leaders in bringing about the FederalConvention in 1787. He served as-Secretary of theTreasury under President George Washington andcreated a sound financial foundation for the UnitedStates.

Hamilton, major author of The Federalist, wrotefifty-one of the eighty-five papers (1, 6-9, 11-13, 15-17, 21-36, 59-61, -nd 65-85). Madison wrote twenty-nine essays (10, 14, 18-20. 37-58, and 62-63). Illnessforced John Jay to withdraw from the project, andhe wrote only five essays (2-5 and 64).

Respond to the following items about the originand authcirs of The Federalist. Make a checkmark inthe space next to each correct statement in the listbelow. Be prepared to justify or give reasons forselection of each correct statement.

1. Cato was the pseudonym of the authorsof The Federalist.

2. The Federalist was written to convincedelegates to the Federal Convention to revise theArticles of Confederation.

3. The msior author of The Federalist wasJohn Jay.

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Lessons/Set I 43

4. Authors of The Federalist agreed that theUnited States needed a new government that wouldbe stronger than the central government under theArticles of Confederation.

5. Alexander Hamilton used the writingsof Publius Valerius, a defender of the ancient RomanRepublic, to support the Constitution of 1787.

6. The Federalist was the name of a leadingNew York newspaper that supported ratification ofthe Constitution.

7. James Madison was a co-author of TheFederalist.

8. Less than two weeks after the end ofthe Federal Convention in Philadelphia, oppositionagainst the Constitution of 1787 erupted in NewYork.

9. James Madison wrote fifty essays in TheFederalist.

10. There were three authors of The Feder-alist.

Purposes of The FederalistThe first objective of The Federalist was to persuade

the people of New York to ratify the Constitution;each paper was addressed "To the People of theState of New York" and published first in a NewYork newspaper. A second objective was to influ-ence Americans in all thirteen states to approve theConstitution. The Federalist was primarily a work ofadvocacy.

The authors submerged political differences intheir pursuit of a common goalratification of theConstitution. Madison and Jay agreed with Hamil-ton: [The Constitution] "is a compromise of . . .

many dissimilar interests and inclinations." It didnot exactly reflect the ideas on government of anyone of the coauthors, but they agreed that it was farsuperior tc the Articles of Confederation.

In 1788, Madison noted variations in ideas of thethree authors of The Federalist: "The authors are notmutually answerable for all the ideas of each other."After ratificatt,i of the Constitution and formationof the federal government, Madison joined ThomasJefferson in political clashes with Hamilton that ledto the establishment of rival political parties: Fed-eralists (Hamilton) versus Republicans (Jefferson/Madison). These conflicts, however, lay ahead. In1787-88, Madison and Hamilton were a formidableteam in defense of the Constitution.

Hamilton, Madison, and Jay readily agreed on thename of their projected series of essays, The Feder-alist. With this name, they scored a public relationsvictory against their opponents, who accepted by

default the label of Anti-Federalists, a negative namethat suggested only opposition, with no constructiveideas to improve the government.

There was irony here, because the opponents ofHamilton, Madison, and Jay considered themselvesthe "true federalists" (supporters of strong states'rights and powers in a union of states to make afederal system of government). By contrast, these"Anti-Federalists" viewed Hamilton and his allies as"consolidationists" (nationalists who would sub-merge states' rights and powers in favor of a su-preme central government). Thus, early in thecontest over ratification of the Constitution, the con-tending sides became known as Federalists (for rat-ification) and Anti-Federalists (against ratification).

The First Essay of Publius

In The Federalist 1, published in the IndependentJournal of New York city (October 27, 1787), Ham-ilton introduced New Yorkers to the political ideasof Publius. Hamilton as Publius discussed the over-riding purposes of his side in the debate on the Con-stitution. (See the edited excerpt from The Federalist.)

The Federalist No. 1 (Hamilton)

October 27, 1787To the People of the State of New York:

AFTER an unequivocal experience of the inefficacyof the subsisting federal government, you are calledupon to deliberate on a new Constitution for theUnited States of America. The subject speaks of itsown importance; comprehending in its conse-quences nothing less than the existence of the UN-ION, the safety and welfare of the parts of which itis composed, the fate of an empire in many respectsthe most interesting in the world. It has been fre-quently remarked that it seems to have been re-served to the people of this country, by their conductand example, to decide the important question,whether societies of men are really capable or notof establishing good government from reflection andchoice, or whether they are forever destined to de-pend for their political constitutions on accident andforce. If there be any truth in the remark, the crisisat which we are arrived may with propriety be re-garded as the era in which that decision is to bemade; and a wrong election of the part we shall actmay, in this view, deserve to be considered as thegeneral misfortune of mankind. . . .

I propose, in a series of papers, to discuss thefollowing interesting particulars.The utility of the

5 1


UNION to your political prosperityThe insufficiency ofthe present Confederation to preserve that UnionThenecessity of a government at least equally energetic [pow-erful] with the one proposed, to the attainment of thisobjectThe conformity of the proposed Constitution to thetrue principles of republican government . . . and lastly,The additional security which its adoption will afford tothe preservation of that species of government, to liberty,and to property.

. . . I shall endeavor to give a satisfactory answerto all the objections which shall have made theirappearance, that may seem to have any claim to yourattention. . . .

. . . [W]e already hear it whispered in the privatecircles of those who oppose the new Constitution,that the thirteen States are of too great extent forany general system [national government], and thatwe must of necessity resort to separate confederaciesof distinct portions of the whole. . . . [but] nothingcan be more evident to those who are able to takean enlarged view of the subject than the alternativeof an adoption of the new Constitution or a dis-memberment of the Union. . . .

Publius

Answer the questions below about The Federalist 1. Beready to explain your answers; use evidence in TheFederalist 1 to support your answers.

1. What was the "crisis at which we are arrived"that is mentioned in the first paragraph of The Fed-eralist?

2. Why, according to Publius, would "a wrongelection of the part we shall act . . . deserve to beconsidered as the genera! misfortune of mankind"?

''.. What advice did Publius have for Americansabout the decision that should be made in responseto the crisis they faced in 1787?

4. Which of the following statements agree withThe Federalist 1? Make a checkmark in the space nextto each statement that agrees with Publius; give rea-sons for your answers that are based on contents ofthe document.

a The government of the United States,under the Articles of Confederation, is tyrannical.

b The Constitution of 1787 will contributemore to the preservation of liberty than will the Ar-ticles of Confederation.

c If the Constitution of 1787 is not ratified,then the United States will not endure.

d Americans have a rare opportunity todecide for themselves upon the form of governmentthey will have.

e An important responsibility of govern-ment is protection of property rights of individuals.

The Achievement of PubliusJames Madison was in New York City when the

first Federalist paper was published. He observed re-actions of political friends and foes as eight morefederalist papers were written and published in rapidsuccession, from October 31 to November 21. Papersnumbers 2-5 were written by John Jay and numbers6-9 by Hamilton. On November 18, 1787, Madisonwrote about The Federalist in a letter to George Wash-ington:

I enclose herewith the 7 first numbers of TheFederalist, a paper addressed to the people ofthis State [New York]. They relate entirely tothe importance of the Union. If the whole planshould be executed, it will present to the pub-lic a full discussion of the merits of the pro-posed Constitution in all its relations. . . .

perhaps the papers may be put into the handof some of your confidential correspondentsat Richmond [Virginia] who would have themreprinted there. I will not conceal from youthat I am likely to have [a great involvementin authorship of The Federalist]. You will rec-ognize one of the pens concerned in the task.There are three in the whole.

As revealed in his letter to George Washington,Madison was ready to write as Publius, the Feder-alist. His first paper, the classic No. 10, was printed,November 22, 1787.

And so, the issue was presented to '.he people:how best to achieve a free government for them-selves and their United States. Would this be doneby accepting the Constitution of 1787? The Anti-Fed-eralists answered "no" and did their best to convinceAmericans to reject the Constitution, or at least tochange it in favor of their ideas. The Federalists an-swered "yes" and campaigned for ratification of theConstitution of 1787.

The Federalists won the debate of 1787: the Con-stitution was ratified. In a way, the Anti-Federalistswon too. Their ideas were widely circulated and in-fluenced the addition in 1791 of a Bill of Rights tothe Constitution (Amendments I-X). And Publius,in The Federalist, created a classic work that hasserved from then until now as a guide to the theoryand practice of constitutional government.

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Lessons/Set I 45

Respond to the following items about The Federalist.1. Write a brief description (no more than 250

words) about the purposes of The Federalist as re-vealed in paper No. 1 and in Madison's letter toGeorge Washington.

2. Suppose that you are a publisher of a news-paper in New York City in October 1787. After pub-lication of the first Federalist Paper in a rivalnewspaper, you decide that you should write aneditorial about it for publication in your own news-paper. You begin to think carefully about the standthat you will takefor or against The Federalist 1.What should you say in this brief editorial about theideas of Publics? Your assignment is to write a briefopinion piece (no more than 500 words) in responseto The Federalist 1.

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47

Lesson Set IIMajority Rule and Minority Rights in a Free Government

Federalists and Anti-Federalists agreed about theoverriding importance of free government: one thatwould be based on the will and the rights of thepeople living under the government's authority.Fla Weyer, the Federalists and their Anti-Federalistopponents had different conceptions of a free gov-ernment, alternative views of hcw to make a con-stitution for an effective government that wouldenable the people to enjoy their essential rights andfreedoms.

Federalists and Anti-Federalists agreed that a freegovernment is limited by the higher law of a con-stitution, which protects the rights and freedoms ofindividuals. But how limited should it be? At whatpoint, and under what circumstances, do constitu-tional limits on a goverunent's powers prevent itfrom acting for the public good or for the privaterights of individuals? James Madison and other Fed-eralists in the ratification debate responded differ-ently from their Anti-Federalist foes.

Federalists and Anti-Federalists agreed that a freegovernment is a republic; that is, government basedon rule by the majority of the people expressed

through their elected representatives in govern-ment But how should this majority rule be ex-pressed under a constitution tl-at sets legal limits onthis ru'e? At what point, and under what circum-stances, does majority rule threaten the rights andliberty of minority groups or individuals? Con-versely, at what point, and under what circum-stances, do constitutional limits on the majorityviolate or undermine the essential element of a re-publicpopular sovereignty: government of, by,and for the people. ThP answers of Federalists tothese questions differed significantly from those oftheir Anti-Federalist opponents.

This Lesson Set treats the ideas of James Madisonin The Federalist and other writings on majority rulewith minority rights in a free government, a repub-lic. The Anti-Federalist position is represen, .ed byselections from The Essays of Brutus (probably RobertYates of New York).

This Lesson Set includes two reaching Plans andaccompanying Lessons students: (a) No. 3: Mad-ison on Majority Rule Minority Rights and (b)No. 4: Brutus, the An _ leralist, on Free Govern-ment.

54

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Lesson 3: Teaching PlanMadison on Majority Rule and Minority Rights

Objectives

Students ate expected to1) identify and comprehend Madison's ideas on

majority rule, minority rights, free govern-ment, popular sovereignty, representation ingovernment, and the republican form of gov-ernment in The Federalist 10 and 51;

2) examine and explain ideas on majority rule,minority rights, free government, and repub-lican government in The Federalist 10 and 51and in a letter from Madison to Jefferson, Oc-tober 17, 1788;

3) evaluate Madison's position on free govern-ment.


Opening the LessonWrite these words on the chalkboard: "majority

rule" and "minority rights." Ask students to definethese words. Ask them to express agreement or dis-agreement with these ideas. Presumably everyonewill agree with the value of majority rule and mi-nority rights. At this point, ask whether or not theseideas have ever been in conflict in the lives of peoplein the United States. Have students provide exam-ples of these conflicts, especially examples of themajority abusing the rights of minorities. Then saythat James Madison argued that in a government of,by, and for the people, there would be the ever-present threat of tyranny of the majority. Concludethis discussion by asking students to speculate aboutremedies to majoritarian tyranny in the organizationand operation of a government.

Use this discussion to lead students into readingthe introduction to this lesson. Then tell studentsthat they will examine the ideas of James Madisonon majority rule and minority rights in a free gov-ernment in three documents: The Federalist 10, TheFederalist 51, and a letter from Madison to Jefferson,October 17, 1788. Ask students to respond to thequestions that follow each document in preparationfor a class discussion.

Developing the LessonConduct a discussion of Madison's ideas in the

excerpts from The Federalist 10 and 51 and the letterto Jefferson. Require students to support their an-swers to the assigned questions with evidence fromspecific documents. Encourage students to ask theirclassmates to justify answers with references to in-formation in the primary sources.

Assign the five questions at the end of the lesson.Ask students to prepare answers for a concludingclassroom discussion on this lesson.

Concluding the LessonConduct a concluding classroom discussion. Once

again, require students to justify answers with ref-erences to the primary sources in this lesson.

Answers to questions 1 - 4 will vary. The correctanswers to question 5 are items b and e. Use two orthree of the provocative items in question 5 as foilsfor discussion. For example, you might ask studentsto take a positionfor or againststatements a, c,and e. They would be deciding whether or not toagree with Madison on these statements.

Emphasize potential conflicts in a free governr lentbetween majority rule and minority rights. Point outthat these conflicts and the issues they raise are un-avoidable under conditions of freedom. In addition,emphasize that in a free government, citizens per-sistently seek to balance majority rule and minorityrights. They accept the challenge of combining andbalancing majority rule and minority rights. Theyavoid extreme emphasis on either majority rule orminority rights.

NOTE: In addition to The Federalist 10 and 51, thefollowing numbers also trea the ideas of majorityrule with minority rights in a free government: 22(Hamilton); 39 and 58 (Madison).

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Lessons/Set II 49

Lesson 3Madison on Majority Rule and Minority Rights

Madison's Position on Free Government

James Madison believed that a free governmentis based on the popular majority; but it is limited bythe higher law of the Constitution to protect therights and liberties of individuals in the minority.He supported popular participation in government,but only as a means to the protection of the indi-vidual's life, liberty, and property, and never as anend in itself.

Popular sovereignty in a republic, government bythe people, implies majority rule. In a republic (apopular government), people elect representativesin government by majority vote, and these repre-sentatives of the people make laws by majority vote.However, a popular or republican form of govern-ment can pose dangers to the rights and freedomsof individuals. Majorities might oppress minoritieswho disagree with them, unless effective limits areplaced on majority rule. Thus, James Madison andother supporters of the Federalist cause in 1787-1788believed that constitutional limits should restrict ma-jority rule, but only for the higher purpose of se-curing the rights and liberties of individuals in theminority.

Madison equally opposed the absolutism of amonarch (the tyranny of one), of an aristocracy oroligarchy (tyranny of the few over the many), or ofa popular majority (tyranny of the many over thefew). Madison argued that the greatest threat to lib-erty in a republic (government by representatives ofthe people) would come from unrestrained majontyrule.

At the Federal Convention in Philadelphia Mad-ison stated his concern about the possible tyrannyof the majority, when he said that the purposes ofthe Constitution were, first, "to protect the peopleagainst their rulers [and] secondly, to protect thepeople against the transient impressions [towardtyranny] into which they themselves might be led."Madison warned that reliance on popular partici-pation in government to prevent tyranny would fail;because popular majorities that resulted from directparticipation of the people in government couldhave the power, if not limited by a well-structuredconstitiltien, to trample the rights and freedoms ofminorities.

The Federalist 10 and 51

Madison memorably discussed majority rule andminority rights in a free and republican form of gov-ernment in The Federalist 10 and 51. Number 10, wasprinted for the first time on November 22, 1787 inThe Daily Advertiser of New York City. It was the firstof 29 papers by Madison for The Federalist. Read thefollowing excerpts from these two essays and re-spond to the questions that come after them.

The Federalist No. 10 (Madison)

November 22, 1787To the People of the State of New York:

AMONG the numerous advantages promised by awell-constructed Union, none deserves to be moreaccurately developed than its tendency to break andcontrol the violence of faction. . . .

By a faction I understand 'mean] a number of cit-izens, whether amounting to a majority or minorityof the whole, who are united and actuated [moti-vated to action] by some common impulse of pas-sion, or of interest, adverse to the rights of othercitizens, or to the permanent and aggregate interestsof the community. . . .

If a faction consists of less than a majority, reliefis supplied by the republican principle, which ena-bles the majority to defeat its sinister views by reg-ular vote. It may clog the administration, it mayconvulse the society, but it will be unable to executeand mask its violence under the forms of the Con-stitution. When a majority is included in a faction,the form of popular government . . . enables it tosacrifice to its ruling passion or interest both thepublic good and the rights of other citizens. To se-cure the public good and private rights against thedanger of such a faction [an overbearing majority],and at the same time t preserve the spirit and theform of popular government [majority rule], is thenthe great object to which our inquiries are directed.

By what means is this object attainable? Evidentlyby one of two only. Either the existence of the samepassion or interest in a majority at the same timemust be prevented, or the majority, having suchcoexistent passion or interest, must be rendered, bytheir number and local situation, unable to concertand carry into effect schemes of oppression. . . .

56


From this view of the subject it may be concludedthat a pure [direct] democracy, by which I mean asociety consisting of a small number of citizens, whoassemble and administer the government in person,can admit of--no cure for the mischiefs of faction[majoritarian tyranny]. A common passion or inter-est will, in almost every case, be felt by a majorityof the whole . . . and there is nothing to check theinducements to sacrifice [oppress] the weaker partyor an obnoxious individual. Hence it is that suchdemocracies [with unlimited rriajoiay rule] haveever been speaade: of turbulence [disorder] andcontention; have ever been found incompatible withpersonal security or the rights of property; and havein general been as short in their lives as they havebeen violent in their deaths. Theoretic politicians,who have patronized this species of government,have erroneously supposed that by reducing man-kind to a perfect- equality in their political rights,they would at the same time be perfectly equalizedand assimilated in their possessions, their opinions,and their passions.

A republic, by which I mean a government inwhich the scheme of representation takes place,opens a different prospect and promises the cure forwhich we are seeking. . . .

The two great points of difference between a [di-rect and unlimited] democracy and a republic are:first, the delegation of the government, in the latter[republic], to a small number of citizens elected bythe rest; secondly, the greater number of citizensand greater sphere of country over which the latter[republic] may be extended.

The effect of the first difference is . . . to refineand enlarge the public views by passing themthrough the medium of a chosen body of citizens[elected representatives of the people], whose wis-dom may best discern the true interest of their coun-try and whose patriotism and love of justice will beleast likely to sacrifice it to temporary or partial con-siderations. Under such a regulation it may well hap-pen that the public voice, pronounced by therepresentatives of the people, will be more conso-nant to the public good than if pronounced by thepeople themselves, convened for the purpose. . . .

[The effect of the second difference], the greaternumber of citizens and extent of territory which maybe brought within . .. republican [government] . . .

renders factious combinations less to be dreaded [ina large republic]. The smaller the society, the fewerprobably will be the distinct parties and interests[groups with a common aim] composing it; the fewerthe distinct parties and interests, the more fre-quently will a majority be found of the same party;

and the smaller . . . the compass [afea]`within whichthey are placed, the more easily will they concertand execute their plans of oppression. Extend thesphere [area], and you take in a greater variety ofparties and interest; you make it less probable thata majority of the whole will have a common motiveto invade the rights of other citizens; or if such acommon motive exists, it will be more difficult forall who feel it to discove_ their own strength and toact in unison with each other. . . .

Hence, it dearly appears that the same advantagewhich a republic has over a [direct] democracy incontrolling the effects of faction is enjoyed by a largeover a small republicis enjoyed by the Union overthe States compoSing it. . . . Here again the extent[large territory] of the Union gives it the most pal-pable advantage [in limiting the power of majoritiesto oppress unpopular persons]. . . .

In the extent and proper structure of the Union[a large federal republic] . . . we behold a republicanremedy for the diseases most incident to republicangovernment.. .

Publius

Answer the questions below about Tht Federalist 10.Prepare yourself to explain and justify your answerswith ideas and evidence drawn from the precedingprimary source, The Federalist 10.

1. What are the differences between a republ:cand a pure or direct democracy?

2. What are the dangers of a pure or direct de-mocracy?

3. How does a republic overcome weaknesses as-sociated with pure or direct democracy?

4. Does Madison's concept of republican govern-ment include both majority rule and minority rights?

5. Is Madison's concept of republican governmentcompatible with today's concept of representativedemocracy?

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Lessons/Set II


February 6, 1788To the People of the State of New York:

. . . It is of great importance in a republic not onlyto guard the society against the oppression of itsrulers, but to guard one part of the society againstthe injustice of the other part. Different interestsnecessarily exist in different classes of citizens. If amajority be united by a common interest, the rightsof the minority will be insecure. There are but twomethods of providing against this evil: the one bycreating a will in the community independent of themajoritythat is, of the society itself; the other, by[including] in the society so many separate descrip-tions of citizens as will render an unjust combinationof a majority of the whole very improbable, if notimpracticable. The first method prevails in all gov-ernments possessing an hereditary or self-appointedauthority [monarchy or dictatorship]. This, at best,is but a precarious security; because a power inde-pendent of the society may as well espouse the un-just views of the major as the rightful interests ofthe minor party, and may possibly be turned againstboth parties. The second method will be exemplifiedin the federal republic of the United States. Whilstall authority in it will be derived from and dependenton the society, the society itself will be broken intoso many parts, interests, and classes of citizens, thatthe rights of individuals, or the minority, will be inlittle danger from interested combinations of the ma-jority. In a free government the security for civilrights . . . consists . . . in the multiplicity of inter-ests. . . . Justice is the end of government. It is theend of civil society. It ever has been and ever willbe pursued until it be obtained, or until liberty belost in the pursuit. In a society under the forms ofwhich the stronger faction can readily unite and op-press the weaker, anarchy may as truly be said toreign as in a state of nature, where the weaker in-dividual is not secured against the violence of thestronger; and as, in the latter state, even the strongerindividuals are prompted, by the uncertainty of theircondition, to submit to a government which mayprotect the weak as well as themselves; so, in theformer state, will the more powerful factions or par-ties be gradually induced, by a like motive, to wishfor a government which will protect all parties, theweaker as well as the more powerful. . . . In theextended republic of the United States, and amongthe great variety of interests, parties, and sectswhich it embraces, a coalition of a majority of the

51

whole society could seldom take place on any otherprinciples than those of justice and the general good;whilst there being thus less danger to a minor fromthe will of-a major party,_ there must be less,pretext,also, to provide for the security of the -former, byintroducing into the government a will not depend-ent on the latter, or, in other words, a will inde-pendent of the society itself. . . .

Publius

Answer the questions below about The Federalist 51.Use ideas and evidence from the preceding docu-ment to explain and justify your answers.

1. Madison says (The Federalist 51): "It is of greatimportance in a republic not only to guard the so-ciety against the oppression of its rulers, but to guardone part of the society against the injustice of theother part." (a) What does this statement have todo with majority rule and minority rights in a freegovernment? (b) Do you agree with Madison's state-ment? Why?

2. Does Madison believe that majority rule coulddestroy minority rights? Why?

3. What are Madison's ideas about how to guardagainst the destruction of minority rights?

4. Does Madison value both majority rule and mi-nority rights?

Madison Writes to Jefferson onMajoritarian Tyranny

After the Constitution of 1787 was ratified, JamesMadison expressed his thoughts about it in lettersto his close friend, Thomas Jefferson, who was serv-ing as the ambassador from the United States to thegovernment of France. In the letter following, Mad-ison expressed fears of a tyrannical majority in arepublican government. He assumed that the Con-stitution of 1787 provided means to control or pre-vent majoritarian tyranny. And he agreed withJefferson that addition of a Bill of Rights to the Con-stitution would provide additional protection for therights of individuals against the threat of majoritar-ian tyranny.

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James Madison to Thomas JeffersonOctober 17,1788

. . . Wherever the real power in a Governmentlies, there is the danger of oppression. In our Gov-ernments, the real power lies in the majority of theCommunity, and the invasion of private rights ischiefly to be apprehended, not from acts of Govern-ment contrary to the sense of its constituents, butfrom acts in which the government is the mere in-strument of the major number [majority] of the con-stituents. This is a truth of great importance, but notyet sufficiently attended to. . . Whenever there isan interest and power to do wrong, wrong will gen-erally be done, and not less readily by [a majorityof the people] than by a . . . prince. . . .

. . . [I]n a popular Government, the political andphysical povver may be considered as vested in thesame hands, that is in a majority of the people, andconsequently the tyrannical will of the sovereign isnot to be controlled by the dread of an appeal to anyother force within the community. What use then itmay be asked can a bill of rights serve in popularGovernments? I answer the two followIng. . . . 1.the political truths declared in that solemn manneracquire by degrees the character of fundamentalmaxims of free Government, and as they becomeincorporated with the national sentiment, counter-act the impulses of interest and passion. 2. Altho' itbe generally true as above stated that the danger ofoppression lies in the interested majorities of thepeople rather than in usurped acts of the Govern-ment, yet there may be occasions on which the evilmay spring from the latter sources; and on such, abill of rights will be a good ground for an appeal tothe sense of the community. . . .

. . . It is a melancholy reflection that libertyshould be equally exposed to danger whether theGovernment have too much or too little power; andthat the line which divides these extremes shouldbe so inaccurately defined by experience. . . .

. . . Where the power is in the few it is natural forthem to sacrifice the many to their own partialitiesand corruptions. Where the power, as with us, is inthe many not in the few, the danger can not be verygreat that the few will be thus favored. It is muchmore to be dreaded that the few will be unneces-sarily sacrificed to the many. . . .

0:including ActivitiesRespond to the following items about three primary

sources in this lesson: The Federalist 10, The Federalist51, and the letter from Madison to Jefferson. Support orjustify your answers with ideas and evidence fromthese three primary sources. Be specific in pointingto the particular places in one or more of these threedocuments to provide evidence in support of yourresponses to the items.

1. What is the greatest threat to individual rightsand lit erty in a republican government? Why?

2. According to Madison, how can each of thefollowing constitutional provisions protect the rightsof individuals in the minority from tyranny of themajority: (a) a bill of rights (b) a republican govern-ment in a large territory?

3. According to Madison, what is a faction?4. Why is a pure or direct democracy an inade-

quate means of controlling the negative effects offactions?

5. Which of the following statements agree withideas presented in The Federalist 10, The rederalist 51,and Madison's letter to Jefferson (October 17, 1788)?Support and-explain your choices by referring tospecific parts of the three primary sources in thislesson. Make a checkmark in the spaces next to thecorrect statements.

a The best protection against tyranny isdirect and active participation in government by thevast majority of the people.

b A free government is based on popularsovereignty.

c In a free government, the rights and lib-erties of groups should have priority over the rightsand liberties of individuals.

d The best protection against tyranny ofthe majority is the good will of the rulers toward therights and liberties of minority groups.

e Social diversity in a large republic con-tributes importantly to protection of personal rightsand liberties.

f. In a free government, there is unlimitedrule by the majority.

g In a free government, minorities haveunlimited freedoms and rights.

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Lessons/Set II 53

Lesson 4: Teaching PlanBrutus, The Anti-Federalist, on Free Government

Objectives

Students are expected to1) identify and comprehend an Anti-Federalist

position on free government, a republic;2) examine, explain, and evaluate ideas and in-

formation about a free and republican form ofgovernment in essays of Brutus, an Anti-Fed-eralist writer;

3) compare and contrast the ideas of Brutus withthe ideas of Mad son (in Lesson 3) on freegovernment;

4) select and defend a position, pro or con, onthe ideas of Brutus and Madison about freegovernment and the republican form of gov-ernment in the United States.

Estimation of Time Needed to Complete This Lesson: NoMore Than Three Classroom Periods.

Opening the LessonAsk students to read the introduction to this les-

son. Identify Brutus' Anti-Federalist writings as analternative to the Federalist position of James Mad-ison in Lesson 3. Examine each of the characteristicsin Brutus' conception of free government, which arelisted in the introduction.

Invite students to raise questions or to make com-ments about the meaning and worth of the charac-teristics in Brutus' conception of free government.Then ask students to read the excerpts from Essay 1and Essay IV by Brutus, which reveal his positionon free government, as it was presented to Ameri-cans during the ratification debate of 1787-1788. Re-quire students to respond to the questions thatfollow each document in preparation for a classroomdiscussion.

Developing the LessonConduct a discussion on Essay 1 and Essay IV by

Brutus. Require students to support and justify theiranswers with evidence drawn from specific parts ofthe primary sources in this lesson. Answers to items1-4, at the end of Essay 1, will vary, but must bejustified with evidence from the appropriate primarysource. Answers to the activity at the end of EssayIV are as follows: 1. B-M, 2. B, 3. B, 4. M, 5. X, 6.B. Require students to justify answers with refer-

.

o.nces to specific parts of the relevant primarysources.

Concluding the Lesson

Ask students to read the final section of the lesson:A Federalist/Anti-Federalist Forum on Free Government.Focus attention on the core question about the es-sential characteristics of free government in the al-ternative positions of Brutus and Madison.

Divide the class into two groups (A-B). AssignQuestion 1 (Brutus' position) to Group A and Ques-tion 2 (Madison's position) to Group B. Studentsmight be allowed to select themselves into eitherGroup A or Group B on the basis of their preferencesfor the ideas of Brutus or Madison. Group A shouldrefer to ideas of Brutus in Lesson 4 and Group Bshould use Madison's ideas in Lesson 3. Group Awill advocate the position of Brutus and Group Bwill advocate the position of Madison.

Each group should select a chairperson who willmanage the group's preparation of its assigned task.The chair is also responsible for organizing thegroup's presentation to a forum, or full-class meet-ing. Groups A and B will prepare to make formal15-minute presentations to the forum. Full-class dis-cussion will follow the presentations.

The chair determines which members of the groupwill take part in the presentation of the group's po-sition and selects the order in which group membersspeak. Ideally, all members of the group will partic-ipate in the preparation and discussion of thegroup's assigned task during the day preceding theforum. However, only four or five group memberswill take part in the formal presentation of thegroup's position. Suppose Group A selects fivemembers to present the group's position in the fo-rum. Each person might report about one majorstrong point in Brutus' position.

The forum, full-class meeting, can be conductedwithin one typical classroom period. The teachercalls the forum to order. Next the teacher/moderatorasks the chairperson of Group A to introduce hegroup members, who in turn make the group's p. es-entation on strengths of Brutus' position on free gov-ernment. Then the teacher/moderator asks thechairperson for Group B to introduce the groupmembers, who in turn make the group's presenta-tion on strengths of Madison's position on free gov-

60


ernment. Group presentations are limited to 15minutes.

Following the formal group presentations, the_______teacher moderates a till-class discussion about the

alternative positions of Brutus and Madison on theessential characteristics of a free government. Par-ticipants in this full-class discussion raise questionsand criticisms of the two positions of Brutus andMadison. Questions and comments might be di-rected to persons who participated in the formalpresentations. However, this part of the forum alsoprovides an opportunity for other members ofGroup A and Group B to vcice their views in supportof or opposition to either of the two positions. Theteacher/moderator prevents anyone from dominat-ing the discussion and encourages broad participa-tion in the forum.

Conclude the forpn by asking students to recordtheir preferences for either the position of Brutus orthe position of Madison. Tally and report results tothe class.

Lessons/Set H 55

Less On 4Brutus, the Ariti-Federalist, on Free Government

Introduction to Ideas of B- rutus

Brutus (pseudonym), a New York Anti-Federalist(probably Robert Yates), warned the American peo-ple "that a consolidation of this extensive continentunder one government [under the Constitution of1787] ... cannot succeed, without a sacrifice of yourliberties." Brutus wrote Anti-Federalist argumentsagainst ratification of the Constitution of 1787 in six-teen essays, which were printed in the New YorkJournal from October 18, 1787 to April 10, 1788thesame months when The Federalist Papers were alsopublished in New York newspapers.

Brutus' essays countered arguments in The Fed-eralist, and from then until now have been judgedamong the best expressions of the Anti-Federalistposition. Brutus argued forcefully that the Consti-tution of 1787 placed too much emphasis on powerin government to achieve order and stability in thesoviet- and that it placed too little emphasis on lib-erty. Thus, according to Brutus, this Constitution of1787 did NOT provide for free government.

Brutus contended that, in contrast to the Consti-tution of 1787, a free government has these char-acteristics:

The government is directly accountable to the peo-ple who established it and live under its authority.The people choose their representatives, who aredirectly responsible to them.The people express their will in governmentthrough elected representatives, who mirror traitsand ideas of their constituents; groups and inter-ests in the society are reflected clearly in the gov-ernment.Popular majority rule prevails, because peoplehave ample opportunity and motivation to partic-ipate in government as voters and candidates ispublic elections and as petitioners of representa-tives.The government is directly accountable to the peo-ple through frequent elections of officials withshort terms of office.The larger the territory under the government'sauthority, the harder it is to have the quantity andquality of representation that reflects the will ofthe people; so a small republic is better tl..4n alarge one, and the number of representatives al-ways is large enough to reflect the will of the peo-ple.

According to Brutus, the majority will of the peo-ple must prevail in a free government. He viewedmajority rule as the critical characteristic in govern-ment that would guarantee the liberty of all the peo-ple, including individuals in the minority. If themajority ruled through representatives in govern-ment, who were directly accountable to the peoplewho elected them, then justice and liberty wouldinevitably be achieved. Brutus and other Anti-Fed-eralists did not view majority faction as the greatestthreat in republican government to liberty of thepeople. By contrast, they held that strict limits onthe majority would lead to loss of popular sover-eignty and personal liberty. Brutus seemed to agreewith the Anti-Federalist governor of New York,George Clinton, who insisted that in a free govern-ment "the will of the people . . . is law."

Essays I and IV by BrutusBrutus expressed his position on free government

in Essays I and IV. Read the excerpts below fromthese two essays and answer the questions aboutthis Anti-Federalist position that follow the essays.

Essay I (Brutus)

October 18, 1787To the Citizens of the State of New York.

. . In a free republic . . . all laws are derived fromthe consent of the people, yet the people do notdeclare their consent b) themselves in person, butby representatives, chosen by them, who are sup-posed to know the minds of their constituents, andto be possessed of integrity to declare this mind.

In every free government, the people must givetheir assent to the laws by which they are governed.This is the true criterion between a free governmentand an arbitrary one. The former are ruled by thewill of the whole [the people], expressed in any man-ner they may agree upon; the latter by the will ofone, or a few. If the people are to give their assentto the laws, by persons chosen and appointed bythem, the manner of the choice and the numberchosen must be such, as to possess, be disposed,and consequently qualified to declare the sentimentsof the people; for if they do not know, or are notdisposed to speak the sentiments of the people, thepeople do not govern, but the sovereignty is in a

60


few. Now, in a large extended country, it is impos-sible to have a representation, possessing the sen-timents, and of integrity, to declare the minds of thepeople, without having it so numerous and un-wieldy as to be subject in,great,measure to the in-convenience of a democratic government [one thatexpresses the will of the majority]. . . .

. . .[A] free republic cannot long subsist over acountry of the great extent of these states. . . .

Brutus

Respond to the items below about Brutus' Essay I. Sup-port and justify your responses with evidence fromthis essay.

1. What is Brutus' definition of a free govern-ment?

2. According to Brutus, what is the relationshipof the people to their representatives in a free gov-ernment?

3. Why does Brutus believe that free governmentis not possible in a large republic?

4. Compare Brutus' definition of free governmentwith Madison's definition of free government. (SeeLesson 3 for Madison's position.)

Essay IV (Brutus)

November 29, 1787To the Citizens of the State of New York.

There can be no free government where the peopleare not possessed of the power of making the lawsby which they are governed, either in their ownpersons, or by others [representatives] substitutedin their stead.

Experience has taught mankind that legislation byrepresentatives is the . . . only practicable mode inwhich the people of any country can exercise thisright, either prudently or beneficially. But then . . .

this representation [must be] so constituted as to becapable of understanding the true interests of thesociety for which it acts, and so disposed as to pur-sue the good and happiness of the people as itsultimate end. The object of every free governmentis the public good, and all lesser interests yield toit. . . .

. . . [Ijn . a good constitution . . . the power iscommitted to [representatives with] the same feel-ings . . . and . . . the same objects as the people[have] . . . who transfer to them their authority.There is no possible way to effect this but by anequal, full and fair representation. . . . For withoutthis it cannot be a free government; let the admin-istration of it be good or ill, it still will be a govern-

ment, not according to the will of the people, butaccording to the will of a few. . . .

A farther objection against the feebleness of therepresentation [in the Constitution of 1787] is thatit will not.possess_the_confidence of-the people. Theexecution of the laws in a free government must reston this confidence, and this must be founded on thegood opinion they entertain of the framers of thelaws. Every government must be supported, eitherby the people having such an attachment to it . . .

or by a force at the command of the government tocompel obedience. The latter mode destroys everyidea of a free government; for the same force thatmay be employed to compel obedience to good laws,might, and probably would be used to wrest fromthe people their constitutional liberties. . . .

If then this government [Constitution of 1787]should not derive support from the good will of thepeople, it must be executed by force, or not executedat all; either case would lead to tne total destructionof liberty. . . .

Brutus

Respond to the following items about Essays I and IVabove and about The Federalist 10 and 51 in Lesson 3.Read each of the following statements (1-6) and de-cide W. her or not each one is a correct descriptionor interpretation of Brutus' or Madison's ideas aboutfree government. Write "B" in the spaces next tothe statements that agree with Brutus; write "M"next to statements that agree with ,7adison; write"BM" next to statements that agree with both Brutusand MAison; write "X" next to statements thatagree with neither Brutus nor Madison. Supportyour answers with references to specific parts of Es-says I and IV or The Federalist 10 and 51.

1 In a free government, the people exer-cise influence through their elected representativesin government.

2 Elected representatives of the people re-flect directly the traits and interests of their constit-uents.

3 It is unlikely that a free government canbe maintained in a large territory.

4 The greatest threat to free governmentis unlimited majority rule.

5 The most important characteristic of afree government is unlimited rights of individuals.

6 The will of the majority is both necessaryand sufficient to protection of the rights and libertyof individuals in the minority.

6 3

Lesson; /Set II

A Federalist/Anti-Federalist ForumThe different positions of Brutus and Madison

about free government can be the focal points for v._ _ _ .foruman.open.distzission-about-ideas andissues.

THE CORE QUESTION FOR THIS FORUM: Whatare the essential characteristics of a free government?

1. What is Brutus' position on this-core question?2. What is Madison's position on this core ques-

tion?

In responding to these questions, identify the ma-jor strengths or weaknesses of each position andorganize your answers around these key ;:dews.These key ideas of each person are the ones youhave judged to be the most important strengt, xs orweaknesses in his position on free government.

Decide which person, Brutus, the Anti-Federalist,or Madison, the Federalist, had the stronger positionon free government. Select and defend the strongerposition in a classroom forum on the concept of freegovernment in the ratification debate of 1787-1788.

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57

Lesson Set IIIFederalism and Republicanism

Federalists and Anti-Federalists both wanted fed-eralisma system of government in which powersare divided between a government of the UnitedStates and the several State governments. And theyboth insisted upon republicanismgovernmentbased on the will of the people and accountable-tothe people. But, they disagreed in their definitionsof federalism and republicanism.

The Anti- Federalists had the traditional view: afederal union is made by sovereign states who createa general government for certain limited purposes,such as conduct of foreign affairs and protectionagainst external threats. But the general governmentis directly accountable to the states that created it,not to the people. The sovereign states of the federalunion, the basic units of republican government, aredirectly accountable to the people. They believed itwas impossible to have a true republic in a territoryas large as the United States. Only in the smallerareas of the states could the people be properly rep-resented and involved in their government.

By contrast, the Federalists held bold new con-cepts. In their scheme, the people are creators ofboth their national and state governments and bothlevels of government are directly accountable tothem. And not only is it possible to have a national

59

republic in a large territory, such as the domain ofthe United States, it is desirable. Madison believedthe liberty and rights of individuals would be moresecure in a large republic with a diversity of groupsand interests. In such an "extended republic" itwould be harder for a single-minded majority toform and oppress unpopular minorities (see The Fed-eralist 10 and 51). The federal (national) governmentwould have several significant and far-reachingpowers granted only to it; and within its constitu-tionally sanctioaed domain, the federal governmentwould be supreme. The state governments wouldhave many important duties and powers, but theywould not be sovereign, as they were under theArticles of Confederation.

This Lesson Set examines the conflicting concep-tions of federalism and republicanism of the Fed-eralists and Anti-Federalists. And it treats theirdisagreements about the merits of the Constitutionof 1787 as a frame of government that would providea desirable federal republic.

This Lesson Set includes two Teaching Plans andrelated Lessons for students: (a) No. 5: Madison onFederalism and Republicanism and (b) No. 6: Anti-Federalists on Federalism and Republicanism.

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Lesson 5: Teaching PlanMadison on Federalism and Republicanism

Objectives

Students are expected to1) identify and comprehend ideas on federalism

and republicanism in The Federalist 14 and 39;2) examine and explain ideas on federalism and

republicanism in The Federalist 14 and 39;3) find examples of federalism and republican-

ism in the Constitution of 1787 and explainhow they fit ideas of Madison in The Federalist14 and 39;

4) evaluate Madison's position on a compoundfederal republic in The Federalist 14 and 39.


Opening the Lesson

Ask students: what is a federal republic? Is theUnited States of America a federal republic? Can youname four or five countries in the world that arefederal republics? Why are these countries not fed-eral republics: France, United Kingdom of Great Brit-ain, Japan? Why are these countries federalrepublics: Canada, West Germany, India? Discussthese questions briefly and then have students readthe two introductory sections in this lesson.

Carefully examine and discuss with students thediagram and table in the introductory sections. Thediagram shows differences between confederalism,federalism, and unitary form of government; the ta-ble shows the division of powers between two levelsof government in the American federal system.

Developing the Lesson

Have students read the excerpt from The Federalist14. Require them to answer the questions at the endof the document. Conduct a classroom discussionon questions 1-4 that follow the document. Insistthat students explain and support their answerswith reasons drawn from the document. EmphasizeMadison's definitions of republicanism and its re-lationship to his definition of federalism. Highlightthe novelly of Madison's conception of federalismand republicanism and the controversy it created.

Concluding the LessonHave students read the excerpt from The Federalist

39. Require students to answer the questions at theend of the document. Conduct a classroom discus-sion of questions 1-7 that follow the document, andmake certain that students support answers withreferences to specific parts of the document underdiscussion.

Divide students into four groups and clisL._ .utethe four sets of statements on the next page to eachgroup. They are to decide whether or not each ofthe statements agrees with Madison's ideas in TheFederalist 14 and 39. And they must 'ndicate thesource of the evidence for each answer: documentNo. 14, document No. 39, or both numbers 14 and39. Name a chairperson for each groupI, II, III,IVto manage the group's deliberations and deci-sions about its set of statements. At the conclusionof the group meetings, ask each chairperson to cometo the front of the room to represent his or her group.Ask each chairperson in turn to report the group'sanswers.

As the chairperson for Group I reports his or hergroup's answers, other class members should listenattentively and critically. If anyone hears an incor-rect answer, the person should attempt to voice acorrection. Corrections, of course, must be based onevidence in the documents, The Federalist 14 ?..nd 39.The teacher acts as a judge to determine correct an-swers. Repeat this procedure with the chairpersonfor Groups II, III, and IV. It might be fun to keepscore. Award one point to a group for each correctanswer. Subtract one point for each error. Awardone point to a group that corrects another group'serror. At the end of the activity, tally and report thefinal score.

Statements for Group II-1. The Constitution of 1787 establishes an alliance

of sovereign states.1-2. Under the Constitution of 1787, the states give

up all powers of independent action.1-3. The Constitution of 1787 creates a system in

which the state governments retain power toaccept or reject laws of the government of theUnited States.

1-4. The 1787 Constitution proposes a union ofstates in which the national government is di-

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Lessons/Set III

rectly and wholly responsible to the severalstate .governments.

1-5. Republicanism is the same as pure democracy.

Statements for Group H11-1. In a federal republic, state governments

within the nation have certain powers thatthey exercise independently of the nationalgovernment.

11-2. In a federal republic, the federal governmenthas the power to act directly on the severalstate governments, but not on the people ofthese states.

11-3. The process used for ratification of the 1787Constitution is an example of federalism.

11-4. Procedures for amendments to the 1787 Con-stitution include both federal and nationalcharacteristics.

11-5. The sources of power and membership of bothparts of the Congress are examples of themixed characteristics of the Constitution of1787, which includes both federal and nationalfeatures.

Statements for. Group III111-1. A government based solely on majority vote

of a_11 the people is wholly national in its char-acter.

111-2. A pure democracy is necessarily limited to asmall territory with a small population.

111-3. A government that is totally responsive to theseveral states within the nation is wholly fed-eral.

111-4. A republican form of government is alwaysa federal form of government.

111-5. Madison desired a consolidated government.

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Statements for Group IVIV-1. The federal system in the Constitution of

1787 would provide greater security and lib-erty for the states and people of the UnitedStates.

IV-2. A republican form of government can operatein a large territory with a large population.

IV-3. Tice thirteen American state governments in1787 conformed to Madison's definition of arepublic.

IV-4. The Constitution of 1787 proposed a govern-ment with both federal and national charac-teristics.

IV-5. Retention of significant powers by the statesin the Constitution of 1787 is an example ofthe federal character of this document.

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Lesson 5Madison on Federalism Republicanism

Introduction to Key IdeasA republic is a type of government that functions

through elected representatives of the people. In arepublican government, the people are sovereign be-cause their representatives serve at their pleasurefor the common good. In contrast to 3 republic, apure or direct democracy is a form of governmentin which the people govern directly instead ofthrough representatives elected by them. In today'sworld, people tend to use interchangeably the wordsrepublic and representative democracy.

In the world of the 1780s, the republican form ofgovernment was rare; monarchies and aristocraciesprevailed. These ncnrepublican forms of govern-ment function without representation of or partici-pation by the common people In an absolutemonarchy, orte person (king or queen) rules; and inan aristocracy, a small elite group of aristocrats ornobles exercise power in government. Power usuallyis based on heredity in a monarchy or aristocracy.

Americans in the 1780s were committed to repub-licanism, beliefs and practices that support a repub-lic instead of a monarchy, aristocracy, or other non-republican forms of government. They tended toagree that thct rights and liberty of individuals couldonly be secuned through a republican form of gov-ernment. Americans in the 1780s also tended toagree on the need for a federal form of government,one that divided powers between a central or na-tional government and several state governmen'swithin the nation. Furthermore, most Americans ofthe 1780s seemed adamantly opposed to a consoli-dated or unitary government, one in which allpower is exercised by a central or nationa.'i govern-ment.

If a large majority of Americans in the 1780s agreedon their need for a government that was both re-publican and federal, they certainly were dividedabout the kind of federal republic they should have.The Anti-Federalists favored a confederal system,like the government under the Articles of Confed-eration, in which sovereign states would have themost significant powers (see Lesson 6 for discussionof the Anti-Federalist position). Janes Madison inThe Federalist had a different scheme for dividingpowers between a central or national (federal) gov-ernment and several state governme its, one thatenhanced the powers of a national governmentwithin a Federal Union of states. (See the Diagram,Different Forms of Government, on the next page.) ThisDiagram highlights differences in the federal systemfavored by Madison and the confederation form fa-vored by the Anti - Federalists.

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Lessons/Set III

Different Forms of Government

63

k* *

* * * * * * * * * * * * * * * * * * * * * * *

* *

Confederation

4c

4g

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

* * * * * * * * * *

******Federal

* * * * * * * * * *

Unitary* * * * * * * * * * * * * * * * * * * * * * * * * *

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Madison's Model for a Federal RepublicIn Madison's model, the national (federal) gov-

ernment has certain powers that are granted only toit in the Constitution. The state governments alsohave powers that the national government is notsupposed to exercise. See the table on the next pagefor examples of how the Constitutionin line withMadison's model for the federal form of govern-mentdivides powers between the national andstate governments. The table also shows that somepowers are shared by both the national and stategovernments. Notice in the table that some powersare denied strictly to the federal government, someare denied to the state governments, and some aredenied to both levels of government.

In the Madisonian federal system, the powers ofthe national government are limited by the Consti-tution. However, within its Old or range of powers,the national (federal) govethinent is supreme. Thestates can neither ignore nor contradict the Consti-tution and federal laws made under it. Thus, withincertain limits set in the Constitution, the nationalgovernment has supreme power over the states andthe people within the federal system. In this federalsystem, two levels of government (national andstate) exercise power separately and directly on thepeople at the same time. The people of each statemust obey laws of their state government and theirnational government.

In the Madisonian model, the republican govern-ment of the United States would exercise power di-redly on all the states and people or a very largenational domain, extending in 1787 from the AtlanticCoast in the east to the Mississippi River in the westand from the Canadian border in the north to theFlorida border in the south. This scheme for a federalrepublic was bold and innovative, nothing less thanthe daring invention of a political system.

Before Madison, political thinkers ...ere unani-mous in believing that a republic could exist only ina rather small territory, where the people could bein direct contact with representatives who wouldreadily know and respond to their interests andneeds. And before Madison, a federal republic wasconceived only as a loose union of sovereign smallrepublics (this was the idea that Anti-Federalists de-fended against Madison's model of a federal repub-lic).

Madison gave new meaning to the term, federalrepublic, a definition that has persisted until today.In The Federalist, Madison argued that it was bothpossible and desirable to have federalism and re-publicanism in a large territory, such as the UnitedStates. (See The Federalist 10 and 14.) And he arguedthat his "new federalism" occupied the middleground between the extreme confederalism of hisAnti-Federalist foes and the extreme nationalism ofa unitary or consolidated form of government. (SeeThe Federalist 39.)

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Lessons/Set III 65

TABLE 1Examples of How the Constitution Divides Powers

POWERSGRANTED

POWERSDENIED

TO NATIONALGOVERNMENT

TO STATEGOVERNMENTS

TO BOTH LEVELSOF GOVERNMENT

To coin moneyTo conduct foreign

relationsTo regulate commerce

with foreign nations& among states

To provide an army anda navy

To declare warTo establish courts

inferior to theSupreme Court

To establish post officesTo make laws necessary

and proper to carryout the foregoingpowers

To establish localgovernments

To regulate commercewithin a state

To conduct electionsTo ratify amendments to

the federal ConstitutionTo take measures for

public health, safety,& morals

To exert powers theConstitution does notdelegate to thenational governmentor prohibit the statesfrom using

To taxTo borrow moneyTo establish courtsTo make and enforce

lawsTo charter banks :tad

corporationsTo spend money for the

general welfareTo take private property

for public purposes,with justcompensation

To tax articles exportedfrom one state toanother

To violate the Bill ofRights

To change stateboundaries

To tax imports orexports

To coin moneyTo enter into treatiesTo impair obligations of

contractsTo abridge the privileges

or immunities ofcitizens

To grant titles ofnobility

To permit slavery

To deny citizens theright to vote becauseof race, color, orprevious servitude

To deny citizens theright to vote becauseof sex

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Republicanism and Federalismin The Federalist 14

In The Federalist 1. James Madison discussed hisideas on federalism and republicanism. And he de-fended these ideas against Anti-Federalist critics,who argued that it was not possible to have a federalrepublic in a large nation such as the United Statesof America. Examine the following excerpt from No.14 of The Federalist and respond to the items thatfollow this document.



WE HAVE seen the necessity of the Union as ourbulwark against foreign danger, as the conservatorof peace among ourselves, as the guardian of ourcommerce and other common interests, as the onlysubstitute for those military establishments whichhave subverted the liberties of the old world, andas the proper antidote for the diseases of faction[majoritarian tyranny and social instability], whichhave proved fatal to other popular governments,and of which alarming symptoms have been be-trayed by our own. All that remains within thisbranch of our inquiries is to take notice of an objec-tion that may be drawn from the great extent ofcountry which the Union embraces. A few obser-vations on this subject will be the more proper as itis perceived that the adversaries of the new Consti-tution are availing themselves of a prevailing prej-udice with regard to the practicable sphere [size ofthe territory] of republican administration, in orderto supply by imaginary difficulties the want of thosesolid objections which they endeavor in vain to find.

The error which limits republican government toa narrow district [small territory] has been unfoldedand refuted in [The Federalist 10]. . . . [I]t seems toowe its rise and prevalance chiefly to the confound-ing of a -epublic [government by elected represen-tatives of the people] with a democracy [a puredemocracy, governed directly by majority rule of thepeople], and applying to the former [republic] rea-sonings drawn from the nature of the latter [pure ordirect democracy]. The true distinction betweenthese forms was also adverted to on a former oc-casion [The Federalist 10]. It is that in a [pree] de-mocracy the people meet and exercise thegovemmen in person; in a republic they assembleand administer it by their representative., andagents. A [pure or direct] democracy, consequently,

must be confined to a small spot [with few people].A republic may be extended over a large region. . . .

As the natural limit of a [pure] democracy is thatdistance from the central point which will just permitthe most remote citizens to assemble as often as theirpublic functions demand, and will include nogreater number than can join in those functions, sothe natural limit of a republic is that distance fromthe center which will barely allow the representa-tives of the people to meet as often as may be nec-essary for the administration of public affairs. Canit be said that the limits of the United States exceedthis distance? [Madison argues that the territory ofthe United States is not too large to permit effectiverepublican government]. . . .

Favorable as this view of the subject may be, someobservations remain which will place it [a federalrepublic in a large territory] in a light still more sat-isfactory.

In the first place it is to be remembered that thegeneral government is not to be charged with thewhole power of making and administering laws. Itsjurisdiction is limited to certain enumerated objects,whi-h concern all the members of the republic, butwhich are not to be attained by the separate provi-sions of any. The subordinate governments [of thestates], which can extend their care to all those otherobjects which can be separately provided for, willretain their due authority and activity [as the generalor national government will not overwhelm and de-stroy the authority and powers of the state govern-ments]. . .

A second observation to be made is that the im-mediate object of the federal Ccnstitution is to securethe union of the thirteen . . . States, which we knowto be practicable; and to add to thew such otherStates as may arise in [territories on and beyond thewe stern frontier of the United States], which we can-no. doubt to be equally practicable. . . .

Let it be remarked, in the third place, that the[communication] throughout the Union will be fa-cilitated by new improvements. Roads will every-where bk.- shortened and kept in better order;accomodations for-travelers will be multiplied andmeliorated; an interior navigation on our easternside will be opened throughout, or nearly through-out, the whole extent of the thirteen States. Thecommunication between the Western and Atlanticdistricts, and between different parts of each, willbe rendered more and more eaLy by those numerouscanals with which the benefikence of nature has in-tersected our country. . . .

A fourth and still more important consideration isthat as almost every State will on one side or other

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be a frontier, and will thus find, in regard to itssafety, an inducement to make some sacrifices forthe sake of the general protection; so the Stateswhich lie,at the greatest dist ,nce form the heart ofthe Union, and which, of course, may partake leastof the ordinary circulation of its benefits, will be atthe same time immediately contiguous to foreignnations, and will consequently stand on particularoccasions, in greatest need of its strength and re-sources [to provide protection against the threat offoreign powers]... .

I submit to you; my fellow-citizens, these consid-erations, in full confidence that the good sensewhich has so often marked your decisions will allowthem their due weight and effeci; and that you willnever [be influenced by those who argue against aFirm and dose Federal Union of the states and peopleof America]. Harken not to the unnatural voicewhich tells you that the people of America, knit to-gether as they are.by so many cords of affection, canno longer live together as members of the same fam-ily; can no longer continue the mutual guardians oftheir mutual happiness; can no longer be fellow-citizens of one great, respectable, and flourishing[republican] empire. Harken not to the voice whichpetulantly tells you that the form of governmentrecommended for your.adoption is a novelty in thepolitical world; that it has never yet had a place inthe theories of the wildest projectors; that it rashlyattempts what it is impossible to accomplish. No,my countrymen, shut your ears against this unhal-lowed language. Shut your ht arts against the poisonwl tich it conveys; the kindred blood which flows inthe veins of American citizens, the mingled bloodwhich they have shed in defense of their sacredrights, consecrate their Union and excite horx -: atthe idea of their becoming aliens, rivals, enemies.And if novelties are to be shunned, believe me, themost alarming of all novelties, the most wild of allprojects, the most rash of all attempts, is that ofrending us in pieces [weakening or destroying theUnion of the American states] in order to preserveour liberties and promote our happiness. But whyis the experiment of an extended republic to be re-jected merely because it may comprise what is new?Is it not the glory of the people of America that,whilst they have paid a decent regard to the opinionsof former times and other nations, they have notsuffered a blind veneration for antiquity, for custom,or for names, to overrule the suggestions of theirown good sense, the knowledge of their own situ-ation, and the lessons of their own experience? Tothis manly spirit posterity will be indebted for thepo ...ession, and the world for the example, of the

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numerous innovations [such as the idea of an federalrepublic in a large territory] displayed on the Amer-ican theater in favor of private rights and public hap-piness. . . .

Publius

Respond to the following items about "The Federalist 14.Explain and justify responses with evidence and ex-amples in specific parts of the preceding document.

1. Madison emphasizes his distinction of a puredemocracy from a rek .blic. (a) What is the differencebetween these two forms of government? (b) Whydoes Madison stress this difference? (How does thishelp him make his argument for a large federal re-public?)

2. Why does Madison prefer a large federal re-public to a loose confederation of small republics?(According to Madison, how does his model of afederal republic provide greater safety, security, andliberty for individuals and their commti_iities?)

3. Madison makes the following four points infavor of his model of a federal republic:

a. The state governments would retain sig-nificant authority and power within theFederal Union.

b. Foundations for addition of rPw states tothe Federal Union would be established.

c. Better connections and communicationsbetween all parts of the country would beachieved.

d. Protection of all parts of the country againstforeign powers would be increased.

Explain each point and provide examples of eachone.

4. How does Madison respond to critics who faulthis model foz being new or innovative? Do you agreewith him?

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68 James-Madlcm and The Federalist Papers

Republicanism and Federalismin The Federalist 39

In this essay, James Madison explained how theConstitution of 1787 would establish a governmentthat is both republican and federal. He defended hismodel of a federal republic against A ati-Federalistcritics. They claimed that Madison wanted a nationalor consolidated government, not a true federal sys-tem. Madison argued that his model was a blend ofnational and federal elements, and in so doing, heset forth a new conception of federalism Examinethe following excerpt from The Federalist 39 and re-spond to the items that follow this document.


January 16, 1788To the People of the State of New York:

. . . The first question that offers itself is whetherthe general form and aspect of the government bestrictly republican. It is evident that no other form,would be reconcilable with the genius of the peopleof America; with the fundamental principles of theRevolution; or with that honorable determinationwhich animates every vo..ary [supporter] of freedomto rest all our political experiments on the capacityof mankind for self-government. If the plan of theconvention, therefore, be found to depart from therepublican character, its advocates must abandon itas no longer defensible.

What, then, are the distinctive characters of therepublican form? . . .

If we resort for a criterion . . . we may define arepublic to be . . . a government which derives allits powers directly or indirectly from the great bodyof the people, and is administered by persons hold-ing their offiLes during pleasure for a limited period,or during good behavior. It is essential to such a gov-ernment that it be derived from the great body ofthe society, not from an inconsideral le proportionor a favored class of it. . . . It is sufficient for sucha government that the persons administering it beappointed, either directly or indirectly, by the peo-ple; and they hold their appointments by eitherof the tenures just specified. . . .

On comparing the Constitution planned by theconvention with the standard here fixed, we per-ceived at once that it is, in the most rigid sense,conformable to it [and therefore is a republican formof government].. . .

"But it was not sufficient," say the adversariesRota; of the proposed Constitution, "for the con-vention to adhere to the republican form. They

ougi t with equal care to have preserved the fide. alform, which regards the Union as a Confederacy ofsovereign states; instead of which they have fraikteda national government, which regards the Union asa consolidation of the States." And it is asked by whatauthority this bold altd radical innovation was un-dertaken? The handle which has been made of thisobjection requires that it should be examined withsome precision. . . .

First.In order to ascertain the real character ofthe government, it may be considered in relation tothe foundation on which it is to be established; tothe sources from which its ordinary powers are tobe drawn; to the operation of those powers; to theextent of them; and to the authority by which futurechanges in the government are to be introduced.

On examining the first relation, it appears, on onehand, that the Constitution is to be founded on theassent and ratification of the people of America,given by deputies elected nor the special purpose;but, on the other, that this assent and ratification isto be given by the people, not as individuals com-posing one entire nation, but as composing the dis-tinct and independent States to which theyrespectively belong. It is to be the assent and rati-fication of the several States, derived from the su-preme authority in each Statethe authority of thepeople themselves. The act, therefore, establishingthe Constitution will not be a national but a federalact.

That it will be a federal and not a national act, asthese terms are unders.-ood by the objectorsthe actof the people, as forming so many independentStates, not as forming one aggregate nationis ob-vious from this single consideration. the it is to re-sult neither from the decision of a majority of thepeople of the Union, nor from that of a majority ofthe States. It must result from the wzanimoz,s assentof the several States that are parties to it, diffetingno otherwise from their ordinary assent than in itsbeing expressed not by the legislative authority, butby that of the people themselves. Were the peopleregarded in this transaction as forming one nation,the will of the majority of the whole people of theUnited States would bind the minority, in the samemanner as the majority in each State must bind theminority; and the will of the majority must be de-termined either by a comparison of the individualyaks, or by considering the will of the majority ofthe Stan.:;, as evidence of the will of a majority of thepeople of the United States. Neither of these ruleshas been adopted. Each State, in ratifying the Con-stitution, is considered as a sovereign obdy inde-pendent of all others, and only to be bound by its

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Lessons/Set III 69

own voluntary act. In this relation, then, the newConstitution will, if established, be a federal and riota' national constitution.

The ext relation is to the sources from which theordinary powers of government are to be derived.The House of Representatives will derive its powersfrom the people of America; and the people will berepresented in the same proportion and on the sameprinciple as they are in the legislature of a particularState. So far the government is national, not federal.The Senate, on the other hand, will derive its powersfrom the States as political and coequal societies; andthese will be represented on the principle of equalityin the Senate, as they now are in the existing Con-gress [under the Articles of Confederation]. So farthe government is federal, not national.. . .

The difference between a federal and national gov-ernment, as it relates to the operation of the govern-ment, is by the adversaries of the plan of theconvention supposed to consist in this, that in theformer, the powers operate on the political bodiescomposing the Confederacy [the states] in their po-litical capacities; in the latter, on the individual cit-izens composing the nation in their individualcapacities. On trying the Constitution by this crite-rion, it falls under the national not the federal char-acter. . . . But the operation of the government onthe people [as individuals] . . will, in the sense ofits opponents . . designate it, in this relation, anational government.

But if the government be national with regard tothe operation of its powers, it changes its aspect . . .

in relation to the extent of its powers. The idea of anational government involves in it not only an au-thority over the individual citizens, but an indefinitesupremacy over all persons and things, so far as theyare objects of lawful government. Among a peopleconsolidated into one nation, this supremacy is com-pletely vested in the national legislature. . . . In thisrelation, then, the proposed government cannot bedeemed a national one; since its jurisdiction [power]extends to certain enumerated objects only, andleaves to the several States a residuary and inviolablesovereignty [power] over all other objects. It is truethat in controversies relating to the boundary be-tween the two jurisdictions, the tribunal [SupremeCourt] which is ultimately to decide is to be estab-lished under the general government. But this doesnot the: Age the principle of the case. The decision isto be impartially made, according to the rules of theConstitution. . . . Some such tribunal is . . . es-sential to prevent an appeal to the sword and a dis-solution of the compact [Union of the States]. . . .

If we try the Constitution by . . . the authority bywhich amendments [to the Constitution] are to bemade, we find it neither wholly national nor whollyfederal. Were it wholly national, the supreme andultimate authority would reside in the majority of thepeople of the Union. . . . Were it wholly federal. . . the concurrence [agreement] of each State inthe Union would be essential to every alteration[amendment] that would be binding on all. Themode provided by the plan of the convention [Con-stitution of 1787] is not founded on either of theseprinciples. In requiring more than a majority, and. . . in computing the proportion by States, not bycitizens, it departs from the national and advancestowards- the fede-al character; in rendering the con-currence of less than the whole number of statessufficient, it loses again the federal and partakes ofthe national character.

The proposed Constitution, therefore, even whentested by the rules laid down by its antagonists[Anti-Federalists] is, in strictness, neither a nationalnor a federal Constitution, but a composition ofboth. In its foundation it is federal, not national; inthe sources from which the ordinary powers of thegovernment are drawn, it is partly federal and partlynational; in the extent of them, again, it is federal,not national; and finally in the authoritative modeof introducing amendments, it is neither wholly fed-eral nor wholly national.

Publius

Respond to the following items about Madison's ideason republicanism and federalism in The Federalist 39.Support and explain responses with references tospecific parts of this document.

1. What is Madison's definition of a republic?(Identify the essential characteristics of a republic;also see the excerpt in this lesson from The Federalist14.)

2. What is Madison's definition of a federal re-public? (Identify the essential characteristics that arepublic must have in order to be considered fed-eral.)

7 5


3. Madison says that the Constitution would Imo-vide a government "neither wholly federal norwholly national." Why does he say this? In respond-ing to this question, examine and explain thesepoints by Madison in The Federalist 39:

a. The means for ratification of the Consti-tution is an example of federalism.

b. The source of legislative powers in the newConstitution is partly national (House ofRepresentatives) and partly federal (Sen-ate).

c. The operation of the-new governmentwould be an example of nationalism; itwould act directly on incli riduals through-out the nation.

d. The extent or scope of the new governmentwould exemplify federalism, because it isnot supreme over all things but only interms of the powers granted to it in theConstitution; the states would retain sig-nificant powers and would be supremewithin their constitutionally definedsphere of operations.

e. The means for amending the Constitutionis both federal and national, since it re-quires spec,..1 majority votes of both theCongress and the states.

4. Which "character," the federal or the national,prevails in Madison's model of a compound federalrepublic? Is it one that is both federal and nationalin its composition? Explain.

5. Refer to Articles IV, V, and VI of the Consti-t.ttion. Find at least five examples that show howgovernment under the Constitution of 1787 con-formed to Madison's definition of a compound fed-eral republic in The Federalist.

6. Why did his critics in 1787 and his supporters,from then until now, stress that Madison had givena new meaning to the term federal republic?

7. What is your evaluation of Madison's model ofa compound federal republic? (Does he convince youin The .ederalist 14 and 39 of the merits of hisscheme?)

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Lessons/Set III 71

Lesson 6: Teaching PlanAnti-Federalists on Federalism and Republicanism

Objectives

Students are expected to1) identify and comprehend Anti-Federalist

ideas on confederation and republicanism;2) examine and explain Anti-Federalist ideas on

confederation and republicanism in two doc-uments: Liter IV of Agri'. a and Letter XVIIof The Federal Farmer;

3) compare and contrast Anti-Federalist ideas onfederalism and republicanism with ideas ofJames Madison in The Federalist 10, 14, 39;

4) select and defend a position, pro or con, ona constitutional amendment proposed byAnti-_ ederalists at the Massachusetts Ratify-ing Convention.


Opening the LessonRead with students the quotation from a Maryland

Farmer on the first page of this lesson. He claimsthat the definition of federalism m The Federalist iswrong. Then turn to the list of characteristics in theAnti-Federalist definition of federalism (confeder-alism). Go over each statement in this list and ask:How does this definition differ from ideas in theConstitution and The Federalist?

Discuss this question speculatively and briefly asa warm-up for studying this lesson. Then ask stu-dents to read in this lesson from the opening pageto the end of Letter IV by Agr.ppa. Require them torespond to the items at the end of Letter IV.

Developing the LessonDiscuss items 1-3 at the end of the document byAgrippa. Require students to explain and supportanswers with evidence from the document.

Assign Letter XVII by The Federal Farmer. Askstudents to respond to the items at the end of thisdocument. Conduct a discussion ox items 1-3 at the

end of the document by The Federal Farmer. Em-phasize application of Anti-Federalist criteria for afederal system to analysis and evaluation of the Con-stitution of 1787. Have students explain why, ac-cording to the Anti-Federalists, the Constitution of1787 was not an example of federalism. Once again,insist upon use of evidence in relevant documentsto explain and support answers to questions in thisdiscussion.

Concluding the LessonAsk students to read the final section of this lesson,which sets up a proposition for a classroom debateResolved: "That it be explicitly declared that all Pow-ers not expressly delegated by the aforesaid Con-stitution are reserved to the several States to be bythem exercised." This proposal was advanced by theAnti-Federalist minority at the Massachusetts Rati-fyin2, Convention.

Divide the class into two groups: one in favor ofthe proposed amendment (Anti-Federalist position)and the other group against it (Madison's position).Give each groi p time to discuss its position, to selecta three-person team to represent the group in a de-bate, and to plan a strategy for the forthcoming de-bate. Conduct a debate on the resolution. Use thefollowing guidelines to structure the debate.

Have the Pro side present its position first; theCon group follows; each team has a maximum oftwelve minutes to present its position. The Pro sidemay ask three questions of the Con side, then theCon side may ask three questions of the Pro side;establish a two minute time limit for asking and an-swering each question.

Open the discussion to the full class. Studentsmay speak in favor of their side in the debate oragainst the other side. Or they may ask questionsof members of the two teams at the front of the class.The time limit for each speaker is two minutes. Con-clude the activity by asking students to record theiropinions, for or against, on the resolution in thedebate. Report the results to the class.

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Lesson 6Anti-Federalists on Federalism and Republicanism

The Anti-Federalist View of Federalism

Anti-Federalists disputed the definition of feder-alism offered by James Madison and his co-authorsin The Federalist. They claimed to be the true feder-alists in the debate on ratification of the Constitu-tion.

A Maryland Farmer, a prominent Anti-Federalistwriter, said (Baltimore, Maryland Gazette, 7 March1788):

There are but two modes by which men areconnected in society, the one which operateson individuals, this always has been, andought still to be called, national government; theother which binds States and governments to-gether . . . has heretofore been [called] aleague or confederacy. The term federalists istherefore improperly appi.ed to themselves,by the friends and supporters of the proposedconstitution [of 1787]. . . . They [the self-pro-claimed federalists] are national men, and theiropponents [the so-called Anti-Federalists]. . . are federal, in the only true and strict senseof the word.

The Anti-Federalists argued that the Constitutionof 1787 did not fully match the correct definition offederalism (what we today call confederalism or aconfederation). According to the Anti-Federalists, atrue federation (confederation) has these character-istics:

The terms of union in the founding charter (con-stitution) are established by the states.Only the states have authority to amend the char-ter of union [the constitution].Only the states [not the people] are representeddirectly in the legislature of the . onfederation(central government).The government of the confederation (central gov-ernment) deals directly with the states, the basicunits of the system, and through them (the states)with the people.The government of the confederation (central gov-ernment) does not act directly on and over theindividuals of the states; only the state govern-ments do this with regard only to their own citi-zens.The powers of the central government are limitedexactly to those few powers expressly stated anddelegated in the charter of union (constitution)

The Anti-Federalist definition of federalism ex-actly fits the Articles of Confederation, but not theConstitution of 1787. During the ratification debate,the Anti-Federalists claimed that the Constitution,though it had some federal characteristics, woulddevelop into a unitary (consolidated) national gov-ernment. They predicted that the powers and rightsof state governments would be destroyed, and withthem the liberty of the people.

The Anti-Federalist View ofRepublicanism

The key to liberty, according to Anti-Federalists,is direct and substantial representation of the peoplein their government. A true rer. .blic provides a gov-ernment that is close to (not remote from) the peopleit represents. This key, however, would be lost un-der the Constitution of 1787, claimed the Anti-Fed-eralists. They argued that the central governmentwould have too much power at the expense of stategovernments, which would lead to a "consolidationof the states" into a national government. Republi-can government would be lost, they charged, be-cause the people could not be represented properlyin a distant national government.

If the United States became one large republic,governed solely by a national government, then itcould not be a true republic. Why? Because a truerepublic cannot exist in a large territory with a largt.population, claimed the Anti-Federalists. This hadnever happened in human histcry, they said.

Anti-Federalists also pointed to writings of greatpolitical philosophers, such as the celebratedFrenchman: Montes.quieu, who wrote (The Spirit ofthe Laws, 174) that "it is natural for a republic tohave only a small tenitory; otherwise it cannot longsubsist. . . . [By contrast] a large empire supposesa despotic authority in the person who governs."Americans who accepted the wisdom of Montes-quieu believed that a national government of theUnited States could not be a true republic becausethe nation was too large.

The Anti-Federalists emphatically rejected "fed-eralism in a large republic"the position of JamesMadison in The Federalist 10, 14, 39, and 51. Rather,they argued for a confederation of small republics(states) with a very limited central government andstronger state governments (the small republics).

78

Lessons/Set III 73

According to Anti-Federalists a true republic has thefollowing characteristics:

It exists only in a small territory with few people.f.epresentatives in government mirror traits andideas of their constituents; social groups and theirinterests are reflected in the legislature.Majority rule prevails; people have ample oppor-tunity and motivation to participate in their gov-ernment.The government is directly accountable to the peo-ple through regular elections of officials with veryshort terms of office.Government is limited and tyranny prevented pri-marily by majority rule expressed through pop-ular participation in government.The government has little need for strong coercivepowers, because when people are part of theirgovernment, they are likely, to be satisfied with itand conform readily to its rules.

Letter IV of Agrippa, an Anti-FederalistJames Winthrop of Massachusetts tried to influ-

ence the people of his state to reject the Constitutionof 1787. Toward this end, he wrote sixteen letters,with the pseudonym Agrippa, published in the Mas-sachusetts Gazette in 1787-1788. An excerpt fromAgrippa's Letter IV is presented below. Read thisletter carefully and identify the author's ideas aboutfederalism and republicanism.

Letter IV, Agrippa

December 3, 1787To the People.

Having considered some of the principal advantagesof the happy form of government [Articles of Con-federation] under which it is our peculiar good for-tune to live, we find by experience that it is the bestcalculated of any form hitherto invented to secureto us the rights of our persons and of our property.

We find . . . that after the experience of near twocenturies our separate governments [thirteen stategovernments] are in full vigour. . . . The new sys-tem [Constitution of 1787] is, therefore, for such pur-poses, useless and burdensome.

Let us now consider how far [the Constitution of1787] is [likely to contribute to] the happiness of thepeople and their freedom. It is the opinion of theablest writers on the subject, that no extensive em-pire can be governed upon republican principles,and that such a government will degenerate to a

despotism, unless it be made up of a cunfederacy ofsmaller states, each having the full powers of inter-nal regulation [such as the United States under theArticles of Confederation]. This is precisely the prin-ciple which has hitherto preserved our freedom. Noinstance can be found of any free government ofconsiderable extent which has been supported uponany other plan. Large and consolidated empires mayindeed dazzle the eyes of a distant spectator withtheir splendour, but if examined more nearly arealways found to be full of misery. The reason isobvious. In large states the same principles of leg-islation will not apply to all the parts [because dif-ferent people and places have various needs andinterests]. . . . We accordingly find that the verygreat empires have always been despotic. They haveindeed tried to remedy the inconveniences to whichthe people were exposed by local regulations; butthese contrivances have never answered the end.The laws not being made by the people, who feltthe inconveniences, did not suit their circumstances.It is under such tyranny that the Spanish provinceslanguish, and such would be our misfortune anddegradation, if we should submit to have the con-cerns of the whole empire managed by one legis-lature. To promote the happiness of the people it isnecessary that there should be local laws; and it isnecessary that those laws should be made by therepresentatives of those who are immediately sub-ject to the want of them. . . .

It is impossible for one code of laws to suit Georgiaand Massachusetts. They must . . . legislate forthemselves. Yet there is, I believe, not one point oflegislation that is not surrendered [by the thirteenstate governments] in the proposed plan [Consti-tution of 1787]. Questions of every kind respectingproperty are determinable in a continental [national]court [of law], and so are all kinds of criminal causes.. . . No rights are reserved to the citizens. The lawsof Congress [the national legislature] are in all casesto be the supreme law of the land, and paramountto the constitutions of the individual states. TheCongress may institute what modes of trial theyplease, and no plea drawn from the constitution ofany state can avail. This new system is, therefore,a consolidation of all the states into one large mass,however diverse the parts may be of which it is tobe composed. The idea of [a unitary] republic, onan average, one thousand miles in length, and eighthundred in breadth, and containing six millions ofwhite inhabitants all reduced to the same standardof morals, or habits, and of laws, is in itself an ab-surdity, and contrary to the whole experience ofmankind. The attempt by Great Britain to introduce

79


such a system, struck us with horror, and when itwas proposed by some theorist that we should berepresented in parliament, we uniformly declaredthat one legislature could not represent so manydifferent interests for the purposes of legislation andtaxation. This was the leading principle of the rev-olution, and makes an essentL I article in our creed.All that part, therefore, of the new system [Consti-tution of 1787], which relates to the internal govern-ment of the states, ought at once to be rejected.

Agrippa

Respond to the following items about Letter IV ofAgrippa. Explain and justify responses with evidencefrom this document.

1. According to Agrippa, what are the character-istics of a true republic?

2. Why does Agrippa favor a confederation of truerepublics instead of the federal system in the Con-stitution of 1787?

3. Compare and contrast Agrippa's ideas on fed-eralism and republicanism with those of James Mad-ison in The Federalist 10, 14, and 39. (See Lesson 5for information about Madison's position on theseideas.)

Letter XVII of The Federal FarmerThe Federal Farmer, one of the best Anti-Feder-

alist writers, was once thought to have been RichardHenry Lee. This opinion is no longer accepted bymost scholars, who are not sure who he was. TheLetters of The Federal Farmer to the Republican werepublished in the Country Journal of Poughkeepsie,New York from October 8, 1787 to January 23, 1788.The author claimed to have the traditional and truedefinitions of federalism and republicanism, theones held by great political philosophers, such asthe Baron de Montesquieu of France (1689-1755). Ex-amine the following excerpt from Letter XVII of TheFederal Farmer and identify the author's ideas onfederalism and republicanism.

Letter XVIIFrom the Federal Farmer to the Republican

January 23, 1788Dear Sir,

I believe the people of the United States are fullin the opinion, that a free and mild [limited] gov-ernment can be preserved in their extensive terri-tories, only under the . . . forms of a federalrepublic.. . . A question then arises, how far thatsystem partakes of a federal republic. . . . [I]t ap-pears to be the first . . . step to a consolidation ofthe states; that its strong tendency is to that point[a unitary form of government, not a true federalrepublic].

But what do we mean by a federal republic? andwhat by a consolidated government? To erect a fed-eral republic, we must first make a number of stateson republican principles; each state with a govern-ment organized for the internal management of itsaffairs: The states, as such, must unite under a fed-eral head, and delegate to it powers to make andexecute laws in certain . . . cases, under certain re-strictions. . . . To form a consolidated, or one entiregovernment, there must be no state, or local gov-ernments, but all things, persons and property,must be subject to the laws of one legislature alone;to one executive, and one judiciary. . . . A federalrepublic . . . supposes state or local governmentsto exist, as the body or props, on which the federalheld rests. . . . In erecting the federal government. . . each state must be a sovereign body. . . . Aconfederated republic being organized, each statemust retain powers for managing its internal police,and all delegate to the union [central government]powers for managing general concerns [relationswith foreign nations]: The quantity of power theunion must possess is one thing, the mode of ex-ercising the powers given, is quite a different con-sideration; and it is thP mode of exercising them,that makes one of the essential distinctions betweenone entire or consolidated government, and a fed-eral republic; that is, however the government maybe organized, if the laws of the union, in most im-portant concerns, as in levying and collecting taxes,raising troops, [and so forth] operate immediatelyupon the person and property of individuals, enot on states, extend to organizing the militia . . .

the government, as to its administration, as to mak-ing and executing laws, is not federal, but consoli-dated. . . .

Lessons/Set III 75

. . . [T]he people form this kind of government[true federal republic] . . . because their territoriesare too extensive to admit of their assembling in onelegislature, or of executing [carrying out] the lawson free principles under one entire government.They convene in their local assemblies, for local pur-poses, and for managing their internal concerns, andunite their states under a federal head [central gov-ernment] for general purposes. It is the essentialcharacteristic of a confederated republic, that thishead be dependent on and kept within limitedbounds by, the local governments; and it is because,in these alone [the state and local governments] thepeople can be substantially assembled or repre-sented. . . . [I]n this kind of government, the [cen-tral government] powers [are] placed in a few hands,and accordingly limited, and spet_Acally enumer-ated; and the [state governmentF, are] strong and. . . composed of numerous members. Wise menwill always place the controlling power [in govern-ment] where the people [can directly influenceelected representatives who are accountable tothem]. By the proposed system [Constitution of1787], the federal head [central government] willpossess, without limitation, almost every species ofpower that can, in its exercise . . . endanger liberty;while in it . . . the people will have but the shadowof representation, and but the shadow of securityfor their rights and liberties.. . .

There are two ways . . . of raising checks, andguarding against [abuses of power] in a federal sys-tem. The first is . . . to require the attendance of alarge proportion of the federal representatives [inCongress], as two-thirds or three-fourths of them,and in passing laws, in . . . important cases [levyingtaxes, maintaining military forces, and other mattersof great national concern], to require the consent oftwo-thirds or three-fourths of the members present.The second is, by requiring that certain importantlaws of the federal head [central government], as arequisition or a law for raising monies by excise shallbe laid before the state legislatures, and if disap-proved of by a given number of them, say by asmany of them as represent a majority of the people,the law shall have no effect. . . . The [second check]is founded on this principle, that the people will besubstantially represented, only in their state or localassemblies; that their principal security must befound in them; and that, therefore, they ought tohave ultimately a constitutional control over such[important] measures. . . .

The Federal Farmer

Respond to the following items about Letter XVII of TheFederal Farmer. Explain and defend your renponseswith evidence in the preceding document.

1. According to The Federal Farmer, what are theessential characteristics of a true federal republic?

2. According to The Federal Farmer, how doesthe Constitution of 1787 deviate from the correctdefinition of a federal republic?

3. How do ideas of The -7ederal Farmer on fed-eralism and republicanism differ from those of JamesMadison in The Federalist 10, 14, and 39? (See Lesson5 for information about Madison's ideas.

A Federalist/Anti-Federalist DebateThe conflicting ideas of James Madison and the

Anti-Federalists on federalism and republicanismcan be objects of a classroom debate. The debate canbe organized around an amendment to the Consti-tution of 1787 that was proposed by the Anti-Fed-eralists at the Massachusetts Ratif-ing Convention.The proposed amendment follows:

RESOLVED: That it be explicitly declared thatall Powers not expressly delegated by theaforesaid Constitution are reserved to the sev-eral States to be by them exercised.

Two groups of students should be formed: one infavor of the proposed amendment (Anti-Federalistposition) and the other against it (Madison's posi-tion). Each group should meet to discuss ideas to beused in support of its position in a formal debate.Then t1-1-ee members of each group should be se-lected to represent the group in a debate before thefull class. The teacher will establish time limits forspeeches and other rules for the debate.

Notice the similarity of the proposed amendmentto the Tenth Amendment to the Constitution of theUnited States, which was approved in 1791:

The powers not delegated to the United Statesby the Constitution, nor prohibited by it to theStates, are reserved to the States rczpectively,or to the people.

The most significant difference in the two state-ments is the use of "expressly" before "delegated"in the Massachusetts proposition. According to bothsides in this argument, the presence or absence ofthis word, expressly, would make a great differencein the interpretation one could make about limits onthe powers of the federal or central government inrelationship to the state governments. Argumentsin this classroom debate should focus on the signif-icance of "expressly delegated" in the Massachusettsproposal.

81

Lesson. Set IVSeparation of Powers and Limited Government

Limited government means that officials cannotact arbitrarily. Ra::Ier, they are bound by the higherlaw of a constitution, which guides and limits theiruse of power. A constitutional government is a lim-ited government.

Separation of powers among three branches ofgovernmentlegislative, executive, and judicialisa fundamental means to limited government in theConstitution of the United States. James Madisonsummarized his position on the separation of pow-ers in The Federalist 47: "The accumulation of all pow-ers, legislative, executive, and judiciary, in the samehands, whether of one, a few, or many, and whetherhereditary, self-appoi Lted, or elected, may justly bepronounced the very definition of tyranny. . . ."

The ultimate purpose ..)f separation of powers, ameans to limited government, is protection of therights and liberty of individuals. In a republican gov-ernment, one based on the will of the people, Mad-ison believed that a great danger to liberty wouldcome from majority rule expressed through the peo-ple's representatives in Congress. So, he was es-pecially eager to build into the Constitution limitson the power of the House of Representatives. Thus,the Congress is divided into two branches; the pow-ers of the Senate and the House of Representatives

77

can be circumscribed and checked. This model ofgovernment also requires the executive and the leg-islative branches to check one anothe.-

The Madisonian system provides for separationand sharing of powers by three distinct branches ofgovernment. For the system to work, each branchmust have some say in the work of the others as away to check and limit the power of the others. Nobranch can accumulate t.-)o much power. But eachbranch, and the government generally, has enoughpower to do what the people expect of it. So thegovernment is both limited and strong, neither toostrong for the liberty of the people nor too limitedto be effective in maintaining order, stability, andsecurity for the people.

This Lesson Set treats three related ideas: separa-tion of powers, checks and balances, and limitedgovernment. Madison's views are presented in TheFederalist 47, 48, 51. The opposing Anti-Federalistposition is presented ;rt Essay I by Centinel (SamuelBryan of Pennsylvania).

This Lesson Set has two Teaching Plans and relatedLessons fir students. (a) No. 7: Madison on Separa-tion of Pz avers and (b) No 9: Centinel's Anti-Fed-eralist Ideas.

t

(


Lesson 7: Teaching PlanMadison on Separation of Powers

Objectives

Students are expected to

1) identify and comprehend James Madison'sideas on separation of powers in The Federalist47, 48, and 51;

2) examine and explain ideas on separation ofpowers in The Federalist 47, 48, 51;

3) find examples of separation of powers in theConstitution of the United States and explainhow they fit ideas expressed by Madison inThe Federalist;

4) evaluate ideas on separation of powers interms of criteria in The Federalist.


Opening the LessonAsk students: What is separation of powers in

government? What is checks and balances in gov-ernment? Why are they included in the Constitu-tion? Have students read the two intrcductory pagesto this chapter to reinforce knowledge of these ideasthat they bring to the lesson from other sources.

Take a few moments to go over the diagram inthe first part of the lesson, which illustrates the re-lated concepts of separation of powers and checksand balances. Discuss this diagram to make certainthat students have a rudimentary knowledge of sep-aration of powers and checks and balances.

Developing the LessonHave students read the excerpts from The Federalist

47, 48. Check students' comprehension of mainideas in the reading assignment by reqdring themto complete the exercise at f .e end of the two doc-uments. Statements in item 3 that agree with Mad-ison are: b and d.

Assign the excerpt from The Federalist 51. Havestudents turn to the five items on the final pages ofthe lesson. Have students complete items 1-5 inpreparation for a classroom discussion.

Concluding the LessonConduct a classroom discussion on items 1-5 in

the set of exercises at the end of the lesson. Requirestudents to support or explain their answers by re-ferring to pertinent parts of The Federalist 47, 48, and51. In general, ask students to give reasons for theiranswers and encourage students to challenge theanswers and reasons of their peers whenever- theythink that insufficient justification hz.s 'een pro-vided for an answer.

Discussions of items 1-5 should emphasize the in-terrelated civic values of limited government, therule of law, and ordered liberty as desired ends orgoals of separation of pov, ers as a basic principle ofgovernment in the Constitution.

NOTE: Other essays in The Federalist that includediscussion of separation of powers, in combinationwith other topics, are numbers 9, 37, 49, 50, 66, 70,75, and 78. Interested students might be referred toone or more of these essays.

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Lesso is/Set IV 79

Lesson 7Madison on Separation of Powers

IntroductionSeparation of powers, a major principle of the U.S.

Constitution, is the distribution of power amongthree branches of government: (1) the legislative, (2)the executive, and (3) the judicial. The legislativebranch (Congress) has power, according to Article Iof the Constitution, to make certain kinds of laws.In Article II, the Constitution says that the executivebranch (headed-by the President) has power to en-force or carry out laws. The judicial branch (headedby the Supreme Court) is established in Article IIIof the Constitution to interpret and apply the lawin federal court Lases.

Separation of powers in American government isbased on writings of two eminent political philoso-phers, John Locke of England (1632-1704) andCharles Secondat Baron de Montesquieu of France(1689-1755). However, the great American philoso-pher-statesman, James Madison, gave his own spe-cial touch to the application of this principle toconstitutional government in the United States.

In James Madison's model of constitutional gov-ernment, the separation of powers among threebranches is a means to limited government. It issupposed to prevent any person or group in thegovernment from having enough cower to becomea tyrant and oppress the people. According to Mad-ison, concentration of unlimited power leads inev-itably to tyranny because holders of such power arenever able to resist the temptation to abuse .t. Mad-ison believed that if power is divided, it is less :ikelyto be used to deprive people of their liberty, thehighest end of government.

However, neither the Madisonian model nor theU.S. Constitution completely separates powers ofgovernment among the three branches. The Con-stitution empowers the executive to check the leg-islature, and divides the legislature into two bodiee(Senate and House of Repiesentatives) that wouldcheck and balance each other. Madisun also wantedthe executive and the Senate to collaborate to checkthe threat of majoritarian tyrannybased on the willof the masses of peoplethat might emerge fromthe popular body of the legislature, the House ofRepresentatives. (See Lesson Set II, Lesson 3, fordiscussion of Madison's fears of majoritarian tyr-anny.)

Separation and sharing of powers in the Consti-tution are shown by the President's participation in

lawmaking through the veto, the chief executive'spower to reject a law passed by Congress. And thelegislative branch is involved in the exercise of ex-ecutive power through its power to approve thePresident's appointments of executive officials.These are merely two examples, of many, to showthat the Constitution, in line with the Madisonianmodel of government, permits sharing of poweramong the three separate branches.

There is a constitutional system of checks and bal-ances, whereby each branch can limit the powers ofthe others. For example, the President can checkCongress with the veto. But the President's veto canbe overturned by a subsequent 213 vote of Congress.This is one of several checks exeicised by one branchover the others to keep the power of governmentbalanced and limited. There is a constitutional gov-ernment of separated branches that share power.Each separate branch of the government has someinfluence over the actions of the others, and nobranch can exercise its powers without cooperationfrom the others.

This emphasis on separation of powers as a means-to limited government was not supposed to preventthe government from taking effective action in linewith majority rale or the popular will. Madisonknew that if constitutional limits on governmentwere too strict, it would be too weak to carry outduties that the people expected of it. A governmenttoo limited by law would not be able to enforce lawsand maintain public order and security.

iison wanted an effective constitutional gov-ernment that would be neither too powerful nor tooweak. He sought a workable balance uetween pow-ers granted to government, in the name of the peo-ple, and limits on those powers on behalf ofindividual liberties and rights.

8.


Separation of Powers and Checks and Balances

The President

Executive office ofthe president;

executive and cabinetdepartments;independent

goVernment agencies

EXECUTIVE

S

ahAnn

Congress can change laws;initiate a constitution;.. amendment;restrict jurisdiction of courts to heat

certain types of cases;create whole new court

or abolish existing ones;expand or contract times and places that

federal courts sit

The Congress

HouseSenate

May reject eachother's bills

LEGISLATIVE

The Senate must confirm thepresident's judicial appointments;Congress can impeach and remove

judges from office

1AL JuslIce UN

The Court can declare lawsunconstitutional

frwww,

85

ijj JUDICIAL

The SupremeCourt of tneUnited States

Circuit Court ofAppeals of theUnited StatesDistrict Court

Lessons/Set IV 81

Separation of Powers in The Federalist

Madison expressed ideas on separation of powersand limited government in The Federalist 47 and 48.Excerpts from these two essays are presented below.


January 30, 1788To the People of the State of New York

. . . The accumulation of all powers, legislative,executive, and judiciary, in the same hands,whether of one, a few, or many, and whether he-reditary, self-appointed, or elective, may justly bepronounced the very definition of tyranny. . . . Inorder to form correct ideas on this important subjectit wilLbe proper to investigate the sense in whichthe preservation of liberty requires that the threegreat departments of power should be separate anddistinct.

The oracle who is always consulted and cited onthis subject is . . . Montesquieu. . . .

. . . [Hie didnot mean that these departments[three branches of government] ought to have nopartial agency in, or no control over [checks of onebranch on another] the acts of each other. His mean-ing . . . can amount to no More than thi. thatwhere the whole power of one department is exer-cised by the same hands, which possess the wholepower of another department, the fundamentalprinciples of a free constitution are-61.117verted. . . .

[Montesquieu says] "When the legislative and ex-ecutive powers are united in the swirl, person orbody, thele can be no liberty, because . . . the samemonarch or senate . . . [would] enact tyrannical lawsto execute them in a tyrannical manner." Again:"Were the power of judging joined with the legis-lative, the life and liberty of the subjects would beexposed to arbitrary control, for the judge would thenbe the legislator. Were it joined to the executivepower, tl'e judge might behave with all the violenceof an oppressor." Some of these reasons are more fullyexplained in other passages; but briefly stated . . .

they sufficiently establish the meaning which wehrve put on this celeb:ated maxim of this celebratedauthor [establish separation of powers among threebranches of government, but also some sharing ofpowers to enable each branch to stop the others fromhaving too much power]. . . .

Pub'ius


f'ebrizary 1, 178STo the Poople of the State of New York:

. . . I shall . . . show that unless these depart-ments [three branches of government] be so far con-nected and blended as to give to each a constitutionalcontrol over the others [checks and balances], thedegree of separation . . . essential to a free govern-ment . . . can never in practice be c,ly maintained.

It is agreed . . . that the powers properly belong-ing to one of the departments ought not to be di-rectly and completely administered by either of theother departments. It is equally evident that noneof them ought to possess . . . an overruling influ-ence over the others in the administration of theirrespective powers. It will not be denied that poweris of an encroaching nature and that it ought to beeffectively restrained from passing the limits as-signed to it. . . .

Will it be sufficient to mark, with precision, theboundaries of these departments in the constitutionof the government, and ,o trust to these parchmentbarriers against the encroaching spirit of power? . . .

The condmion . . is that a mere demarcation onparchment of the constitution_: ;Mug Of the several`departments is not a sufficient guard against thoseencroachments which lead to a tyrannical concen-tration of all the powers of government in the samehands.

Publius

Review id..as in The Federalist 47 and 48.

1. What is Madison's definition of separation ofpowers? (How is the related idea of checks and bal-ances linked to separation of powers in Madison'sdefinition?)

2. How is separation of powers with checks andbalances connected to limited government and pro-tection of in -lividuai rights and liberties?

3. Examine the following statements and eocidewhich items agree or disagree with Madison's iaeas.Make a checkmark next to each statement that agreeswith Madison. Refer to The Federalist 47 and 48 toexplain and support your answers.

a Separation of powers in the Constitutionmeans that each branch of government is detachedtotally from the other branches in exercise of powersand duties.

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b Separation of powers in the Constitutioninvolves sharing, of duties and powers in govern-ment as a means to limited government.

c The system of checks and balances in theConstitution interferes with and undermines sepa-ration of powers -Is a means to limited government.

d Madison agrees with the ideas of Mon-tesquieu on separation of -powers.

e State governments in tit( United satesdid riL` practice the principle of separation of powersas defined by Madison.

Examine the excerpt from The Federalist 51, whichfollows. Many scholars have Ildged this essay andNo. 10 to be Madison's best work in The Federalist.What is your judgment of this work? What arc themain ideas in it? To what extent do you ag, se ordisagree with them? Why?



TO WHAT expedient, then, shall we finally resort,for maintaining in practice the necessary partitionof power among the several departments [branches

-of -government] as lard' Clown in Ifie Constitution?The only answer . . . is . . . by so contriving theinterior structure of the government [a system ofchecks and balances] as that its several constituentparts may, by their mutual relations, be the meansof keeping each other in their proper places.. . .

But the great security against a gradual concen-tration of the several powers in the same departmentconsists in giving to those who administer each de-partment the necessary constitutional means [checksand balances] and personal motives to resist en-croachments of the others. The provision for defensemust . . . be [suited] . . . to the danger of attack.Ambition must be made to counteract ambition. Theinterest of the man must be conr.ected with th.. Lon-stitutional rights of the place. It may be d reflectionon human nature that such devices should be nec-essary to control the abuses of government. Butwhat is government itself but the greatest of all re-flections on human nature? If men were angels, nogovernment would be necessary. If angels were togovern men, neither external nor internal controlson ,government would be necessary. In framing agovernment which is to be administered by menover men, the great difficulty lies in this: you mustfirst enable the government to control the governed;and in the next place oblige it to control itself. A

dependence on the people is, no doubt, the primarycontrol on the governor.:- t, but experience hastaught mankind the necessity of auxiliary precau-tions [design of a constitutional system of checksand balances].

This policy of supplying, by opposite and rivalinterests, the defect of better motives, might betraced through the whole system of humanprivate as well as public. We see it particu lis-played in all the subordinate distributions of 1....,wer,where the constant is to divide and arrange theseveral offices in such a manner as that each maybe a check on the otherthat the private interest ofevery individual may be a sentinel over the publicrights. These inventions of prudence cannot be lessrequisite in the distribution of the supreme powersof the State.

But it is not possible to give to each departmentan equal power of self-defense. In republican ge,v-ernment, the legislative authority necessarily pre-dominates. The remeoy for this-. . . is to divide thelegislature into different branches [Senate andHouse of Representatives] and to render them, bydifferent mocks of election and different principlesof action, as little connected with each other as [pus-

.even-be .necessary. 40-guard-againstdangerous encroachments by still further precau-tions. As the weight of the legislative authority re-quires that it should be thus divided, the weaknessof the executive may require . . . that it should befo, tified. An absolute negative [veto power] on thelegislature appears . . . to be the natural defensewith which vile executive magistrate should bearmed. [But this veto power could be misused if notchecked in turn by the legislature.]

. . . In a single republic [unitary government] allthe power . . . is submitted to . . . a single gov-ernment; and the usurpations are guarded againstby a division of the government into distinct andseparate departments. In the compound repubE o'America [federal system of governmeri ], the pm, er. . . is first divided between 'avo distinct gm n-ments [federal and state], and then the porti..lotted to each subdivided among dist.. at andseparate departments [three separate bt nt.!. es ofgovernment with checks and balances]. Hence adouble security arises to the rights of the people.The different governments will control each other,at the same time that each will be controlled by it-self. . . .

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O7

Lessons/Set IV

Examining Ideas on Separation of PowersRefer to the preceding excerpts from The Federalist

47, 48, 51 to find ideas and information on which tobase answers to the following questions. Be pre-pared to support answers with references to specificparts of these essays.

1. In The Federalist 47, Madison says: "The accu-mulation of all powers, legislative, executive, and

iciary, in tie same hands, whether of one, a few,or many, and whether hereditary; self-appointed, orelective, may justiy be pronounced the very defi-nition of tyranny." What does this statement sayabout the value of separation of powers? Do youagree with this statement? Explain.

2. Refer to Articles I, II, and III of the Constitutionof the United States. (a) Find at least three examplesthat show how the powers of government are sep-arated among three distinct branches of govern-ment. ('o) Find at least three' xamples of sharing ofpowers among the three branches of governmentthat show how the powers of the federal govern-ment are not completely separated. (c) Does thestructure of government in Articles I, II, and HI ofthe Constitution fit Madison's definition of separa-tion of powers? Explain.

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3. In 1952 (Youngstown Company v. Sawyer), Su-preme Court Justice Robert Jackson said: "While theConstitution diffuses power the better to secure lib-erty, it also contemplates that the practice will in-tegrate the dispersed powers into a workablegovernment. It enjoins upon its branches separate-ness but interdependence, autonomy but reciproc-ity." Does this statement by Justice Jackson agreewith Madison's view of separation of powers ex-pressed in The Federalist? Explain.

4. In 1789, at the first session of Congress, severalmembers wanted to add the following amendmentto the Constitution: "The powers delegated by thisConstitution are appropriated to the departments towhich they are respectively distributed so that thelegislative departme shall never exercise the pow-ers vested in the executive or judicial, nor the ex-ecutive exercise the powers vested in the legislativeor judicial, nor the judicial exercise the powersvested in the legislative or executive departments."This proposed amendment to the Constitution wasvoted down in Congress. (a) Does this proposedamendment agree with ideas on separation of pow-ers favored by Madison in The Federalist? Explain (b)What is your judgment of this proposed constitu-tional amendment? (Do you agree with it? Shouldit be added to the Constitution? Why?)

5. Do the following statements agree witli theideas of Madison? (a) Government officials electedfreely by a majority vote of he people should betrusted to have all powers in government. (b) Themain check or control on the power of governmentis active and intelligent participation of the people.

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Lesson 8: Teaching PlanCentinel's Anti-Federalist Ideas

ObjectivesStudents are expected to1) identify and comprehend the ideas of Centinel

(Samuel Bryan) in Letter I, which pertain toseparation of powers and limited goVernment;

2) examine and explain the ideas of Centinel inLetter I as an example of Anti-Federalist think-ing about separation of powers and limitedgovernment;

3) compare and contrast the ideas of Centinelwith ideas of James Madison in The Federalist47, 48, and 51;

4) take and defend a position, pro or con, on theideas of Centinel and Madison about separa-tion of powers and limited government.


Opening the LessonRead the following quota:ton from Centinel, Letter

1: ITjhe-forirrof-government-; which -holds -thoseentrusted with power, in the greatest responsibilityto their constituents [is] the best calculated for fn.e-men." The reason is that "in such a government thepeople are sovereign and their sense of opinion isthe criterion of every public measure."

Ask students to discuss the meaning of this st,t.e-ment and then indicate that it expresses a majorAnti-Federalist idea: direct and persistent popularinfluence on government is the best means to protectliberty and prevent tyranny. Assign the introductionto this lesson, which presents an elaboration of thiskey Anti-Federalist idea and the differences betweenAnti-Federalists and Federalists on separation ofpowers and limited government.

Developing the LessonRequire students to read the excerpt from Centi-

nel, Letter I. Ask them to prepare answers to the fourquestions at the end of the document. In preparingthese answers, they must refer to specific parts of

ocument and to parts of The Federalist 47, 48,and 51 (in Lesson 7).

Conduct a classroom discus-ion on the four ques-tions in this assignment. Focus student attention onthe text of the document throughout the discussion.Require discussants to ..xplain and justify responseswill: reference to the document.

Concluding the LessonAsk students to read the final section of the lesson:

Roundtable Discussion on the Ideas of Centinel (SamuelBryan) and Madison on Separation of Powers and LimitedGovernment. Focus attention on the three core ques-tions about the ideas of Centinel and Madison onseparation of powers and limited government.

Divide students into two grout ,: those favoringthe deas-of Centinel -and- those-favoring -the-ideasof Madison. Arrange the chairs in a circular fashionand have the two groups sit facing one another. Askthe Madison grnup to respond to question 1 and tojustify the main points in this position as superiorto the alternative position. Ask the Centinel groupto listen carefully ard critically. Then prompt themto react to the Madison group with questions andcriticisms.

Reverse the procedure followed above by askingthe Centinel group to respond to question 1 andhaving the Madison group serve as reactors to thispresentation. Encourage give and take among thestudents on different sid:-'s of this discussion.

Conclude the discussion by asking all students torecord their preferences for either the positions ofCentinel or Madison. Tally the results of this polland report the results to the class.

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()

Lessons/Set IV

Lesson $Centinel's Anti-Federalist Ideas

Introductioncentinel (pseudonym), an Anti-Federalist from

PennsyNania, wrote eighteen "Letters" to the citi-zens of his state during the debate on ratificatinn-ofthe Constitution. At that time, the Centinel utterswere thought to have been written by Judge GeorgeBryan, a leading Pennsylvania judge. However,Judge Bryan's son, Samuel, claimed authorship inseveral private letters. Most scholars today accepthis claims, but they also recognize that Samuel Bryanworked closely with his father and expressed ideasin the Centinel Letters that were derived from JudgeGeorge Bryan. The Ce) tinel Letters were printed inthe Philadelphia Independent Gazetteer and PhiladelphiaFreeman's Journal. They were widely reprinted andcirculated in the United States. In Letter I, generallythought to be the best in the series, Centinel pre-sented alternatives to Federalist arguments for sep-aration of powers in a limited government.

In The Federalist 47-51, James Madison discussedseparation of powers among three branches of gov-ernment: legislative (making laws), executive (en-

---_forcing.laws),_aad_judicirpretinglaws),Eaclbranch would also have some shat in the conductof the duties of the other branches in order to checkand balance the powers of government (e.g., thePresident's power to veto laws and the Senate'spower to approve presidential appointments). (SeeLesson 7 for discussion and examples of Madison'sideas on separation and sharing of powers amongthe three branches of government.)

Madison believed in a well-structured Constitu-tion as the means to limit the powers of governmentan, protect the liberty of individuals. Constitutionalseparation and sharing of powers among threebranches of government would prevent any personfr-n having enough power to oppress others. And

branch of government would have p(.),,r toch -ck the others to prevent tyranny. In the Madi-sonian model, each branch of government would beaccountable for its actions to the other branches, andall three branches would ultimately, if indirectly, beaccountable to the people, the source of all govern-mental authority.

Madison was especially concerned about limitingthe power of popularly elected legislators, becausethey would be prone to acts of tyranny, based onthe majority will, against unpopular individuals. So

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he he insisted upon the division of the legislature intotwo parts (a House of Representatives and a Senate)that would check and balance the powers of eachother.

Centinel and other Anti-Federalists disagreedwith the Madisonian model of a well-structured gov-ernment as the best way to lin r the powers of gov-ernment and protect the rights and freedom of thepeople. Rather, they would limit the gcrt rnment bymaking it directly accountable to the people, whowould make sure that their representatives reflectedtheir opinions and interests. Unlike Madison, theAnti-Federalists did not fear the tyranny of the ma-jority. They believed that if the government directlyreflected the will of the majority, then it would bea free government.

Anti-Federalists emphasized the following ideason how to design a government that would be di-rectly responsive and accountable to the people:

Hold regular and frequent elections, so that rep-resentaives who do not, satisfy the majority oftheir constituents can be voted out of office.Have short terms of office with strict limits on the

umber of limes^a-person-cante*re=eletted-solhat.----officials do not have time and opportunity toamass too much power and to ignore the w'of their constituents.Emphasize powers of the popularly elected leg-islature because it is the branch most responsiveto the will of the majority of the people.Separate the powers of the three branches strictlyand simply so that the people can clearly see whois responsible for the actions of the governmentand can assign blame for wrongdoing.

The Anti-Federalists did NOT reject the principleof separation of powers among three branches ofgovernment. Rather, they rejected the Madisonianmodel of it. They criticized the Constitution of 1787because there was too little separation and too muchsharing of powers, especially by the executive andthe Senate in opposition to the popularly-electedHouse of Representatives. Furthermore, Anti-Fed-eralists disliked the complexity of the Madisonianmodel becau1,2 it seemed to blur lines of responsi-bility.

Patrick Henry of Virginia said, "A constitutionought to be, like a beacon, held up to the public eye,so as to be understood by every man. But this gov-ern.rient is of such an intricate and complicated na-

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ture, that no man on this earth can know its realoperation." Thus, according to an Anti - FederalistMaryland Farmer, "It can never be discovered wheicthe fault lies."

Centinel on Separation of Powersand Limited Government

Centinel (Samuel Bryan) in his Letter I expressedthe views of many Anti-Federalist critics of the Con-stitution of 1787. Examine the following excerpt fromthis document and identify Centinel's main ideas.Compare these ideas to the Madisonian position onseparation of powers.

Centinel, Letter

October 5, 1787To the Freemen of Pennsylvania.

. . . The late [Constitutional] Convention havesubmitted to your consideration a plan of a newfederal governmentThe .,ubject is highly interest-ing to your future welfare Whether it be calculatedto pre-note the great ends of civil society, viz. thehappiness and prosperity of the community; it be-hooves you well to consider. . . . All the blessingsof liberty and the dearest privileges of freemen arenow at- stake and dependent on yourJresent con-duct.. . .

I am fearful that the principles of government [inthe new Constitution will not noteci the liberty ofthe people]... .

I [want] to expose the futility and counteract thebaneful tendency of such principles IMy op-ponents say] the only effectual method to secure therights of the people and promote their welfare is tocreate an opposition of interests between the mem-bers of two distinct bodies, in the exercise of thepowers of government, and balanced by those of athird [the principle of separation of powers]. Thishypothesis supposes human wisdom competent tothe task of instituting three co-equal orders in gov-ernment, and a corresponding weight in the com-munity to enable them respectively to exercise theirseveral parts, and whose views and interests shouldbe so distinct as to prevent a coalition of any two ofthem for the destruction of the third. [However,there h. no evidence in history that such a principleof govemment has never been practiced success-fully.] If si., n an organization of power were prac-ticable, how long would it continue? riot a day - -forthere is so great a disparity in the talents, wisdomand industry of mankind, that the scale would pres-

ently preponderate to one or the other body, andwith every accession of powe- the means of furtherincrease would be greatly extended.. . . [T]he onlyoperative and efficient check apon the conduct ofadministration [of government] is the sense of thepeople at large [the will of the people expressedeffectively to representatives in government].

. . . [T]he form of government, which holds thoseentrusted with power, in the g:eatest responsibilityto their constituents [is] the best calculated for free-men. A republican, or free government, can onlyexist where the body of the people are virtuous, andwhere property is pretty equally divided; in such agovernment the people are the sovereign and theirsense or opinion is the criterion of every public meas-ure; for when this ceases to be the case, the natureof the government is changed, and an aristocracy,monarchy or despotism will rise on its ruin. Thehighest responsibility is to be attained in a simplestructure of government, for the great body of thepeople never steadily attend to the operations ofgovernment, and for want of due information areliable to be imposed onIf you complicate the planby various orders [separation of powers with checksand balances], the people will be perplexed and di-vided in their sentiments about the source of abusesor misconduct, some will impute it to the senate,others to the house of representatives, and so on,that the interposition of the people may be renderedimperred or pefiiapr-Qicillraliiiiiiiiinjuf if, imi-tating the constitution of Pennsylvania, you vest allthe legislative power in one body of men . . . electedfor a short period, and necessarily excluded by ro-tation [changes in persons occupying places in thegovernment] from permanency . . . you will createthe most perfect responsibility for then, wheneverthe people feel a grievance they cannot mistake theauthors, and will apply the remedy with certaintyand effect, discarding them at the next election. Thistie of responsibility will obviate all the dangers ap-prehended [feared] from a single legislature, andwill the best secure the rights 0: the people.. . .

. . . I shall now proceed to the examination of theproposed plan of government [Constitution of 1787],and I trust, shall make it appear . . . that it has noneof the essential requisites of a free government. . . .

. . . [T]he all-prevailing power of taxation, andsuch extensive legislative and judicial powers arevested in the general government, as must in theiroperation, necessarily absorb the state legislaturesand judicatories, and [destroy the thirteen State gov-ernments and the liberties of the people]. . . .

Having taken a review o. the powers, I shall nowexamine the construction of the proposed general

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Lessons/Set IV 87

government. [The legislature is divided into twoparts: the House of Representatives and the E :tate.]

Thus we see, the house of representatives, are onthe part of the people to balance the senate, who Isuppose will be composed of the Letter sort, the wellborn, etc. The number of representatives (being onlyone for every 30,000 inhabitants) appears to be toofew, either to communicate the requisite informationof the wants, local circumstances and sentiments ofso extensive an empire, or to pr.-:-vent corruption andundue influence, in the exercise of such great powers; the term for which they .are to be chosen, too,long to preserve a due dependence and accounta-bility to their constituents [the people who electedthem]... .

The senate, the great efficient body in this plan ofgovernment, is constituted on the most unequalprinciples. The .mallest state in the union has equalweight with the great states of Virginia, Massachu-setts, or PennsylvaniaThe Senate, besides its leg-islative functions, has a very considerable share inthe Executive; none of t' -incipal appointmentsto office can be made witho4... its advice and consent.The term and mode of its appointment will lead topermanency; the members are chosen for six years,the mode is under the control of Congress, and asthere is no exclusion by rotation [provision forchange in the persons who hold the office], they

may-be> continu ed-for-liferwhichrfrom theirexten-sive means of influence, would follow of course. ThePresident, who would be a mere pageant of state[symbolic leader without real power], unless he co-incides with the views of the Senate, would eitherbecome the head of the aristocratic junto [clique] inthat body or its minion [lackey]; besides, their influ-ence being the most predominant could the best se-cure his re-election to office. And from his k ower ofgranting pardons, he might skreen [protect] frompunishment the most treasonable attempts on theliberties of the people, when instigated by the Sen-ate.

From this investigation into the organization ofthis government [Constitution of 1787], it z.ppearsthat it is devoid of all responsibility or accountabilityto the great body of the people, and that so far frombeing a regular balanced government, it would bein practice a permanent ARISTOCRACY.. . .

Centinel

Examine Centinel's ideas on separation of powers andlimited government. Answer the questions below,which pertain to the preceding excerpt from Centi-nel's Lette; I. Be prepared to justify or give reasonsfor answers with references to specific parts of thisdocument.

1. According to Centinel, how can the power ofgovernment be limited to protect the liberty of thepeople?

2. What were Centinel's criticisms of separationof powers in the Constitution of 1787 as a means tolimited government and protection of the people's1iberty? Why did Centinel prefer the unicameral (onehouse) legislature of Pennsylvania to the bicameral(two house) legislature in the Constitution of 1787?

3. What are the similarities and differences in theviews of Centinel and Madison about the influenceof majorities and the popular will as means to limitedgovernment and protection of the people's liberty?(See Madison's ideasin excerpts from The Federalist10 and 51 in Lessons 3 and 7.)

4. In The Federalist 51, James Madison says, "Adependence on the people is, no doubt, the primarycontrol on the government; but experience hastaught mankind the necessity of auxiliary precau-tions." Does Centinel agree or disagree with thisidea in Letter I?

Roundtable DiscussionThe alternative positions of Centinel (Anti-Fed-

enlist) and Madison (Federalist) on separation ofpowers and limited government can be focal pointsfor a roundtable discussion. Three core questionsare offered 'blow for this roundtable discussion:

1. What are the essential points of Madison's po-sition on separation of powers and limitedgovernment in The Federalist 47, 48, and 51?

2. What are the essential points of Centinel's po-sition on separation of powers and limitedgovernment in Letter I?

3. Who has the better p asitionCentinel orMadisonon how to limit government toprotect the rights and liberty of the people?

Discussion of these three questions in a full-classroundtable discussion should be based on the rele-vat it documents presented in Lesson 7 (The Federalist47, 48, 51) and in Lesson 8 (Centinel, Letter I). Re-sponses to the questions should be explained andjustified with references to specific parts of the doc-uments.

9?,

Lesson Set VNational Security and Personal Liberty

National security and personal liberty are two ma-jor goals of constitutional government in the UnitedStates. But they are not always compatible. A gov-ernment must exercise power to provide order,safety, and security for its people against internaland external threats. But if the government has toomuch power, then the people's liberty may be takenaway by tyrants.

James Madison framed the problem of how to bal-ance power in government to provide security andsafety with limits on power to protect personal lib-erty: "Energy [power] in government is essential tothat security against external and internal dangerand to that prompt and salutary execution of thelaws which enter into the very definition of goodgovernment. . . . On comparing, however, thesevaluable ingredients [power and security] with thevital principles of liberty, we must perceive at oncethe difficulty of mingling them together [in a con-stitutionr1 govern nent]-in..their-due-proportions"(The Federalist 37).

As Madison noted, a workable balance is difficultt, achieve between power sufficient to govern ef-fectively to provide security and safety and limits onpower to protect personal liberty. Madison argued

89

that the Constitution of 1787 could be effective in"defending liberty against power, and poweragainst licentiousness; and in keeping every portionof power within its proper limits. . . ." But Madi-son's Anti-Federalist critics feared that the Consti-tution of 1787 would provide a government toostrong for the liberty of the people.

This Lesson Set treats main points in the 17°"'-1788debate between the Federalists and Anti-Fedt.Lalistsabout this perennial problem of constitutional gov-ernment: how to achieve and sustain acceptableamounts of both national security and personal lib-erty. James Madison's ideas in The Federalist No. 41represent one side of this debate. The Anti-Feder-alist side is presented in The Address and Reasons ofDissent of the Minority of the Convention of PennsylvaniaTo Their Constituents. This document was signed bytwenty-one members of the Pennsylvania RatifyingConvention who voted against the Constitution of_1787

This Lesson Set has two Teaching Plans and relatedLessons for students. (a) No. 9: Madison on NationalSecurity and Personal Liberty and (b) No. 10: The"Pennsylvania Minority" on Power and Liberty.

93


Lesson 9: Teaching PlanMadison on National Security and Personal Liberty

Objectives

Students are expected to1) identify and comprehend ideas on national

security and personal liberty in The Federalist41;

2) analyze and evaluate ideas on national secu-rity and personal liberty in The Federalist 41;.

3) find examples in the Constitution of powersgranted to provide national defense and se-curity;

4) find examples in the Constitution of limits onmilitary powers that !re designed to protectrights and liberty of individuals.

Estimation of Time Needed tc Complete Ti is Lesson: NoMore Than Two Classroom Periods.

Opening the Lesson

national security could lead to tyranny by the gov-ernment over the people with a consequent loss ofindividual rights and freedoms. Too much emphasison personal liberty cluld lead to disorder and frag-mentation of society (anarchy), with the consequentloss of security and safety for property and libertyof individuals. End this discussion by telling stu-dents that a free society is always challenged by theneed to find a workable balance between the ex-tremes of unlimited liberty of the people and unlim-ited power by government to provide nationalsecurity.

Have students read the introduction to the lessono review ideas about.ttational security with libertyand the relationships between these values in a freesociety. This introduction sets a context for readingabout national security with liberty in an excerptfrom The Federalist 41 by James Madison.

Developing the LessonPlace the following diagram on the chalkboard.

Security /(Point 1)

Have students read the excerpt from The FederalistLiberty 41 and respond to the first question at the end of

(Point 2) the document. The_follow,ing statements on this listagree with Madison in The Federalist 41: a, b, d, e, f,g, j, 1, m, n. Require students to justify their answerswith references to the document.

You might wish to select three or four provocativestatements from this exercise as foils for discussionabout civic values. For example, you might ask stu-dents to agree or disagree with statements d, g,and m.

Have students turn to items 2-5 at the end of thelesson. Ask them to complete these items in prep-aration for classroom discussion.

Tell students that this diagram represents a contin-uum between the extremes of national security andliberty. Both national security and liberty are im-portant ends of a free government. Indicate that themark at the midpoint of the continuum representsa balance between Points 1 and 2 on the diagram.

Tell students that Federalists and Anti-Federalistdid not argue for extreme emphasis on either na-tional security or liberty. Rather, both sides debatedabout where to draw the line between the extremepositions represented by Point 1 and Point 2. How-ever, in contrast to the Federalists, Anti-Federaliststended to place more emphasis on personal libertyand less emphasis on power in the national govern-ment.

A free society needs both national security andpersonal liberty, but these goals are often in conflict.Ask why? During this discussion, point out that toomuch emphasis on liberty, for example, couldthreaten national security and conversely, too muchemphasis on national security could destroy the lib-erty and rights of persons. Ask students to think ofexamples of negative consequences associated withtoo much emphasis on either side of the midpointin the diagram. Indicate that too much emphasis on

Concluding the LessonConduct a classroom discussion on items 2-5 in

the set of questions at the end of the lesson. Requirestudents to support o; justify answers by referringto pertinent parts of Tit Federalist 41 by James Mad-ison. In general, ask students to give reasons fortheir answers and encourage students to questionand challenge one another to ask for justification orsupport for answers. In this discussion, highlightthe inevitable tension between the concerns for se-curity and liberty in a free society. Identify and dis-cuss issues raised by these tensions. Point out that

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Lessons/Set V 91

the tensions and issues associated with national se-curity and personal liberty are distinguishing char-acteristics of a free society.

NOTE: Other essays in The Federalist that pertainto the issue of maintaining national defense/securityand personal liberty are No. 4 (John Jay) and num-bers 23, 24, and 26 (Alexander Hamilton). Interestedstudents might be referred to these Federalist Papersto examine similarities and differences in the ideasof Hamilton, Jay, and Madison about maintainingboth national defense and personal liberty.


Lesson 9Madison on National Security and Personal Liberty

IntroductionThe Preamble to the Constitution of the United

States says: "We the People of the United States, inOrder to form a more perfect Union, establish jus-tice, insure domestic Tranquility, provide for thecommon defence, promote the general Welfare, an.secure the Blessings of ,,iberty to ourselves and ofPosterity, do ordain and establish this Constitutionfor the United States of America."

James Madison aci other framers of the Consti-tution of 1787 agreed that a national government. hasthe fundamental responsibility of defending the na-tion and maintaining security. National security in-volves the ability of a nation to protect its bordersand territory against invasion or control by foreignpowers. In 1787, for example, the framers of theConstitution were concerned about the need to de-fend their new nation from conquest or dominationby powerful European nations, such as Britain,France, and Spain, which held territory in the West-ern Hemisphere.

National security also involves a nation's abilityto maintain law, order, and stability ("insure do-mestic tranquility"). Harold Brown, Secretary of De7lense under Preside-fit rafter, difiiiiniiionalsecurity as "the ability to preserve the nation's phys-ical integrity and territory, to maintain its economicrelations with the rest of the weld on reasonableterms; to protect its nature, institutions, and gov-ernance from disruption from outside, and to controlits borders."

James Madison argued in The Federalist that theConstitution of 1787 would be a bulwark of nationaldefense and security by providing a federal govern-ment with enough power to maintain order internally and protect the nation against external threats.Madison also argued that the Constitution wouldlimit the powers of government sufficiently to pro-tect individual rights and freedoms.

In The Federalist 41, Madison pointed to constitu-tional limits on powers of the legislative and exec-utive branches of government, which were designedJ.0 secure civil liberties and rights and prevent tyr-anny. In particular, he stressed the civilian controlof military forces provided by the Constitution. Forexample, the President, a civilian. .s the commandoin chiei of the armed forces, and the Congress de-cides how much money should be provided to sup-port the trtion's army.

Nonetheless, the Anti-Federalists feared basicfreedoms might be lost or unduly limited by leadersmore concerned with national defense and securitythan with civil liberties and rights. They preferredthe more limited government of the Articles of Con-federation to the more powerful government of theConstitution of 1787.

The Federalist 41

In The Federalist 41, Madison discussed huw tohave national defense and security without destroy-ing personal liberty. He argued that the Constitutionof 1787 provided government strong enough for na-tional defense and security and limited enough forpersonal liberty.

The Federalist No. 41 (Madison'


. . . Is the . . . power of the general governmentgreater than ought to have been vem,ed in it? . . .

. ..Eneyery,politicAins.titution,..a.powento ad-vance the public happiness involves 3 discretionwhich may be misapplied and abused. . . . [1[n allcases where power is to be conferred, the point firstto be decided is whether such a power be necessaryto the public good; as the next will be, in case of anaffirmative decision, to guard as effectually as pos-sible against a perversion of the power to the publicdetriment.

That we may form a correct judgment on .his sub-ject, it will be proper to review the several powersconferred on the government of the Union, and thatthis may be the more conveniently done naybe reduced into different classes as they relae to thefollowing different objects. 1. Security against for-eign danger; 2. Regulation of the intercourse [inter-action] with foreign nations; 3. Mairtenance ofharmony and proper intercourse amon6.the States,4. Certain miscellaneous objects of general utility, 5.Restraint of the States from certain injurious acts, 6.Provisions fm, giving due efficacy to all these pow-ers.

The powt rs falling within the first class are thoseof declaring war . . . of providing armies and fleets;of regulating and calling forCo. the militia, of levylq,and borrowing money.

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Security against foreign danger is one of the prim-itive objects of civil society. It is an avowed andessential object of the American Union. The powersrequisite for attaining it must be effectually confidedto the federal councils [national government]. . . .

. . . With what color of propriety could the forcenecessary for defense be limited by those who can-not limit the force of offense? If a federal Constitu-tion could chain the ambition or set bounds to theexertions of all other nations, then indeed might itprudently chain the discretion of its own govern-ment and set bounds to the exertions for its ownsafety.

How could a readiness for war in time of peacebe safely prohibited, unless we could prohibit in likemanner the preparations and establishments ofevery hostile nation? The means of security can onlybe regulated by the means and the danger of attack.They will . . . be ever determined by these rulesand by no others. It is in vain to oppose constitu-tional barriers to the impulse of self-preservation. Itis worse than in vain; because it plants in the Corstittztion itself necessary usurpations of power,every precedent of which is a germ of unnecessaryand multiplied repetitions. If one nation maintainsconstantly a disciplined army, ready for the serviceof ambition or revenge, it obliges the most pacificnations who may be within the reach of its enter-prises to take corresponding precautions. . . .

. . . A standing force . . . is a dangerous, at thesame time that it may be a necessary, provision. Onan extensive scale its consequences may be fatal. Onany scale it is an object of laudable circumspectionand precaution. A wise nation will combine all theseconsiderations; and, whilst it does not rashly pre-clude itself from any resource which may becomeessential to its safety, will exert all its prudence indiminishing both the necessity and the danger ofresorting to one which may be inauspicious to itsliberties.

The clearest marks of this prudence are stampedon the proposed Constitution. The Union Itself,which t cements and secures, destroys every pretextfor a military establishment which could be danger-ous. America united, with a handful or troops . . .

exhibits a more forbidding posture to foreign am-bition than America disunited, with a hundred thou-sand veterans ready for combat.. .

Next to the effectual establishment of the Union,the best possible precaution against danger fromstanding armies is a limitation of the term for whichrevenue may be appropriated to their support. Thisprecaution the Constitution has prudently added[the provision in Article I that Congress has power,during a two year period, to provide or withholdfunds for the army]. . . .

. . . [T]he Constitution has provided the most ef-fectual guards against danger from [a standing armyor permanent military establishment that might de-stroy a free government and a free society].. .

[N]othing short of a Constitution fully adequate tothe national defense and the preservation of the Ur-ion can save America [from internal and externaldangers that would destroy national security anddeprive the people of their liberty]. . . .

Publius

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Examining Madison's Ideasin The Federalist 41

Use evidence from The Federalist 41 in responding tothe following items. Support and explain answers byreferring to specific parts of the document.

1. Which of the following statements agree withideas in The Federalist 41? Place a checkmark in thespace next to each statement that agrees with ideasin the preceding document.

a National unity and strength are deter-rents to attack by a foreign nation.

b A fundamental purpose of any nationalgovernment is providing security for the nationagainst threats from foreign powers.

c Tyranny is acceptable if it is imposed inorder to defend the nation and provide national se-curity.

d A military establishment is both neces-sary and dangerous to the protection of civil libertiesand rights.

e There shoilid be constitutional limitsupon power exercised by military leaders.

f The Constitution provides for civiliancontrol of military forces to control abuses of powerby military leaders.

g A nation without an effective militaryforce is in danger of losing its security and freedom.

h A nation without a standing army willhave more freedom than a nation with a strong mil-itary establishment.

i The more limited a national governmentis, the more free the people will be who live underthe government.

j A national government should have suf-ficient power to maintain armed forces to achievepurposes desired by the people living under the gov-ernment's authority.

k National defense and security are moreimportant than liberty as basic purposes of a nationalgovernment.

1 The "power of the purse" is an effectivemeans for controlling the power of the military onbehalf of the people, which is granted to Congressin the Constitution.

m. Constitutional government in a free so-ciety is designed to balance power needed for na-tional defense and security with limits on powerneeded to protect liberties and rights of the people.

n A fundamental purpose of national gov-ernment in a free society is to seek both security andliberty for the people it serves.

2. According to Madison, what are the responsi-bilities of a national government in regard to nationalsecurity?

3. What are Madison's ideas about dangers to per-sonal liberty from the exercise of power by govern-ment to provide national security?

4. According to Madison, how would governmentunder the Constitution of 1787 provide both nationalsecurity and protection of personal liberty? Refer toArticle I, Sections 7, 8, 9 and Article II, Sections 1and 2 of the Constitution. (a) Identify powers andduties of the national government to provide na-tional defense and security. (b) Identify limitationson military power that are designed to maintain ci-vilian control of the military and to protect personalliberty against abuses of power by military leaders.

5. To what extent do you agree with the Madi-sonian position on national security and personalliberty in a constitutional government? Select one ofthe following choices and provide reasons in sup-port of your response.

(a) strongly agree (b) agree(c) strongly disagree (d) disagree

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Lesson 10: Teaching PlanThe "Pennsylvania Minority" on Power and Liberty

ObjectivesStudents are expected to1) identify and comprehend ideas on power and

liberty in constitutional government in a re-port by the "Pennsylvania Minority;"

2) analyze and evaluate ideas of the "Pennsyl-vania Minority;"

3) select and defend a position, pro or con, onconstitutional amendments proposed by the"Pennsylvania Minority."


Opening the LessonRead the proposed constitutional amendment be-

low, which was put forward by Anti-Federalistsfrom Rhode Island: "As standing armies in time ofpeace are dangerous to liberty and ought not to bekept up, except in cases of necessity; and as at alltimes the military should be under strict subordi-nation to the civil powerthat therefore no standingarmy, or regular troops, shall be raised or kept upin time of peace."

Point out that this proposed amendment is a typ-ical example of Anti-Federalist thinking about limitson military powers of the United States government.Ask students how this amendment, if accepted,would haw. chugged the Constitution of 1787. If theyhad lived during the debate on ratification of theConstitution, would they have supported this prop-osition? Would this proposed amendment be a goodidea in today's world? Why or why not?

Ask students to read the introduction to the lessonand the excerpt from the address by the "Pennsyl-vania Minority." This document presents an Anti-Federalist position on limits to military powers.

Developing the LessonAssign the three questions about the document,

The Address and Reasons of Dissent of the Minority ofthe Convention of Pennsylvania To Their Constituents.The questions pertain directly to two proposedamendments to the Constitution of 1787 about lim-itation of military powers.

Conduct a classroom discussion on the three ques-tions. Require students to support answers with ref-erences to the Pennsylvania Convention document.

Concluding the LessonAsk students to read the final section of the lesson,

which sets up a proposition for debateResolved:The two amendments to the Constitution about lim-its on military powers, proposed by the "Pennsyl-vania Minority," should be ratified.

Divide the class into two groups: (1) Prothe"Pennsylvania Minority" position and (2) Contheposition of James Madison in The Federalist 41. Giveeach group time to discuss its position, to select athree-person team to represent it in a debate, andto plan a strategy for the forthcoming debate.

Conduct a debate on the resolution. Use the fol-lowing guidelines to structure the debate.

Have the Pro side present its position first; theCon group follows; each team has a maximum oftwelve minutes to present its position.The Pro side may ask three questions of the Conside, then the Con side may ask three questionsof the Pro side; establish a two minute time limitfor answering each question.Open the discussion to the full class. Studentsmay speak in favor of their side in the debate oragainst the other side. Or they may ask questionsof meiabers of the two teams at the front of theclass. The time limit for each speaker is two min-utes.Conclude the activity by asking students to recordtheir opinions, for or against, on the resolution in"le debate. Report the results to the class.

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Lesson 10The "Pennsylvania Minority" on Power and Liberty

IntroductionOn December 12, the Pennsylvania Ratifying Con-

vention voted for the Constitution, 46 to 23. Soonafterwards, twenty-one of the minority at the con-vention signed a statement of dissent that appearedin the Pennsylvania Packet and Daily Advertiser on De-cember 18, 1787. The primary author of this state-ment was probably Samuel Bryan, the son of JudgeGeorge Bryan, a leading Anti-Federalist.

The address of the "Pennsylvania Minority" con-sists of three main parts: (1) a narrative of eventsassociated with the Pennsylvania Ratifying Conven-tion, (2) a list of proposed amendments to the Con-stitution of 1787, and (3) criticisms of theConstitution of 1787. In general, the "PennsylvaniaMinority" faulted the Constitution for its threat topersonal liberty because of insufficient limits on thepowers of the government of the United States.

The criticisms are summarized in the followinglist:

The excessive powers of the U.S. governmentwould enable it to ,dominate and eventually de-stroy the several state governments; if so personalrights and liberty would be lost.Unlike the state constitutions, the Constitution of1787 lacked a bill of rights to limit the governmentand protect personal liberties.Unlike the state constitutions, the U.S. Consti-tution did not provide for adequate representationand participation of the people in their govern-ment.The proposed U.S. Constitution granted power tothe national government to raise and maintain alarge standing army in peacetime and to controlthe state-level armed forces, the militia; this mil-itary power could be used to destroy personal lib-erty because of insufficient constitutional limits orsafeguards against it.

The "Pennsylvania Minority" argued that a na-tional government under the proposed U.S. Con-stitution would rely upon military power to enforceunpopular laws, such as new taxes. Thus personalliberty would be eroded and eventually destroyed.

Address of the "Pennvivania Minority"The following excerpt from the address of the

"Pennsylvania Minority" emphasizes Anti-Federal-ist ideas on military powers in the Constitution of1787 and the threat posed by them to personal lib-erty. Examine these ideas and compare them to thealternative position of Madison in The Federalist 41(see Lesson 9).

The Address and Reasons of Dissent of theMinority of the Convention of Pennsylvania

To Their Constituents

December 18, 1737

. . . From the foregoing investigation, it appearsthat the Congress under this constitution will notpossess the confidence of the people, which is anessential requisite in a good government, for unlessthe laws command the confidence and respect of thegreat body of the people, so as to induce them tosupport them, when called on by the civil magis-trate, they must be executed by the aid of a numer-ous standing army, which would be inconsistentwith every idea of liberty; for the same force thatmay be employed to compel obedience to good laws,might and probably would be used to wrest fromthe people their constitutional liberties The framersof this constitution appear to have been aware ofthis great deficiency; to have been sensible that nodependence could be placed on the people for theirsupport: but on the contrary, that the governmentmust be executed by force. They have thereforemade a provision for the purpose in a permanentSTANDING ARMY and a MILITIA that may be sub-jected to as strict discipline and government.

A standing army in the hands of a governmentplaced so independent of the people, may be madea fatal instrument to overturn the public liberties; itmay be employed to enforce the collection of themost oppressive taxes, and to carry into executionthe most arbitrary measures. An ambitious man whomay have the army at his devotion, may step upinto the throne, and seize upon absolute power.

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The absolute unqualified command that Congresshave over the militia may be made instrumental tothe destruction of all liberty, both public and private;whether of a personal, civil or religious nature.

First, the personal liberty of every man probablyfrom sixteen to sixty years of age may be destroyedby the power Congress have in organizing and gov-erning of the militia. As militia they may be subjectto fines to any amount, levied in a military manner;they may be subjected to corporal punishments ofthe most disgraceful and humiliating kind, and todeath itself, by the sentence of a court martial: Tothis our young men will be more immediately sub-jected, as a select militia, composed of them, willbest answer the purposes of government.

Secondly, the rights of conscience may be vio-lated, as there is no exemption of those persons whoare conscientously scrupulous of bearing arms.. . .

Thirdly, the absolute command of Congress overthe militia may be destructive of public liberty; forunder the guidance of an arbitrary government, theymay be made the unwilling instruments of tyranny.The militia of Pennsylvania may be marched to NewEngland or Virginia to quell an insurrection occa-sioned by the most galling oppression, and aided bythe standing army, they will no doubt be successfulin subduing their liberty and independency. . . .

Thus may the militia be made the instruments ofcrushing the last efforts of expiring liberty, of riv-eting the chains of despotism on their fellow citi-zens, and on one another. This -,ower can beexercised not only without v;olati he constitu-tion, but in strict conformity with it; it is calculatedfor this express purpose, and will doubtless be ex-ecuted accordingly.

As this government will not enjoy the confidenceof the people, but be executed by force, it will be avery expensive and burthensome.government. Thestanding army must be numerous, and as a furthersupport, it will be the policy of this government tomultiply officers in every department: judges, col-lectors, tax-gatherers, excisemen and the whole hostof revenue officers will swarm over the land, de-vouring the hard earnings of the industrious. . . .

We have . . . ..onfined our objections to the greatand essential defects; the main pillars of the consti-tution; which we have shown to be inconsistent withthe liberty and happiness of the people. . . .

Signed by Twenty-One Members of the Pennsyl-vania Ratifying Convention, Who Voted Against theConstitution of 1787.

Examine the "Pennsylvania Minority's" ideas on powerand personal liberty in a constitutional government. An-swer the questions below, which pertain to the pre-ceding excerpt from The Address and Reasons of Dissentof the Minority of the Convention of Pennsylvania ToTheir Constituents. The questions stem from the fol-lowing proposed amendments to the Constitutionof 1787, which were advocated by the "PennsylvaniaMinority."

a. That . . . as standing armies in the timeof peace are dangerous to liberty, theyought not to be kept up: and that the mil-itary shall be kept under strict subordina-tion to and be governed by the civilpowers.

b. That the power of organizing, arming anddisciplining the militia . . . remain withthe individual states, and that Congressshall not have authority to call or marchany of the militia out of their own state,without the consent of such state, and forsuch length of time only as such state shallagree.

1. What were the "Pennsylvania Minority's" crit-icisms of military powers in the Constitution of 1787?

2. Would these two proposed amendments cor-rect faults in the Constitution emphasized by the"Pennsylvania Minority" in the preceding docu-ment? Explain

3. What do these two proposed amendments re-veal about the "Pennsylvania Minority's" views on(a) powers of state governments in relationship tothe U.S. government, (b) national security as a majorgoal of government, and (c) personal liberty as amajor goal of government?

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Lesson Set VIJames Madison, The Federalist, and the Bill of Rights

Beginning in May 1787, the delegates from thethirteen states met At the Federal Convention in Phil-adelphia to revise the defective Articles of Confed-eration. James Madison from Virginia led a groupof delegates to press for a larger purposethe es-tablishment of a strong central government. On Sep-tember 17, 1787, the Convention completed its workand proposed to the states a federal form of gov-ernment based upon popular sovereignty. Theirplan was incorporated in a written constitution.

The idea that a bill of rights should be includedin the Constitution of 1787 did not have much sup-port, when it was suggested by Geoige Mason ofVirginia during the final days of the Convention. OnSeptember 12, 1787, just five days before adjourn-ment, Mason remarked that he "wished the plan[the Constitution] had been prefaced by a Bill ofRights." Mason knew that eight states had Bills ofRights in their recently drafted state constitutions.He felt that a Bill of Rights could be drafted in a fewhours using these existing bills of rights as models.

Elbri:Ige Gerry of Massachusetts motioned andMason seconded that a committee be established todraft a Bill of Rights. The Delegates failed to graspthe seriousness of Gerry's and Mason's proposal.After very little debate, the motion was defeated.

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The persuasive argument seems to have been of-fered by Roger Sherman of Connecticut, the onlydelegate whose oppusition to the Bill of Rights isrecorded, when he said, "The State Declarations ofRights [bills of rights] are not repealed by the Con-stitution; and being in force are sufficient."

The final document was signed two days laterwith only Mason, Gerry, and Randolph refusing tosign. The fight for a Bill of Rights had just begun.The Anti-Federaliststhose individuals opposed tothe ratification of the Constitutionmade the ab-sence of a Bill of Rights the centerpiece of their at-tack. James Madison moved from an initial view atthe Constitutional Convention that a Bill of Rightswas unnecessary to becoming a supporter of suchrights in the first session of Congress.

This Lesson Set explores important questions aboutthe addition of a Bill of Rights to the Constitutionof 1787. It also includes a comprehensive chronologyof events assodated with James Madison, The Fed-eralist Papers, the ratification debate, and the Bill ofRights.

This Lesson Set includes two Teaching Plans andaccompanying Lessons for students: (a) No. 11: Al-ternative Ideas on i Bill of Rights and (b) No. 12:Chronology of Major Political Events, 1787-1791.

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Lesson 11: Teaching PlanAlternative Ideas on a Bill of Rights

Objectives

Students are expected to1) know and appreciate the argument? of ad-

vocates and opponents of including "he Bill ofRights in the Constitution;

2) understand the primary political concepts andideas included in the Bill of Rights;

3) know and appreciate the political vocabularyand concepts upon which the Founders basedtheir conception of government and society;

4) interpret and analyze primary and secondarysources on the Bill of Rights, James Madison,and the Founders;

5) construct a thesis or central argument in writ-ing on relevant interpretative questions con-cerning the Bill of Rights, James Madison, theFounders, ratification of the Constitution, andthe politics in the new republic from 1787 to1791;

6) support a thesis with sufficient evidence andlogic from primary as well as secondary read-ings;

7) participate knowledgeably in class discus-sions on the Bill of Rights, James Madison,the ratification of the Constitution, and thepolitics in the new republic from 1787 to 1791.

Estimation of Time Needed to Complete This Lesson: NoMore Than Five Classroom Periods.

Opening the Lesson

Assign the relevant pages in your textbook on theConstitutional Convention, the ratification of thedocument, and the passage of a Bill of Rights. Askstudents to discuss why the Bill of Rights wasadopted, according to the textbook. (Allow studentsabout fifteen to twenty minutes to discuss this ques-tion.)

Divide the class into small groups of four or sixmembers, depending on the size of the class. Pro-vide each group with this question: In 1787-88, wasthe inclusion of a Bill of Rights in the United StatesConstitution a necessity?

Once a group receives the question, it is furtherdivided into two or three students arguing yes ortwo or three student arguing no. Each student writesa one-page position paper, based upon the primary

documents and additional reading, if possible, de-fending his or her side of the question.

Developing the LessonShow students the narrative descriptions and pri-

mary documents in this lesson that pertain to theassigned question. Inform students that their one-page essays are due in two days.

Provide time in class for students to discuss theassignment in their small groups. The teachershould circulate among the groups to answer ques-tions and direct students in their conduct of thisassignment. Students may also want to use classtime for reading, planning, and writing to carry ou.this assignment.

Concluding the LessonDuring the final two days of the lesson, conduct

classroom debates in response to the assigned ques-tion. Select two or three students to present the af-firmative argument and two or three students topresent the negative side.

The preferred debate format involves (1) twentyminutes for the first affirmative presentation; (2)three minutes of questions from the negative; (3)twenty minutes for the first negative presentation;(4) three minutes of questions from the affirmative;and (5) each side having twenty minutes to respondto evidence and arguments from their opponents aswell as offering new evidence to rebuild their initialarguments.

Use one class period for steps one through four.Use a second class period to involve other membersof the class in the debate. Students who have pre-pared arguments on the positive side should sup-port this team in the debates. Students who haveprepared arguments on the negative position shouldjoin this side of the debate. This approach allowsthe entire cla3s to be involved in the debates.

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Lesson 11Alternative Ideas on a Bill of Rights

Introduction

In 1787-88, was the inclusion of a Bill of Rights inthe Constitution a necessity? Consider the argu-ments of Federalists and Anti-Federalists in re-sponse to this question.

The abbreviated debate about the Bill of Rights inthe closing days of The Constitutional Conventionin Philadelphia revealed some of the emerging ar-guments used by the Federalists and Anti-Federal-ists in the ratification conventioLs held in each state.The Federalists, including James Madison, seemedto view the efforts to include a Bill of Rights in thewritten Constitution as an effort to prevent the adop-tion of a new government.

George Mason harbored great fears about the es-tablishment of a powerful central government ca-pable of destroying state powers. In the days beforehe expressed a desire for a Bill of Rights, he declared,"that he would sooner chop off his right hand thanput it to the Constitution as it now stands." Hismajor worry seems to have been the commercepower of the national government. This power couldbe used to destroy the staple crop economy of theSouth. He found the control of commerce by a sim-ple majority (51 per cent) vote by the Congress as"an insuperable objection" to the acceptance of theConstitution. He advocated that all commercial leg-islation require a two-thirds vote of both bodies. Thisapproach was not included in the final document.

Once the Convention voted on September 17,1787to submit the Constitution to the several states forratification, Mason and several other opponents ofthe new government pursued a strategy of advo-cating a second convention to correct flaws and over-sights in the existing proposal. Their aim was toconvene a second convention and protect state pow-ers by destroying powers granted to the central gov-ernment.

Arguments for a Bill of Fights

First, consider the arguments of those men ad-vocating that a Bill of Rights should be included inthe Constitution. In a letter, published in severalnewspapers during the autumn of 1787, George Ma-son stated his reservation about the new Constitu-tion due to an absence of a Bill of Rights.

George Mason's Objections to the ConstitutionNovember 1787

There is no declaration of rights: and the laws ofthe general government being paramount to thelaws and constitutions of the several states, the dec-larations of rights, in the separate states, are no se-curity. Nor are the people secured even in theenjoyment of the benefits of the common law, whichstands here upon no oilier foundation than it havingbeen adopted by the respective acts forming the con-stitutions of the several states. . . .

Under their own construction of the general clauseat the end of the enumerated powers, the Congressmay grant monopolies in trade and commerce, con-stitute new crimes, inflict unusual and severe pun-ishments, and extend their power as far as they shallthink proper; so that the state legislatures have nosecurity for the powers now presumed to remain tothem; or the people for their rights.

There is no declaration of any kind for preservingthe liberty of the press, the trial by jury in civilcauses, nor against the danger of standing armiesin time of peace. . . .

Mason's worry about "the general clause at theend of the enumerated powers" and "the laws ofthe general government being paramount to thelaws and constitutions of the several states" refersto Article I, Section 8, Provision 18 and Article VI ofthe new Constitution. These provisions, along withthe clause granting Congress the power to "promotethe general welfare," created alarm in the defendersof state authority and the rights of the people. Therelevant provisions are presented below.

The Constitution of the United States

Article I, Section 8, Provision 18

The Congress shall have Power To . . . make allLaws, which shall be necessary and proper for car-rying into Execution the foregoing Powers, and allother Powers vested by this Constitution in the Gov-ernment of the United States, or in any Departmentor Officer thereof.

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Article VI

This Constitution, and the Laws of the United Stateswhich shall be made in Pursuance thereof; and allTreaties made, or which shall be made, ur.der theAuthority of the United States, shall be the supremeLaw of the Land; and the Judges in every State shallbe bound thereby, anything in the Constitution orLaws of any State to tie contrary notwithstanding.

These broad grants of power to the sovereign Fed-eral Union made the protections in a Bill of Rightsan imperative for the Anti-Federalists. An Anti-Federalist, the Federal Farmer, shaped the argument asone concerning the rights of all people.

Letter IIFrom the Federal Farmer to the Republican

October 9, 1787Dear Sir,

. . . There are certain unalienable and fundamen-tal rights, which informing the social compact, oughtto be explicitly ascertained and fixeda free andenlightened people, in forming this compact, willnot resign all their rights to those who govern, andthey will fix limits to their legislators and rulers,which will soon be plainly seen by those who aregoverned, as well as by those who govern: and thelatter will know they cannot be passed unperceivedby the former, and without giving a general alarmThese rights should be made the basis of every con-stitution; and if a people be so situated, or have suchdifferent opinions that they cannot agree in ascer-taining and fixing them, it is a very strong argumentagainst their attempting to form one entire society,to live under one system of laws only.I confess, Inever thought the people of these states differedessentially in these respects; they having derived allthese rights from one common source, the Britishsystems; and having in the formation of their stateconstitutions, discovered that their ideas relative tothese rights are very similar. However, it is now saidthat the states differ so essentially in these respects,and even in the important article of the trial by jury,that when assembled in convention, they can agreeto no words by which to establish that trial, or bywhich to ascertain and establish many other of theserights, as fundamental articles in the social compact.If so, wk.1 proceed to consolidate the states on nosolid basis whatever . . .

The Federal Farmer

On November 1, 1787, an Anti-Federalist, usingthe pseudonym of Brutus, wrote in The New YorkJournal that the rights of the people could ONLY beprotected by a Bill of Rights functioning as an in-tegral part of the new constitution and government.

Essay II (Brutus)

November 1, 1787To the Citizens of the State of New York

. . . Those who have governed have been foundin all ages active .o enlarge their powers and abridge[limit] the public liberty. This has induced the peoplein all countries, where any sense of freedom re-maihad, to fix barriers against the encroachments oftheir rulers. The country from which we have de-rived our origin [England] is an eminent example ofthis. Their Magna Carta and Bill of Rights have longbeen the boast as well as the security of that nation.I need say no more I presume, to an American, thanthat this principle is a fundamental one in all theconstitutions of our own states [the 13 United Statesof America]; there is not one of them but what iseither founded on a declaration or bill of rights, orhas certain express reservation of rights interwovenin the body of them. . . . It is therefore the moreastonishing that this grand security to the rights ofthe people is not to be found in this Constitu-tion. . . .

. . . The powers, rights, and authority granted tothe general government by this Constitution are ascomplete, with respect to every object to which theyextend, as that of any state government. It reachesto every thing which concerns human happinessLife, liberty, and property are under its control.There is the same reason, therefore, that the exerciseof power, in this case, should be restrained withinproper limits [by a Bill of Rights] as in that of thestate government. . . .

. . . Ought not a government, vested with suchextensive and indefinite authority, to have been re-stricted by a declaration of rights? It certainly ought.

So clear a point is this that I cannot help suspectingthat persons who attempt to persuade people thatsuch reservations were less necessary under thisConstitution than under those of the states are will-fully endeavoring [trying] to deceive, and to headyou into an absolute state of vassalage.

Brutus

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Federalist Ideas on a Bill of RightsThe publication of Erutus' essay alarmed James

Madison and Alexander Hamilton and produced aFederalist defense of the new Constitution withouta Bill of Rights.

The Federalist justification for not including a Billof Rights centered on contentions that individualrights were protected by the state constitutions, thatthe new government possessed only enumeratedpowers and other protections were not affected, thatsuch amendments might weaken the federal gov-ernment, and that such provisions might prove dan-gerous. The greatest danger the Federalistsidentified was that an imperfect enumeration of in-dividual rights would imply that those excluded ex-isted at the pleasure, of the government.

James Madison speaking at the Virginia Ratifica-tion Convention stated, "If an enumeration be madeof all our rights, will it not be implied that everythingomitted is given to the general government. An im-perfect (incomplete) enumeration is dangerous."

Earlier, on October 6, 1787, James Wilson of Penn-sylvania discussed the danger of adding a Bill ofRights to the Constitution.

James Wilson, State House SpeechOctober 6, 1787

. . . When the people established the powers oflegislation under their separate governments, theyinvested their representatives with every right andauthority which they did not in explicit terms re-serve; and therefore upon every question respectingthe jurisdiction of the House of Assembly, if theframe of government is silent, the jurisdiction is ef-ficient and complete. But in delegating federal pow-ers, another criterion was necessarily introduced,and the congressional power is to be collected, notfrom tacit implication, but from the positive grantexpressed in the instrument of the union. Hence, itis evident, that in the former case everything whichis not reserved is given; but in the latter the reverseof the proposition prevails, and everything which isnot given is reserved.

This distinction being recognized, will furnish ananswer to those who think the omission of a bill ofrights a defect in the proposed constitution; for itwould have been superfluous and absurd to havestiplulated with a federal body of our own creation,that we should enjoy those privileges of which weare not divested, either by the intention or the actthat has brought the bodj into existence. For in-stance, the liberty of the press, which has been acopious source of declamation and opposition

103

what control can proceed from the Federal govern-ment to shackle or destroy that sacred palladium ofnational freedom? If, indeed, a power similar to thatwhich as been granted for the regulation of com-merce had been granted to regulate literarypublications, it would have been as necessary to stip-ulate that the liberty of the press should be preservedinviolate, as that the impost should be general in itsoperation. . . . In truth, then, the proposed systempossesses no influence whatever upon the press,and it would have been merely nugatory to haveintroduced a formal declaration upon the subjectnay, that very declaration might have been con-strued to imply that some degree of power wasgiven, since we undertook to define its extent. . . .

The Federalist position was developed further inThe Federalist 84, published by Alexander Hamiltonof New York on May 28, 1788.

The Federalist No. 84 (Hamilton)

May 28, 1788To the People of the State of New York:

. . . [Critics of the Constitution object to it be-cause they say it] contains no bill of rights. . . .

. . . I answer that the Constitution proposed bythe convention contains . . . a number of such pro-visions.

Independent of those which relate to the structureof the government [separation of powers amongthree branches of government, a system wherebyeach branch of government can check the power ofthe other branches, and division of power betweenthe national government and the state governments]we find the following. . . . [Hamilton lists parts ofthe Constitution of 1787 that include provisions forprotection of rights and liberties of the people, suchas Article I, Sections 9 and 10 and Article 3, Sections2 and 3.]

II. . . affirm that bills of rights, in the sense andto t'''.e extent in which they are contended for, arenot only unnecessary in the proposed Constitutionbut would even be dangerous. They would containvarious exceptions to powers which are not granted;and, on this very account, would afford a . . . pre-text to claim more than were granted. For why de-clare that things shall not be done which there is notpower to do? Why, for instance, should it be saidthat the liberty of the press shall not be restrained,when no power is given by which restrictions maybe imposed? I will not contend that such a provisionwould confer a regulating power; but it is evident

106

104 Janes Madison and The Federalist Papers

that it would furnish, to men disposed to usurp, aplausible pretense for claiming that power. Theymight urge with a semblance of reason that the . . .

provision against restraining the liberty of the pressafforded a clear implication that a power to prescribeproper regulations concerning it was intended to bevested in the national government. This may serveas a specimen of the numerous handles which wouldbe given to [those wanting to usurp power on thepretext of guarding peoples' liberties] by the indul-gence of an injudicious zeal for bills of rights. . . .

. . . What signifies a declaration that "the libertyof the press shall be inviolably preserved?" What isthe liberty of the press? Who can give it any defi-nition which would not leave the utmost latitude forevasion? I hold it to be impracticable; and . . . itssecurity, whatever fine declarations may be insertedin any constitution respecting it, must altogether de-pend on public opinion, and on the general spirit ofthe people and of the government. And here . . .

must we seek for the only solid basis of all ourrights. . . .

. . . The truth is . . . that the Constitution is itself. . . A BILL OF RIGHTS. . . . Is it one object of abill of rights to declare and specify the political priv-ileges of the citizens in the structures and admin-istration of the government? This is done in the mostample and precise manner in the plan of the con-vention. . . . Is another object of a bill of rights todefine certain immunities and modes of proceeding,which are relative to personal and private concerns?This . . . has also been attended to . . . in the sameplan. Adverting . . . to the substantial meaning ofa bill of rights, it is absurd to allege that it is not tobe. ound in the work of the convention. . . . It maybe said that it does not go far enough. . . .

Publius

Madison Backs a Bill of Rights

In 1787 and 1788, the Bill of Rights emerged asthe most emotional issue in the debates about theratification of the Constitution. The Anti-Federalistscreated alarm throughout the several states becauseit seemed that the liberties of the people were atrisk. While the issue provided much needed unityto the Anti-Federalists, it ultimately contributedtheir loss in the fight against the supporters of theConstitution. Madison, Hamilton, Wilson, and theFederalists slowly recognized that adding a Bill ofRights would cripple the Anti-Federalists oppositionto the adoption of the Constitution.

James Madison's skill as a politician is manifest inhis transformation from opponent of its inclusion tothe leader of the effort in the first session of Congressto include a Bill of Rights in the Constitution. TheAnti-Federalist faction in Virginia, led by PatrickHenry, prevented Madison from nerving in the Sen-ate and slated James Monroe as his opponent for aseat in the House of Representatives. In a very tightrace, won by less than four hundred votes by Mad-ison, he promised his constituents that if elected hewould introduce a Bill of Rights in the first sessionof Congress.

At the first session of Congress in 1789, Madisonproposed several amendments to the Constitution,which would become a Bill of Rights.

There have been objections of various kinds. . . against the Constitution, but I believe thegreat mass of the people who opposed it, dis-liked it because it did riot contain effectual[guarantees against] encroachments on partic-ular rights, and those safe-guards which theyhave been long accustomed to have interposedbetween them and the magistrate who exer-cises the sovereign power; nor ought we toconsider them safe, while a great number ofour follow citizens think these securities nec-essary.

A majority in Congress seemed ready to supportmost of Madison's proposals, calling for only minorchanges. Congress approved twelve amendments.More than two-thirds of the members voted for theamendments, as required by Article V of the Con-stitution. Congress then sent the amendments to thestates in accordance with Article V. After three-fourths of the states ratified te,, of these amend-ments (December 15, 1791), they became part of theConstitution. These amendments to the Constitu-tion (I-X) are called the Bill of Rights.

107

.

Lessons/Set VI

Questions for Discussion and DebateThe Core Question: In 1787-88, was the inclusion of

a Bill of Rights-in the Constitution a necessity?1. What were the responses of the following

Anti-Federalists to this cote question?a. George Masonb. The Federal Farmerc. Brutus

2. What were the responses of the following Fed-eralists to this core question?

a. James Wilsonb. Alexander Hamiltonc. James Madison

3. What is your position in response to the corequestion?

1081

105


Lesson 12: Teaching PlanChronology of Major Political Events, 1787-1791

Objectives

Students are expected to1) use a timetable of events to locate facts;2) use a timetable to answer questions about the

chronology of main events associated with thedebate about ratification of the Constitutionof 1787;

3) arrange events in chronological order;4) match events with the dates of those events;5) interpret facts presented in a chronological

list.

Estimation of Time Needed to Complete This Lesson: Nomore than One Classroom Period.

Opening the LessonAsk students to read the events in the timetable.

Invite them to raise questions in regard to eventsabout which they are curious or confused. Discus-sion of these questions can be related to materialcovered in Lessons 1 and 2. Assign activities 1 and2 at the end of the lesson.

Developing the LessonHave students use the timetable to complete Ac-

tivities 1 and 2 at the end of the lesson. Discusscorrect answers with students. See the answers be-low.

Concluding the LessonHave students complete the activity at the very

end of the lesson, which is titled "InterpretingFacts." Discuss answers with students. This activityinvolves interpretive and speculative responses.There may be reasonable differences in the answersof students. Probe for reasons in support of re-sponses.

Answers to Activities 1 and 21. Events below are listed in chronological or-

der.g. first essay by Brutus was printed.a. first Federalist Paper was printed.c. Madison wrote the first of his 29 Federalist

Papers (Federalist 10).e. New Hampshire ratified the Constitu-

tion.b. Virginia ratified the Constitution.d. Madison presented a proposed Bill of

Rights to the first session of Congressunder the Constitution.

f. Rhode Island ratified the Constitution.2. Answers to the Matching Activity (Roman

Numerals That Belong in the Spaces in ListB).1. V2. VII3. III4. VI5. I6. IV7. IX8. II9. VIII

10. X

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Lessons/Set VI 107

Lesson 12Chronology of Major Political Events, 1787-1791

September 17, 1787: Conclusion of the FederalConvention; each of the 12 state delegations votedto approve a final copy of a proposed Constitutionof the United States.

September 20, 1787: The Congress of the UnitedStates received the proposed Constitution.

September 28, 1787: Congress voted to send theConstitution to the legislature of each state; Con-gress asked each state to either approve or reject theproposed Constitution.

October 5, 1787: The first of eighteen Anti-Fed-eralist articles by Centinel (penname for SamuelBryan) was printed in the Philadelphia In.:pendentGcette.

October 8, 1787: The first in a series of letters byThe Federal Farmer was written in support of theAnti-Federalist cause. These letters were publishedin a pamphlet and circulated widely in the UnitedStates. Until recently, most scholars believed thatThe Federal Farmer was Richard Henry Lee of Vir-ginia. Scholars today are uncertain about the identityof the author of these letters.

October 18, 1787: The first in a series of 16'Anti-Federalist essays by Brutus (pseudonym) appearedin the New York Journal; these essays were represen-tatives of many Anti-Federalist writings publishedthroughout the United States during the debates onthe Constitution; although the identity of Brutus isunknown, most scholars today believe he was Rob-ert Yates of New York.

October 27, 1787: The first Federal, paper writtenby Alexander Hamilton appeared in a New York Citynewspaper, The Independent Journal; this was the firstin a series of 85 essays under the pseudonym Publius(51 by Hamilton) to explain the Constitution of 1787and argue for ratification of it.

October 31, 1787: The second Federalist paper waspublished; it was the first of five essays written byJohn Jay under the pseudonym of Publius.

November 22, 1787: The tenth Federalist paper waspublished; this was the first of 29 essays written byJames Madison under the pseudonym of Publius.

December 7, 1787: Delaware was the first state toratify the Constitution; the vote was 30-0.

December 12,1787: Pennsylvania ratified the Con-stitution by a 46 to 23 vote.

December 18, 1787: New Jersey ratified the Con-stitution by a 38-0 vote. Twenty-one members of thePennsylvania Ratifying Convention signed an Anti-

Federalist statement: The Address and Reasons of Dis-sent of the Minority of the Convention of Pennsylvaniato their Constituents. Printed first in the PennsylvaniaPacket, it later was reprinted and circulated widelyin Pennsylvania and other states. The probable au-thor of this statement was Samuel Bryan.

January 2, 1788: Georgia was the fourth state toratify the Constitution; the vote was 26-0.

January 9, 1788: Connecticut ratified the Consti-tution by a 128 to 40 vote.

February 6, 1788: Massachusetts was the sixthstate to ratify the Constitution; the vote was 187-168;a Federalist victory was secured by promising toamend the Constitution to guarantee certain rightsof the people and the states.

March 22, 1788: Volume I of The Federalist waspublished by McLean and Company of New YorkCity. It included 36 essays, which had previouslyappeared in New York newspapers.

March 24, 1788: In a state-wide referendum, vot-ers of Rhode Island rejected the Constitution; thevote was 2,711 to 239.

April 2, 1788: The Federalist No. 77 by AlexanderHamilton was published; this was the last essay inthis series to appear initially in a newspaper (eightmore essays would be written to complete the se-ries).

April 28, 1788: Maryland was the seventh state toratify the Constitution; the vote was 63-11.

May 23, 1788: South Carolina ratified the Consti-tution by a vote of 149-73; amendments were pro-posed.

May 28, 1788: Eight Federalist Papers (numbers 78-85 by Hamilton) appealed in print for the first timein Volume II of The Federalist, which was publishedby McLean and Company (Volume II included num-bers 37-85), the complete collection of The FederalistPapers was included in two volumes.

June 21, 1788: New Hampshire was the ninth stateto ratify the Constitution, the vote was 57-47, amend-ments were proposed.

June 25, 1788: Virginia ratified the Constitution bya 89-79 vote.

June 27, 1788: The Virginia Ratifying Conventionproposed amendments to the Constitution; theseamendments, including a Bill of Rights, were ad-vanced initially by Anti-Federalist leaders (for ex-ample, George Mason and Patrick Henry), Federalist

110


leaders (James Madison, for example) pledged toadd a Bill of Rights to the Constitution.

July 2, 1788:Cyrus Griffin, the president of Con-gress, recognized that a minimum of nine states hadratified the Constitution, as required by Article VIIof the document.

July 26, 1788: New York was the eleventh state toratify the Constitution; the vote was 30-27; amend-ments were proposed.

August 2, 1788: The North Carolina Conventionrefused to ratify the Constitution; amendments wereproposed.

October 10, 1788: Congress under the Articles ofConfederation completed its last day of existence; itwas disbanded to make way for a new governmentunder the Constitution of 178 ?.

April 1, 1789: Members of the House of Repre-sentatives, elected under the Constitution, met andbegan to organize their branch of the new Congress.

April 6, 1789: Members of the Senate, elected un-der the Constitution, met ar d began to organizetheir branch of the new Congre.s3.

April 30, 1789: George Washington, elected as thefirst President under the new Constitution, was in-augurated.

June 8, 1789: James Madison, Representative fromVirginia, presented a Bill of Rights as a set of amend-ments to the Constitution.

September 25, 1789: Congress approved amend-ments to the Constitution (a Bill of Rights) and sentthem to the states for ratification.

November 21, 1789: North Carolina became thetwelfth state to ratify the Constitution; the vote was194-77.

May 29, 1790: Rhode Island ratified the Consti-tution," the last of the original thirteen states to doso; the vote was 34-32.

December 15, 1791: Virginia was the eleventhstate to ratify ten amendments to the Constitution;these amendments became part of the Constitution,the Bill of Rights.

Using Facts About Chronology

1. Arrant,s_ig Events in Chronological Order. Theitems in the list below are NOT in chronologicalorder. Rearrange these items in chronological order(the order in which they happened). Write your listof items correctly, in chronological order, on a sep-arate piece of paper. Refer to the list of events in thepreceding timetable to help you complete this activ-ity.

Scrambled List of Ten :vents

a. First Federalist Paper was printed.b. Virginia ratified the Constitution.c. Madison wrote the first of his 29 Federalist Pa-

pers (Federalist 10).d. Madison presented a proposed Bill of Rights

to the first session of Congress under the Con-stitution.

e. New Hampshire ratified the Constitution.f. Rhode Island ratified the Constitution.g. First essay by Brutus was printed.

2. Matching Activity. Match dates in LIST A withthe correct events in LIST B. Write the numeral nextto a date in LIST A in the correct space next to anevent in LIST B.

LIST A

I October 27, 1787II November 21, 1789III May 28, 1788IV April 30, 1789V July 26, 1788VI June 25, 1788VII December 7, 1787VIII September 28, 1787IX September 17, 1787X March 22, 1788

LIST B

4.5.6.

7

8.

111

New York ratified the Constitution.Delaware ratified the Constitution.Volume 2 of The Federalist was pub-lished.Virginia ratified the Constitution.Federalist 1 was published.Washington became President underthe Constitution.The Constitutional Conventionended.

North Carolina ratified the Constitu-tion.

9. The Confederation Congress sent theConstitution to the legislatures of thethirteen states.

10. Volume 1 of The Federalist was pub-lished.

Lessons/Set VI 109

Interpreting Facts in a TimetableRefer to facts in the list of events in the preceding

timetable. Use these facts to respond to the itemsbelow.

1. Identify at least three events that can be linkedto the origin and development of the project to writeand publish The Federalist.

2. Which five events in the timetable would youidentify as most significant in the history of the rat-ification debates of 1787-1788?

3. List in chronological order the five events inyour response to item 2 above.

4. Why do you think these five events are themost significant ones in the history of the ratificationdebates?

112

11.3am"

Montpelier, the home of James Madison, as it is today (near Orange, Virginia). Montpelier passed out of the Madisonfamily shortly after the fourth President's death in 1836. At the turn of the century, William du Pont of Wilmington,Delaware bought the estate. A descendant, Marian du Pont Scott, bequeathed Montpelier to the National Trust for HistoricPreservation in 1984, and it is now open to the public.

Source: National Trust for Historic Preservation

111

Part Three: Documents

Part Three consists of selected primary docu-ments. There are seven papers of James Madison inThe Federalist, and six papers of Anti-Federalist writ-ers. These documents are listed below:

1. The Federalist No. 102. The Federalist No. 14.3. The Federalist No. 39.4. The Federalist No. 41.5. The Federalist No. 47.6. The Federalist No. 48.7. The Federalist No. 51.8. Essay I, Brutus.9. Essay IV, Brutus.

10. Letter IV, Agrippa.11. Letter XVII, The Federal Farmer.12. Letter I, Centinel.13. The Address and Reasons of Dissent of the Minority

of the Convention of Pennsylvania To Their Con-stituents.

The Lessons in this volume include excerpts fromthe documents in the preceding list. Teachers maywant to duplicate and distribute copies of these doc-uments to students. Teachers are advised to readthe complete text of each document before usingexcerpts from it in a Lesson.

115

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Montpelier (near Orange, Virginia) was the iton.e of James Madison. The father of James Madison began construction ofthis building in 1755, when James was four years old. This print depicts Montpelier in 1830, about six years before JamesMadison died.

Source: National Trust for Historic Preservation.

( 116

Document 1The Federalist No. 10 (Madison)


AMONG the numerous advantages promised by awell-constructed Union, none deserves to be moreaccurately developed than its tendency to break andcontrol the violence of faction. The friend of populargovernments never finds himself so much alarmedfor their character and fate as when he contemplatestheir propensity to this dangerous vice. He will notfail, therefore, to set a due value on any plan which,without violating the principles to which he is at-tached, provides a proper cure for it. The instability,injustice, and confusion introduced into the publiccouncils, have, in truth, been the mortal diseasesunder which popular governments have every-where perished, as they continue to be the favoriteand fruitful topics from which the adversaries toliberty derive their most specious declamations. Thevaluable improvements made by the American con-stitutions on the popular models, both ancient andmodern, cannot certainly be too much admired; butit would be an unwarrantable partiality, to contendthat they have as effectually obviated the danger onthis side, as was wished and expected. Complaintsare everywhere heard from our most considerateand virtuous citizens, equally the friends of publicand private faith, and of public and personal liberty,that our governments are too unstable, that the pub-lic good is disregardea in the conflicts of rival parties,and that measures are too often decided, not ac-cording to the rules of justice and the rights of theminor party, but by the superior force of an inter-ested and overbearing minority. However anxiouslywe may wish that these complaints had no foun-&don, the evidence of known facts will not permitus to deny that they are in some degree true. It willbe found, indeed, on a candid review of our situa-tion, that some of the distresses under which welabor have been erroneously charged on the oper-ation of our governments, but it will be found, atthe same time, that other causes will not alone ac-count for many of our heaviest misfortunes; and,particularly, for that prevailing and increasing dis-trust of public engagements, and alarm for privaterights, which are echoed from one end of the con-

113

tinent to the other. These must be chiefly, if notwholly, effects of the unsteadiness and injusticewith which a factious spirit has tainted our publicadministrations.

By a faction I understand a number of citizens,whether amounting to a majority or minority of thewhole, who are united and actuated by some com-mon impulse of passion, or of interest, adverse tothe rights of other citizens, or to the permanent andaggregate interests of the community.

There are two methods of curing the mischiefs offaction: the one, by removing its causes; the other,by controlling its effects.

There are again two methods of removing thecauses of faction: the one, by destroying the libertywhich is essential to its existence; the other, by giv-ing to every citizen the same opinions, the samepassions, and the same interests.

If could never be more truly said than of the firstremedy that it was worse than the disease. Libertyis to faction what air is to fire, an aliment withoutwhich it instantly expires. But it could not be lessfolly to abolish liberty, which is essential to politicallife, because it nourishes faction than it would be towish the annihilation of air, which is essential toanimal life, because it imparts to fire its destructiveagency.

The second expedient is as impracticable as thefirst would be unwise. As long as the reason of mancontinues fallible, and he is at liberty to exercise it,different opinions will be formed. As long as theconnection subsists between his reason and his self-love, his opinions and his passions will have a re-uprocal influence on each other; and the former willbe objects to which the latter will attach themselves.The diversity in the faculties of men, from whichthe rights of property originate, is not less an in-superable obstacle to a uniformity of interests. Theprotection of these faculties is the first object of gov-ernment. From the protection of different and un-equal faculties of acquiring property, the possessionof different degrees ono '-finds of property imme-diately results; and from the influence of these onthe sentiinents and views of the respective propri-

117


etors ensues a division of the society into differentinterests and parties.

The latent causes of faction are thus sown in thenature of man; and we see them everywhere broughtinto different degrees of activity, according to thedifferent circumstances of civil society. A zeal fordifferent opinions concerning religion, concerninggovernment, and many other points, as well as ofspeculation as of practice; an attachment to differentleaders ambitiously contending for pre-eminenceand power; or to persons of other descriptionswhose fortunes have been interesting to the humanpassions, have, in turn, divided mankind into par-ties, inflamed them with mutual animosity, avid ren-dered them much more disposed to vex and oppresseach other than to cooperate for their common good.So strong is this propensity of mankind to fall intomutual animosities, that where no substantial oc-casion presents itself the most frivolous and fancifuldistinctions have been sufficient to kindle their un-friendly passions and excite their most violent con-flicts. But the most common and durable source offactions has been the various and unequal distri-bution of property. Those who hold and those whoare without property have ever formed distinct in-terests in society. 'Those who are creditors, and thosewho are debtors, fall under a like discrimination. Alanded interest, a manufacturing interest, a mercan-tile interest, a moneyed interest, with many lesserinterests, grow up of necessity in civilized nations,and divide them into different classes, actuated bydifferent sentiments and views. The regulation ofthese various and interfering interests forms theprincipal task of modern legislation, and ii.volvesthe spirit of party and faction in the necessary andordinary operations of the government.

No man is allowed to be a judge in his own cause,because his interest would certainly bias his judg-ment, and, not improbably, corrupt his integrity.With equal, nay with greater reason, a body of menare unfit to be both judges and parties at the sametime; yet what are many of the most important actsof legislation, but so many judicial determinations,not indeed concerning the rights of single persons,but concerning-the rights of large bodies of citizens?And what are the different classes of legislators butadvocates and parties to the causes which they de-termine? Is a law proposed concerning privatedebts? It is a question to which the creditors areparties on one side and the debtors on the other.Justice ought to hold the balance between them Yetthe parties are, and must be, themselves the judges;and the most numerous party, or, in other words,the most powerful faction must be expected to pre-

vail. Shall domestic manufacturers be encouraged,and in what degree, by restrictions on foreign man-ufactures? are questions which would be differentlydecided by the landed and the manufacturing clas-ses, and probably by neither with a sole regard tojustice ait the public good. The appointment oftaxes on the various descriptions of property is anact which seems to require the most exact imparti-ality; yet there is, perhaps, no legislative act in whichgreater cpportunity and temptation are given to apredominant party to trample on the rules of justice.Every shilling with which they overburden the in-ferior number is a shilling saved to their own pock-ets.

It is in vain to say that enlightened statesmen willbe able to adjust these clashing interests and renderthem all subservient to the public good. Enlightenedstatesmen will not always be at the helm. Nor, inmany cases, can such an adjustment be made at allwithout taking into view indirect and remote con-siderations, which will rarely prevail over the im-mediate interest which one party may find indisregarding the rights of another or the good of thewhole.

The inference to which we are brought is, that thecauses of faction cam.- . uc removed and that reliefis only to be sought in the means of controlling itseffects.

If a faction consists of less than a majority, reliefis supplied by the republican principle, which ena-bles the majority to defeat its sinister views by reg-ular vote. It may clog the administration, it mayconvulse the society; but it wi:: be unable to executeand mask its violence under the forms of the Con-stitution. When a majority is included in a faction,the form of popular government, on the other hand,enables it to sacifice to its ruling passion or interestboth the public good and the rights of other citizens.To secure the public good and private rights againstthe danger of such a faction, and at the same timeto preserve the spirit and the form of popular gov-ernment, is then the great object to which our in-quiries are directed. T et me add that it is the greatdesideratum by which alone this form of govern-ment can be rescuee, from the opprobrium underwhich it ha , so long labored and be recommendedto the esteem and adoption of mankind.

By wl'at means is this object attainable? Evidentlyby :ite of two only. Either the existence of the samepassion or interest in a majority at the same timemust be prevented, or the majority, having suchcoexistent passion or interest, must be rendered, bytheir number and local situation, unable to concertand carry into effect schemes of oppression. If the

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Document 1 115

impulse and the opportunity be suffered to coincide,we well know that neither moral nor religious mo-tives can be relied on as an adequate control. Theyare not found to be such on the injustice and violenceof individuals, and lose their efficacy in proportionto the number combined together, that is, in pro-portion as their efficacy becomes needful.

From this view of the subject it may be concludedthat a pure democracy, by which I mean a societyconsisting of a small number of citizens, who assem-ble and administer the government in person, canadmit of r o cure for the mischiefs of faction. A com-mon passion or interest will, in almost every case,be felt by a majority of the whole; a communicationand concert result from the form of government it-self; and there is nothing to check the inducementsto sacrifice the weaker party or an obnoxious indi-vidual. Hence it is that such democracies have everbeen spectacles of turbulence and contention; haveever been found incompatible with personal securityor the rights of property; and have in general beenas short in their lives as they have been violent intheir deaths. Theoretic politicians, who have pa-tronized this species of government, have errone-ously supposed that by reducing mankind to aperfect equality in their political rights, they would,at the same time, 1.-.? perfectly equalized and assim-ilated in their possessions, their opinions, and theirpassions.

A republic, by which I mean a government inwhich the scheme of representation takes place,opens a different prospect and promises the cure forwhich we are seeking. Let us examine the points inwhich it varies from pure democracy, and we shallcomprehend both the nature of the cure and theefficacy which it must derive from the Union.

The two great points of difference between a de-mocracy and a republic are: first, the delegation ofthe government, in the latter, to a small number ofcitizens elected by the rest; secondly, the greaternumber of citizens, and greater sphere of countryover which the latter may be extended.

The effect of the first difference is, on the onehand, to refine and enlarge the public views by pass-ing them through the medium of a chosen body ofcitizens, whose wisdom may best discern the trueinterest of their country and whose patriotism andlove of justice will be least likely to sacrifice it totemporary or partial considerations. Under such a-egulation, it may well happen that the public voice,pronounced by the representatives of the people,will be more consonant to the public good than ifpronounced by the people themselves, convened forthe purpose. On the other hand, the effect may be

inverted. Men of factious tempers, of local preju-dices, or of sinister designs, may, by intrigue, bycorruption, or by other means, first obtain the suf-frages, and then betray the interests of the people.The question resulting is, whether small or extensiverepublics are more favorable to the election of properguardians of the public weal; and it is clearly decidedin favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, howeversmall the republic may be, the representatives mustbe raised to a certain number in order to guardagainst the cab:is of a few; and that however largeit may be, they must be limited to a certain numberin order to guard against the confusion of a multi-tude. Hence, the number of representatives in thetwo cases not being in proportion to that of the twoconstituents, and being proportionally greater in thesmall republic, it follows that if the proportion of fitcharacters be not less in the large than in the smallrepublic, the former will present a greater option,and consequently a greater probability of a fit choice.

In the next place, as each representative will bechosen by a greater number of citizens in the largethan in the small republic, it will be more difficultfor unworthy candidates to practice with success thevicious arts by which elections are too often carried;and the suffrages of the people being more free, willbe more likely to centre on men who possess themost attractive merit and the most diffusive and es-tablished charaCters.

It must be confessed that in this, as in most othercases, there is a mean, on both sides of which in-conveniences will be found to lie. By enlarging toomuch the number of electors, you render the rep-resentative too little acquainted with all their localcircumstances and lesser interests; as by reducing ittoo much, you render him unduly attached to these,and too little fit to compre.iend and pursue greatand national objects. The federal Constitution formsa happy combination in this respect; the great andaggregate interests being referred to the national,the local and particular to the State legislatures.

The other point of difference is the greater numberof citizens and extent of territory which may bebrought within the compass of republican than ofdemocratic government; and it is this circumstanceprincipally which renders factious combinations lessto be dreaded in the former than in the latter. Thesmaller the society, the fewer probably will be thedistinct parties and interests composing it; the fewerthe distinct parties and interests, il,e more fre-quently will a majority be found of the same party,and the smaller the number of individuals compos-ing a majority, and the smaller the compass within

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which they are placed, the more easily will theyconcert and execute their plans of oppression. Ex-tend the sphere and you take in a greater variety ofparties and interests; you make it less probable thata majority of the whole will have a common motiveto invade the rights of other citizens; or if such acommon motive exists, it will be more difficult forall who feel it to discover their own strength, andto act in unison with each other. Besides other im-pediments, it may be remarked that, where there isa consciousness of unjust or dishonorable purposes,communication is always checked by distrust in pro-portion to the number wh ;e concurrence is nec-essary.

Hence, it clearly appears that the samt. advantagewhich a republic has over a democracy in controllingthe effects of faction is enjoyed by a large over asmall republicis enjoyed by the Union over theStates composing it. Does the advantage consist inthe substitution of representatives whose enlight-ened views and virtuous sentiments render themsuperior to local prejudices and to schemes of in-justice? It will not be denied that the representationof the Union will be most likely to possess theserequisite endowments. Does it consist in the greatersecurity afforded by a greater variety of parties,ar,- '4.-1- the event of any one party being able tooutnumber and oppress the rest? In an equal degreedoes the increased variety of parties comprisedwithin the Union increase this security. Does it, infine, consist in the greater obstacles opposed to theconcert and accomplishment of the secret wishes ofan unjust and interested majority? Here again theextent of the Union gives it the most palpable ad-vantage.

The influence of factious leaders may kindle aflame within their particular States but will be unableto spread a general conflagration through the otherStates. A religious sect may degenerate into a polit-ical faction in a part of the Confederacy; but thevariety of sects dispersed over the entire face of itmust secure the national councils against any dangerfrom that source. A rage for paper money, for anabolition of debts, for an equal division of property,or for any other improper or wicked project, will beless apt to pervade the whole body of the Unionthan a particular member of it, in the same propor-tion as such a malady is more likely to taint a par-ticular county or district than an entire State.

In the extent and proper structure of the Union,therefore, we behold a republican remedy for thediseases most incident to republican government.And according to the degree of pleasure and pridewe feel in being republicans ought to be our zeal incherishing the spirit and supporting the character ofFederalists.

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WE HAVE seen the necessity of the Union, as ourbulwark against foreign danger, as the conservatorof peace among ourselves, as the guardian of curcommerce and other common interests, as the onlysubstitute for those military establishments whichhave subverted the liberties of the old world, andas the proper antidote for the diseases of faction,which have proved fatal to other popular govern-ments, and of which alarming symptoms have b'-enbetrayed by our own. All that remains within thisbranch of our inquiries is to take notice of an objec-tion that may be drawn from the great extent ofcountry which the Union embraces. A few obser-vations on this subject will be the more proper, asit is perceived that the adversaries of the new Con-stitution are availing themselves of the prevailingprejudice with regard to the practicable sphere ofrepublican administration, in order to supply, byimaginary difficulties, the want of those solid objec-tions which they endeavor in vain to find.

The error which limits republican government toa narrow district has been unfolded and refuted inpreceding papers. I remark here only that it seemsto owe its rise and prevalence chiefly to the con-founding of a republic with a democracy, applyingto the former reasonings drawn from the nature ofthe latter. The true distinction between these formswas also adverted to on a former occasion. It is thatin a democracy the people meet and exercise thegovernment in person; in a republic: they assembleand administer it by their representative& andagents. A democracy, consequently, will be confinedto a small spot. A republic may be extended over alarge region.

To this accidental source of the error may be addedthe artifice of some celebrated authors, whose writ-ings have had a great share in forming the modernstandard of political opinions. Being subjects eitherof an absolute or limited monarchy, they have en-deavored to heighten the advantages, or palliate theevils of those forms, by placing in comparison thevices and defects of the republican and by citing asspecimens of the latter the turbulent democracies of

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ancient Greece and modern Italy. Under the con-fusion of names, it has been an easy task to transferto a republic observations applicable to a democracyonly; and among others, the observation that it cannever he established but among a small number ofpeople, living within a small compass of territory.

Such a fallacy may have been the less perceived,as most of the popular governments of antiquitywere of the democratic species; and even in modernEurope, to which we owe the great principle of rep-resentation, no example :'s seen of a governmentwholly popular and fowaded, at the same time,wholly on that principle. If Europe has the merit ofdiscovering this great mechanical power in govern-ment, by the simple agency of which the will of thelargest political body may be concentered, and itsforce directed to any object which the public goodrequires, America can claim the merit of making thediscovery the basis of unmixed and extensive re-publics. It is only to be lamented that any of hercitizens should wish to deprive her of the additionalmerit of displaying its full efficacy in the establish-ment of the comprehensive system now under herconsideration.

As the natural limit of a democracy is that distancefrom the central point which will just permit themost remote citizens to assemble as often a:. theirpublic functions demand, and will include nogreater number than can join in those functions, sothe natural limit of a republic is that distance fromthe center which will barely allow the representa-tives to meet as often as may be necessary for theadministration of public affairs. Can it be said thatthe limits of the United States exceed this distance?It will not be said by those who recollect that theAtlantic coast is the longest side of the Union, thatduring the term of thirteen years, the representa-tives of the States have been almost continually as-sembled, and that the members from the mostdistant Statt.3 are not chargeable with greater inter-missions of attendance than those from the Statesin the neighborhood of Congress.

That we may form a juster estimate with regardto this interesting subject, let us resort to the actualdimensions of the Union. The limits, as fixed by the

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treaty of peace, are: on the east the Atlantic, on thesouth the latitude of thirty-one degrees, on the westthe Mississippi, and on the north an irregular linerunning in some instances beyond tne forty-fifth de-gree, in others falling as low as the forty-second.The southern shore of Lake Erie lies below that lat-itude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hun-dreo and seventy-three common miles; computingit from thirty-one to forty-two degrees, to seven hun-dred and sixty-four miles and a half. Taking themean for the distance, the amount will be eight hun-dred and sixty-eight miles and three fourths. Themean distance from the Atlantic to the Mississippidoes not probab)y exceed seven hundred and fiftymiles. On a comparison of this extent with that ofseveral countries in Europe, the practicability of ren-dering our system commensurate to it appears to bedemonstrable. It is not a great deal larger than Ger-many. where a diet representing the whole empireis continually assembled; or than Poland before thelate dismemberment, where another national dietwas the depositary of the supreme power. Passingby France and Spain, we find that in Great Britain,inferior as it may be in size, the representatives ofthe northern extremity of the island have as far totravel to the national council as will be required ofthose of the remote parts of the Union.

Favorable as this view of the subject may be, someobservations remain which will place it in the lightstill more satisfactory.

In the first place it is to be remembered that thegeneral government is not to be charged with thewhole power of making and administering laws. Itsjunsdiction is limited to certain enumerated objects,which concern all the members of the republic, butwhich are not to be attained by the separate provi-sions of any. The subordinate go% ernments, whichcan extend their care to all those other objects whichcars be separately provided for, will retain their dueauthority and activity. Were it proposed by the planof the convention to abolish the governments of theparticular States, its adversaries would have someground for their objection; though it would not bedifficult to show that if they were abolished the gen-eral government would be compelled by the prin-ciple of self-preservation, to reinstate them in theirproper jurisdiction.

A second observation to be made is that the im-mediate object of the federal Constitution is to securethe union of the thirteen primitive States, which weknow to be practicable; and to add to them suchother States as may arise in their own bosoms, or int. eir neighborhoods, which we cannot doubt to be

equally practicable. The arrangere.c.nts that may benecessary for those angles and fractions .-.4 our ter-ritory which lie on our northwestern frontier mustbe left to those whom further discoveries and ex-perience will render more equal to the task.

Let it be remarked, in the third place, that theintercourse throughout the Union will be facilitatedby new improvements. Roads will everywhere beshortened, and kept in better order; accommoda-tions for travelers will be multiplied and meliorated;an interior navigation on our eastern side will beopened throughout, or nearly throughout, thewhole extent of the thirteen States. The communi-cation between the Western and Atlantic districts,and between different parts of each, will be renderedmore and more easy by those numerous canals withwhich the beneficence of nature has intersected ourcountry, and which art finds it so little difficult toconnect and complete.

A fourth and still more important considerationis, that as almost every State will on one side orother be a frontier, and will thus find, in a regardto its safety, an inducement to make some sacrificesfor the sake of the general protection. so the Stateswhich lie at the greatest distance from the heart ofthe Union, and which, of course, may partake lestof the ordinary circulation of its benefits, will be atthe same time immediately contiguous to foreignnations, and will consequently stand, on particularoccasions, in greatest need of its strength and re-sources. It may be inconvenient for Georgia, or theStates forming our western or northeastern borders,to send their representatives to the seat of govern-ment; but they would find it more so i strugglealone against zn invading enemy, or even to supportalone the whole expense of those precautions whichmay be dictated by the neighborhood of continui.!danger. If they should derive less benefit, therefore,from the union in some respects than the less distantStates, they will derive greater benefit from it inother respects, and thus the proper equilibrium willbe maintained throughout.

I submit to you, my fellow-citizens, these consid-erations, in full confidence that the good sensewhich has so often marked your decisions will allowthem their due weight and effect; and that you willnever suffer difficulties, however formidable in ap-pearance. or however fashionable the error on whichthey may be founded, to drive you into the gloomyand perilous scene into which the advocates for dis-union would conduct you. Hearken not to the un-natural voice which tells you that the people ofAmerica, knit together as they are by so many cordsof affection, can no longer live together as members

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of the same family; can no longer continue the mu-tual guardians of their mutual happiness; can nolonger be fellow citizens of one great, respectable,and flourishing empire. Hearken not to the voicewhich petulantly tells you that the form of govern-ment recommended for your adoption is a noveltyin the political world; that it has never yet had aplace in the theories of the wildest projectors; thatit rashly attempts what it is impossible to accom-plish. No, my countrymen, shut your ears againstthis unhallowed language. Shut your hearts againstthe poison which it conveys; the kindred bloodwhich flows in the veins of American citizens, themingled blood which they have shed in defence oftheir sacred rights, consecrate their Union, and ex-cite horror at the idea of their becoming aliens, rivals,enemies. And if novelties are to be shunned, believeme, the most alarming of all novelties, the most wildof all projects, the most rash of all attempts, is thatof rending us in pieces, irt order to preserve ourliberties and promote our happiness. But why is theexperiment of an extended republic to be rejectedmerely because it may comprise what is new? Is itnot the glory of the people of America, that, whilstthey have paid a decent regard to the opinions offormer times and other nations, they have not suf-fered a blind veneration for antiquity, for custom,or for names, to overrule the suggestions of theirown good sense, the knowledge of their own situ-

ation, and the lessons of their own experience? Tothis manly spirit posterity will be indebted for thepossession, and the world for the example, of thenumerous innovations displayed on the Americantheater, in favor of private rights and public hap-piness. Had no important step been taken by theleaders of the Revolution for which a precedent can-not be discovered, no government established ofwhich an exact model did not present itself, the peo-ple of the United States might-at this moment havebeen numbered among the melanchol victims ofmisguided councils,-must at best have been laboringunder the weight of some of those forms which havecrushed the liberties of the rest of mankind. Happilyfor America, happily we trust for the whole humanrace, they pursued a new and more noble course.They accomplished a revolution which has no par-allel in the annals of human society. They reared thefabricsof governments which have no model on theface of the globe. They formed the design of a greatConfederacy, -which it is incumbent on their succes-sors to improve and perpetuate. If their works betrayimperfections, we wonder at the fewness of them.If they erred most in the structure of the Union, thiswas the work most difficult to be executed; this isthe work which has been new modeled by the actof your convention, and it is that act on which youare now to deliberate and to decide.

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THE last paper having concluded the observationswhich were meant to introduce a candid survey ofthe plan of government reported by the convention,we now proceed to the execution of that part of ourundertaking.

The first question that offers itself is whether thegeneral form and aspect of the government bestrictly republican. It is evident that no other formwould be reconcilable with the genius of the peopleof America; with the fundamental principles of theRevolution; or with that honorable determinationwhich animates every votary of freedom to rest allour political experiments on the capacity of mankindfor self-government. If the plan of the convention,therefore, be found to depart from the republicancharacter, its advocates must abandon it as no longerdefensible.

What, then are the distinctive characters of therepublican form? Were an answer to this questionbe sought, not by recurring to principles but in theapplication of the term by political writers, to theconstitutions of different States, no satisfactory onewould ever be found. Holland, in which no particleof the supreme authority is derived from the people,has passed almost universally under the denomi-nation of a republic. The same title has been be-stowed on Venice, where absolute power over thegreat body of the people is exercised, in the mostabsolute manner by a small body of hereditary no-bles. Poland, which is a mixture of aristocracy andof monarchy in their worst forms, has been dignifiedwith the same appellation. The government of Eng-land, which has one republican branch only, com-bined with an hereditary aristocracy and monarchy,has with equal impropriety, been frequently placedon the list of republics. These examples, which arenearly as dissimilar to each other as to a genuinerepublic, show the extreme inaccuracy with whichthe term has been used in political disquisitions.

If we resort for a criterion to the different princi-ples on which different forms of government areestablished, we may define a republic to be, or atleast may bestow that naL a government which

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derives all its powers directly or indirectly from thegreat body of the people, and is administered bypersons holding their offices during pleasure, for alimited period, or during good behavior. It is essentialto such a government that it be derived from thegreat body of the society, not from an inconsiderableproportion or a favored class of it; otherwise a hand-ful of tyrannical nobles, exercising their oppressionsby a delegation of their powers, might aspire to therank of republicans, and claim for their governmentthe honorable title of republic. It is sufficient for sucha government that the persons, administering it beappointed, either directly or indirectly, by the peo-ple; and that they hold their appointments by eitherof the tenures just specified; otherwise evey gov-ernment in the United States, as well as every otherpopular government that has been or can be wellorganized or well executed, would be degraded fromthe republican character. According to the consti-tution of every State in the Union, some or other ofthe officers of government are appointed indirectlyonly by the people. According to most of them, thechief magistrate himself is so appointed. And ac-cording to one, this mode of appointment is ex-tended to one of the coordinate branches of thelegislature. According to all the constitutions, also,the tenure of the highest offices is extended to adefinite period, and in many instances, both withinthe legislative and executive departments, to a pe-riod of years. According to the provisions of mostof the constitutions, again, as well as according tothe most respectable and received opinions on thesubject, the members of the judiciary departmentare to retain their offices by the firm tenure of goodbehavior.

On comparing the Constitution planned by theconvention with the standard here fixed, we per-ceived 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 leg-islatures, is elected immediately by the great bodyof the people. The Senate, like the present Congress,and the Senate of Maryland, derives its appointmentindirectly from the people. The President is indi-rectly derived from the choice of the people, ac-

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cording to the example in most of the States. Eventhe judges with all other officers of the Union, will,as in the several States, be the choice, though a re-mote choice, of the people themselves. The durationof the appointments is equally conformable to therepublican standard, and to the model of State con-stitutions. The House of Representatives is period-ically elective as in all the States; and for the periodof two years, as in the State of South Carolina. TheSenate is elective for the period of six years; whichis but one year more than the period of the Senateof Maryland, and but two more than that of theSenates of New York and Virginia. The President isto continue in office for the period of four years; asin New York and Delaware the chief magistrate iselected for three years, and in South Carolina fortwo years. In the other States the election is annual.In several of the States, hOwever, no constitutionalprovision is made for the-impeachment of the chiefmagistrate. And in Delaware and Virginia he is notimpeachable till- out of office. The President of theUnited States is impeachable at anytime during hiscontinuance in office. The tenure by which thejudges are to hold their places, is, as it unquestion-ably ought to be, that of good behavior. The tenureof the ministerial offices generally will be a subjectof legal regulation, conformably to the reason of thecase and the example of the State constitutions.

Could any further proof be required of the repub-If can complexion of this system, the most decisiveone might be found in its absolute prohibition oftitles of nobility, both under the federal and the Stategovernments; and in its express guaranty of the re-publican form to each of the latter.

"But it was not sufficier t," say the adversaries ofthe proposed Constitution, "for the convention toadhere to the republican form. They ought withequal care to have preserved the federal form, whichregards the Union as a Confederacy of sovereignstates; instead of which, they have framed a nationalgovernment, which regards the Union as a consoli-dation of the States." And it is asked by what au-thority this bold and radical innovation wasundertaken? The handle which has been made ofthis objection requires that it should be examinedwith some precision.

Without inquiring into the accuracy of the dis-tinction on which the objection is founded, it willbe necessary to a just estimate of its force, first, toascertain the real character of the government inquestion; secondly, to inquire how far tf._ conven-tion were authorized to propose such a government,and thirdly, how far the duty they owed to their

country could supply any defect of regular author-ity.

FirstIn order to ascertain the real character ofthe government, it may be considered in relation tothe foundation on which it is to be established; tothe sources from which its ordinary powers are tobe drawn; to the operation of those powers; to theextent of them; and to the authority by which futurechanges in the government are to be introduced.

On examining the first relation, it appears, on onehand, that the Constitution is to be founded on theassent and ratification of the people of America,given by deputies elected for the special purpose,but, on the other, that this assent and ratification isto be given by the people, not as individuals com-posing one entire nation, but as composing the dis-tinct and independent States to which theyrespectively belong. It is to be the assent and rei-fication of the several States, derived from the s..preme authority in each Statethe authority of thepeople themse.ves. The act, therefore, establishingthe Constitution, will not be a national but a federalact.

That it will be a federal and not a national act, asthese terms are understood by the objectorsthe actof the people, as forming so many independentStates, not as forming one aggregate nationis ob-vious from this single consideration: that it is to re-sult neither from the decision of a majority of thepeople of the Union, nor from that of a majority ofthe States. It must result from the unanimous assentof the several States that are parties to it, differingno otherwise from their ordinary assent than in itsbeing expressed, not by legislative authority, but bythat of the people themselves. Were the people re-garded in this transaction as forming one nation, thewill of the majority of the whole people of the UnitedStates would bind the minority, in the same manneras the majority in each State must bind the minority;and the will of the majority must be determinedeither by a comparison of the individual votes, or.y considering the will of the majority of the Statesas evidence of the will of a majority of the peopleof the United States. Neither of these rules has beenadopted. Each State, in ratifying the Constitution,is considered as a sovereign body indep.mdent ofall others, and only to be bound by its own voluntaryact. In this relation, then, the new Constitution will,if established, be a federal, and not a national consti-tution.

The next relation is to the sources from which theordinary powers of government are to be derived.The House of Representatives will derive its powersfrom the people of America; and the people will be

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represented in the same proportion, and on thesame principle as they are in the legislature of aparticular State. So far the government is national,not federal. The Senate, on the other hand, will deriveits powers from the States, a:: political and coequalsocieties; and these will be represented on the prin-ciple of equality in the Senate, as they now are inthe existing Congress. So far the government is fed-eral, not national. The executive power will be de-rived from a very compound source. The immediateelection of the President is to be made by the Statesin their political characters. The votes allotted tothem are in a compound ratio, which considers thempartly as distinct and coequal societies, partly as un-equal members of the same society. The eventualelection, again, is to be made by that branch of thelegislature which consists of the national represen-tatives; but in this particular act they are to bethrown into the form of individual delegations fromso many distinct and coequal bodies politic. Fromthis aspect of government, it appears to be a mixedcharacter, presenting at least as many federal as na-tional features.

The difference between a federal and national gov-ernment, as it relates to :lie opcTalion of the govern-ment, is by the adversaries of the plan of theconvention supposed to consist in this, that in theformer the powers operate on the political bodiescomposing the Confederacy in their political capac-ities; in the latter, on the individual citizens com-posing the nation, in their individual capacities. Ontrying the Constitution by this criterion, it falls underthe national not the federal character; though perhapsnot so completely as has been understood. In severalcases, and particularly in the trial of controversiesto which States may be parties, they must be viewedand proceeded against in their collective and polit-ical capacities only. But the operation of the govern-ment on the people in their individual capacities, inits ordinary and most essential proceedings, will, inthe sense of its opponents, on the whole, designateit, in this relation, a national government.

But if the government be national with regard tothe operation of its powers, it changes its aspect againwhen we contemplate it in relation to the extent ofits powers. The idea of a national government in-volved in it not only an authority over the individualcitizens, but an indefinite supremacy over all per-sons and things, so far as they are objects of lawfulgovernment. Among a people consolidated in onenation, this supremacy is completely vested in thenational legislature. Among communities united forparticular purposes, it is vested partly in the generaland partly in the municipal legislatures. In the for-

mer case, all local authorities are subordinate to thesupreme; and may be controlled, directed, or abol-ished by it at pleasure. In the latter, the local ormunicipal authorities form distinct and independentportions of the supremacy, no more subject, withintheir respective spheres, to the general authoritythan the general authority is subject to them, withinits owivSphere. In this relation, then, the proposedgovernment cannot be deemed a national one; sinceits jurisdiction extends to certain enumerated objectsonly, and leaves to the several States a residuaryand inviolable sovereignty over all other °lints. Itis true that in controversies relating to the boundarybetween the two jurisdictions, the tribunal which isultimately to decide is to be established under thegeneral government. But this does not change theprinciple of the case. The decision is to be impartiallymade, according to the rules of the Constitution; andall the usual and most effectual precautions are takento secure this impartiality. Some such tribunal isclearly essential to prevent an appeal to the swordand a dissolution of the compact; and that it oughtto be established under the general rather than un-der the local governments, or, to speak more prop-erly, that it could be safely established under thefirst alone, is a position not likely to be combated.

If we try the Constitution by its last relation to theauthority by which amendments are to be made, wefind it neither wholly national nor wholly federal.Were it wholly national, the supreme and ultimateauthority would reside in the majority of the peopleof the Union, and this authority would be competentat all times, like that of a majority of every nationalsociety to alter or abolish its established govern-ment. Were it wholly federal, on the other hand,the concurrence of each State in the Union wouldbe essential to every alteration that would be bindingon all. The mode provided by the plan of the con-vention is not founded on either of these principles.In requiring more than a majority, and particularlyin computing the proportion by States, not by citi-zens, it departs from the national and advances to-wards the federal character; in rendering theconcurrence of less than the whole number of Statessufficient, it loses again the federal and partakes ofthe national character.

The proposed Constitution, therefore, even whentested by the rules laid down by its antagonists, is,in strictness, neither a national nor a federal Con-stitution, but a composition of both. In its founda-tion it is federal, not national, in the sources from

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which the ordinary powers of the government arcdrawn, it is partly federal and partly national; in theoperation of these powers, it is national, not federal;in the extent of them, again, it is federal, not na-tional; and, finally, in the authoritative mode of in-troducing amendments, it is neither wholly federalor wholly national.

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January 19, 1788To The People of the State of New York:

THE Constitution proposed by the convention maybe considered under the two general points of view.The FIRST relates to the sum or quantity of powerwhich it vests in the government, including the re-straints imposed on the States. The SECOND, to theparticular structure of the government and the dis-tribution of this power among its several branches.

Under the first view of the subject, two importantquestions arise: 1. Whether any part of the powerstransferred to the general government be unneces-sary or improper? 2. Whether the entire mass ofthem be dangerous to the portion of jurisdiction leftin the several States?

Is the aggregate power of the general governmentgreater than ought to have been vested in it? Thisis the first question.

It cannot have escaped those who have attendedwith candor to the arguments employed against theextensive powers of the government that the authorsof them have very little considered how far thesepowers were necessary means of attaining a nec-essary end. They have chosen rather to dwell on theinconveniences which must be unavoidably blendedwith all political advantages; and on the possibleabuses which must be incident to every power ortrust of which a beneficial use can be made. Thismethod of handling the subject cannot impose onthe good sense of the people of America. It maydisplay the subtlety of the writer; it may open aboundless field for rhetoric and declamation; it mayinflame the passions of the unthinking and may con-firm the prejudices of the misthinking: but cool andcandid people will at once reflect that the purest ofhuman blessings must have a portion of alloy inthem; that the choice must always be made, if notof the lesser evil, at least of the GREATER, not thePERFECT, good; and that in every political institu-tion, a power to advance the public happiness in-volves a discretion which may be misapplied andabused. They will see, therefore, that in all caseswhere power is to be conferred, the point first to bedecided is whether such a power be necessary tothe public good; as the next will be, in case of an

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affirmative decision, to guard as effectually as pos-sible against a perversion of the power to the publicdetriment.

That we may form a correct judgment on this sub-ject, it will be proper to review several powers con-ferred on the government of the Union; and that thismay be the more conveniently done they may bereduced into different classes as they relate to thefollowing different objects: 1. Security against for-eign danger; 2. Regulation of the intercourse withforeign nations; 3. Maintenance of harmony andproper intercourse among the States; 4. Certain mis-cellaneous objects of general utility; 5. Restraint ofthe States from certain injurious acts; 6. Provisionsfor giving due efficacy to all these powers.

The powers falling within the first class are thoseof declaring war and granting letters of marque; ofproviding armies and fle,ts; of regulating and callingforth the militia; of levying and borrowing money.

Security against foreign danger is one of the prim-itive objects of civil society. It is an avowed essentialobject of the American Union. The powers requisitefor attaining it must be effectually confided to thefederal councils.

Is the power of declaring war necessary? No manwill answer this question in the negative. It wouldbe superfluous, therefore, to enter into the proof ofthe affirmative. The existing Confederation estab-lishes this power in the most ample form.

Is the power of raising armies and equipping fleetsnecessary? This is involved in the foregoing power.It isinvolved in the power of self-defense.

But was it necessary to give an INDEFINITEPOWER of raising TROOPS, as well as providingfleets; and of maintaining .both in PEACE, as wellas in WAR?

The answer to these questions has been too faranticipated in another place to admit an extensivediscussion of them in this place. The answer indeedseems to be so obvious and conclusive as scarcelyto justify such a discussion in any place. With whatcolor of propriety could the force necessary for de-fence be limited by those who cannot limit the forceof offense? If a federal Constitution could chain theambition or set bounds to the exertions of all other

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nations, then indeed might it prudently chain thediscretion of its own government and set bounds tothe exertions for its own safety.

How could a readiness for war in time of peacebe safely prohibited, unless we could prohibit in likemanner the preparations and establishments ofevery hostile nation? The means of security can onlybe regulated by the means and the danger of attack.They will, in fact, be ever determined by these rulesand by no others. It is in vain to oppose constitu-tional barriers to the impulse of self-preservation. Itis worse than in vain; because it plants in the Con-stitution itself necessary usurpations of power,every precedent of which is a germ of unnecessaryand multiplied repetitions. If one nation maintainsconstantly a disciplined army, ready for the serviceof ambition or revenge, it obliges the most pacificnations who may be within the reach of its enter-prises to take corresponding precautions. The fif-teenth century was the unhappy epoch of militaryestablishments in the time of peace. They were in-troduced by Charles VII of France. All Europe hasfollowed, or been forced into, the example. Had theexample not been followed by other nations, all Eu-rope must long ago have worn the chains of uni-versal monarch. Were every nation except Francenow to disband its peace establishments, the sameevent might follow. The veteran legions of Romewere an over-match for the undisciplined valor ofall other nations, and rendered her the mistress ofthe world.

Not the less true is it, that the liberties of Romeproved the victim to her military triumphs; andthat the liberties of Europe, as far as they ever ex-isted, have, with few exceptions, been the price ofher military establishments. A standing force, there-fore, is a dangerous, at the same time that it may bea necessary, provision. On the smallest scale it hasinconveniences. On an extensive scale its conse-quences may be fatal. On any scale it is an object oflaudable circumspection and precaution. A wise na-tion will combine all these considerations; and,whilst it does not rashly preclude itself from anyresource which may become essential to its safety,will exert all its prudence in diminishing both thenecessity and the danger of resorting to one whichmay be inauspicious to its liberties.

The dearest marks of this prudence are stampedon the proposed Constitution. The Union itself,which it cements and secures, destroys every pretextfor a military establishment which could be danger-ous. America united, with a handful of troops, orwithout a single soldier, exhibits a more forbiddingposture to foreign ambition than America disunited,

with a hundred thousand veterans ready for combat.It was remarked on a former occasion that the wantof this pretext had saved the liberties of one nationin Europe. Being rendered by her insular situationand her maritime resources impregnable to the ar-mies of her neighbors, the rulers of Great Britainhave never been able, by real or artificial dangers,to cheat the public into an extensive peace estab-lishment. The distance of the United States from thepowerful nations of the world gives them the samehappy security. A dangerous establishment cannever be necessary or plausible, so long as they con-tinue a united people. But let it never for a momentbe forgotten that they are indebted for this advan-tage to the Union alone. The moment of its disso-lution will be the date of a new order of things. Thefears of the we er, or the ambition of the strongerStates, or Confeaeracies, will set the same examplein the new, as Charles VII. did in the old world. Theexample will be followed here from the same mo-tives which produced universal imitation there. In-stead of deriving from our situation the preciousadvantage which Great Britain has derived fromhers, the face of America will be but a copy of thatof the continent of Europe. It will present libertyeverywhere crushed between standing armies andperpetual taxes. The fortunes cf disunited Americawill be even more disastrous than those of Europe.The scurces of evil in the latter are confined to herown limits. No superior powers of another quarterof the globe intrigue among her rival nations, in-flame their mutual animosities, and render them theinstruments of foreign ambitions, jealousy, and re-venge. In America the miseries springing from herinternal jealousies, contentions, and wars, wouldform a part only of her lot. A plentiful addition ofevils would have their source in that relation inwhich Europe stands to this quarter of the earth,and which no other quarter of the earth bears toEurope.

This picture of the consequences of disunion can-not be too highly colored, or too often exhibited.Every man who loves peace, every man who loveshis country, every man who loves liberty ought tohave it ever before his eyes that he may cherish inhis heart a due attachment to the Union of Americaand be able to set a due value on the means of pre-serving it.

Next to the effectual establishment of the Union,the best possible precaution against danger fromstanding armies is a limitation of the term for whichrevenue may be appropriated to their support. Thisprecaution the Constitution has prudently added. Iwill not repeat here the observations which I flatter

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myself have placed this subject in a just and satis-factory light. But it may not be improper to takenotice of an argument against this part of the Con-stitution, which has been drawn from the policy andpractice of Great Britain. It is said that the contin-uance of an army in that kingdom requires an annualvote of the legislature; whereas the American Con-stitution has lengthened this critical period to twoyears. This is the form in which the comparison isusually stated to the public: but is it a just form? Isit a fair comparison? Does the British Constitutionrestrain the parliamentary discretion to one year?Does the American impose on the Congress appro-priations for two years? On the contrary, it cannotbe unknown to the authors of the fallacy themselvesthat-the British Constitution fixes no limit whateverto the discretion of the legislature, and that theAmerican ties down the legislature to two years asthe longest admissible term.

Had the argument from the British example beentruly stated, it would have stood thus: The term forwhich supplies may be appropriated to the armyestablishment, though unlimited by the British Constitution,:h?s nevertheless, in practice, been limitedby parliame.-iury discretion to a single year. Now,if in Great Britain, where the House of Commons iselected for severs years; where so great a proportionof the members are elected by so small a proportionof the people; where the electors are so corruptedby the representatives, and the representatives socorrupted by the Crown, the representative bodycan possess a power to make appropriations to thearmy for an indefinite term, without desiring, orwithout daring, to extend the term beyond a singleyear, ought not suspicion herself to blush, in pre-tending that the representatives of the United States,elected FREELY by the WHOLE BODY of the peo-ple, every SECOND YEAR, cannot be safely in-trusted with the discretion over such appropriations,expressly limited to the short period of TWOYEARS?

A bad cause seldom fails to betray itself. Of thistruth, the management of the opposition to the fed-eral government is an unvaried exemplification. Butamong all the blunders which have been committed,none is more striking than the attempt to enlist onthat side the prudent jealously entertained by thepeople of standing armies. The attempt has awak-ened fully the public attention to that important sub-ject; and has led to investigations which mustterminate in a thorough and universal conviction,not only that the Constitution has provided the mosteffectual guards against danger from that quarter,but that nothing short of a Constitution fully ade-

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quate to the national defence and the preservationof the Union can save America from as many stand-ing armies as it may be split into States or Confed-eracies, and from such a progressive augmentationof these establishments in each as will render themas burdensome to the properties and ominous to saeliberties of the people as any establishment that canbecome necessary under a united and efficient gov-ernment must be tolerable to the former and safe tothe latter.

The palpable necessity of the power to provideand maintain a navy has protected that part of theConstitution against a spirit of censure which hasspared few other parts. It must, indeed, be num-bered among the greatest blessings of America, thatas her Union will be the only source of her maritimestrength, so this will be a principal source of hersecurity against danger from abroad. In this respectour situation bears another likeness to the insularadvantage of Great Britain. The batteries most ca-pable of repelling foreign enterprises on our safetyare happily such as can never be turned by a per-fidious government against our liberties.

The inhabitants of the Atlantic frontier are all ofthem deeply interested in this provision for navalprotection, and if they have hitherto been sufferedto sleep quietly in their beds; if their property hasremained safe against the predatory spirit of licen-tious adventurers; if their maritime towns have notyet been compelled to ransom themselves from theterror of a conflagration, by yielding to the exactionsof daring and sudden invaders, these instances ofgood fortune are not to be ascribed to the capacityof the existing government for the protection ofthose from whom it claims allegiance, but to causesthat are fugitive and fallacious. If we except perhapsVirginia and Maryland, which are peculiarly vul-nerable on their eastern frontiers, no part of the Un-ion ought to feel more anxiety on this subject thanNew York. Her seacoast is extensive. A very im-por:ant district of the State is an island. The Stateitself is penetrated by a large navigable river for morethan fifty leagues. The great emporium of its com-merce, the great reservoir of its wealth, lies ev Liymoment at the mercy of events, and may almost beregarded as a hostage for ignominious complianceswith the dictates of a foreign enemy, or even withthe rapacious demands of pirates and barbarians.Should a war be the result of the precarious situationof European affairs, and all unruly passions attend-ing it be let loose on the ocean, our escape frominsults and depredations, not only on that element,but every part of the other bordering on it, will betruly miraculous. In the present condition of Amer-


ica, the States more immediately exposed to thesecalamities have nothing to hope from the phantomof a general government which now exists; and iftheir single resources were equal to the task of for-tifying themselves against the danger, the object tobe protected would be almost consumed by themeans of protecting them.

The power of regulating and calling forth the mi-litia has been already sufficiently vindicated and ex-plained.

The power of levying and borrowing money, be-ing the sinew of that which is to be exerted in thenational defence, is properly thrown into the sameclass with it. This power, also, has been examinedalready with much attention, and has, I trust, beenclearly shown to be necessary, both in the extentand form given to it by the Constitution. I will ad-dress one additional reflection only to those whocontend that the power ought to have been re-strained to external taxationby which they mean,taxes on articles imported from other ,:ountries. Itcannot be doubted that this will always be a valuablesource of revenue; that for a considerable time itmust be principal source; that at this moment it isan essential one. But we may form very mistakenideas on this subject, if we do not call to mind incur calculations, that the extent of revenue drawnfrom foreign commerce must vary with the varia-tions, both in the extent and the kind of imports;and that these variations do not correspond with theprogress of population, which must be the generalmeasure of the public wants. As long as agriculturecontinues the sole field of labor, the importation ofmanufacturers must increase as the consumers mul-tiply. As soon a, domestic manufactures are begunby the hands not called for by agriculture, the im-ported manufactures will decrease as the numbersof people increase. In a more remote stage, the im-ports may consist in a considerable part of raw ma-terials, which will be wrought into articles forexportation, and will, therefore, require rather theencouragement of bounties than to be loaded withdiscouraging duties. A system of government meantfor duration ought to contemplate these revolutionsand be able to accommodate itself to them.

Some, who have not denied the necessity of thepower of taxation have grounded a very fierce attackagainst the Constitution, on the language in whichit is defined. It has been urged and echoed that thepower "to lay and collect taxes, duties, imposts, andexcises, to pay the debts, and provide for the com-mon defence and general welfare of the UnitedStates," amounts to an unlimited commission to ex-ercise every power which may be alleged to be nec-

essary for the common defense or general welfare.No stronger proof could be given of the distressunder which these writers labor for objections, thantheir stooping to such a misconstruction.

Had no other enumeration or definition of thepowers of the Congress been found in the Consti-tution than the general expressions just cited, theauthors of the objection might have had some colorfor it; though it would have been difficult to find areason for so awkward a form of describing an au-thority to legislate in all possible cases. A power todestroy the freedom of the press, the trial by jury,or even to regulate the course of descents, or theforms of conveyances, must be very singularly ex-pressed by the terms "to raise money for the generalwelfare."

But what color can the objection have, when aspecification of the objects alluded to by these gen-eral terms immediately follows and is not even sep-arated by a longer pause than a semicolon? If thedifferent parts of the same instrument ought to beso expounded as to give meaning to every partwhich will bear it, shall one part of the same sen-tence be excluded altogether from a share in themeaning; and shall the more doubtful and indefiniteterms be retained in their full extent, and the clearand precise expressions be denied any significationwhatsoever? For what purpose could the enumer-ation of particular powers be inserted, if these andall others were meant to be included in the precedinggeneral power? Nothing is more natural nor com-mon than first to use a general phrase, and then toexplain and qualify it by a recital of particulars. Butthe idea of an enumeration of particulars which nei-ther explain nor qualify the general meaning, andcan have no other effect than to confound and mis-lead, is an absurdity, which, as we are reduced tothe dilemma of charging either on the authors of theobjection or on the authors of the Constitution, wemust take the liberty of supposing had not its originwith the latter.

The objection here is the more extraordinary, asit appears that the language used by the conventionis a copy from the articles of Confederation. Theobjects of the Union among the States, as describedin article third, are "their common defence, securityof their liberties, and mutual and general welfare."The terms of article eighth are still more identical:"All charges of war and all other expenses that shallbe incurred for the common defence or general wel-fare and allowed by the United States in Congressshall be defrayed out of a common treasury," etc.A similar language again occurs in article ninth. Con-strue either of these articles by the rules which

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would justify the construction put on the new Con-stitution, and they vest in the existing Congress apower to legislate in all cases whatsoever. But whatwould have been thought of that assemhly, if, at-taching. themselves to these general ex sessions,and disregarding the specifications which ascertainand limit their import, they had exercised an unlim-ited power of providing for the common defence andgeneral welfare? I appeal to the objectors them-selves, whether they would in that case have em-ployed the same reasoning in justification ofCongress as they now make use of against the con-vention. How difficult it is for error to escape itsown condemnation.

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HAVING reviewed the general form of the proposedgovernment and the general mass of power allottedto it, I proceed to examine the particular structureof this government, and the distribution of this massof power among its constituent parts.

One of the principal objections inculcated by themore respectable adversaries to the Constitution, isits supposed violation of the political maxim that thelegislative, executive, and judiciary departmentsought to be separate and distinct. In the structureof the federal government no regard, it is said, seemsto have been paid to this essential precaution in favorof liberty. The several departments of power are dis-tributed and blended in such a manner as at onceto destroy all symmetry and beauty of form, and toexpose some of the essential parts of the edifice tothe danger of being crushed by the disproportionateweight of other parts.

No political truth is certainly of greater intrinsicvalue, or is stamped with the authority of more en-lightened patrons of liberty than that on which theobjection is founded. The accumulation of all pow-ers, legislative, executive, and judiciary, in the samehands, whether of one, a few, or many, and whetherhereditary, self-appointed, or elective, may justly bepronounced the very definition of tyranny. Were thefederal Constitution, therefore, really chargeablewith the accumulation of power, or with a mixtureof powers, having a dangerous tendency to such anaccumulation, no further arguments would be nec-essary to inspire a universal reprobation of the sys-tem. I persuade myself, however, that it will bemade apparent to everyone that the charge cannotbe supported, and that the maxim on which it relieshas been totally misconceived and misapplied. Inorder to form correct ideas on this important subject,it will be proper to investigate the sense in whichthe preservation of liberty requires that the threegreat departments of power should be separate anddistinct.

The oracle who is always cons,Ated and cited onthis subject is the celebrated Montesquieu. If he benot the author of this invaluable precept in the sci-

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ence of politics, he has the merit at least of displayingand recommending it most effectually to the atten-tion of mankind. Let us endeavor, in the first place,to ascertain his meaning on this point.

The British Constitution was to Montesquieu whatHomer has been to the didactic writers on epic po-etry. As the latter have considered the work of theimmortal bard as the perfect model from which theprinciples and rules of the epic art were to be drawn,and by which all similar works were to be judged,so this great political critic appears to have viewedthe Constitution of England as the standard, or touse his own expression, as the mirror of politicalliberty; and to have delivered, in the form of ele-mer tary truths, the several characteristic principlesof that particular system. That we may be sure, then,not to mistake his meaning in this case, let us recurto the source from which the maxim was draw ..

On the slightest view of the British Constitution,we must perceive that the legislative, executive, andjudiciary departments are by no means totally sep-arate and distinct from each other. The executivemagistrate forms an integral part of the legislativeauthority. He alone has the prerogative of makingtreaties with foreign sovereigns, which, when made,have, under certain limitations, the force of legis-lative acts. All the members of the judiciary depart-ment are appointed by him, can be removed by himon the address of the two Houses of Parliament, andform, when he pleases to consult them, one of hisconstitutional councils. One branch of the legislativedepartment forms also a great constitutional councilto the executive chief, as, on another hand, it is thesole depository of judicial power in cases of im-peachment, and is invested with the supreme ap-pellate jurisdiction in all other cases. The judges,again, are so far connected with the legislative de-partment as often to attend and participate in itsdeliberations, though not admitted to a legislativevote.

From these facts, by which Montesquieu wasguided, it may clearly be inferred that, in saying"There can be no liberty where the legislative andexecutive powers are united in the same person, orbody of magistrates," or, "if the power of judging

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be not separated from the legislative and executivepowers," he did not mean that these departmentsought to have no partial agency in, or no control over,the acts of each other. His meaning, as his ownwords import, and still more conclusively as illus-trated by the example in his eye, can amount to nomore than this, that where the whole power of onedepartment is exercised by the same hands whichpossess the whole power of another department, thefundamental principles of a free constitution are sub-verted. This would have been the case in the con-stitution examined by him, if the king, who is thesole executive magistrate, had possessed also thecomplete legislative power, or the supreme admin-istration of justice; or if the entire legislative bodyhad possessed the supreme judiciary, or the su-preme executive authority. This, however, is notamong the vices of that constitution. The magistratein whom the whole executive power resides cannotof himself make a law, though he can put a negativeon every law; nor administer justice in person,though he has the appointment of those who doadminister it. The judges can exercise no executiveprerogative, though they are shoots from the exec-utive stock; nor any legislative function, though theymay be advised with by the legislative councils. Theentire legislature can perform no judiciary act,though by the joint act of two of its branches thejudges may be removed from their offices, andthough one of its branches is possessed of the ju-dicial power in the last resort. The entire legislature,again, can exercise no executive prerogative, thoughone of its branches, constitutes the supreme exec-utive magistracy, and another, on the impeachmentof a third, can try and condemn all the subordinateofficers in the executive department.

The reasons on which Montesquieu grounds hismaxim are a further demonstration of his meaning."When the legislative and executive powers areunited in the same person or body," says he, "therecan be no liberty, because apprehensions may ariselest the same monarch or senate should enact tyran-nical laws to execute them in a tyrannical manner."Again: "Were the power of judging joined with thelegislative, the life and liberty of the suF iect wouldbe exposed to arbitrary control, for the judge wouldthen be the legislator. Were it joined to the executivepower, the judge might behave with all the violenceof an oppressor." Some of these reasons are more fullyexplained in other passages; but briefly stated asthey are here, they sufficiently establish the meaningwhich we have put on this celebrated maxim of thiscelebrated author.

If we look into the constitutions .rf the severalStates, we find that, notwithstanding the emphaticaland, in some instances, the unqualified terms inwhich this axiom has been laid down, there is nota single instance in which the several departmentsof power have been kept absolutely separate anddistinct. New Hampshire, whose constitution wasthe last formed, seems to have been fully aware ofthe impossibility and inexpediency of avoiding anymixture whatever of these departments, and hasqualified the doctrine by declaring "that the legis-lative, executive, and judiciary powers ought to bekept as separate from, and independent of, eachother as the nature of a free government will admit; oras is consistent with that chain of connection that bindsthe whole fabric of the constitution in one indissoluble bondof unity and amity." Her constitution accordinglymixes these departments in several respects. TheSenate, which is a branch of the legislative depart-ment, is also a judicial tribunal for the trial of im-peachments. The President, who is the head of theexecutive department, is the presiding member alsoof the Senate; and, besides an equal vote in all cases,has a casting vote in case of a tie. The executive headis himself eventually elective every year by the leg-islative department, and his council is every yearchosen by and from the members of the same de-partment. Several of the officers of state are alsoappointed by the legislature. And the members ofthe judiciary department are appointed by the ex-ecutive department.

The constitution of Massachusetts has observed asufficient though less pointed caution, in expressingthis fundamental article of liberty. It declares "thatthe legislative department shall never exercise theexecutive and judicial powers, or either of them; theexecutive shall never exercise the legislative and ju-dicial powers, or either of them; the judicial shallnever exercise the legislative and executive powers,or either of them." This declaration corresponds pre-cisely with the doctrine of Montesquieu, as it hasbeen explained, and is not in a single point violitedby the plan of the convention. It goes no fartherthan to prohibit any one of the entire departmentsfrom exercising the powers of another department.In the very Constitution to which it is prefixed, apartial mixture of powers has been admitted. Theexecutive magistrate has a qualified negative on thelegislative body, and the Senate, which is a part ofthe legislature, is a court of impeachment for mem-bers both of the executive and judiciary depart-ments. The members of the judiciary department,again, are appointable by the executive department,and removable by the same authority on the address

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of the two legislative branches. Lastly, a number ofthe officers of government are annually appointedby the legislative department. As the appointmentto offices, particularly executive offices, is in its na-ture an executive function, the compilers of tl on-stitution have, in this last point at least, violated therule established by themselves.

I pass over the constitutions of Rhode Island andConnecticut, because they were formed prior to theRevolution and even before the principle under ex-amination had become an object of political atten-tion.

The constitution of New York contains no decla-ration on this subject, but appears very clearly tohave been framed with an eye to the danger of im-properly blending the different departments. Itgives, nevertheless, to the executive magistrate, apartial control over the legislative department; and,what is more, gives a like control to the judiciarydepartment; and even blends the executive and ju-diciary departments ir_ the exercise of this control.In its council of appointment members of the leg-islative are associated with the executive authority,in the appointment of officers, both executive andjudiciary. And its court for the trial of impeachmentsand correction of errors is to consist of one branchof the legislature and the principal members of thejudiciary department.

The constitution of New Jersey has blended thedifferent powers of government more than any ofthe preceding. The governor, who is the executivemagistrate, is appointed by the legislature; is chan-cellor and ordinary, or surrogate of the State; is amember of the Supreme Court of Appeals, and pres-ident, with a casting vote, of one of the legislativebranches. The same legislative branch acts again asexecutive council of the governor, and with him con-stitutes the Court of Appeals. The members of thejudiciary department are appointed by the legislativedepartment, and removable by one branch of it, onthe impeachment of the other.

According to the constitution of Pennsylvania, thepresident, who is the head of the executive depart-ment, is annually elected by a vote in which thelegislative department predominates. In conjunctionwith an executive council, he appoints the membersof the judiciary department, and forms a court ofimpeachment for trial of all officers, judiciary as wellas executive. The judges of the Supreme Court andjustices of the peace seem also to be removable bythe legislature; and the executive power of pardon-ing, in certain cases, to be referred to the same de-partment. The members of the executive council are

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made EX-OFFICIO justices of peace throughout theState.

In Delaware, the chief executive magistrate is an-nually elected by the legislative department. Thespeakers of the two legislative branches are vice-presidents in the executive department. The exec-utive chief, with six others appointed, three by eachof the legislative branches, constitutes the SupremeCourt of Appeals; he is joined with the legislath edepartment in the appointment of the other judges.Throughout the States it appears that the membersof the legislature may at the same time be justicesof the peace; in this State, .the members of onebranch of it are EX-OFFICIO justices of the peace;as are also the members of the executive council.The principal officers of the executive departmentare appointed by the legislative; and one branch ofthe latter forms a court of impeachments. All officersmay be removed on address of the legislature.

Maryland hasadopted the maxim in the most un-qualified terms; declaring that the legislative, exec-utive, and judicial powers of government ought tobe forever separate and distinct from each another.Her constitution, notwithstanding, makes the ex-ecutive magistrate appointable by the legislative de-partment: and the members of the judiciary by theexecutive department.

The language of Virginia is still more pointed onthis subject. Her constitution declares "that the leg-islative, executive, and judiciary departments shallbe separate and distinct; so that neither exercise thepowers properly belonging to the other; nor shallany person exercise the powers of more than one ofthem at the same time, except that the justices ofcounty courts shall be eligible to either House ofAssembly." Yet we find not only this express ex-ception with respect to the members of the inferiorcourts, but that the chief magistrate, with his exec-utive council, are appointable by the legislature; thattwo members of the latter are triennially displacedat the pleasure of the legislature; and that all theprincipal offices, both executive and judiciary, arefilled by the same department. The executive pre-rogative of pardon, also, is in one case vested in thelegislative department.

The constitution of North Carolina, which de-clares "that the legislative, executive, and supremejudicial powers of government ought to be foreverseparate and distinct from each other/' refers, at thesame time, to the legislative department, the ap-pointment not only of the executive chief, but all theprincipal officers within both that and the judiciarydepartment.

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In South Carolina, the constitution makes the ex-ecutive magistracy eligible by the legislat.ve depart-ment. It gives to the latter, also, the appointment ofthe members of the judiciary department, includingeven justices of the peace and sheriffs; and the ap-pointment of officers in the executive department,down to captains in the army and navy of the State.

In the constitution of Georgia, where it is declared"that the legislative, executive, and judiciary de-partments shall be separate and distinct, so that nei-ther exercise the powers properly belonging to theother," we find that the executive department is tobe filled by appointments of the legislature; and theexecutive prerogative of pardon to be finally exer-cised by the same authority. Even justices of thepeace are to be appointed by the legislature.

In citing these cases, in which the legislative, ex-ecutive, and judiciary departments have not beenkept totally separate and distinct, I wish not to be

regarded s an advocate for the particular organi-zations of several State governments. I am fullyaware that among the many excellent principleswhich they exemplify, they carry strong marks ofthe haste, and still stronger of the inexperience, un-der which they were framed. It is but too obviousthat in some instances the fundamental principleunder consideration has been violated by too greata mixture, and even an actual consolidation of thedifferent powers; and that in no instance has a com-petent provision been made for maintaining in prac-tice the separation delineated on paper. What I havewished to evince is that the charge brought againstthe proposed Constitution of violating the sacredmaxim of free government is warranted neither bythe real meaning annexed to that maxim by its au-thor, nor by the sense in which it has hitherto beenunderstood in America. This interesting subject willbe resumed in the ensuing paper.

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February I, 1788To the People of the State of New York:

IT WAS shown in the last paper that the politicalapothegm there examined does not require that thelegislative, executive, and judiciary departmentsshould be wholly unconnected with each other. Ishall undertake, in the next place, to show that un-less these departments be so far connected andblended as to give each a constitutional control overthe, others, the degree of separation which themaxim requires, as essential to a free government,can never in practice be duly maintained.

It is agreed on all sides, that the powers properlybelonging to one of the departments ought not tobe directly and completely administered by either ofthe other departments. It is equally evident thatnone of them ought to possess, directly or indirectly,an overruling influence over the others in the ad-ministration oftheir respective powers. It will notbe denied that power is of an encroaching natureand that it ought to be effectually restrained frompassing the limits assigned to it. After discriminat-ing, therefore, in theory, the several classes ofpower, as they may in their nature be legislative,executive, or judiciary, the next and most difficulttask is to provide some practical security for each,against the invasion of the others. What this securityought to be is the great problem to be solved.

Will it be sufficient to mark, with precision, theboundaries of these departments in the constitutionof the government, and to trust to these parchmentbarriers against the encroaching spirit of power?This is the security which appears to have been prin-cipally relied on by the compilers of most of theAmerican constitutions. But experience assures usthat the efficacy of the provision has been greatlyoverrated; and that some more adequate defence isindispensably necessary for the more feeble againstthe more powerful, members of the government.The legislative department is everywhere extendingthe sphere of its activity and drawing all power intoits impetuous vortex.

The founders of our republics have so much meritfor the wisdom which they have displayed that notask can be less pleasing than that of pointing out

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the errors into which they have fallen. A respect fortruth, however, obliges us to remark that they seemnever for a moment to have turned their eyes fromthe danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate,supported and fortified by an- hereditary branch ofthe legislative authority. They seem never to haverecollected the danger from legislative usurpations,which, by assembling all power in the same hands,must lead to the same tyranny as is threatened byexecutive usurpations.

In a government where numerous and extensiveprerogatives are placed in the hands of an hereditarymonarch, the executive departmcnt is very justlyregarded as the source of danger, and watched withall the jealousy which a zeal for liberty ought toinspire. In a democracy, where a multitude of peopleexercise in person the legislative functions and arecontinually exposed, by their incapacity-for-regulardeliberation and concerted measures, to the ambi-tious intrigues of their executive magistrates, tyr-anny may well be apprehended, on some favorableemergency, to start up in the same quarter. But ina representative republic, where the executive mag-istracy is carefully limited, both in the extent andthe duration of its power; and where the legislativepower is exercised by an assembly, which is inspiredby a supposed influence over the people, with anintrepid confidence in its own strength; which issufficiently numerous to feel all the passions whichactuate a multitude, yet not so nume -ous as to beincapable of pursuing the objects of its passions bymeans which reason prescribes; it is against the-en-terprising ambition of this department that the peo-ple ought to indulge all their jealousy and exhaustall their precautions.

The legislative department derives a superiorityin our governments from other circumstances. Itsconstitutional powers being at once more extensive,and less susceptible of precise limits, it can, with thegreater facility, mask, under complicated and indi-rect measures, the encroachments which it makeson the co-ordinate departments. It is not unfre-quently a question of real nicety in legislative bodieswhether the operation of a particular measure will,

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or will not, extend beyond the legislative sphere. Onthe other side, the executive power being restrainedwithin,a narrower compass and being more simplein its nature, and the judiciary being described bylandmarks still less uncertain, projects of usurpationby either of these departments would immediatelybetray and defeat themselves. Nor is this ail: as thelegislative department alone has access to the pock-ets of the people, and has in some constitutions fulldiscretion, and in all a prevailing influence, over thepecuniary rewards of those who fill the other de-partments, a dependence is thus created :a the lat-ter, which gives still greater facility toencroachments of the former.

I have appealed to our own experience for thetruth of what I advance on this subject. Were it nec-essary to verify this experience by particular proofs,they might be multiplied without end. I might collectvouchers in abundance from the records and ar-chives of every State in, the Union. But as a moreconcise, and at the same time equally satisfactoryevidence, I will refer to the example of two States,attested by two unexceptionable authorities.

The first example is that of Virginia, a State which,as we have seen, has expressly declared in its con-stitution, that the three great departments ought notto be intermixed. The authority in support of it isMr. Jefferson, who, besides his other advantages forremarking the operation of the government, washimself the chief magistrate of it. In order to conveyfully the ideas with which his experience had im-pressed him on this subject, it will be necessary toquote a passage of some length from his very inter-esting Notes on the State of Virginia, p. 195. "All thepowers of government, legislative, executive, andjudiciary, result to the legislative body. The concen-trating these in the same hands is precisely the def-inition of despotic government. It will be noalleviation that these powers will be exercised by aplurality of hands, and not by a single one. Onehundred and seventy-three despots would surely beas oppressive as one. Let those who doubt it turntheir eyes on the republic of Venice. As little will itavail us that they are chosen by ourselves. An electivedespotism was not the government we fought for; but:me which should not only be founded on free prin-ciples, but in which the powers of the governmentshould be so divided and balanced among severalbodies of magistracy as that no one could transcendtheir legal limits without being effectually checkedand restrained by the others. For this reason thatconvention which passed the ordinance of govern-ment, laid its foundation on this basis, that the leg-islative, executive, and judiciary departments

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should be separate and distinct, so that no personshould exercise the powers of more than one of themat the same time. But no barrier was provided betweenthese several powers. The judiciary and the executivemembers were left dependent on the legislative fortheir subsistence in office, and some of them for theircontinuance in it. If, therefore, the legislature as-sumes executive and judiciary powers, no opposi-tion is likely to be made; nor, if made, can beeffectual; because in that case they may put theirproceedings into the form of acts of Assembly,which will render them obligatory on the otherbranches. They have accordingly, in many instances,decided rights which should have been left to judiciarycontroversy, and the direction of the executive, duringthe whole time of their session, is becoming habitual andfamiliar."

The other State which I shall have for an exampleis Pennsylvania; and the other authority, the Councilof Censors, which assembled in the years 1783 and1784. A part of the duty of this body, as marked outby the Constitution, was "to inquire whether theConstitution had been preserved inviolate in everypart; and whether the legislative and executivebranches of government had performed their dutyas guardians of the people, or assumed to them-selves, or exercised, other or greater powers thanthey are entitled to by the Constitution." In the ex-ecution of this trust, the council were necessarily ledto a comparison of both the legislative and executiveproceedings with the constitutional powers of thesedepartments; and from the facts enumerated, andto the truth of most of which both sides in the councilsubscribed, it appears than the Constitution hadbeen flagrantly violated by the legislature in a varietyof important instances.

A great number of laws had been passed violating,without any apparent necessity, the rule requiringthat all bills of a public nature shall be previouslyprinted for the consideration of the people; althoughthis is one of the precautilns chiefly relied on by theConstitution against improper acts of the legislature.

The constitutional trial by jury has been violatedand powers assumed which had not been delegatedby the Constitution.

Executive powers had been usurped.The salaries of the judges. which the Constitution

expressly requires to be fixed, had been occasionallyvaried, and cases belonging to the judiciary depart-ment frequently drawn within legislative cognizanceand determination.

Those who wish to see several particulars fallingunder each of these heads may consult the journalsof the council which are in print. Some of them, it

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will be found, mad be imputable to peculiar circum-stances corm _cted with the war; but the greater partof them may be considered as the spontaneousshoots of an ill- constituted government.

It appears, also, that the executive departmenthad not been innocent of frequent breaches of theConstitution. There are three observations, how-ever, which ought to be made on this head: first, agreat proportion of the instances were either im-mediately produced by the necessities of the war,or recommended by Congress or the commander-in-chief; second, in most of the other instances theyconformed either to the declared or the known sen-timents of the legislative department; third, the ex-ecutive department of Pennsylvania is distinguishedfrom that of the other States by the number of mem-bers composing it. In this respect, it has as much

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affinity to a legislative assembly as to an executivecouncil. And being at once exempt from the restraintof an individual responsibility for the acts of thebody, and deriving confidence from mutual e:zenpleand joint influence, unauthorized measureswould,of course, be more freely hazarded, than where theexecutive department is administered by a singlehand, or by a few hands.

The conclusion which I am warranted in drawingfrom these observations is that a mere demarcationon parchment of the constitutional limits of the sev-eral departments is not a sufficient guard againstthose encroachments which lead to a tyrannical con-centration of all the powers of government in thesame hands.

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TO WHAT expedient, then, shall we finally resort,for maintaining in practice the necessary partitionof power among the several departments as laiddown in the Constitution? The only answer that canbe given is that as all these exterior provisions arefound to be inadequate the defect must be supplied,by so contriving the interior structure of the gov-ernment as that its several constituent parts may,their mutual relations, be the means of keeping earl.other in their proper places. Without presuming toundertake a full development of this important ideaI will hazard a few general observations, . rhich mayperhaps place it in a dearer light, and enable us toform a more correct judgment of the principles andstructure of the government planned by the con-vention.

In order to lay a due foundation for that separateand distinct exercise of the different powers of gov-ernment, which to a certain extent is admitted onall hands to be essential to the preservation of lib-erty, it is evident that each department should havea will of its own; and consequently should be soconstituted that the members of each should haveas little agency as possible in the appointment of themembers of the others. Were this principle rigor-ously adhered to, it would require that al_ the ap-pointments for the supreme executive, legislative,and judiciary tagistrades should be drawn from thesame fountain of authorit;', the people, throughchannels having no communication whatever withone another. Perhaps such a plan of constructingthe several departments would be less difficult inpractice than !t may in contemplation appear. Somedifficulties, however, ant. .ome additional expensewould attend the execution of it. Some deviations,therefore, from the principle must be admitted. Inthe constitution of the judiciary department in par-ticular, it might be inexpedient to insist rigorouslyon the principle: first, because peculiar qualificationsbeing essential in the members, the primary consid-eration ought to be to select that mode of choicewhich best secures these qualifications; second, be-cause the permanent tenure by which the appoint-

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ments are held in that department, must soondestroy all sense of dependence on the authorityconferring them.

It is equally evident that the members of each de-partment should be as little dependent as possibleon those of the others for the emoluments annexedto their offices. Were the executive magistrate, orthe judges, not independent of the legislature in thisparticular, their independence in every other wouldbe merely nominal.

But the great security against a gradual concen-tration of the several powers in the same departmentconsists in giving to those who administer each de-partment the necessary constitutional *means andpersonal motives to resist encroachments of the oth-ers. The provisions for defense must in this, as inall other cases, be made commensurate to the dangerof attack. Ambition must be made to counteract am-bition. The interest of the man must be connectedwith the constitutional rights of the place. It may bea reflection on human nature that such devicesshould be necessary to control the abuses of gov-ernment. But what government itself but thegreatest of all-reflections on human nature? If menwere angels, no government would be necessary. Ifangels were to govern men, neither external nor in-ternal controls on government would be necessary.In framing a government which is to be administeredby men over men, the great difficulty lies in this:you must first enable the government to control thegoverned; and in the next place oblige it to controlitself. A dependence on the people is, no doubt, theprimary control on the government; but experiencehas taught mankind the necessity of auxiliary pre-cautions.

This policy of supplying, by opposite and rivalinterests, the defect of better motives, might betraced through the whole system of human affairs,private as well as public. We see it particularly dis-played in all the subordinate distributions of power,where the constant aim is to divide and arrange theseveral offices in such a manner as that each maybe a check on the otherthat the private interest ofevery individual may be a sentinel over the publicrights. These inventions of prudence cannot be less

i40 James Madison and The Federalist Papers

requisite in the distribution of the supreme powersof the State.

But it is not possible to give each department anequal power of self-defence. In republican govern-ment, the legislative authority necessarily predom-inates. The remedy for this inconveniency is todivide the legislature into different branches; and torender them, by different modes of election and dif-ferent principles of action, as little connected witheach other as the nature of their common funciwnsand their common dependence on the society willadmit. It may even be necessary to guard againstdangerous encroachments by still further precau-tions. As the weight of the legislative authority re-quires that it should be thus divided, the weaknessof the executive may require, on the other hand,that it should be fortified. An absolute negative onthe legislature appears, at first view, to be the naturaldefence with which the executive magistrate shouldbe armed. But perhaps it would be neither altogethersafe nor alone sufficient. On ordinary occasions itmight not be exerted with the requisite firmness,and on extraordinary occasions it might be perfidi-ously abused. May not this defect of an absolutenegative be supplied by some qualified connectionbetween this weaker depa iient and the weakerbranch of the stronger department, by which thelatier may be led to support the constitutional rightsof the former, without being too much detachedfrom the rights of its ow department?

If the principles on which these observations arefounded be just, as I persuade myself they are, andthey be applied as a criterion to the several Stateconstitutions, and to the federal Constitution, it willbe found that if the latter does not perfectly corre-spond with them, the former are infinitely less ableto bear such a test.

There ai.e, moreover, two considerations partic-ularly applicable to the federal system of America,which place that system in a very intoresting pointof view.

First. In a single republic, all the power surren-dered by the people is submitted to the administra-tion of a single government; and the usurpations areguarded against by a division of the government intodistinct and separate departments. In the compoundrepublic of America, the power surrendered by thepeople is first divided between two distinct govern-ments, and then the portion allotted to each sub-divided among distinct and separate departments.Hence a double security arises to the rights of thepeople. The different governments will control eachother, at the same time that each will be controlledby itself.

Second. It is of great importance in a republic notonly to guard the society against the oppression ofits rulers, but to guard one part of the society againstthe injustice of the other part. Different interestsnecessarily exist in different classes of citizens. If amajority be united by a common interest, the rightsof the minority will be insecure. There are but twomethods of providing against this evil: the one bycreating a will in the community independent of themajoritythat is, of the society itself; the other, bycomprehending in the society so many separate de-scriptions of citizens as will render an unjust com-bination of a majority of the whole very improbable,if not impracticable. The first method prevails in allgovernments possessing an hereditary or self-ap-pointed authority. This, at best, is put a precarioussecurity; because a power independent of the societymay as well espouse the unjust views of the majoras the rightful interests of the minor party, and maypossibly be turned against both parties. The secondmethod will be exemplified in the federal republicof the United States. Whilst all authority in it willbe derived from and dependent on the society, thesociety itself will be broken into so many parts, in-terests and classes of citizens, that the rights of in-dividuals, or of the minority, will be in little dangerfrom interested combinations of the majority. In afree government the security for civil rights must bethe same as that for religious rights. It consists inthe one case hi the multipiLity of interests, and inthe other in the multiplicity of set,. The degree ofsecurity in both cases will depend on the number ofinterests and sects; and this may be presumed todepend on the extent of country and numbers ofpeople comprehended under the same government.This view of the subject must particularly recom-mend a proper federal system to all the sincere andconsiderate friends of republican government, sinceit shows that in exact proportion as the territory ofthe Union may be formed into more circumscribedConfederacies, or States, oppressive combinationsof a majority will be facilitated; the best security,under the republican forms, for the rights of everyclass of citizens, will be diminished; and conse-quently the stability and independence of somemember of the government, the only other security,must be proportionally increased. Justice is the endof government. It is the end of civil society. It everhas been and ever will be pursued until it be ob-tained, or until liberty be lost in the pursuit. In asociety under the forms of which the stronger factioncan readily unite and oppress the weaker, anarchymay as truly be said to reign as in a state of nature,where the weaker individual is not secured against

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the violence of the stronger; and as, in the latterstate, even the stronger individuals are prompted,by the uncertainty of their condition, to submit to agovernment which may protect the weak as well asthemselves; so, in the former state, will the morepowerful factions or parties be gradually induced,by a like motive, to wish for a government whichwill protect all parties, the weaker as well as themore powerful. It can be little doubted that if theState of Rhode Island was separated from the Con-federacy and left to itself, the insecurity of rightsunder the popular form of government within suchnarrow limits would be displayed by such reiteratedoppressions of factious majorities that some poweraltogether independent of the people would soonbe called for by the voice of le very factions whosemisrule had proved the necessity of it. In the ex-tended republic of the United States, and among the

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great variety of interests, parties, and sects which itembraces, a coalition of a majority of the whole so-ciety could seldom take place on any other principlesthan those of justice and the general good; whilstthere being thus less danger to a minor from the willof a major party, there must be less pretext, also, toprovide for the security of the former, by introducinginto the government a will not dependent on thelatter, or, in other words, a will independent of thesociety itself. It is no less certain than it is important,notwithstanding the contrary opinions which havebeen entertained, that the larger the society, pro-vided it lie within a practicable sphere, the moreduly capable it will be of self-government. And hap-pily for the republican cause, the practicable spheremay be carried to a very great extent, by a judiciousmodification and mixture of the federal principle.

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Document 8Essay I (Brutus)

18 October 1787To the Citizens of the State of New-York.

When the public is called to investigate and decideupon a question in which not only the present mem-bers of the community are deeply interested, butupon which the happiness and misery of genera-tions yet unborn is in great measure suspended, thebenevolent mind cannot help feeling itself peculiarlyinterested in the result.

In this situation, I trust the feeble efforts of anindividual, to lead the minds of the people to a wiseand prudent determination, cannot fail of being ac-ceptable to the candid and dispassionate part of thecommunity. Encouraged by this consideration, Ihave been induced to offer my thoughts upon thepresent important crisis of our public affairs.

Perhaps this country never saw so critical a periodin their political concerns. We have felt the feeble-ness of the ties by which these United States areheld together, and the want of sufficient energy inour present confederation, to manage, in some in-stances, our general concerns. Various expedientshave been proposed to remedy these evils, but nonehave succeeded. At length a Convention of the stateshas been assembled, they have formed a constitu-tion which wiii-now, probably, be submitted to thepeople to ratify of reject, who are the fountain of allpower, to whom alone it of right belongs to makeor unmake constitutions, or forms of government,at their pleasure. The most important question thatwas ever proposed to your decision, or to the de-cision of any people under heaven, is before you,and you are to decide upon it by men of your ownelection, chosen specially for this purpose. If theconstitution, offered to your acceptance, be a wiseone, calculated to preserve the invaluable blessingsof liberty, to secure ale inestimable rights of man-kind, and promote human happiness, then, if youaccept it, you will lay a,lasting foundation of hap-piness for milEons yz.Z unborn, generations to comewill rise up and call you blessed. You may rejoicein the prospects of this vast extended continent be-coming filled with freemen, who will assert the dig-nity of human nature. You may solace yourselveswith the idea, that society, in this favoured land,

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will fast advance to the highest point of perfection;the human mind will expand in knowledge and vir-tue, and the golden age be, in some measure, real-ised. But if, on the other hand, this form ofgovernment contains principles that will lead to thesubversion of libertyif it tends to establish a des-potism, or, what is worse, a tyrannic aristocracy;then, if you adopt it, this only remaining asylum forliberty will be shut up, and posterity will execrateyour memory.

Momentous then is the question you have to de-termine, and you are called upon by every motivewhich should influence a noble and virtuous mind,to examine it well, and to make up a wise judgment.It is insisted, indeed, that this constitution must bereceived, be it ever so imperfect. If it has its defects,it is said, they can be best amended when they areexperienced. But remember, when the people oncepart with power, they can seldom or never resumeit again but by force. Many instances can be pro-duced in which the people have voluntarily in-creased the powers of their rulers; but few, if any,in which rulers have willingly abridged their au-thority. This is a sufficient reason to induce you tobe careful, in the first instance, how you deposit thepowers of government.

With these few introductory remarks, I shall pro-ceed to a consideration of this constitution:

The first question that presents itself on the sub-ject is, whether a confederated government be thebest for the United States or not? Or in other words,whether the thirteen United States should be re-duced to one great republic, governed by one leg-islature, and under the direction of one executiveand judicial; or whether they should continue thir-teen confederated : :publics, under the direction andcontroul of a supreme federal head for certain de-fined national purposes only?

This enquiry is important, because, although thegovernment reported by the convention does not goto a perfect and entire consolidation, yet it ap-proaches so near to it, that it must, if executed, cer-tainly and infallibly terminate in it.

This government to possess absolute and un-controulable power, legislative, executive and Judi-


cial, with respect to every object to which it extends,for by the last clause of section 8th, article Ist, it isdeclared "that the Congress shall have power tomake all laws which shall be necessary and properfor carrying into execution the foregoing powers,and all other powers vested by this constitution, inthe government of the United States; or in any de-partment or office thereof." And by the bth article,it is declared "that this constitution, and the laws ofthe United States, which shall be made in pursuancethereof, and the treaties made, or which shall bemade, under the a utnority of the United States, shallbe the supreme law of the land; and the judges ineve, state shall be bound thereby, any thing in theconstitution, or law of any state to the contrary not-withstanding." It appears from these articles thatthere is no need of any intervention of the stategovernments, between the Congress and the peo-ple, to execute any one power vested in the generalgovernment, and that the constitution and laws ofevery state are nullified and declared void, so far asthey are or shall be inconsistent with this constitu-tion, or the laws made in pursuance of it, or withtreaties made under the authority of the UnitedStates.The government then, so far as it extends,is a complete one, and not a confederation. It is asmuch one complete government as that of New-York or Massachusetts, has as absolute and perfectpowers to make and execute all laws, to appointofficers, institute courts, declare offences, and annexpenalties, with respect to every object to which itextends, as any other in the world. So far thereforeas its powers reach, all ideas of confederation aregiven up and lost. It is true this government is lim-ited to certain objects, or to speak more properly,some small degree of power is still left to the states,but a little attention to the powers vested in thegeneral government, will convince every candidman, that if it is capable of being executed, all thatis reserved for the individual states must very soonbe annihilated, except so far as they are barely nec-essary to the organization of the general govern-ment. The powers of the general legislature extendto every case that is of the least importancethereis nothing valuable to human nature, nothing dearto freemen, but what is within its power. It has au-thority to make laws which will affect the lis t_, lib-erty, and property of every man in the United States;nor can the constitution or laws of any state, in anyway prevent or impede the full and complete exe-cution of every power given. The legislative poweris competent to iay taxes, duties, imposts, and ex-cises;there is no limitation to this power, unlessit be said that the clause which directs the use to

which those taxes, and duties shall be applied, maybe said to be a limitation: but this is no restrictionof the power at all, for by this clause they are to beapplied to pay the debts and provide for the commondefence and general welfare of the United States;but the legislature have authority to contract debtsat their discretion; they are the sole judges of whatis necessary to provide for the common defence, andthey only are to determine what is for the generalwelfare; this power therefore is neither more norless, than a power to lay and collect taxes, imposts,and excises, at their pleasure; not only [is] the powerto lay taxes unlimited, as to the amount they mayrequire, but it is perfect and absolute to raise themin any mode they please. No state legislature, or anypower in the state governments, have any more todo in carrying this into effect, than the authority ofone state has to do with that of another. In the busi-ness therefore of laying and collecting taxes, the ideaof a confederation is totally lost, and that of oneentire republic is embraced. It is proper here to re-mark, that the authority to lay and collect taxes isthe most important of any power that can begranted; it connects with it almost all other powers,or at least will in process of time draw all other afterit; it is the great mean of protection, security, anddefence, in a gc _,d government, and the great engineof oppression and tyranny in a bad one. This cannotfail of being the case, if we consider the contractedlimits which are set by this constitution, to the late[state?] governments, on this article of raisingmoney. No state can emit paper moneylay anyduties; or imposts, on imports, or exports, but byconsent of the Congress; and then the net produceshall be for the benefit of the United States: the onlymean therefore left, for any state to support its gov-ernment and discharge its debts, is by direct taxa-tion; and the United States have also power to layand collect taxes, in any way they please. Every onewho has thought on the subject, must be convincedthat but small sums of money can be collected inai.y country, by direct taxe[s], when the federal gov-ernment begins to exercise the right of taxation inall its parts, the legislatures of the several states willfind it impossible to raise monies to support theirgovernments. Without money they cannot be sup-ported, and they must dwindle away, and, as beforeobserved, their powers absorbed in that of the gen-eral government.

It might be here shown, that the power in thefederal legislative, to raise and support armies atpleasure, as well in peace as in war, and their con-troul over the militia, tend, not only to a consoli-dation of the government, but the destruction of

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liberty.I shall not, however, dwell upon these, asa few ,observations upon the judicial power of thisgovernment, in addition to the preceding, will fullyevince the truth of the position.

The judicial power of the United States is to bevested in a supreme court, and in such inferiorcourts as Congress may from time to time ordainand establish. The power of these courts are veryextensive; their jurisdiction comprehends all civilcauses, except such as arise between citizens of thesame state; and it extends to all cases in law andequity arising under the constitution. One inferiorcourt must be established, I presume, in each state,at least, with the necessary executive officers ap-pendant thereto. It is easy to see, that in the commoncourse of things, these courts will eclipse the dignity,and take away from the respectability, of the statecourts. These courts will be, in themselves, totallyindependent of the states, deriving their authorityfrom the United States, and receiving from themfixed salaries; and in the course of human events itis to be expected, that they will swallow up all thepowers of the courts in the respective states.

How far the clause in the 8th section of the Istarticle may operate to do away all idea of confed-erated states, and to effect an entire consolidationof the whole into one general government, it is im-possible to say. The powers given by this article arevery general and comprehensive, and it may receivea construction to justify the passing almost any law.A power to make all laws, which shall be necessaryand proper, for carrying into execution, all powersvested by the constitution in the government of theUnited States, or any department or officer thereof,is a power very comprehensive and definite [indef-inite?], and may, for ought I know, be exercised insuch a manner as entirely to abolish the state leg-islatures. Suppose the legislature of a state shouldpass a law to raise money to support their govern-ment and pay the state debt, may the Congress re-peal this law, because it may prevent the collectionof a tax which they may think proper and necessaryto lay, to provide for the general welfare of theUnited States? For all laws made, in pursuance ofthis constitution, are the supreme law of the land,and the judges in every state shall be bound thereby,any thing in the constitution or laws of the differentstates to the contrary notwithstanding.By such alaw, the government of a particular state might beoverturned at one stroke, and thereby be deprivedof every means of its support.

It is not meant, by stating this case, to insinuatethat the constitution would warrant a law of thiskind; or unnecessarily to alarm the fears of the peo-

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ple, by suggesting, that the federal legislature wouldbe more likely to pass the limits assigned them bythe constitution, than that of an individual state,further than they are less responsible to the people.But what is meant is, that the legislature of theUnited States are vested with the great and uncon-troulable powers, of laying and collecting taxes, du-ties, imposts, and excises; of regulating trade,raising and supporting armies, organizing, arming,and disciplining the militia, instituting courts, andother general powers. And are by this clause in-vested with the power of making all laws, proper andnecessary, for carrying all these into execution; andthey may so exercise this power as entirely to an-nihilate all the state governments, and reduce thiscountry to one single government. And if they maydo it, it.is pretty certain they will; for it will be foundthat the power retained by individual states, smallas it is, will be a clog upon the wheels of the gov-ernment of the United States; the latter therefore willbe naturally inclined to remove it out of the way.Besides, it is a truth confirmed by the unerring ex-perience of ages, that every man, and every bodyof men, invested with power, are ever disposed toincrease it, and to acquire a superiority over everything that stands in their way. This disposition,which is implanted in human nature, will operatein the federal legislatureto lessen and ultimately tosubvert the state authority, and having such advan-tages, will most certainly succeed, if the federal gov-ernment succeeds at all. It must be very evidentthen, that what this constitution wants of being acomplete consolidation of the several parts of theunion into one complete government, possessed ofperfect legislative, judicial, and executive powers, toall intents and purposes, it will necessarily acquirein its exercise and operation.

Let us now proceed to enquire, as I at first pro-posed, whether it be best the thirteen United Statesshould be reduced to one great republic, or not? Itis here taken for granted, that all agree in this, thatwhatever government we adopt, it ought to be a freeone; that it should be so framed as to secure theliberty of the citizens of America, and such an oneas to admit of a full, fair, and equal representationof the people. The question then will be, whether agovernment thus constituted, and founded on suchprinciples, is practicable, and can be exercised overthe whole United States, reduced into one state?

If respect is to be paid to the opinion of the greatestand wisest men who have ever thought or wrote onthe science of government, we shall be constrainedto conclude, that a ft °e republic cannot succeed overa country of such immense extent, containing such

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a number of inhabitants, and these encreasing insuch rapid progression as that of the whole UnitedStates. Among the many illustrious authoritieswhich might be produced to this point, I shall con-tent myself with quoting only two. The one is thebaron de Montesquieu, spirit of laws, chap. xvi.I [book VIII]. "It is natural to a republic to have onlya small territory, otherwise it cannot long subsist.In a large republic there are men of large fortunes,and consequently of less moderation; there are truststoo great to be placed in any single subject; he hasinterest of his own; he soon begins to think that hemay be happy, great and glorious, by oppressinghis fellow citizens; and that he may raise himself tograndeur on the ruins of his country. In a large re-public, the public good is sacrificed to a thousandviews; it is subordinate to exceptions, and dependson accidents. In a small one, the interest of the publicis easier perceived, better understood, and morewithin the reach of every citizen; abuses are of lessextent, and of course are less protected." Of tnesame opinion is the marquis Beccarari.

History furnishes no example of a free republic,any thing like the extent of the United States. TheGrecian republics were of small extent; so alto wasthat of the Romans. Both of these, it is true, in proc-ess of time, extended their conquests over large territories of country; and the consequence was, thattheir governments were changed from that of freegovernments to those of the mosi tyrannical thatevery existed in the world.

Not only the opinion of the greatest men, and theexperience of mankind, are against the idea of anextensive republic, but a variety of reasons may bedrawn from the reason and nature of things, againstit. In every government, the will of the sovereign isthe law. In despotic governments, the supreme au-thority being lodged in one, his will is law, and castbe as easily expressed to a large extensive v.--ritoryas to a small one. In a pure demo:racy the F -opleare the sovereign, and their will is declared byselves; for this purpose they must all come togeth-rto deliberate, and decide. This kind of governmentcannot be exercised, therefore, over a country of anyconsiderable extent; it must be confined to a singlecity, or at least limited to such bounds as tha: thepeople can conveniently assemble, be able to debate,understand the subject submitted to them, and de-clare their opinion concerning it.

In a free republic, although all laws are derivedfrom the consent of the people, yet :he people dcnot declare their consent by themselves in person,but by representatives, chosen by thcm, who are

supposed to know the minds of their constituents,and to be possessed of integrity to declare this mind.

In every free government, the people must givetheir assent to the laws by which they are governed.This is the true criterion between a free governmentand an arbitrary one. The former are ruled by thewill of the whole, expressed in any manner theymay agree upon; the latter by the will of one, or afew. If the people are to give their assent to the laws,by persons chosen and appointed by them, the man-ner of the choice and the number chosen, must besuch, as to possess, be disposed, and consequentlyqualified to declare the sentiments of the people; forif they do not know, or are not disposed to speakthe sentiments of the people, the people do not gov-ern, but the sovereignty is in a few. Now, in a :argeextended country, it is impossible to have a repre-sentation, possessing the sentiments, and of integ-rity, to declare the minds of the people, withouthaving it so numerous and unwieldy, as to be subjectin great measure to the inconveniency 6; a demo-cratic government.

The territory of the United States is of vast extent;it now contains near three million of souls, and iscapable of containing mur more than ten times thatnumber. Is it practical cor a country, so large andso numerous as they will soon become, to elect arepresentation, that will speak their sentiments,without their becoming so numerous as to be inca-pable of transacting public business? It certainly isnot.

In a republic, the manners, sentiments, and in-terests of the people should be similar. If this be notthe case, there will be a constant clashing of opin-ions; and the representatives of one part will be con-tinually striving against those of the other. This willretard the operations of government, and preventsuch conclusions as will promote the public good.If we apply this remark to the condition of the UnitedStates, we shall be convinced that it forbids that weshould be one government. The United States in-cludes a vatic :3, of climates. The productions of thedifferent parts of the union are very variant, andtheir interests, of consequence, diverse. Their man-ners and habits differ as much as their climates andproductions; and their sentiments are by no meanscoincident. The laws and customs of the severalstates are, in many respects, very diverse, and insome opposite; each would be in favc 7 of its owninterests and customs, and, of consequence, a leg-isl:ture, formed of representatives from the respec-tive parts, would not only be too numerous to actwith any care or decision, but would be composed

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of such heterogeneous and discordant principles, aswould constantly be contending with each other.

The laws cannot be executed in a republic, of anextent equal to that of the Unitel States, withpromptitude.

The magistrates in every government must besupported in the execution of the laws, either by anarmed force, maintained the public exp ance forthat purpose; or by, the people turning out to aid themagistrate upon his command, in case of resistance.

In despotic governments, as well as in all the mon-archies of Europe, standing armies are kept up toexecute the commands of the prince or the magis-trate, and are employed for this purpose when oc-casion requires: But they have always proved thedestruction of liberty, and [arej abhorrent to thespirit of a free republic. In England, where they de-pend upon the parliament for their annual support,they have always been complained of as oppressiveand unconstitutional, and are seldom employed inexecuting of the laws; never except on extraordinaryoccasions, and then under the direction of a civilmagistrate.

A free republic will never keep a. standing armyto execute its laws. It must depend upon the supportof its citizens. But when a government is to receiveits support from the aid of the citizens, it must beso constructed as to have the confidence, respect,and affection of the people. Men who, upon tl.e callof the magistrate, offer themselves to execute thelaws, are influenced to do it either by affection tothe government, or from fear; where a standingarmy is at hand to punish offenders, every man isactuated by the latter principle, and therefore, whenthe magistrate calls, will obey: but, where this is notthe case, the government must rest for its supportupon the confidence and respect which the peoplehave for their government and laws. The body ofthe people being attached, the government will al-ways be sufficient to support and execute its laws,and to operate upon the fears of any faction whichmay be opposed to it, not only to prevent an op-position to the eA.:cution of the laws themselves, butalso to compel the most of them to aid the magis-trate; but the people will not be likely to have suchconfidence in their rulers, in a republic so extensiveas the United States, as necessary for these pur-pnses. The confidence which the people have intheir rulers, in a free republic, arises from theirknowing them, from their being responsible to themfor their conduct, and from the power they have ofdisplacing them when they misbehave: but in a re-public of the extent of this continent, the people ingeneral would be acquainted with very few of their

rulers: the people at large would know little of theirproceedings, and it would be extremely difficult tochange them. The people in Georgia and New-Hampshire would not know one another's mind,and therefore could not act in concert to enable themto _ffect a general change of representatives. Thedifferent parts of so extensive a country could notpossibly be made acquainted with the conduct oftheir representatives, nor be informed of the reasonsupon which measures were founded. The conse-quence will be, they will have no confidence in theirlegislature, suspect them of ambitious views, be jeal-ous of every measure they adopt, and will not sup-port the laws they pass. Hence the government willbe nerveless and inefficient, and no way will be leftto render it otherwise, but by establishing an armedforce to execute the laws at the point of the bayo--.eta government of all others the most to be

area ded.in a republic of such vast extent as the United-

States, the legislature cannot attend to the variousconcerns and wants of its different parts. It cannotbe sufficiently numerous to be acquainted with thelocal condition and wants of the different districts,and if it could, it is impossible it should have suf-ficient time to attend to and provide for all the va-rie:y of cases of this nature, that would becontinually arising.

In so extensive a republic, the great officers ofgovernment would soon become above the controlJf the people, and abuse their power to the purposeof aggrandizing themselves, and oppressing them.The trust committed to the executive offices, in acountry of the extent of the United-States, must bevarious and of magnitude. The command of all thetroops and navy of the republic, the appointment ofofficers, the. power of pardoning offences, the col-lecting of all the public revenues, and the power ofexpending them, .vith a number of other powers,must be lodged and exercised in every state, in thehands of a few. When these are attended with greathonor and emolument, as they always will be inlarge states, so as greatly to interest men to pursuethem, and to be proper objects for ambitious anddesigning men, such men will be ever restless intheir pursuit after them. They will use the power,when they have acquired it, to the purposes of grat-ifying their own interest and ambition, and it isscarcely possible, in a very large republic, to callthem to account for their misconduct, or to preventtheir abuse of power.

These are some of the reasons by which it appears,that a free republic cannot long subsist over a coun-try of the great extent of these states. If then this

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new constitution is calculated to consolidate the thir-teen states into one, as it evidently is, it ought notto be adopted.

Though I am of opinion, that it is a sufficient ob-jection to this government, to reject it, that it createsthe whole union into one government, under theform of a republic, yet if this objection was obviated,there are exceptions to it, which are so material andfundamental, that they ought to determine everyman, who is a friend to the liberty and happinessof mankind, not to adopt it. I beg the candid anddispassionate attention of my countrymen while Istate these objectionsthey are such as have ob-truded themselves upon my mind upon a carefulattention to the matter, and such as I sincerely be-lieve are well founded. There are many objections,of small moment, of which I shall take no noticeperfection is not to be expected in any thing that isthe production of manand if I did not in my con-science believe that this scheme was defective in thefundamental principlesin the foundation uponwhich a free and equal government must restIwould hold my peace.

Brutus

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Document 9Essay IV (Brutus)

29 November 1787To the People of the State of New-York.

There can be no free government where the peopleare not possessed of the power of making the lawsby which they are governed, either in their ownpersons, or by others substituted in their stead.

Experience has taught mankind, that legislationby representatives is the most eligible, and the onlypracticable mode in which the people of any countrycan exercise this right, either prudently or benefi-cially. But then, it is a matter of the highest impor-tance, in forming this representation, that it be soconstituted as to be capable of understanding thetrue interests of the society for which it acts, and sodisposed as to pursue the good and happiness ofthe people as its ultimate end. The object of everyfree government is the public good, and all lesserinterests yield to it. That of every tyrannical govern-ment, is the happiness and aggrandisement of one,or a few, and to this the public felicity, and everyother interest must submit.The reason of this dif-ference in these governments is obvious. The firstis so constituted as to collect the views and wishesof the whole people in that of their rulers, while thelatter is framed as to separate the interests of thegovernors from that of the governed. The principleof self-love, therefore, that will influence the one topromote the good of the whole, will prompt theother to follow its n private advantage. The greatart, therefore, it .ring a good constitution, ap-pears tr, be this, sa .J frame it, as that those to whomthe power is committed shall be subject to the samefeelings, and aim at the same objects as the peopledo, who transfer to them their authority. There isno possible way to effect this but by an equal, fulland fair representation, this, therefore, is the greatdesideratum in politics. However fair an appearanceany government may make, though it may possessa thousand plausible articles and be decorated withever so many ornaments, yet if it is deficient in thisessential principle of a full and just representationof the people, it will be only like a paaited sepul-cher For, without this it cannot be a free govern,ment; let the administration of it be good or ill, it

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still will be a government, not according to the willof the people, but according to the will of a few.

To test this new constitution then, by this prin-ciple, is of the last importanceIt is to bring it tothe touch-stone of national liberty, and I hope I shallbe excused, if, in this paper, I pursue the subjectcommenced in my last number, to wit, the necessityof an equal and full representation in the legisla-ture.In that, I showed that it was not equal, be-cause the smallest states are to send the samenumber of members to the senate as the largest, and,because the slaves, who afford neither aid nor de-fence to the government, are to encrease the pro-portion of members. To prove that it was not a justor adequate representation, it was urged, that sosmall a number could not resemble the people, orpossess their ser.timents and dispositions. That thechoice of members would commonly fall upon therich and great, while the middling class of the com-munity would be excluded. That L-1 so small a rep-resentation there was no security against bribery andcorruption.

The small number which is to compose this leg-islature, will not only expose it to the clanger of thatkind of corruption, and ur due influera, which willarise from the gift of p1 3i.2s of honor and emolument,or the more direct one of bribery, but it will alsosubject it to another kind of influence no less fatalto the liberties of the people, though it be riot soflagrantly repugnant to the principles of rectitude.It is not to be expected that a legislature will be foundin any ccuntry that will not have some of its mem-bers, who will pursue thei. private ends, and forwhich they will sacrifice the public good. Men ofthis character are, generally, artful and designing,and frequently possess brilliant talents and abilities,they commonly act in concert, and agree to sharethe spoils of their country among them, they willkeep their object ever in view, and follow it withconstancy. To effect their purpose, they will ,bumeany shape, and Proteus like, mould themselves intoany formwhere they find members proof againstdirect bribery or gifts of offices, they will endeavorto mislead their minds by specious and false rea-soning, to impose upon their unsuspecting honesty

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by an affectation of zeal for the public good; theywill form juntos, and hold out-door meetings, theywill operate upon the good nature of their oppo-nents, by a thousand little attentions, and teize theminto compliance by the earnestness of solicitation.Those who are acquainted with the manner of con-ducting business in public asnmblies, know howprevalent art and address are in carrying a measure,even over men of the best intentions, and of goodunderstanding. The firmest security against thiskind of improper and dangerous influence, as wellas all other, is a strong and numerous representa-tion:4n such a house of assembly, so great a numbermust In gained over, before the private views ofindividuals could be gratified that there could bescarce a hope of success. But in the Lderal assembly,seventeen men are all that is necessary to pass a law.It is probable, it will seldom happen that more thantwenty-five will be requisite to form a majority,when it is considered what a number of places ofhonor and emolument will be in the gift of the ex-ecutive, the powerful influence that great and de-signing men have over the honest andunsuspecting, by their art and address, their sooth-ing manners and civilities, :nd their cringing flat-tery, joined with their affected patriotism; whenthese different species of influence are combined, itis scarcely to be hoped that a legislature, composedof so small a number, as the one proposed by thenew constitution, will long resist their force.

A farther objection against the feebleness of therepresentation is, that it will not possess the confi-dence of the people. The execution of the laws afree government must rest on this confidence, andthis must be founded on the good opinion they en-tertain of the flamers of the laws. Every governmentmust be supported, either by the people having suchan attachment to it, as to be ready, when calledupon, to support it, or by a force at the commandof the government, to compel obedience. The lattermode destroys every idea of a free government, forthe same force that may be employed to compelobedience to good laws, might, and probably wouldbe used to wrest from the people their constitutionalliberties.Whether it is practicable to have a rep-resentation for the whole union sufficiently numer-ous to obtain that confidence which is necessary forthe purpose of internal taxation, and other powersto which this proposed government extends, is animportant question. I am clearly of the opinion, it isnot, and therefore I have stated this in my first num-ber, as one of the reasons against going into an entireconsolidation of the statesone of the most capitalerrors in the system, is that of extending the powers

of the federal government to objects to which it isnot adequate, which it cannot exercise without en-dangering public liberty, and which it is not nec-essary they should possess, in order to preserve theunion and manage our national concerns; of this,however, I shall treat more fully in some futurt. pa-perBut, however this may be, certain it is, that therepresentation in the legislature is not so formed asto give reasonable ground for public trust.

In order for the people safely to repose themselveson thei rulers, they should not only be of their ownchoice. But it is requisite they should be acquaintedwith then- abilities to manage the public concernswith wisdom. They should be satisfied that thosewho represent them are men of integrity, who willpursue the good of the community with fidelity; andwill not be turned aside from their duty by privateinterest, or corrupted by undue influence; and thatthey will have such a zeal for the good of thosewhom they represent, as tc excite them to be diligentin their service; but it is impossible the people of theUnited States should have sufficient knowledge oftheir representatives, when the numbers are so few,to acquire any rational satisfaction on either of thesepoints. The people of this state will have very littleacquaintance with those who may be chosen to rep-resent them, a great part of them will, probably, notknow the characters of their own menbers, muchless that of a majority of those WhO will composethe federal assembly; ti -; will consist cf men,whose names tt.ey hay -er heard, and whosetalents and regard for'tht. good, they are totalstrangers to; and they will have no persons so im-mediately of their choice so near them, of theirneighbours and of their own rank in life, that theycan feel themselves sect re in trusting their interestsin their hands. The repesentatives of the peoplecannot, as they now do, after they have passed laws,mix with the people, and explain to them the mo-th es which induced the adoption of any measure,point out its utility, and remove objections or silenceunreasonable clamours against it.The number willbe so small that but a very few of the most sensibleand respectable yeomanry of the country can everhave an knowledge of them, being so far removedfrom the people, their station will be elevated andimportant, and they will be considered as ambitiousand designing. They will not be viewed by the peo-ple as part of themselves, but as a body distinct fromthem, and having separate interests to pursue, theconsequence will be, that a perpetual jealousy willexist in the minds of the people against they. theirconduct will be narrov ly watched, their measuresscrutinized, and their laws opposed, evadt .., or re-

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luctantly obeyed. This is natural, and exactly cor-responds with the conduct of individuals towardsthose in whose hands they intrust important con-cerns. If the person confided in, be a neighbour withwhom his employer is intimately acquainted, whosetalents, he knows, are sufficient to manage the busi-ness with which he is charged, his honesty and fi-delity unsuspected, and his friendship and zeal forthe service of ,this principal unquestionable, he willcommit his affairs into his hands with unreservedconfidence, and feel himself secure; all the trans-actions of the agent will meet with the most favor-able construction, and the measures he takes willgive satisfaction. But, if the person employed be astranger, whom he has never seen, and whose char-acter or ability or fidelity he cannot fully learnIfhe is constrained to choose him, because it was notin his power to procure one more agreeable to hiswishes, he will trust him with caution, and be sus-picious of all his conduct.

If then this government should not derive supportfrom the good will of the people, it must be executedby force, or not executed at all; either case wouldlead to the total destruction of liberty .The con-vention seemed aware of this, and have thereforeprovided for calling out the militia to execute thelaws of the union. If this system was so framed asto command that respect from the people, whichevery good free government will obtain, this pro-vision was unnecessarythe people would supportthe civil magistrate. This power is a novel one, infree governmentsthese have depended for the ex-ecution of the laws on the Posse Comitatus, andnever raised an idea, that the people would refuseto aid the civil magistrate in executing those lawsthey themselves had made. I shall now dismiss thesubject of the incompetency of the representation,and proceed, as I promised, to shew, that, impotentas it is, the people have no security that they willenjoy the exercise of the right of electing this assem-bly, which, at best, can be considered but as theshadow of representation.

By section 4, article I, the Congress are authorized,at any time, by law, to make, or alter, regulationsrespecting the time, place, and manner of holdingelections for senators and representatives, except asto the places of choosing senators. By this clause theright of election itself, is, in a great measure, trans-ferred from the people to their rulers.One wouldthink, that if any thing was necessary to be made afundamental article of the original compact, it wouldbe, that of fixing the branches of the legislature, soas to put it out of its power to alter itself by modifyingthe election of its own members at will and pleasure.

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When a people once resign the privileges of a fairelection, they dearly have none left worth contend-ing for.

It is clear that, under this article, the federal leg-islature may institute such rules respecting electionsas to lead to the choice of one description of men.The weakness of the representation, tends but toocertainly to confer on the rich and well-born, all hon-ours; but the power granted in this article, may beso exercised, as to secure it almost beyond a possi-bility of controul. The proposed Congress may makethe whole state one district, and direct, that the cap-ital (the city of New-York, for instance) shall be theplace for holding the election; the consequencewould be, that none but men of the most elevatedrank in society would attend, and they would ascertainly choose men of their own class; as it is truewhat the Apostle Paul saith, that "no man ever yethated his own flesh, but nourisheth and cherishethit."They may declare that those members whohave the greatest number of votes, shall be consid-ered as duly elected, the consequence would be thatthe people, who are dispersed in the interior partsof the state, would give their votes for a variety ofcandidates, while any order, or profession, residingin populous places, by uniting their interests, mightprocure whom they pleased to be chosenand bythis means the representatives of the state may beelected by one tenth part of the people who actuallyvote. This may be effected constitutionally, anu byone of those silent operations which frequently takesplace without being noticed, but which often pro-duces such changes as entirely to alter a govern-ment, subvert a free constitution, and rivet thechains on a free people before they perceive theyare forged. Had the power of regulating electionsbeen left under the direction of the state legislatures,where the people are not only nominally but sub-stantially represented, it would have been secure;but if it was taken out of their hands, it surely oughtto have been fixed on such a basis as to have put itout of the power of the federal legislature to deprivethe people of it by law. Provision should have beenmade for marking out the states into districts, andfor choosing, by a majority of votes, a person out ofeach of them of permanent property and residencein the district which he was to represent.

If the people of America will submit to a consti-tution that will vest in the hands of any body of mena right to deprive them by law of the privilege of afair election, they will submit to almost any thing.Reasoning with them will be in vain, they must beleft until they are brought to reflection by feelingoppressionthey will then have to wrest from their


oppressors, by a strong hand, that which they nowpossess, and which they may retain if they will ex-ercise but a moderate share of prudence and firm-ness.

I know it is said that the dangers apprehendedfrom this clause are merely imaginary, that the pro-posed general legislature will be disposed to regulateelections upon proper principles, and to use theirpower with discretion, and to promote the publicgood. On this, I would observe, that constitutionsare not so necessary to regulate the conduct of goodrulers as to restrain that of bad ones.Wise andgood men will exercise power so as to promote thepublic happiness under any form of government. Ifwe are to take it for granted, that those who admin-ister the government under this system, will alwayspay proper attention to the rights and interests ofthe people, nothing more was necessary than to saywho should be invested with the powers of govern-ment, and leave them to exercise it at will and pleas-ure. Men are apt to be deceived both with respectto their own dispositions and those of others.

Though this truth is proved by almost every pageof the history of nations, to wit, that power, lodgedin the hands of rulers to be used at discretion, isalmost always exercised to the oppression of thepeople, and the aggrandizement of themselves; yetmost men think if it was lodged in their hands theywould not employ it in this manner.Thus whenthe prophet Elisha told Hazael, "I know the evil thatthou wilt do unto the children of Israel; their strongholds wilt thou set on fire, and their young men,wilt thou slay with the sword, and wilt dash theirchildren, and rip up their women with child." Ha-zael had no idea that he ever should be guilty ofsuch horrid cruelty, and said to the prophet, "Is thyservant a dog that he should do this great thing."Elisha answered, "The Lord hath chewed me thatthou shalt be king of Syria." The event proved, thatHazael only wanted an opportunity to perpetratethese enormities without restraint, and he had a dis-position to do them, though he himself knew it not.

Brutus

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Document 10Letter IV (Agrippa)

3 December 1787To the People.

Having considered some of the principal advantagesof the happy form of government under which it isour peculiar good fortune to live, we find by expe-rience, that it is the best calculated of any form hith-erto invented, to secure to us the rights of ourpersons and of our property, and that the generalcircumstances of the people shew an advanced stateof improvement never before known. We havefound the shock given by the war in a great measureobliterated, and the publick debt contracted at thattime to be considerably reduced in the nominal sum.The Congress lands are fully adequate to the re-demption of the principal of their debt, and are sell-ing and populating very fast. The lands of this state,at the west, are, at. the moderate price of eighteenpence an acre, worth near half a million pounds inour money. They ought, therefore, to be sold asquick as possible. An application was made latelyfor a large tract at that price, and continual- appli-cations are made for other lands in the eastern partof our state. Our resources are daily augmenting.

We find, then, that after the experience of neartwo centuries our separate governments are in fullvigour. They discover, for all the purposes of inter-nal regulation, et<try symptom of strength, andnone of decay. The new system is, therefore, forsuch purposes, useless and burdensome.

Let us now consider how far it is practicable con-sistent with the happiness of the people and theirfreedom. It is the opinion of the ablest writers onthe subject, that no extensive empire can be gov-erned upon republican principles, and that such agovernment will degenerate to a despotism, unlessit be made up of a confederacy of smaller states,each having the full powers of internal regulation.This is precisely the principle which has hithertomeserved our freedom. No instance can be 'found

any free government of considerable extent whichaids been supported upon any other plan. Large andconsolidated empires may indeed dazzle the eyes ofa distant spectator with their splendour, but if ex-amined more nearly are always found to be full ofmisery. The reason is obvious. In large states the

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same principles of legislation will not apply to allthe parts. The inhabitants of warmer climates aremore dissolute in their manners, and less industri-ous, than in colder countries. A degree of severitys, therefore, necessary with one which would

cramp the spirit of' the other. We accordingly findthat the very great empires have always been des-potick. They have indeed tried to remedy the in-conveniences to which the people were exposed bylocal regulations; but these contrivances have neveranswered the end. The laws not being made by thepeople, who felt the inconveniences, did not suittheir circumstances. It is under such tyranny thatthe Spanish provinces languish, and such would, beour misfortune and degradation, if we should sub-mit to have the concerns of the whole empire man-aged by one legislature. To promote the happinessof the people it is necessary that there should belocal laws; and it is necessary that those laws shouldbe made by the representatives of those who areimmediately subject to the want of them. By endea-ouring to suit both extremes, both are injured.It is impossible for one code of laws to suit Georgia

and Massachusetts. They must therefore, legislatefor themselves. Yet thcre is, I believe, not one pointof legislation that is not surrendered in the proposedplan. Questions of every kind respecting propertyare determinable in a continental court, and so areall kinds of criminal causes. The continental legis-lature has, therefore, a right to make rules in all casesby which their judicial courts shall proceed and de-cide causes. No rights are reserved to the citiz-ns.The laws of Congress are in all cases to be thepreme law of the land, and paramount to the con-stitutions of the individual states. The Congress mayinstitute what modes of trial they please, and noplea drawn from the constitution of any state canavail. This new system is, therefore, a consolidationof all the states into one large mass, however diversethe parts may be of which it is to be composed. Theidea of an uncompounded republick, on an average,one thousand miles in length, and eight hundred inbreadth, and containing six millions of white inhab-itants all reduced to the same standard of morals,or habits, and of laws, is in itself an absurdity, and

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contrary to the whole experience of mankind. Theattempt by Great Britain to introduce such a system,struck us with horrour, and when it was proposedby some theorist that we should be represented inparliament, we uniformly declared that one legis-lature could not represent so many different inter-ests for the purpose of legislation and taxation. Thiswas the leading principle of the revolution, andmakes an essential article in our creed. All that part,therefore, of the new system, which relates to theinternal government of the states, ought at once tobe rejected.

Agrippa

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Document 11Letter XVII (The Federal Farmer)

lanuary 23, 1788.Dear Sir,

I believe the people of the United States are fullin the opinion, that a free and mild government canbe preserved in their extensive territories, only un-der the substantial forms of a federal republic. Asseveral of the ablest advocates for-the system pro-posed, have acknowledged this (and I hope the con-fessions they have published will be preserved andremembered) I shall not take up time to establishthis point. A question then arises, how far that sys-tem partakes of a federal republic.I observed in aformer letter, that it appears to be the first importantstep to a consolidation of the states; that its strongtendency is to that point.

But what do we mean by a federal republic? andwhat by a consolidated government? To erect a fed-eral republic, we must first make a number of stateson republican principles; each state with a govern-ment organized for the internal management of itsaffairs: The states, as such, must unite under a fed-eral head, and delegate to it powers to make andexecute laws in certain enumerated cases, under cer-tain restrictions; this head may be a single assembly,like the present congress, or the Amphictionic coun-cil, or it may consist of a legislature, with one ormore branches; of an execu...e, and of a judiciary.To form a consolidated, or one entire government,the:e must be no state, or local governments, but allthings, persons and property, must be subject to thelaws of one legislature alone, to one executive, andone judiciary. Each state government, as the gov-ernment of New Jersey, &c. is a consolidated, or oneentire government, as it respects the counties,towns, citizens and property within the limits of thestate. The state governments are the basis, the pil-lar on which the federal head is placed, and thewhole together, when formed on elective principles,constitute a federal republic. A federal republic initself supposes state or local governments to exist,as the body or props, on which the federal headrests, and that it cannot remain a mument after theycease. In erecting the federal government, and al-ways in its councils, ea_h state must be known as asovereign body, but in erecting this government, I

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conceive, the legislature of the state, by the ex-pressed or implied assent of the people, or the peo-ple of the state, under the direction of thegovernment of it, may accede to the federal compact:Nor do I conceive it to be necessarily a part of aconfederacy of states, that each have an equal voicein the general councils. A confederated republic be-ing organized, each state must retain powers formanaging its internal police, and all delegate to theunion power to manage general concerns: The quan-tity of power the union must possess is one thing,the mode of exercising the powers given, is quite adifferent consideration; and it is the mode of exer-cising them, that makes one of the essent'il distinc-tions between one entire or consolidatedgovernment, and a federal republic; that is, howeverthe government may be organized, if the laws of theunion, in most important concerns, as in levying andcollecting taxes, raising troops, &c. operate imme-diately upon the persons and property of individ-uals, and not on states, extend to organizing themilitia, &c. the government, as to its administration,as to making and executing laws, is not federal, butconsolidated. To illustrate my ideathe unionmakes a requisition, and assigns to each state itsquota of men or monies wanted; each state, by itsown laws and officers, in its own way, furnishes itsquota. here the state governments stand betweenthe union and individuals, the laws of the unionoperate only on states, as such, and federally. Herenothing can be done without the meetings of thestate legislaturesbut in the other case the union,though the state legislature should not meet foryears together, proceeds immediately, by its ownlaws and officers, to levy and collect monies of in-dividuals, to inlist men, form armies, &c. [H]ere thelaws of the union operate immediately on the bodyof the people, on persons and property, in the samemanner the laws of one entire consolidated govern-ment operate.These two modes are very distina,and in their operation and consequences have di-rectly opposite tendencies. The first makes the ex-istence of the state governments indispensabh., andthrows all the detail basiness of levying and col-lecting the taxes, &c. into the hands of those gov-


ernments, and into the hands, of course, of manythousand officers solely created by, and dependenton the state. The last entirely excludes the agencyof the respective states, and throws the whole busi-ness of levying and collecting taxes, &c. into thehands of many thousand officers solely created by,and dependent upon the union, and makes the ex-istence of the state government of no consequencein the case. It is true, congress in raising any givensum in direct taxes, must by the constitution, raiseso much of it in one state, and so much in another,by a fixed rule, which most of the states some timesince agreed to: But this does not effect the principlein question, it only secures each state against anyarbitrary proportions The federal mode is perfectlysafe and eligible, founded in the true spirit of a con-federated republic; there could be no possible ex-ception to it, did we not find by experience, that thestates will sometimes neglect to comply with thereasonable requisitions of the union. It being ac-cording to the fundamental principles of federal re-publics, to raise men and monies by requisitions,and for the states individually to organize and trainthe militia, I conceive, there can be no reason what-ever for departing from them, except this, that thestates sometimes neglect to comply with reasonablerequisitions, and that it is dangerous to attempt tocompel a delinquent state by force, as it may oftenproduce a war. We ought, therefore, to enquire at-tentively, how extensive the evils to be guardedagainst are, and cautiously limit the remedies to theextent of the evils. I am not about to defend theconfederation, or to charge the proposed constitu-tion with imperfections not in it; but we ought toexamine facts, and strip them of the false colouringsoften given them by incautious observations, by un-thinking or designing men. We ought to premise,that laws for raising men and monies, even in con-solidated governments, are not often punctuallycomplied with. Historians, except in extraordinarycases, but very seldom take notice of the detail col-lection of taxes; but these facts we have fully proved,and well attested; that the most energetic govern-ments have relinquished taxes frequently, whichwere of many years standing. These facts amplyprove, that taxes assessed, have remained for manyyears uncollected. I agree there have beer instancesin the republics of Greece, Holland &c. in the courseof several centuries, of states neglecting to pay theirquotas of requisitions, but it is a circumstance cer-tainly deserving of attention, whether these nationswhich have depended on requisitions principally fortheir defence, have not raised men and moniesnearly as punctually as entire governments, which

have taxed directly; whether we have not found thelatter as often distressed for the want of troops andmonies as the former. It has been said that theAmphictionic council, and the Germanic head, havenot possessed sufficient powers to controul themembers of the republic in a proper manner. Is this,if true, to be imputed to requisitions? Is it not prin-t-4 .J be imputed to the unequal powers of thosemembers, connected with this important circum-stance, that each member possessed power to leagueitself with foreign powers, and powerful neigh-bours, without the consent of the head. After all,has not the Germanic body a government as goodas its neighbours in general? and did not the Grecianrepublic remain united several centuries, and formthe theatre of human greatness? No government inEurope has commanded monies more plentifullythan the government of Holland. As to the UnitedStates, the separate states lay taxes directly, and theunion calls for taxes by way of requisitions; and isit a fact, that more monies are due in proportion onrequisitions in the United States, than on the statetaxes directly laid?It is but-about-ten years sincecongress begun to make requisitions, and in thattime, the monies, &c. required, and the bountiesgiven for men required of the states, haveamounted, specie value, to about 36 millions dollars,about 24 millions of dollars of which have been ac-tually paid; and a very considerable part of the 12millions not paid, remains so not so much from theneglect of the states, as from the sudden changes inpaper money, &c. which in a great measure ren-dered payments of no service, and which often in-duced the union indirectly to relinquish onedemand, by making another in a different form. Be-fore we totally condemn requisitions, we ought toconsider what immense bounties the states gave,and what prodigious exertions they made in the war,in order to comply with the requisitions of congress,and if since the peace they have been delinquent,ought we not carefully to enquire, whether that de-linquency is to be imputed solely to the nature ofrequisitions? ought it not in part to be imputed totwo other causes? I mean first, an opinion, that hasextensively prevailed, that the requisitions for do-mestic interest have not been founded on just prin-ciples, and secondly, the circumstance, that thegovernment itself, by proposing imposts, Su.. hasdeparted virtually from the constitutional sy stem,which proposed changes, liko all changes proposedin government, produce an ittattention and negli-gence in the execution of the pvernment in being.

I am not for depending wholly on requisitions;but 1 mention these few facts to shew they are not

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so totally futile as many pretend. For the truth ofmany of these facts I appeal to the public records;and for the truth of the others, I appeal to manyrepublican characters, who are best informed in theaffairs of the United States. Since the peace, and tillthe convention reported, the wisest men in theUnited.States generally supposed, that certain lim-ited funds would answer the purposes of the union:and though the states are by no means in so gooda condition-as I wish they were, yet, I think, I maysafely affirm, they ?re in a better condition than theywould be had congress always possessed the powersof taxation now c.nitended for The fact is admitted,that our federal government does not possess suf-ficient powers :o give life and vigor to tin politicalsystem; and that we experience disappointments,and several inconveniences; but we ought carefullyto distinguish those which are merely the conse-quences of a severe end tedious war, from thosewhich arise from defects in the federal system. Therehas been an entire revolution in the United Stateswithin thirteen years, and the least we can computethe waste of labour and property at, during thatperiod, by the war, is three hundred million of dol-lars. Our people are like a man just recovering froma severe fit of sickness. It was the war that disturbedthe course of commerce, introduced floods of papermoney, the stagnation of credit, and threw manyvaluable men out of steady business. From thesesources our greatest evils arise, inen of knowledgeand reflection must perceive it;but then, have wenot done more in three or four years past, in re-pairing the injuries of the war, by repairing housesand estates, restoring industry, frugality, the fish-eries, manufacturers,&c. and thereby laying thefoundation of good government, and of individualand political happiness, than any people ever did ina like time; we must judge from a view of the countryand facts, and not from foreign newspapers, or ourown, which are printed chiefly in the commercialtowns, where imprudent living, imprudent impor-tations, and many unexpected disappointments,have produced a despondency, and a disposition toview every thing on the dark side. Some of the evilswe feel, all will agree, ought to be imputed to thedefective administration of the governments. Fromthese and various considerations, I am very clearlyof opinion, that the evils we sustain, merely on ac-count of the defects of the confederation, are but asa feather in the balance against a mountain, com-pared with those which would, infallibly, be the re-sult of the loss of general liberty, and that happinessmen enjoy under a frugal, free, and mild govern-ment.

Heretofore we do not seem to have seen dangerany where, but in giving power to congress, andnow no where but in congress wanting powers; and,without examining the extent of the evils to be rem-edied, by one step, we are for giving up to congressalmost all powers of any importance without limi-tation. The defects of the confederation are extrav-agantly magnified, and every species of pain we feelimputed to them: and hence it is inferred, there mustbe a total change of the principles, as well as formsof government: and in the main point, touching thefederal powers, we rest all on a logical inference,totally inconsistent with experience and sound po-litical reasoning.

It is said, that as the federal head must make peaceand war, and provide for the common defence, itought to.possess all powers necessary to that end:that powers unlimited, as to the purse and sword,to raise men and monies, and form the militia, arenecessary to that end; and, therefore, the federalhead ought to possess them. This reasoning is farmore specious than solid: it is necessary that thesepowers so exist in the body politic, as to be calledinto exercise whenever necessary for the publicsafety; but it is by no means true, that the man, orcongress of men, whose duty it more immediatelyis to provide for the common defence, ought to pos-sess them without limitation. But dear it is, that ifsuch men, or congress, be not in a situation to holdthem without danger to liberty, he or they oughtnot to possess them. It has long been thought to bea well founded position, that the purse and swordought not to be placed in the same hands in a freegovernment. Our wise ancestors have carefully sep-arated themplaced the sword in the hands of theirking, even under considerable limitations, and thepurse in the hands of the commons alone: yet theking makes peace and war, and it is his duty toprovide for the common defence of the nation. Thisauthority at least goes thus farthat a nation, wellversed in the science of government, does not con-ceive it to be necessary or expedient for the manentrusted with the common defence and generaltranquility, to possess unlimitedly the powers inquestion, or even in any considerable degree. Couldhe, whose duty it is to defend the public, possessin himself independently, all the means of doing itconsistent with the public good, it might be con-venient: but the people of England know that theirliberties and happiness would be in infinitely greaterdanger from the king's unlimited possession of thesepowers, than from all external enemies and internalcommotions to which they might be exposed: there-fore, though they have made it his duty to' guard

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the empire, yet they have wisely placed in otherhands, the hands of their representatives, the powerto deal out and controul the means. In Holland theirhigh mightiness must provide for the common de-fence, but for the means they depend, in a consid-erable degree, upon requisitions made on the stateor local assemblies. Reason and facts evince, thathowever convenient it might be for an executivemagistrate, or federal head, more immediatelycharged with the national defence and safety, solely,directly, and independently to possess all themeans; yet such magistrate, or head, never oughtto possess them, if thereby the public liberties shallbe endangered. The powers in question have neverbeen, by nations wise and free, deposited, nor canthey ever be, with safety, any where, but in thepiincipal members of the national system,wherethese form one entire government, as in Great-Brit-ain, they are separated and lodged in the principalmembers of it. But in a federal republic, there is quitea different organization; the people form this kindof government, generally, because their territoriesare too extensive to admit of their assembling in onelegislature, or of executing the laws on free princi-ples under one entire government. They convene intheir local assemblies, for local purposes, and formanaging their internal concerns, and unite theirstates under a federal head for general purposes. Itis the essential characteristic of a confederated re-public, that this head be dependent on, and keptwithin limited bounds by, the local governments,and it is because, in these alone, in fact, the peoplecan be substantially assembled or represented. It is,therefore, we very universally see, in this kind ofgovernment, the congressional powers placei in afew hands, and accordingly limited, and specificallyenumerated. and the local assemblies strong andwell guarded, and composed of numerous mem-bers. Wise men will always place the controulingpower where the people are substantially collectedby their representatives. By the proposed system,the federal head will possess, without limitation,almost every species of power that can, in its exer-cise, tend to change the government, or to endangerliberty; while in it, I think it has been fully shewn,the people will have but the shadow of represen-tation, and but the shadow of security for their rightsand liberties. In a confederated republic, the divisionof representation, &c. in its nature, requires a cor-respondent division and deposit of powers relativeto taxes and military concerns. and I think th,:. planoffered stands quite alone, in confounding the prin-ciples of governments in themselves totally distinct.I wish not to exculpate the states for their improper

neglects in not paying their quotas of requisitions;but, in applying the remedy, we must be governedby reason and facts. It will not be denied, that thepeople have a right to change the government whenthe majority chuse it, if not restrained by some ex-isting compactthat they have a right ta displacetheir rulers, and consequently to determine whentheir measures are reasonable or notand that theyhave a right, at any time, to put a stop to thosemeasures they may deem prejudicial to them, bysuch forms and negatives as they may see fit to pro-vide. F10111 all these, and many other well foundedconsiderations, I need not mention, a questionarises, what powers shall there be delegate to thefederial head, to insure safety, as well as energy, inthe government? I think there is a safe and propermedium pointed out by experience, by reason, andfactsi When we have organized the government, weought to give power to the union, so far only asexperience and present circumstances shall direct,with a reasonable regard to time to come. Shouldfuture circumstances, contrary to our expectations,require further powers be transferred to the union,we can do it far more easily, than get back those wemay now imprudently give. The system proposedis untried: candid advocates and opposers admit,that it is, in a degree, a mere experiment, and thatits organization is weak and imperfect; surely then,the safe ground is cautiously to vest power in it, andwhen we are sure we have given enough for ordi-nary exigencies, to be extremely careful how we del-egate powers, which, in common cases, mustnecessarily be useless or abused, and of very un-certain effect in uncommon ones.

By giving the union power to regulate commerce,and to levy and collect taxes by imposts, we give itan extensive authority, and permanent productivefunds, I believe quite as adequate to the presentdemands of the union, as exises and direct taxes canbe made to the present demands of the separatestates. The state governments are now about fourtimes as expensive as that of the union; and theirseveral state debts added together, are nearly aslarge as that of the unionour impost duties sincethe peace have been almost as productive as theother sources of taxation, and when under one gen-eral system of regulations, the probability is, thatthose duties will be very considerably increased. In-deed the representation proposed will hardly justifygiving to congress unlimited powers to raise taxesby imposts, in addition to the other powers the un-ion must necessarily have. It is said, that if congresspossess only authority to raise taxes by imposts,track probably will be overburdened with taxes, and

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the taxes of the union be found inadequate to anyuncommon exigencies: To this we may observe, thattrade generally finds its own level, and will naturallyand necessarily leave off any undue burdens laidupon it: further, if congress alone possess the im-post, and also unlimited power to raise Monies byexcises and direct taxes, there must be much moredanger that two taxing powers, the union and states,will carry excises and direct taxes to an unreasonableextent, especially as these have not the naturalboundaries taxes on trade have. However, it is notmy object to propose to exclude congress from rais-ing monies by internal taxer, as by duties, excises,and direct taxes, but my opinion is, that congress,especially in its proposed organization, ought not toraise monies by internal taxes, except in strict con-formity to the federal plan; that is, by the agency ofthe state governments in all cases, except where astate shall neglect, for an unreasonable time, to payits quota of a requisition; and never where so manyof the state legislatures as represent a majority ofthe people, shall formally determine an excise -awor requisition is improper, in their next session afterthe same be laid before them. We ought always torecollect that the evil to be guarded against is foundby our own experience, and the experience of others,to be mere neglect in the states to pay their quotas;and power in the union to levy and collect the ne-glecting states' quotas with interest, is fully adequateto the evil. By this federal plan, with this exceptionmentioned, we secure the means of collecting thetaxes by the usual process of law, and avoid the evilof attempting to compel or coerce a state; and weavoid also a circumstance, which never yet could be,and I am fully confident never can be, admitted ina free federal republic; I mean a permanent and con-tinued system of tax laws of the union, executed inthe bowels of the states by many thousand officers,dependent as to the assessing and collecting federaltaxes, soley upon the union. On every principlethen, we ought to provide, that the union render anexact account of all monies raised by imposts andother taxes; and that whenever monies shall bewanted for the purposes of the union, and beyondthe proceeds of the impost duties, requisitions shallbe made on the states for the monies so wanted; andthat the power of laying and collecting shall neverbe exercised, except in cases where a state shall ne-glect, a given time, to pay its quota. This modeseems to be strongly pointed out by the reason ofthe case, and spirit of the government; and I believe,there is no instance to be found in a federal republic,where the congressional powers ever extended gen-erally to collecting monies by direct taxes or excises.

Creating all these restrictions, still the powers of theunion in matters of taxation, will be too unlimited;further checks, in my mind, are indispensably nec-essary. Nor do I conceive, that as full a represen-tation as is practicable in the federal government,will afford sufficient security: the strength of thegovernment, and the confidence of the people, mustbe collected principally in the local assemblies; everypart or branch of the federal head must be feeble,and unsafely trusted with large powers. A govern-ment possessed of more power than its constituentparts will justify, will not only probably abuse it, butbe unequal to bear its own burden; it may as soonbe destroyed by the pressure of power, as languishand perish for want of it.

There are two ways further of raising checks, andguarding against undue combinations and influencein a federal system. The first is, in levying taxes,raising and keeping up armies, in building navies,in forming plans for the militia, and in appropriatingmonies for the support of the military, to require theattendance of a large proportion of the federal rep-resentatives, as two-thirds or three-fourths of them:and in passing laws, in these important cases, torequire the consent of two-thirds or three-fourths ofthe members present. The second is, by requiringthat certain important laws of the federal head, asa requisir , or a law for raising monies by exciseshall be la...I before the state legislatures, and if dis-approved of by a given number of them, say by asmany of them as represent a majority of the people,the law shall have no effect. Whether it would beadviseable to adopt both, or either of these checks,I will dot undertake to determine. We have seenthem both exist in confederated republics. The firstexists substantially in the confederation, and willexist in some measure in the plan proposed, as inchusing a president by the house, in expelling mem-bers; in the senate, in making treaties, and in decid-ing on impeachments, and in the whole in alteringthe constitution. The last exists in the United Neth-erlands, but in a much greater extent. The first isfounded on this principle, that these importantmeasures may, sometimes, be adopted by a barequorum of members, perhaps, from a few states,and that a bare majority of the federal representa-tives may frequently be of the aristocracy, or someparticular interests, connections, or parties in thecommunity, and governed by motives, views, andinclinations not compatible with the general inter-est.The last is founded on this principle, that thepeople will be substantially represented, only intheir state or local assemblies, that their principalsecurity must be found in them, and that, therefore,

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they ought to have ultimately a constitutional con-troul over such interesting measures.

I have often heard it observed, that our people a7ewell informed, and will not submit to oppressivegovernments; that th? state governments will betheir ready advocates, and possess their confidence,mix with them, and enter into all their wants andfeelings. This is all true; but of what a-, dii will thesecircumstances be, if the state governments, thus al-lowed to be the guardians of the people, possess nokind- of power by the forms of the social compact,to stop in their passage, the laws of congresF, inju-rious to the people. State governments must standand see the law take place; they may complaia andpetitionso may individuals; the members of them,in extreme cases, may resist, on the princi?i-,s ofself-defenceso may the people and individuals.

It has been observed, that the people, in extensiveterritories, have more power, compared with that oftheir rulers, than in small states. Is not directly theopposite true? The people in a small state can uniteand act in concert, and with vigour; but in largeterritories, the men who govern find it more easy tounite, while people cannot; while they cannot collectthe opinions of each part, while they move to dif-ferent points, and one part is often played off againstthe other.

It has been asserted, that the confederate head ofa republic at best, is in general weak and depend-ent; that the people will att,,,h themselves to, andsupport their local governments, in all disputes withthe union. Admit the fact: is it any way to removethe inconvenience by accumulating powers upon aweak organization? The fact is, that the detail ofadministration of affairs, in this mixed republics, de-pends principally on the local governments; and thepeople would be wretched without them: and a greatproportion of social happiness depends on the in-ternal administration of justice, and on internal po-lice. The splendor of the monarch, and the powerof the government are one thing. The happiness ofthe subject depends on very different causes: but itis to the latter, that the best men, the greatest or-naments of human nature, have most carefully at-tended: it is to the former tyrants and oppressorshave always aimed.

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The Federal Farmer

Document 12Letter I (Centinel)

October 5, 1787To The Freemen of Pennsylvania.

Permit one of yourselves to put you in mind ofcertain liberties and privileges secured to you by theconstitution of this commonwealth, and to beg yourserious attention to his uninterested opinion uponthe plan of federal government submitted to yourconsideration, before you surrender these great andvaluable privileges up forever. Your present frameof government, secures to you a right to hold your-selves, houses, papers and possessions free fromsearch and seizure, and therefore warrants grantedwithout oaths or affirmations first made, affordingsufficient foundation for them, whereby any officeror messenger may be commanded or required tosearch your houses or seize your persons or prop-erty, not particularly described in such warrant,shall not be granted. Your constitution further pro-vides "thai in controversies respecting property, andin suits between man and man, the parties have aright to trial by jury, which ought to be held sacred." Italso provides and declares, "that the people have a rightof FREEDOM OF SPEECH, and of WRITING andPUBLISHING their sentiments, therefore THE FREE-DOM OF THE PRESS OUGHT NOT BE RE-STRAINED." The Constitution of Pennsylvania isyet in existence, as yet you have the right to freedomof speech, and of publishing your sentiments. How longthose rights will appertain to you, you yourselvesare called upon to say, whether your houses shallcontinue to be your castles; wh ther your papers, yourpersons and your property, are to be held sacred andfree from general warrants, you are now to determine.Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all Amer-ica, are now called upon to declare.

Without presuming upon my own judgement, Icannot think it an unwarrantable presumption tooffer my private opinion, and call upon others fortheir's; and if I use my pen with the boldness of afreeman, it is because I know that the liberty of thepress yet remains unviolate,i, and juries yet are judges.

The late Convention have submitted to your con-sideration a plan of a new federal governmentThesubject is highly interesting to your future welfare

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Whether it be calculated to promote the great endsof civil society, viz. the happiness and prosperity ofthe community; it behooves you well to consider,uninfluenced by the authority of names. Instead ofthat frenzy of enthusiasm, that has actuated the cit-izens of Philadelphia, in their approbation of theproposed plan, before it was possible that it couldbe the result of a rational investigation into its prin-ciples; it ought to be dispassionately and deliberatelyexamined, and its own intrinsic merit the only cri-terion of your patronage. If ever free and unbiasseddiscussion was proper or necessary, it is on such anoccasion.All the blessings of liberty and the dear-est privileges of freemen, are now at stake and de-pendent on your present conduct. Those who arecompetent to the task of developing the principlesof government, ought to be encouraged to come for-ward, and thereby the better enable the people tomake a proper judgment; for the science of govern-ment is so abstruse, that few are able to judge forthemselves; without such assistance the people aretoo apt to yield an implicit assent to the opinions ofthose characters, whose abilities are held in the 'nigh-est esteem, and to those in whose integrity and pa-triotism they can confide; not considering that thelove of domination is generally in proportion to tal-ents, abilities, and superior acquirements; and thatthe men of the greatest purity of intention may bemade instruments of despotism in the hands of theartful and designing. If it were not for the stability andattachment which time and habit gives to forms ofgovernment, it would be in the power of the en-lightened and aspiring few, if they should combine,at any time to destroy the best establishments, andeven make the people the instruments of their ownsubjugation.

The late revolution having effaced i . great meas-ure all former habits, and the present institutionsare so recent, that there exists not that great reluc-tance to innovation, so remarkable in old commu-nities, and which accords with reason, for the mostcomprehensive mind cannot foresee the full opera-tion of material changes on civil polity, it is the gen-ius of the common law to resist innovation.

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162 tames Madison and The Federalist Papers

The wealthy and ambitious, who in every com-munity think they have a right to lord it over theirfellow creatures, have availed themselves, very suc-cessfully, of this favorable disposition, for the peoplethus unsettled in their sentiments, have been pre-pared tc accede to any extreme of government; allthe distresses and difficulties they experience, pro-ceeding from various causes, have been ascribed tothe impotency of the present confederation, andthence they have been led to expect full relief fromthe adoption of the proposed system of government,and in the other event, immediately ruin and an-nihilation as a nation. These characters flatter them-selves that they have lulled all distrust and jealousyof their new plan, by gaining the concurrence of thetwo men in whom America has the highest confi-dence, and now triumphantly exult in the comple-tion of their long meditated schemes of power andaggrandisement. I would be very far from insinu-ating that the two illustrious personages alluded to,have not the welfare of their country at heart, butthat the unsuspecting goodness and zeal of the one,has been imposed on, in a subject of which he mustbe necessarily inexperienced, from his other arduousengagements, and that the weakness and indecisionattendant on-old age, has been practised on in theother.

I am fearful that the principles of government ii.culcated in Mr. Adams's treatise, and enforced inthe numerous essays and paragraphs in the news-papers, have misled some well designing membersof the late Convention.But it will appear in thesequel, that the construction of the proposed planof government is infinitely more extravagant.

I have been anxiously expecting that some enlight-ened patriot would, ere this, have taken up the pento expose the futility, and counteract the banefultendency of such principles. Mr. Adams's sine quanon of a good government is three balancing powers,whose repelling qualities are to produce an equilib-rium of interests, and thereby promote the happi-ness of the whole community. He asserts that theadministration of every government, will ever beactuated by views of private interest and ambition,to the prejudice of the public good, that thereforethe only effectual method to secure the rights of thepeople and promote their welfare, is to create anopposition of interests between the members of twodistinct bodies, in the exercise of the powers of gov-ernment, and balanced by those of a third. This bypothesis supposes human wisdom competent to thetask of instituting three co-equal orders in government, and i.....urresponding weight in the communityto enable them respectively to exercise their several

parts, and whose views and interests should be sodistinct as to prevent a coalition of any two of themfor the destruction of the third. Mr. Adams, al-though he has traced the constitution of every formof government that ever existed, as far as historyaffords materials, has not been able to adduce a sin-gle instance of such a government, he indeed saysthat the British constitution is such in theory, butthis is rather a confirmation that his principles arechimerical and not to be reduced to pwctice. If suchan organization of power were practicable, how longwould it continue? not a dayfor there is so greata disparity in the talents, wisdom and inch ofmankind, that the scale would presently I.. -t-

derate to one or the other body, and with everyaccession of power the means of further increasewould be greatly extended. The state of society inEngland :s much more favorable to sucl a schemeof government than that of America. There theyhave a powerful hereditary nobility, and real dis-tinctions of rank and interests; but even there, forwant of that perfect equallity of power and distinc-tion of interests, in the three orders of government,they exist but in name, the only operative and effi-cient check, upon the conduct of administration, isthe sense of the people at large.

Suppose a government could be formed and sup-ported on such principles, would it answer the greatpurposes of civil society; if the administrators ofevery government are actuated by views of privateinterest and ambition, how is the welfare and hap-piness of the community to be the result of suchjarring adverse interests?

Therefore, as different orders in government willnot produce the good of the whole, we must recurto other principles. I believe it will be found that theform of government, w hich holds those entrustedwith power, in the greatest responsibility to theirconstituents, the best calculated for freemen. A re-publican, or free government, can only exist wherethe body of the people are virtuous, and where prop-erty is pretty equally divided[,] in such a governmentthe people are the sovereign and their sense or opin-ion is the criterion of every public measure, for whenthis ceases to be the case, the nature of the govern-ment is changed, and an aristocracy, monarchy ordespotism will rise on its ruin. The highest respon-sibility is to be attained, in a simple structure ofgovernment, for the great body of the people neversteadily attend to the operations of government, andfor want of due information are liable to he imposedonIf you complicate the plan by various orders,the people will be perplexed and divided in theirsentiments about the source of abuses or miston-

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duct, some will impute it to the senate, others to thehouse of representatives, and so on, that the inter-positich of the people may be rendered imperfect orperhaps wholly abortive. But if, imitating the con-stitution of Pennsylvania, you vest all the legislativepower in one body of men (separating the executiveand judicial) elected for a short period, and neces-sarily excluded by rotation from permanency, andguarded from precipitancy and surprise by delaysimposed on its proceedings, you will create the mostperfect responsibility for then, whenever the peoplefeel a grievance they cannot mistake the authors,and will apply the remedy with certainty and effect,discarding them at the next election. This tie of re-spont.:bility will obviate all the dangers appre-hended from a single legislature, and will the bestsecure the rights of the people.

Having premised this much, I shall' now proceedto the examination of the proposed plan of govern-ment, and I trust, shall make it appear to the mean-est capacity, that it has none of the essentialrequisites of a free government; that it is [.eitherfounded on those balancing restraining-powers, rec-ommended by Mr. Adams and attempted in the Brit-ish constitution, or possessed of that responsibilityto its constituents, which, in my opinion, is the onlyeffectual security for the liberties and happiness ofthe people; but on the contrary, that it is a mostdaring attempt to establish a despotic aristocracyamong freemen, that the world has ever witnessed.

I shall previously consider the extent of the pow-ers intended to be vested in Congress, before I ex-amine the construction of the general government.

It will not be controverted that the legislative isthe highest delegated power in government, andthat all others are subordinate to it. The celebratedMontesquieu establi.hes it as a maxim, that legislationnecessarily follows the power of taxation. By sect.8, of the first article of the proposed plan of govern-ment, "the Congress are to have power to lay andcollect taxes, duties, impost, and excises, to pay thedebts and provide for the common defence and gen-eral welfare if the United States, but all duties, im-posts and excises, shall be uniform throughout theUnited States." Now what can be more comprehen-sive than these words, not content by other sectionsof this plan, to grant all the great executive powersof a confederation, and a STANDING ARMY INTIME OF PEACE, that grand engine of oppression,and moreover the absolute controul over the com-merce of the United States and all external objectsof revenue, such as unlimited imposts upon im-ports, etc they are to be vested with every speciesof internal taxation,whatever taxes, duties and ex

cises they may deem requisite for the general welfare,may be imposed on the citizens of these states, lev-ied by the officers of Congress, distributed throughevery r!istrict in America; and the collection wouldbe enforced by the standing army, however gnevousor improper they may be. The Congress may con-strue every purpose for which the state legislaturesnow lay tans, to be for the general welfare, andthereby seize upon every object of revoilue.

The judicial power by 1st sect. of article 3 ["]shallextend to all cases, in law and equity, arising underthis constitution, the laws of the United States, andtreaties made or which shall be made under theirauthority; to all cases affecting ambassadors, otherpublic ministers and consuls, to all cases of admiraltyand maritime jurisdiction, to controversies to whichthe United States shall be a party, to controversiesbetween two or more states, between a state andcitizens of another state, between citizens of differ-ent states, between citzens of the same state claiminglands under grants of different states, and betweena state, or the citizens thereof, and foreign states,citizens or subjects."

The judicial power to be vested in one SupremeCourt, and in such Inferior Courts as the Congressmay from time to time ordain and establish.

The objects of jurisdiction recited above, are sonunzous, and the shades of distinction betweencivil causes are oftentimes so slight, that it is morethan probable that the state judicatories would bewholly superceded, for in contests about jurisdic-tion, the federal court, as the most powerful, wouldever prevail. Every person acquainted with the his-tory of the courts in England, knows by what in-genious sophisms they have, at different periods,extended the sphere of their jurisdiction over objectsout of the line of their institution, and contrary totheir very nature, courts of a criminal jurisdictionobtaining cognizance in civil causes.

To put the omnipotency of Congress over the stategovernment and judicatories out of all doubt, the6th article ordains that "this constitution and thelaws of the United States which shall be made inpursuance thereof, and all treaties made, or whichshall be made under the authority of the UnitedStates, shall be the supreme law of the land, and thejudges in every state shall be bound thereby, anything in the constitution or laws of any state to thecontrary notwithstanding."

By these sections the all-prevailing power of tax-ation, and such extensive legislative and judicialpowers are vested in the general government, asmust in their operation, necessarily absorb the statelegislatures and judicatories, and that such was in

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contemplation of the framers of it, will appear fromthe provision made for such event, in another partof it; (but that, fearful of alarming the people by sogreat an innovation, they have suffered the formsof the separate governments to remain, as a blind.)By sect. 4th of the 1st article, "the times, places andmanner of holding elections for senators and rep-resentatives, shall be prescribed in each state by thelegislature thereof; but the Congress may at any time,by law, make or alter such regulations, except as to tneplace of chusing senators." The plain construction ofwhich is, that when the legislatures drop out ofsight, from the necessary operation of this govern-ment, then Congress are to provide for the electionand appointment of representatives and senators.

If the foregoing be a just commentif the UnitedStates are to be melted down into one empire, itbecomes you to consider, whether such a govern-ment, however constructed, would be eligihle in soextended a territory; and whether it would be prac-ticable, consistent with freedom? It is the opinion ofthe greatest writers, that a very extensive countrycannot be governed on democratical principles, onany other plan, than a confederation of a number ofsmall republics, possessing all the powers of internalgovernment, but united in the management of theirforeign and general concerns.

It would not be difficult to prove, that any thingshort of depotism, could not bind so great a countryunder one government; and that whatever plan youmight, at the first setting out, establish, it wouldissue in a despotism.

If one general government could be instituted ..ndmaintained on principles of freedom, it would notbe so competent to attend to the various local con-cerns and wants, of every particular district[,] as wellas the pecut:ar governments, who are nearer thescene, and possessed of superior means of infor-mation[,] besides, if the business of the whole unionis to be managed by one government, there wouldnot be time. Do we not already see, that the inhab-itants in a number of larger states, who are remotefrom the seat of government, are loudly complainingof the inconveniencies and disadvantages the) aresubjected to on this account, and that, to enjoy thecomforts of local government, they are separatinginto smaller divisions.

Having taken a review of the powers, I shall nowexamine the construction of the proposed generalgovernment.

Art. I. sect. I. "All legislative powers hereingranted shall be vested in a Congress of the UnitedStates, which shall consist of a senate and 1ic..4se ofrepresentatives." By another section, the president

(the principal executive officer) Las a conditionalcontroul over their proceedings.

Sect. 2. "The house of representatives shall becomposed of members chosen every second year,by the people of the several states. The number ofrepresentatives shall not exceed one for every 30,000inhabitants."

The senate, the other constituent branch of thelegislature, formed by the legislature of each stateappointing two senators, for the term of six years.

The executive power by Art. 2. sec. I. is to bevested in a presider of the United States of America,elected for four years: Sec. 2. gives him "power, byand with the consent of the senate to mike treaties,provided two thirds of the senators present concur;and he shall nominate, and by and with the adviceand consent of the senate, shall appoint ambassa-dors, other public ministers and consuls, judges ofthe Supreme Court, and all other officers of theUnited States, whose appointments are not hereinotherwise provided for, and which shall be estab-lished by law, etc. And by another section he hasthe absolute power of granting reprieves and par-dons for treason and all other high crimes and mis-demeanors, except in case of impeachment.

The foregoing are the outlines of the plan.Thus we see, the house of representatives, are on

the part of the people to balance the senate, who Isuppose will be composed of the better sort, the wellborn, etc. The number of representatives (being onlyone tor every 30,000 inhabitants) appears to be tofew, either to communicate the requisite informa-tion, of the wants, local circumstances and senti-ments of so extensive an empire, or to preventcorruption and undue influence, in the exercise ofsuch great powers, the term for whin they are tobe chosen, too long to preserve a due dependenceand accountability to their constituents; and themode and places of their election not sufficientlyascertained, for as Congress have the ,ontroul overboth, they may govern the choice, by ordering therepresentatives of a whole state, to be elected in oneplace, and that too may be the most inconvenient.

The senate, the great efficient body in this plan ofgovernment, is constituted on the most unequalprinciples. The smallest state it he union has equalweight with the great states of Virginia, Massachu-setts, or PennsylvaniaThe Senate, besides its leg-islative functions, has a very considerable share inthe Executive; none of the principal appointmentsto office can be made without its advice and consent.The fPrm and mode of its appointment, will lead topermanency, the members are chosen for six years,the mode is under the controul of Congress, and as

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there is no exclusion by rotation, they may be con-tinued for life, which, from their extensive meansof influence; would follow of course. The President,who would be a mere pageant of state, unless hecoincided with the views of the Senate, would eitherbecome the head of the aristocratic junto in thatbody, or its minion; besides, their influence beingthe most,predominant, could the best secure his re-election to office. And from his power of grantingpardons, he might skreen from punishment themost treasonable attempts on the liberties of the peo-ple, when instigated by the Senate.

From this investigation into the organization ofthis government, it appears that it is devoid of allresponsibility or accountability to the great body ofthe people, and that so far from being a regularbalanced government, it would be in practice a per-manent ARISTOCRACY.

The framers of it[,] actuated by the true spirit ofsuch a government, which ever abominates and sup-presses all free enquiry and discussion, have madeno provision for the liberty of the press, that grandpalladium of freedom, and scourge of tyrants; but ob-served a total silence on that head. It is the opinionof some great writers, that if the liberty of the press,by an institution of religion, or otherwise, could berendered sacred, even in Turkey, that despotismwould fly before it. And it is worthy of remark, thatthere is no declaration of personal rights, premisedin most free constitutions; and that trial by jury incivil cases is taken away; for what other constructioncan be put on the following, viz. Article III. Sect.2d. "In all cases affecting ambassadors, other publicministers and consuls, and those in which a Stateshall be party, the Supreme Court shall have originaljurisdiction. In all the other cases above mentioned,

i.1

the Supreme Court shall have appellate jurisdiction,both as to law and fact?" It would be a novelty injurisprudence, as well as evidently improper to al-low an appeal from the verdict of a jury, on thematter of fact; therefore, it implies and allows of adismission of the jury in civil cases, and especiallywhen it is considered, that jury trial in criminal casesis expressly stipulated for, but not in civil cases.

But our situation is represented to be so criticallydreadful, that, however reprehensible and excep-tionable the proposed plan of government may be,there is no alternative, between the adoption of itand absolute ruin.My fellow citizens, things arenot at that crisis, it is the argument of tyrants; thepresent distracted state of Europe secures us frominjury on that quarter, and as to domestic dissen-ti ins, we have not so much to fear from them, asto precipitate us into this form of government, with-out it is a safe and a proper one. For remember, ofall possible evils, that of despotism is the worst and themost to be dreaded.

Besides, it cannot be supposed, that the first essayon so difficult a subject, is so well digested, as itought to be,if the proposed plan, after a maturedeliberation, should meet the approbation of the re-spective States, the matter will end; but if it shonldbe found to be fraught with dangers and inconven-iences, a future general Convention being in pos-session of the objections, will be the better enabledto plan a suitable government.

Who's here so base, that would a bondman be?If any, speak; for him I hove offended.Who's here so vile, that will not love his country?If any, speak; for him have I offended.

Centinel

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14.'7

Document 13The Address and Reasons of Dissent of the Minority

of the Convention of Pennsylvania To Their Constilents

December 18, 1787

It was not until after the termination of the late glo-rious contest, which made the people of the UnitedStates, an independennation, that any defect wasdiscovered in the present confederation. It wasformed by some of the ablest patriots in America. Itcarried us successfully through the war; and the vir-tue and patriotism of the people, with their dispo-sition to promote the common cause, supplied thewant of power in Congress.

The requisition of Congress for the five per cent.impost was made before the peace, so early as thefirst of February, 1781, but was prevented takingeffect by the refusal of one state; yet it is probableevery state in the union would have agreed to thismeasure at that period, had it not been for the ex-travagant terms in which it was demanded. The req-uisition was new molded in the year 1783, andaccompanied with an additional demand of certainsupplementary funds for 25 years. Peace had nowtaken place, and the United States found themselveslabouring under a considerable foreign and domesticdebt, incurred during the war. The requisition of1783 was commensurate with the interest of thedebt, as it was then calculated; but it has been moreaccurately ascertained since that time. The domesticdebt has been found to fall several millions of dollarsshort of the calculation, and it has lately been con-siderably dimin'shed by large sales of the westernlands. The sti have been called on by Congressannually for supplies until the general system offinance proposed in 1783 should take place.

It was at this time that the want of an efficientfederal government was first complained of, andthat the powers vested in Congress were found tobe inadequate to the procuring of the benefits thatshould result from the union. The impost wasgranted by most of the states, but many refused thesupplementary funds, the annual requisitions wereset at nought by some of the states, while otherscomplied with them by legislative acts, but weretardy in their payments, and Congress found them-selves incapable zf complying with their engage-

ments, and supporting the federal government. Itwas found that our national character was sinkingin the opinion of foreign nations. The Congresscould make treaties of commerce, but could not en-force the observance of them. We were sufferingfrom the restrictions of foreign nations, who hadshackled our commerce, while we were unable toretaliate: and all now agreed that it would be ad-vantageous to the union to enlarge the powers ofCongress; that they should be enabled in the amplestmanner to regulate commerce, and to lay and collectduties on the imports throughout the United States.With this view a convention was first proposed byVirginia, and finally recommended by Congress forthe different States to appoint deputies to meet inconvention, "for the purposes of revising andamending the present articles of confederation, soas to make them adequate to the exigencies of theunion." This recommendation the legislatures oftwelve states complied with so hastily as not to con-sult their constituents on the subject; and thnughthe different legislatures had no authority from theirconstituents for the purpose, they probably appre-hended the necessity would justify the measure; andnone of them extended their ideas at that time fur-ther than "revising and amending the present arti-cles of confederation." Pennsylvania by the actappointing deputies expressly confined their powersto this object; and though it is probable that someof the memh-rs of the assembly of this state had atelat time in contemplation to annihilate the presentconfederation, as well as the constitution of Penn-sylvania, yet the plan was not sufficiently maturedto communicate it to the public.

The r..ajority of the legislature of this common-wealth, wet . at that time under the influence of themembers from the city of Philadelphia. They agreedthat the deputies sent by them to convention shouldhave no compensation for their services, which de-termination was calculated to prevent the electionof any member who resided at a distance from thecity. It was in vain for the minority to attempt elect-ing delegates to the convention, who understood

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the circumstances, and the feelings of the people,and had a common interest with them. They founda disposition in the leaders of the majority of thehouse to chuse themselves and some of their de-pendents. The minority attempted to prevent thisby agreeing to vote for some of the leaning members,who they knew had influence enough to be ap-pointed at any rate, in hopes of carrying with themsome respectable citizens of Philadelphia, in whoseprinciples and Integrity they could have more con-fidence; but even in this they were disappointed,except in one member: the eighth member wasadded at a subsequent session of the assembly.

The Continental convention met in the city of Phil-adelphia at the time appointed. It was composed ofsome men of excellent characters, of others whowere more remarkable for their ambition and cun-ning, than their patriotism; and of some who hadbeen opponents to the independence of the UnitedStates. The delegates from Pennsylvania were, sixof them, uniform and decided opponents to the con-stitution of this commonwealth. The convention satupwards offour months. The doors were kept shut,and the members brought under the most solemnengagements of secrecy. Some of those who op-posed their going so far beyond their powers, re-tired, hopeless, from the convention, others had thefirmness to refuse signing the plan altogether; andmany who did sign it, did it not as a system theywholly approved, but as the best that could be thenobtained, and notwithstanding the time spent onthis subject, it is agreed on all hands to be a wor;,of haste and accommodation.

Whilst the gilded chains were forging in the secretc nclave, the meaner instruments of despotismwithout, were busily employed in alarming the fearsof the people with dangers which did nit exist, andexcitidg their hopes of greater advantages from theexpected plan than even the best government onearth could produce.

The proposed plan had not many hours issuedforth from the womb of suspicious secrecy, untilsuch as wslre prepared for the purpose, were car-rying about petitions for people to sign, signifyingtheir approbation of the system, and requesting thelegislature to call a convention. While every measurewas taken to intimidate the people against opposingit, the public 1,..rs teemed with the most violentthreats against. .hose who should dare to think forthemselves, and tar and feathers were liberally prom-ised to all those who wou.... not immediately join insupporting the proposed goverk talent be it what itwuuld. Under such circumstances petitions in fa-vour of calling a convention were signed by great

numbers in and about the city, before they hnl theleisure to read and examine the system, many ofwhom, now they are better acquainted with it, andhave had time to investigate its principles, are heart-ily opposed to it. The petitions were speedilyhanded into the legislature.

Affairs were in this situation when on the 28th ofSeptember las: a resolution was proposed to the as-sembly by a member of the house who had beenalso a member of the federal convention, for callinga state corn ention, to be elected within ten days forthe purpose of examining and adopting the pro-posed constitution of the United States, though, atthis time the house had not received it from Con-gress. This attempt was opposed by a minority, whoafter offering every argument in their power to pre-vent the precipitate measure, without effect, ab-sented themselves from the house -.6 the onlyalternative left them, to prevent the rteasure takingplace previous to their constituents being acquaintedwith the businessThat violence and outrage whichhad been so often threatened was now practised;some of the members were seized the next day bya mob collected for the purpose, and forciblydragged to the house, and there detained by forcewhilst the quorum of the legislature, so formed, com-pleated their resolution. We shall dwell no longeron this subject, the people of Pennsylvania havebeen already acquainted therewith. We would onlyfurther observe that every member of the legislatu-e,previously to taking his seat, by solemn oath or af-firmation, declares, "that he will not do or consentto any act or thing-whatever that shall have a ten-dency to lessen or abridge their rights and privileges,as declared in the constitution of this state." Andthat constitution which they are so solemnly swornto support cannot legally be altered but by a rec-ommendation of a council of censors, who alone areauthorised to propose alterations and amendments,and even these must be published at least six months,for the consideration of the people.The proposedsystem of government for the United States, ifadopted, will alter and may annihilate the consti-tution of Pennsylvania, and therefore the legislaturehad no authority whatever to recommend the callin,;a convention for that purpose. This proceedingcould not be considered as binding on the people ofthis commonwealth. The huuse was formed by vi-olence, some of the members composing it were detzined there by force, which alone would havevitiated any proceedings, to which they were oth-erwise competent, tut had the legislature been le-gally formed, this business was absolutely withouttheir power.

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Document 13

In this situation of affairs were the subscriberselected members of the convention of Pennsylvania.A convention called by a legislature in direct viola-tion of their duty, and composed in part of members,who were compelled to attend for that purpose, toconsider of a constitution proposed by a conventionof the United States, who were not appointed forthe purpose of framing a new form of government,but whose powers were expressly confined to alter-ing and amending the present articles of confeder-ation.Therefore ttie Members of the continentalconvention in proposing the plan acted as individ-uals, and not as deputies from Pennsylvania. Theassembly who called the state convention acted asindividuals, and not as the legislature of Pennsyl-vania; nor could they or the convention chosen ontheir recommendation have authority to do any actor thing, that can alter or annihilate the constitutionof Pennsylvania (both of which will be done by thenew constitution) nor are their proceedings in ouropinion, at all binding on the people.

The election for members of the convention washeld at so early a period and the want of informationwas so great, that some of us did not know of ituntil after it was over, and we have reason to believethat great numbers of the people of Pennsylvaniahave not yet had an opportunity of sufficiently ex-amining the proposed constitution.We apprehendthat no change can take place that will affect theinternal government or constitution of this com-monwealth, unless a majority of the people shouldevidence a wish for such a change; but on examiningthe number of votes given for members of the pres-ent state convention, we rind that upwards of seventythousand freemen who are intitled to vote in Penn-sylvania, the whcle convention has been elected byabout thirteen thousand voters, and though two thirdsof the members of the convention have thoughtproper to ratify the proposed constitution, yet thosetwo thirds were elected by the votes of only six thou-sand and eight hundred frzemen.

In the city of Philadelphia and some of the easterncounties, tire junto that took the lead in the busLiessagreed to vote for none but such as would solemnlypromise to adopt the system in Coto, without exer-cising their judgment. In many of the counties thepeople did not attend the elections as they had notan opportunity of judging the plan. Others did notconsider themselves bound by the call of a set ofmen who assembled at the statehouse in Philadel-phia, and assumed the name of the legislature ofPennsylvania, and some were prevented from vot-ing by the violence of the party who were ckter-mined at all events to force down the measure. To

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such lengths did the tools of despotism carry theiroutrage, that in the night of the election for membersof convention, in the city of Philadelphia, several ofthe subscribers (being then in the city to transactyour business) were grossly abused, ill-treated andinsulted while they were quiet in their lodgings,though they did not interfere, nor had any thing todo with the said election, but as they apprehend,because they were supposed to be adverse to theproposed constitution, and would not tamely sur-render those sacred rights, which you had commit-ted to their charge.

The convention met, and the same dispositionwas soon manifested in considering the proposedconstitution, that had been exhibited in every otherstage of the business. We were prohibited by anexpress vote of the convention, from taking anyquestion on the separate articles of the plan, andreduced to the necessity of adopting or rejecting intoto.'Tis true the majority permitted us to debateon each article, but restrained us from proposingamendments.They also determined not to permitus to enter on the minutes our reasons of dissentagains. any of the articles, nor even on the finalquestion our reasons of dissent against the whole.Thus situated we entered on the examination of theproposed system of government, ,And found it to besuch as we could not .dopt, without, as we con-ceived, surrendering L your dearest rights. We of-fered our objections to the convention, and opposedthose parts of the plan, which, in our opinion, wouldbe injurious to you, in the best manner we wereable, and closed our arguments by offering the fol-lowing propositions to the convention.

1. The right of conscience shall be held inviolable;and neither the legislative, executive rt:ir judicialpowers f the United States shall have authority toalter, abrogate, or in fringe any part of the consti-tutioa of the several states, which provide for .hepreservation of liberty in matters of religion.

2. That in controversies respecting property, andin suits between man and man, trial by jury shallremain as heretofore, as well in the federal courts,as in those of the several states.

3. That in all capital and criminal prosecutions, aman has a right to demand the cause and nature ofhis accusation, as well in the federal courts, as inthose of the several states, to be heard by himselfand his counsel, to be confronted with the accusersand witnesses, to call for evidence in his favor, anda speedy te.41 by an impartial jury of his vicinage,without whose unanimous consent, he cannot befound guilty, nor can he be compelled to give evi-dence against himself, and that no man be deprived

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of his liberty, except by the law of the land or thejudgment of his peers.

4. That excessive bail ought not to be required,nor excessive fines impot d, nor cruel nor unusualpunishments inflicted.

5. That warrants unsupported by evidence,whereby any officer or messenger may be com-manded or required to search suspected places, orto seize any person or persons, his or their property,not particularly described, are grievous and oppres-sive, and sh all not be granted either by the magis-trates of the federal government or others.

6. That the people have a right to the freedom ofspeech; of writing and publishing their sentiments,therefore, the freedom of press shall not be re-strained by any law of the United States.

7. That the people have a right to bear arms forthe defence of themselves and their own state, orthe United Staces, or for the purpose of killing game;and no law shall be passed for disarming the peopleor any of them, unless for crimes committed, or realdanger of public injury from individuals; and asstanding armies in the time of peace are dangerousto liberty, they ought not to be kept up: and thatthe military shall be kept under strict subordinationto and be governed by the civil powers.

8. The inhabitants of the several states shall haveliberty to fowl and hunt in seasonable times, on thelands they hold, and on all other lands in the UnitedStates not inclosed, and in like manner to fish in allnavigable waters, and others not private property,without being restrained therein by 'any laws to bepassed by the legislature of the United States.

9. That no law shall be passed to restrair the leg-islatures of the several states from enacting !aws forimposing taxes, except imposts and duties on goodsimported or exported, and that no taxes, except im-posts and duties upon goods imported and ex-ported, and postage on letters shall be levied by theauthority of Congress.

10. That the house of representatives be properlyincreased in number; that elections shall remain free;that the several states shall have power to regulatethe elections for senatcrs and representatives, with-out being controuled either directly or indirectly byAny interference on the part of the Congress; andthat elections of representatives be annual.

11. That the power of organizing, arming, anddisciplining the militia (the manner of discipliningthe militia to be prescribed by Congress) remain withthe individual states, and that Congress shall nothave authority to call or march any of the militia out-L their own state, without the consent of such state,

and for such length of time only as such state shallagree.

That the sovereignty, freedom and independencyof the several states shall be retained, and everypower, jurisdiction and right which is not by thisconstitution expressly delegated to the United Statesin Congress assembled.

12. That the legislative, executive, and judicialpowers be kept separate; and to this end that a con-stitutional council be appointed, to advise and assistthe president, wt.-) shall be responsible for the ad-vice they give, het _oy the senators would be relievedfrom almost constant attendance; and also that thejudges be made completely independent.

13. That no treaty which shall be directly opposedto the existing laws of the United States in Congressassembled, shall be valid until such laws shall berepealed, or made conformable to such treaty; nei-ther shall any treaties be valid which are in contra-diction to the constitution of the United States, orthe constitutions of the several states.

14. That the judiciary power of the United Statesoe confined to cases affecting ambassadors, otherpublic ministers and consuls; to cases of admiraltyand maritime jurisdiction; to controversies to whichthe United States shall be a party; to controversiesbetween two or more statesbetw. ..m a state andcitizens of different statesbetween citizens claim-ing lands under grants of different states; and be-tween a state or the citizen thereof and foreignstates, and in criminal cases, to such only as areexpressly enumerated in the constitution, and thatthe United States in Congress assembled, shall nothave power to enact laws, which shall alter the lawsof descents and distribution of the effects of de-ceased persons, the titles of lands or goods, or theregulation of contracts in the individual states.

After reading these propositions, we declared ourwillingness to agree to the plan, provided it was soamended as to meet these propositions, or some-thing similar to them: and finally moved the con-vention to adjourn, to give the people ofPennsylvania time to consider the subject, and de-termine for themselves; but these were all rejected,and the final vote was taken, when our duty to youinduced us to vote against the proposed plan, andto decline signing tee ratification of the same.

During the discussion we met with many insults,and some personal abuse, we were not even treatedwith decency, during the sitting of the con.' ration,by the persons in the gallery of the house, however,we flatter ourselves that in Lontending for the pres-ervation of those invaluable nghts you have thoughtproper to commit to our charge, we acted with a

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spirit becoming freemen, and being desirous thatyou might know the principles which actuated ourconduct, and being prohibited from inserting ourreasons of dissent on the minutes of the convention,we have subjoined them for your consideration, asto you alone we are accountable. It remains withyou whether you will think those inestimable priv-ileges, which you have so ably contended for,should be sacrificed at the shrine of despotism, orwhether you mean to contend for them with thesame spirit that has so often baffled the attempts ofan aristocratic faction, to rivet the shackles of slaveryon you and your unborn posterity.

Our objections are comprised under three generalheads of dissent, viz.

We dissent, first, because it is the opinion of themost celebrated writers on government, and con-firmed by uniform experience, that a very extensiveterritory cannot be governed on the principles offreedom, otherwise than by a confederation of re-publics, possessing all the powers of internal gov-ernment; but united in the management of theirgeneral, and foreign concerns.

If any doubt could have been entertained of thetruth of the foregoing principle, it has been fullyremoved by the concession of Mr. Wilson, one of themajority on this question; and who was one of thedeputies in the late general convention. In justice tohim, we will give his own words; they are as follows,viz. "The extent of country for which the new con-stitution was required, produced another difficultyin the business of the federal convention. It is theopinion of some celebrated writers, that to a smallterritory, the democratical; to a middling territory(as Montesquieu has termed it) the monarchial; andto an extensive territory, the despotic formof gov-ernment is best adapted. Regarding then the wideand almost unbounded jurisdiction of the UnitedStates, at first view, the hand of despotism seemednecessary to controul, connect, and protect it; andhence the chief embarrassment rose. Fur, we knowthat, altho' our constituents would chearfully submitto the legislative restraints of a free government,they would spurn at every attempt to shackle themwith despotic power."And again in another part ofhis speech he continues."Is it probabl, that thedissolut:on of the state governments, and the estab-lishment of one consolidated empire would be eligiblein its nature, and satisfactory to the people in itsadministration? I think not, as I have given reasonsto shew that so extensive a territory could not begoverned, connected, and preserved, but by the su-premacy of despotic power. All the exertions of the mostpotent emperors of Rome were not capable of keep-

ing that empire together, which in extent was tarinferior to the dominic n of America."

We dissent, secondly, because the powers vesteain Congress by this constitution, must necessarilyannihilate and absorb 0 e legislative, executive, andjudicial powers of ehe several states, and producefrom their ruins one consolidated government,which from the nature of things will be an iron handeddespotism, as nothing short of the supremacy of des-potic sway could connect and govern these UnitedStates under one government.

As the truth of this position is of such decisiveimportance, it ought to be fully investigated, and ifit is founded to be clearly ascertained; for, should itbe demonstrated, that the powers vested by thisconstitution in Congress, will have such an effect asnecessarily to produce one consolidated govern-ment, the question then will be reduced to this shortissue, viz. whether satiated with the blessings ofliberty; whether repenting of the folly of so recentlyasserting their unalienable rights, against foreigndespots at the expence of so much blood and treas-ure, and such painful and arduous struggles, thepeople of America are now willing to resign everyprivilege of freemen, and submit to the dominion ofan absolute government, that will embrace all Amer-ica in one chain of despotism; or whether they willwith virtuous indignation, spurn at the shackles pre-pared for them, and confirm their liberties by a con-duct becoming freemen.

That the new government will not be a confed-eracy of states, as it ought, but one consolidatedgovernment, founded upon the destruction of theseveral governments of the states, we shall nowshew.

The powers of Congress under the new consti-tution, are complete and unlimited over the purseand the sword, and are perfectly independent of, andsupreme over, the state governments; whose inter-vention in these great points is entirely destroyed.By virtue of their power of taxation, congress maycommand the whole, or any part of the property ofthe people. They may impose what imposts uponcommerce; they may impose what land taxes, polltaxes, excises, duties on all written instruments, andduties on every other article that they may judgeproper, in short, every species of taxation, whetherof an e, ternal or internal nature is comprised in sec-tion the 8tn, of article the Ist, viz. "The congressshall have power to lay and collect taxes, duties,imposts, and excises, to pay the debts, and providefor the common defence and general welfare of theUnited States."

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As there is no one article of taxation , ?served tothe state governments, the Congress may mono-polise every source of revenue, and thus indirectlydemalish the state governments, for without fundsthey could not exist, the taxes, duties and excisesimposed by Congress may be so high as to renderit impracticable to levy further sums on the samearticles; but whether this should be the case or not,if the state governments should presume to imposetaxes, duties or excises, on the same articles withCongress, the latter may abrogate and repeal thelaws whereby they are imposed, upon the allegationthat they interfere with the due collection of theirtaxes, duties, or excises, by virtue of the followingclause, part of section 8th, article Ist. viz. "To makeall laws which shall be necessary and proper forcarrying into execution the foregoing powers, andall other powers vested by this constitution in thegovernment of the United Stales, or in any depart-ment or officer thereof."

The Congress might gloss over this conduct byconstruing every purpose for which the state legis-latures now lay taxes, to be for the "general welfare,"and therefore as of their jujrisidiction.

And the supremacy of the laws of the UnitedStates is established by article 6th, viz. "That thisconstitution and the laws of the United States, whichshall be made in pursuance thereof, and all treatiesmade, or which shall be made under, the authorityof the United States, shall be the supreme law of theland; and the judges in every state shall be bound thereby;any thing in the constitution or laws of any state to thecontrary notwithstanding." It has been alledged thatthe words "pursuant to the constitution," are a re-striction upon the authority of Congress; but whenit is considered that by other sections they are in-vested with every efficient power of government,and which may be exercised to the absolute destruc-tion of the state governments, without any violationof even the forms of the constitution, this seemingrestriction, as well as every other restriction in it,appears to us to be nugatory and delusive; and onlyintroduced as a blind upon the real nature of thegovernment. In our opinion, "pursuant to the con-stitution," will be co-extensive with the will andpleasure of Congress, which, indeed, will be the onlylimitation of their powers.

We apprehend that two co-ordinate sovereigntieswould be a solecism in politics. That therefore astnere is no line of distinction drawn between thegeneral, and state governments; as the sphere oftheir jurisdiction is undefined, it would be contraryto the nature of things, that both should exist to-gether, one or the other would necessarily triumph

in the fullness of dominion. However the contestcould not be of long continuance, as the state gov-ernments are divested of every means of defence,and will be obliged by "the supreme law of the land"to yield at discretion.

It has been objected to this total destruction of thestate governments, that the existence of their leg-islatures is made essential to the organization ofCongress; that they must assemble for the appoint-ment of the senators and president general of theUnited States. True, the state legislatures may becontinued for some years, as boards of appointment,merely, after they are divested of every other func-tion, but the framers of the constitution foreseeingthat the people will soon be disgusted with this sol-emn mockery of a government without power andusefulness, have made a provision for relievingthem from the imposition, in section 4th, of article1st, viz. "The times, places, and manner of holdingelections for senators and representatives, shall beprescribed in each state by the legislature thereof;but the Congress may at any time, by law make or altersuch regulations; except as to the place of chusing sena-tors."

As Congress have the controul over the time ofthe appointment of the president general, of the sen-ators and of the representatives of the United States,they may prolong their existence in office, for life,by postponing the time of their election and ap-pointment, from period to petit id, under variouspretences, such as an apprehension of invasion, thefactious disposition of the people, or any other plau-sible pretence that the occasion may suggest; andhaving thus obtained life-estates in the government,they may fill up the vacancies themselves, by theircontroul over the mode of appointment; with thisexception in regard to the senators, that as the placeof appointment for them, must, by the constitution,be in the particular state, they may depute someboc.y in the respective states, to fill up the vacanciesin he senate, occasioned by death, until they canventure to assume it themselves. in this manner,may the only restriction in this clause be evaded. Byvirtue of the foregoing section, when the spirit ofthe people shall be gradually broken; when the gen-eral government shall be firmly established, andwhen a numerous standing army shall render op-position vain, the Congress may compleat the sys-tem of despotism, in renouncing all dependance onthe people, by continuing themselves, and childrenin the government.

The celebrated Montesquieu, in his Spirit of the Laws,vol. I, page 12th, says, "That in a democracy therecan be no exercise of sovereignty, bat by the suf-

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frages ,of the people, which are their will; now thesovereigns will is the sovereign himself; the lawstherefore, which establish the right of suffrage, arefundamental to this government. In fact, it is as im-portant to regulate in a republic in what manner, bywhom, and concerning what suffrages are to begiven, as it is in a monarchy to know who is theprince, and after what manner he ought to govern."The time, mode and place of the election of represen-tatives, senators and president general of the UnitedStates, ought not to be under the ccntroul of Con-gres3, but fundamentally ascertaiwd and estab-lished.

The new constitution, consistently with the planof consolidation, contains no reservation of, therights and privileges of the state governments,which was made in the confederation of the year1778, by article the 2d, viz. 'That each state retainsits sovereignty, freedom and independence, andevery power, jurisdiction and right, which is not bythis confederation expressly delegated to the UnitedStates in Congress assembled."

The legislative power vested in Congress by theforegoing recited sections, is so unlimited in its na-ture; may be so comprehensive and boundless [in]its exercise, that this alone would be amply sufficientto annihilate the state governments, and swallowthem up in the grand vortex of general empire.

The judicial powers vested in Congress an alsoso various and extensive, that by legal ingenuitythey may be extended to every case, and thus absorbthe state judiciaries, and when we consider the de-cisive influence that a general judiciary would haveover the civil polity of the several suites, we do nothesitate to pronounce that this power, unaided bythe legislative, would effect a consolidation of thestates under one government.

The powers of a court of equity, vested by thisconstitution, in the tribunals of Congress; powerswhich do not exist in Pennsylvania, unless so far asthey can be in.utporated with jury trial would, inthis state, greatly contribute to this event. The richand-wealthy suitors would eagerly lay hold of theinfinite mazes, perplexities and delays, which acourt of chancery, with the appellate powers of thesupreme court in fact as well as law would furnishhim with, and thus the poor man being plunged inthe bottomless pit of legal discussion, would drophis demand in despair.

In short, consolidation pervades the whole con-stitution. It begins with an annth.ciation that suchwas the intention. The main pillars of the fabric cor-respond with it, and the concluding paragraph is aconfirmation of it. The preamble begins with the

words, "We the people of the United States," whichis a style of a compact between individuals enteringinto a state of society, and not that of a confederationof states. The other features of consolidation, wehave before noticed.

Thus we have fully established the position, thatthe powers vested by this constitution in Congress,will effect a consolidation of the states under onegovernment, which even the advocates of this con-stitution admit, could not be done without the sac-rifice of all liberty.

We dissent, Thirdly, Because if it were practicableto govern so extensive a territory as these UnitedStates includes, on the plan of a consolidated gov-ernment, cousistent with the principles of libertyand the happiness of the people, yet the construc-tion of this constitution is not calculated to attainthe object,-for independent of the nature of the case,it would of itself, necessarily, produce a despotism,and that not by the usual gradations, but with thecelerity that has hitherto only attended revolutionseffected by the sword.

To establish the truth of this position, a cursoryinvestigation of the principles and form of this con-stitution will suffice.

The first consideration that this review suggests,is the. omission of a BILL of RIGHTS, ascertainingand fundamentally establishing those unalienableand personal rights of men, without the full, free,and secure enjoyment of which there can be no lib-erty, and over which it is not necessary for a goodgovernment to have the controul. The principal ofwhich are the rights of conscience, personal libertyby the clear and unequivocal establishment of thewrit of habeas corpus, jury trial in criminal and civilcases, by an impartial jury of the vicinage or county,with the common-law proceedings, for the safety ofthe accused in criminal pro, .!cutions; and the libertyof the press, that scourge of tyrants, and the grandbulwark of every other liberty and privilege; the stip-ulations beret, _.,re made in favor of them in the stateconstitutions, are entirely superceded by this con-stitution.

The legislature of a free country should be soformed as to have a competent knowledge of itsconstituents, and enjoy their confidence. To producethese essential requisites, the representation oughtto be fair, equal, and sufficiently numerous, to pos-sess the same interests, feelings, opinions, andviews, which the pt.ople themselves would possess,1, ere they all assembled; and so numerous as toprevent bribery and undue influence, and so re-sponsible to the people, by frequent and fair elec-tions, as to prevent their neglecting or sacrificing the

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views and interests of their constituents, to theirown pursuits.

We will now bring the legislature under this con-stitution to the test of the foregoing principles,which will demonstrate, that it is deficient in everyessential quality of a just and safe representation.

The house of representatives is to consist of 65members, that is one for about every 50,000 inhab-itants, to be chosen every two years. Thirty-threemembers will form a quorum for doing business;and 17 of these, being the majority, determine thesense of the hcnse.

The senate, the other constituent branch of thelegislature, consists of 26 members being two fromeach state, appointed by their legislatures every sixyearsfourteen senators- make a quorum; the 'ma-jority of whom, eight, determines the sense of thatbody; except in judging on impeachments, or inmaking tre-ties, or in expelling a member, when twothirds of the senators present, must concur.

The president is to have the controul over theenacting of laws, so far as to make the concurrenceof two thirds of the representatives and senatorspresent neces, ary, if he should object to the laws.

Thus it appears that the liberties, happiness, in-terests, and great concerns of the whole UnitedStates, may be dependent upon the integrity, virtue,wisdom, and knowledge of 25 or 26 menHow in-adequate and unsafe a represeation! Inadequate,because the sense and views of 3 or 4 millions ofpeople diffused over so extensive a territory com-prising such various climates, products, habits, in-terests, and opinions, cannot be collected in so smalla body; and besides, it is not a fair and equal rep-resentation of the people even in proportion to itsnumber, for the smallest state has as much weightin the senate as the largest, and from the smallnessof the number to be chosen for both branches of thelegislature, and from the node of election and ap-pointment, which is under tile controul of Congress,and from the nature of the thing, men of the mostelevated rank in life, will alone be chosen. The othe.orders in the society, such as farmers, traders, andmechanics, who all ought to have a competent num-ber of their best informed men in the legislature, willbe totally unrepresented.

The representation is unsafe, because in the ex-ercise such great powers and trues, it is so exposedto conuptim and undue influence, by the gift of thenumerous places of honor and emoluments at thedisposal of the executive, by the arts and address ofthe great and designing, and by direct bribery.

The representation is moreover inadequate andunsafe, because of the long terms for which it is

appointed, and the mode of its appointment, bywhich Congress may not only controul the choiceof the people, but may so manage as to divest thepeople of this fundamental right, and become self-elected.

The number of members in the house of repre-sentatives may be increased to one for every 30,000inhabitants. But when we consider, that this cannotbe done without the consent of the senate, who fromtheir share in the legislative, in the executive, andjudicial departments, and permanency of appoint-ment, will be the great efficient body in this gov-ernment, and whose weight and predominancywould be abridged by an increase of the represen-tatives, we are persuaded that this is a circumstancethat cannot be expected. On the contrary, the num-ber of representatives will probably be continued at65, although the population of the country may swellto treble what it is now; unless a revolution shouldeffect a change.

We have before noticed the judicial power as itwould effect a consolidation of the states into onegovernment; we will now examine it, as it wouldaffect the liberties and welfare of the people, sup-posing such a government were practicable andproper.

The judicial power, under the proposed consti-tution, is founded on the well-known principles ofthe civil law, y which the judge determines both onlaw and fact, and appeals are allowed from the in-ferior tribunals to the superior, upon the wholeqtwstion; so that facts as well as law, would be re-examined, and even new facts brought forward inthe court of appeals; and to use the words of a veryeminent Civilian"The cause is many times anotherthing before the court of appeals, than what it wasat the time of the first sentence."

That this mode of proceeding is the one whichmust be adopted under this constitution, is evidentfrom the following circumstances.Ist. That the trialby jury, which is the grand characteristic of the com-mon law, is secured by the constitution, only in crim-inal cases. -2d. That the appeal from both law andfact is expressly established, winch is utterly incon-sistent with the principles of the common law, andtrials by jury. The only mode in which an appealfrom law and fact can be established, is, by adoptingthe principles and practice of the civil lac unlessthe United States should be drawn into the a._ sun cityof calling and swearing juries, merely for the pur-pose of contradicting their verdicts, which wouldrender juries contemptible and worse than use-tess.-3d. That the courts to be established woulddecide on all cases of law and equity, which is a well

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known characteristic of the civil law, and thesecourts would have conusance not only of the lawsof the United States and of treaties, and of casesaffecting ambassadors, but of all cases of admiraltyand maritime jurisdiction, which last are matters be-longing exclusively to the civil law, in every nationin Christendom.

Not to enlarge upon the loss of the invaluable rightof trial by an unbiased jury, so dear to every friendof liberty, the monstrous expence and inconven-iences of the mode of proceedings to be adopted,are such as will prove intolerable to the people ofthis country. The lengthy proceedings of the civillaw courts in the chancery of England, and in thecourts of Scotland and France, are such that few menof moderate fortune can endure the expence of; thepoor man must therefore submit to the wealthy.Length of purse will too often prevail against rightand justice. For instance; we are told by the learnedjudge Blackstone, that a question only on the propertyof an ox, of the value of three guineas, originatingunder the civil law proceedings in Scotland, aftermany interlocutory orders and sentences below, wascarried at length from the court of session, the high-est court in that part of Great Britain, by way of appealto the house of lords, where the question of law andfact was finally determined. He adds, that no piqueor spirit could in the court of king's bench or com-mon pleas at Westminster, have given continuanceto such a cause for a tenth part of the time, nor havecost a twentieth part of the expence. Yet the costsof king's bench and common pleas in England, areinfinitely greater than those which the people of thiscountry have ever experienced. We abhor the ideaof losing the transcendant privilege of trial by jury,with the loss of which, it is remarked by the samelearned author, that in Sweden, the liberties of thecommons were extinguished by an aristocratic sen-ate: and that trial by jury and the liberty of the peoplewent out together. At the same time we regret theintolerable delay, the enormous exi. _races and infi-nite vexation to which the people of this country willbe exposed from the voluminous proceedings of therourts of civil law, and especially from the appellatejurisdiction, by means of which a man may be drawnfrom the utmost boundaries of this extensive coun-try to the seat of the supreme court of the natior, tocontend, perhaps with a wealthy and powerful ad-versary. The consequence of this establishment willbe an absolute confirmation of the power of aristo-cratical influence ;n the courts of justice: for the com-mon people will not be able to contend or struggleagainst it.

Trial by jury in criminal cases may also be excludedby declaring that the libeller for instance shall beliable to an action of debt for a specified sum; thusevading the common law prosecution by indictmentand trial by jury. And the common course of pro-ceeding against a ship for breach of revenue lawsby information (which will be classed among civilcauses) will at the civil law be within the resort of acourt, vhere no jury intervenes. Besides, the benefitof jury trial, in cases of a criminal nature, whichcannot be evaded, will be rendered of little value,by calling the accused to answer far from home;there being no provision that the trial be by a juryof the neighbourhood or country. Thus an inhabi-tant of Pittsburgh, on a charge of crime committedon the banks of the Ohio, may be obliged to defendhimself at the side of the Delaware, and so vice versa.To conclude this head: we observe that the judgesof the courts of Congress would not be independent,as they are not debarred from holding other offices,during the pleasure of the presider and senate, andas they may derive their support in part from fees,alterable by the legislature.

The next consideration that the constitution pres-ents, is the undue and dangerous mixture of thepowers of government; the same body possessinglegislative, executive, and judicial powers. The sen-ate is a constituent branch of the legislature; it hasjudicial power in judging on impeachments, and inthis case unites in some measure the characters ofjudge and party, as all the principal officers are ap-pointed by the president-general, with the concur-rence of the senate and therefore they derive theiroffices in part from the senate. This may biass thejudgments of the senators and tend to screen greatdelinquents from punishments. And the senate has,moreover, various and great executive powers, viz.in concurrence with ese president-general, theyform treaties with foreign nations, that may controuland abrogate the constitutions and laws of the sev-eral states. Indeed, there is no power, privilege orliberty of the stake governments, or of the people,Jut what may be aftected by virtue of this power.For all treaties, made by them, are to be the "su-preme law of the land, any thing in the constitutionor laws of any state, to the contrary notwithstand-ing."

And this great power may be exercised by thepresident and 10 senators (being two-thirds of 14,which is a quorum of that body). What an induce-ment would this offer to the ministers of foreignpowers to compass by bribery such concessions ascould not otherwise be obtained. It is the unvariedusage of all free states, whenever treaties interfere

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with the positive laws of the land, to make the in-tervention of the legislature necessary to give themoperation. This became necessary, and was affordedby the parliament of Great-Britain. In consequenceof the late commercial treaty between that kingdomand FranceAs the senate judges on impeach-ments, who is to try the members of the senate forthe abuse of this power! And none of the great ap-pointments to office can be made without the con-sent of the senate.

Such various, extensive, and important powerscombined in one body of men, are inconsistent withall freedom; the celebrated Montesquieu tells us,that "when the legislative and executive powers areunited in the same person, or in the same body ofmagistrates, there can be no liberty, because appre-hensions may arise, lest the same monarch or senateshould enact tyrannical laws, to execute them in atyrannical manner."

"Again, there is no liberty, if, the power of judgingbe not separated from the legislative and executivepowers. Were it joined with the legislative, the lifeand liberty of the subject would be exposed to ar-bitrary controul: for the judge would then be legis-lator. Were it joined to the executive power, thejudge might behave with all the violence of an op-pressor. There would be an end of every thing, werethe same man, or the same body of the nobles, orof the people, to exercise those three powers; thatof enacting laws; that of executing the public reso-lutions; and that of judging the crimes of .-lifferencesof individuals."

The president general is dangerously connectedwith the senate; his coincidence with the views ofthe ruling junto in that body, is made essential tohis weight and importance in the government,which will destroy all independency and purity inthe executive department, and having the power ofpardoning without the concurrence of a council, hemay skreen from punishment the most treasonableattempts that may be made on the liberties of thepeople, when instigated by his coadjutors in the sen-ate. Instead of this dangerous and improper mixtureof the executive with the legislative and judicial, thesupreme executive powers ought to have beenplaced in the president, with a small independentcouncil, made personally responsible for Every ap-pointment to office or other act, by having their opin-ions recorded; and that without the concurrence ofthe majority of the quorum of this council, the pres-ident should not be capable of taking any step.

We have before considered internal taxation, as itwould effect the destruction of the state govern-ments, and produce one consolidated government.

We will now consider that subject as it affects thepersonal concerns of the people.

The power of direct taxation applies to every in-dividual, as congress, under this government, is ex-pressly vested with the authority of laying acapitation or poll tax upon every person to anyamount. This is a tax that, however oppressive inits nature, and unequal in its operation, is certain asto its produce and simple in its collection; it cannotbe evaded like the objects of imposts or excise, andwill be paid, because all that a man hath will he givefor his head. This tax is so congenial to the natureof despotism, that it has ever been a favorite undersuch governments. Some of those who were in thelate general convention from this state have longlaboured to introduce a poll-tax among us.

The power of direct taxation will further apply toevery individual, as congress may tax land, cattle,trades, occupations, etc. in any amount, and everyobject of internal taxation is of that nature, that how-ever oppressive, the people will have but this alter-native, except to pay the tax, or let their propertybe taken, for all resistance will be in vain. The stand-ing army and select militia would enforce the col-lection.

For the moderate exercise of this power, there isno controul left in the state governments, whoseintervention is destroyed. No relief, or redress ofgrievances can be extended, as heretofore by them.There is not even a declaration of RIGHTS to whichpeople may appeal for the vindication of theirwrongs in the court of justice. They must therefore,implicitly obey the most arbitrary laws, as the worstof them will be pursuant to the principles and formof the constitution, and that strongest of all checksupon the conduct of administration, responsibility tothe people, will not exist in this government. The per-manency of the appointments of senators and rep-resentatives, and the controul the congress haveover their election, will place them independent ofthe sentin.ents and resentments of the people, andthe administration having a greater interest in thegovernment than in the community, there will beno consideration to restrain them from oppressionand tyranny. In the government of this state, underthe old confederation, the members of the legislatureare taken from among the people, and their interestsand welfare are so inseparably connected with thoseof their constituents, that they can derive no advantage from oppressive laws and taxes, for they wouldsuffer in common with their fellow citizens; wouldparticipate in the burthens they impose on the com-munity, as they must return to the common level,after a short period, and notwithstanding every

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ex[er]tion of influence, every means of corruption,a necessary rotation excludes them from perma-nency in the legislature.

This large state is to have but ten members in thatCongress which is to have the liberty, property anddearest concerns of every individual in this vastcountry at absolute command an' even these tenpersons, who are to be our only guardians; who areto supercede the legislature of Pennsylvania, will notbe of the choice of thy people, nor amenable to them.From the mode of their election and appointmentthey will consist of the lordly and high-minded; ofmen who will have no congenial feelings with thepeople, but a perfect indifference for, and contemptof them; they will consist of those harpies of power,That prey upon the very vitals; that riot on the mis-eries of the community. But we will suppose, al-though in all probability it may never be realized infact, that our deputies in Congress have the welfareof their constituents at heart, and will exert them-selves in their behalf, what security could even thisafford; what relief cculd they extend to their op-pressed constituents? To attain this, the majority ofthe deputies of the twelve other states in Congressmust be alike well disposed; must alike forego thesweets of power, and relinquish the pursuits of am-bition, which from tl-,P nature of things is not to beexpected. If the people part with a responsible rep-resentation in the legislature, founded upon fair,certain and frequent elections, they have nothingleft they can call their own. Miserable is the lot ofthat people whose every concern depends on theWILL and PLEASURE of their rulers. Our soldierswill become Janissaries, and our officers of govern-ment Bashaws; in short, the system of despotismwill soon be compleated.

From the foregoing investigation, it appears thatthe Congress under this constitution will not possessthe confidence of the people, which is an essentialrequisite in a good government; for unless the lawsrommand the confidence and respect of the greatbody of the people, so as to induce them to supportthem, when called on by the civil magistrate, theymust be executed by the aid of a numerous standingarmy, which would b.1 inconsistent with every ideaof liberty; for the same force that may be employedto compel obedience to good law s, might and prob-ably would be used to wrest from the people theirconstitutional liberties. The framers of this consti-tution appear to have beer. aware of this great de-ficiency; to have been sensible that no dependencecould be placed on the people for their support. buton the contrary, that the government must be exe-cuted by force. They have therefore made a provi-

177

sion for this purpose in a permanent STANDINGARMY, and a MILITIA that may be subjected to asstrict discipline and government.

A standing army in the hands of a governmentplaced so independent of the people, may be madea fatal instrument to overturn the public liberties; itmay be employed to enforce the collection of themost oppressive taxes, and to carry into executionthe most arbitrary measures. An ambitious man whomay have the army at his devotion, may step upinto the throne, and seize upon absolute power.

The absolute unqualified command that Congresshave over the militia may be made instrumental tothe destruction of all liberty, both public and private;whether of a personal, civil or religious nature.

First, the personal liberty of every man probablyfrom sixteen to sixty years of age, may be destroyedby the power Congress have in organizing and gov-erning of the militia. As militia they may be sub-jected to fines to any amount, levied in a militarymanner; they may be subjected to corporal punish-ments of the most disgraceful and humiliating kind,and to death itself, by the sentence of a court martial:To this our young men will be more immediatelysubjected, as a select militia, composed of them, willbest answer the purposes of government.

Secondly, The rights of conscience may be vio-lated, as there is no exemption of those persons whoare conscientiously scrupulous of bearing arms.These compose a respectable proportion of the com-munity in the state. This is the more remarkable,because even when the distresses of the late war,and the evident disaffection of many citizens of thatdescription, inflamed our passions, and when everyperson, whJ was obliged to risque his own life, musthave been exasperated against such as on any ac-count kept back from the common danger, yet eventhen, when outrage and violence might have beenexpected, the rights of conscience were held sacred.

At this momentous crisis, the framers of our stateconstitution made the most express and decideddeclaration and stipulations in favour of the rightsof conscience: but now wii,n no necessity exists,those dearest rights of mea are left insecure.

Thirdly, The absolute command of Congress overthe militia may be destructive of public liberty; forunder the guidance of an arbitrary government, theymay be made the unwilling instruments of tyranny.The militia of Pennsylvania may be marched to NewEngland or Virginia to quell an insurrection occa-sioned by the most galling oppressing, and aided bythe standing army, they will no doubt be successfulin subduing their liberty and independency; but inso doing, although the magnanimity of their minds

76


will be extinguished, yet the meaner passions of re-sentment and revenge will be increased, and thesein turn will be the ready and obedient instrumentsof despotism to enslave the others; and that with anirritated vengeance. Thus may the militia be madethe instruments of crushing the last efforts of expir-ing liberty, of riveting the chains of despotism ontheir fellow citizens, and on one another. This powercan be exercised not only without violating the con-stitution, but in strict conformity with it; it is cal-culated for this express purpose, and will doubtlessbe executed accordingly.

As this government will not enjoy the confidenceof the people, but be executed by force, it will be avery expensive and burthensome government. Thestanding army must be numerous, and as a furthersupport, it will be the policy of this ;;overnment tomultiply officers in every departmetw: judges, col-lectors, taxgatherers, excisemen and the whole hostof revenue officers will swarm over the land, de-vouring the hard earnings of the industrious. Likethe locusts of old, impoverishing and desolating allbefore them.

We have not noticed the sma"Jer, nor many of theconsiderable blemishes, but have confined cur ob-jections to the great and essential defects; the mainpillars of the constitution; which we haw shewn tobe inconsistent with the liberty and happiness of thepeople, as its establishment will annihilate the stategovernments, and produce one consolidated gov-ernment that will eventually and speedily issue inthe supremacy of despotism.

In this investigation, we have not confined ourviews to the interests or welfare of this state, inpreference to the others. We have overl-roked alllocal circumstanceswe have considered this sub-ject on the broad scale of the general good; we haveasserted the cause of the present and future ages:the cause of liberty and mankind.

Nathaniel BreadingJohn SmilieRichard BairdAdam OrthJohn A. HannaJohn WhitehillJohn HarrisRobert WhitehillJohn ReynoldsJonathan HogeNicholas Lutz

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John Ludwig,Abraham LinanJohn BishopJoseph HeisterJoseph I owelJames MartinWilliam FindleyJohn BairdJames EdgarWilliam Todd.

Select Annotated Bibliographyby Earl P. Bell

This select annotated bibliography provides teach-ers and students with additional information on"James Madison and The Federalist Papers." The ap-peal of these readings to students is the central con-cern of these recommendations. Thus, thebibliography includes several short articles ..n pop-ular magazines. In most cases the selections frompopular magazines are taken from scholars of thehighest reputation.

Several of the General Bibliographic Sources offerteachers comprehensive research and writing aboutJames Madison, the Constitution of the UnitedStates, and The Federalist Papers. A teacher interestedin providing students with a rich reservoir of infor-mation should purchase or secure through interli-brary loan the following books.

Levy, Leonard W., and Dennis J. Mahoney. eds.Framing and Ratification of the Constitution. NewYork: Macmillan, 1987. Comprehensive coverageof all issues by twenty-one scholars on the period.Readable by most high school students.

Levy, Leonard W., Kenneth L. Karst, and Dennis J.Mahoney, eds. Encyclopedia of the American Cal-stit ution. 4 Vols. New York: Macmillan, 1986. Themost comprehensive source of information on allsubjects and important individuals. A brilliant se-lection of leading experts on the various subjects;highly readable by all students. Offers a shortchronologically developed description for eachperiod on Constitutional history from the colonialperiod to the present.

Peck, Robert S., and Ralph S. Pollock, eds. The Bless-ings of Liberty: Bicentennial Lectures at the NationalArchives. Chicago: American Bar Association,1985. Clearly written short articles by sixteenscholars.

In combination, these resources provide compre-hensive coverage of the 1780s, the ConstitutionalConvention, the ratification of the Constitution, TheFederalist Papers, the Bill of Rights, and the individ-uals providing leadership from 1776 to 1800.

179

The rest of this bibliography is organized ir, termsof five topics:

I. James Madison and the Constituti, Con-vention.

II. Editions of The Federalist.III. James Madison an Ratification of the Con-

stitution.IV. James Madison: Biogaphies and Selections

of His Writings.V. James Madison and The Bill of Rights.

I. James Madison and the ConstitutionalConvention

A. The Constitutional Convention

Bowen, Catherine Drinker. Miracle at Philadelphia:The Story of the Constitution. Boston: Little brown,1986. Considered by many historians to be the bestnarrative history written on the Convention. Canbe used by all students.

McDonald, Forrest. E Pluribas Unum. The Formationof the American Republic, 1776 - 1790. Indianapolis:Liberty Prez..., 1979. A witty, .ell- written accountof the issues and compromises at the Conventio::Contains very good descriptions of thn delegatesatterr:"

Roche, ) P. "The Constitutional Convention of1787." In Encyclopedia of the American Constitution.Vol. 1. Edited by Leonard W. Levy et al. :`ewYork: Macmillan, 1986. Describes the events of the1780s leading to the Convention. The role of theleading Federalists, including Madison, the issuesmid debates, the resolution of the separation ofpowers, and the compromises producing the doc-ument are presented.

Van Doren, Carl. The Great Rehearsal: The Story of theMaking and Ratifying of the Constitution of the UnitedStates. New York: Penguin Books, 1986. Still oneof the best written day-to-day accounts of the Con-stitutional Corention of 1787. Tells the story ofthe men, the iaws, and the arguments producingour form of government. Can be used by all stu-dents.

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B. Intellectual Origins of the Constitution

Greene, Jack P. The Intellectual Heritage of the Consti-tutional Era: The Delegates' Library. Philadelphia: Li-brary Company of Philadelphia; 1986. Brilliantlyorganized by the author according to the liberaltradition, the English jurisprudential tradition, theliterature on political economy and improvement,the civic humanist tradition, the literature of theEnlightenment, the ccottish moral and historicaltradition, and other American traditions. Usableby teachers and Advanced Placement students.

McDonald; Forrest. Novus Ordo Seclorum: The Intel -lectual-Origins of the Constitution. Kansas: Univer-sity Press of Kansas, 1985. Excellent coverage ofthe rights of Englishmen, the political theory avail-able to the Founders, the lessons of experience,and the principal interests of the Framers of theConstitution. The best single volume on the ori-gins of the Constitution. Usable by teachers andAdvanced Placemer I. students.

Wood, Gordon. The Creation of the American Republic,1776-1787. Chapel Hill: University of North Ca-rolina Press, 1969. Contains strong explanationsof liberty,, equality, mixed governments, and re-publicanism. Very well written. Usable by teach-ers and Advanced Placement students.

II ..Editions ,of-The.Federalist

A. Older Editions in Print

Earle, Edward Mead, ed. The Federalist. New York:Random House, l 941. In the Modern Library Col-lege Editions, used by tutors at St. Johns College,Annapolis, MD.

B. Newer Editions of The Federalist

Chadwick, Michael L., ed. The Fet;slalist. Springfield:Global Affairs Publishing Company, 1987. Pro-vides excellent headings for students throughoutThe Federalist Papers; a unique feature, making theuse of the papers with students easier.

Cooke, Jacob E., ed. The Federalist. Middletown, CT:Wesleyan University Press, 1/51. Considered byhistorians as the most complete, accurate, and de-finitive edition of the papers. An excellent intro-duction and notes by Cooke. Also used by TheFederalist Concordance (see Engeman annotation be-low) for referencing various words contained inthe papers,

Fairfield, Roy. P., ed. The Federalist Papers. Baltimore:Johns Hopkins University Press, 1986. Fairfieldhas selected 51 of the most important FederalistPapers. He provides a detailed historical and an-

alytical background, and offers guidance on thewriting about The Federalist Papers.

Kramnick, Isaac, ed. The Federalist Papers. New York:Penguin Books, 1987. Provides an excellent intro-duction to ideas and issues in the papers.

Rossiter, Clinton, ed. The Federalist Papers. NewYork: New American Library, 1961. An excellentintroduction with a table of contents and index ofideas by Rossiter. The most widely ased edition.

Wills, Garry, ed. The Fed alist Papers. New York:Bantam Books, 1982. Contains an introduction byWills and a good glossary.

C. Concordance

Engeman, Thomas S., Edward J. Erler, and ThomasB. Hofeller, eds. The Federalist Concordance. Chi-cago: University of Chicago Press, 1988. Offers analphabetical index of words appearing in The Fed-eralist Papers. It locates "each occurrence of a wordby paper number, author, page, and line in theCooke edition, (Wesleyan University Press,1987)." An excellent aid for teachers.

III. James Madison and Ratificationof the Constitution

A. Interpretations of The Federalist Papers

Banning, Lance. "The Federalist Papers. In The En-cyclopedia orkifiriedirPolifieaTHiirork:V61. 2. Ea-ited by Jack P. Greene. New York: Scribner, 1984.Primarily a historically descriptive essay coveringthe purpose, design, effectiveness, and historicalsignificance of The Federalist Papers. Usable by allstudents.

Carey, George W. The Federalist: Design fora Consti-tutional Republic. Champaign: University of IllinoisPress, 1989. The author analysizes the politicaltheory of constitutional government in The Fed-eralist.

Diamond, Martin. ''The Federalist." In History of Po-liiical Philosor;iy. 3d. ed. Edited by Leo Strauss andJoseph Cropsey. Chicago. The University of Chi-cago Press, 1987. The author emphasizes The Fed-eralist Papers were written to persuade "the widestelectorate (and) the able and educated men (whowere deleptes)." The author comments the pa-pers are remarkable for addressing immediate po-litical problems as well as theoretical matters oflong-term importance. Written by one of the mostimport- t scholars on the meaning of the papers.Usable by teachers and Advanced Placement stu-dents.

Epstein, David P. The Political Theory of the Federalist.Chicago: The University of Chicago Press, 1984.

179

Select Annota.2d Bibliography 181

The author claims that "Publius" was a defend:exof natural rights and a promoter of the public in-terest through good government. Usable by teach-ers and the most able Advanced Placementstudents.

"The Federalist." In Encyclopedia of the Amer-ican Constitution. Vol. 2. Edited by Leonard W.Levy e, al. New York: Macmillan, 1986. Describesthe writing of the 85 essays by Hamilton, Madisonand Jay. The essays are grouped by issue, essaynumbers 10 and 78 am highlighted. Usable by allstudents.

Furtwangler, Albert. The Authority of Publius: A Read-ing of The Federalist Papers. Ithaca, NY: Cornell Uni-versity Press, 1984. Claims that The Federalist.Papers, "modified the tradition of Eighteenth Cen-tury newspape- campaigning, marked .a turn inthe way Constitutional questions were presentedto the public". He emphasized the literary strat-egies for analyzing the papers. Usable by teacnersand the most able Advanced Placement students.

Howe, Daniel W. "The Language of Faculty Psy-chology in The Federalist Papers." In ConceptualChangeand the Constitution, edited by Terence Balland J.G.A. Pocock. Lawrence: University Press ofKansas, 988. Written from the perspective Jf in-tellectual'history, Howe seeks to explain The Fed-eralist Papers within the context of the period inwhich-they were-written: 1:Jsable-by-teachers,and.the most able Advanced Placement students.

White, Morton. Philosophy, The Feckralist and the Con-stitution. New York: Oxford University Press,1987. Analyzes the major philosophical ideas con-tained in The Federalist Papers; exaknines the inter-locking theory of knowledge, theory of nistorv,psychology, metaphysics, theory of action, anaethics used by Hamilton, Madison, and Jay in de-fense of the Constitution. Usable by teachers andthe most able Advanced Placement students.

B. The Federalist-Anti-Federalist Debate:Edited Primary Documents

Kaminski, John P., and Richard Leffler, eds. Federalists and Antifederalists. The Debate Over Ratificationof the Constitution. Madison, WI: Madison HousePublishers, 1989. This is an excellent collection ofwritings by the leading Anti-Federalists and Fed-eralists. Documents are organized around keyideas in the 1787-1788 del:17:e on the ratification ofthe Constitution.

Kammen, Michael, ed. Origins.of the American Con-stitution: A Documentary History. New York. Pen-guin Books, 1986. Uses correspondence anddocuments to analyze the genesis of the United

States Constitution, the Federalist - Anti-Feder-alist Debate; and the completing as well as imple-menting of the Constitution. Usable by allstudents.

Ketcham, Ralph, ed. The Anti-Federalist Papers and theConstitutional Convention Debates: The Clashes andthe Compromises That Gave Birth to Our Form of Gov-ernment. New York: New American Library, 1986.An excellent historical background provi 4.ed in theintroduction on the 1780s, the Constitutional Con-vention, the ratification contest, Federalist prin-ciples, and Anti-Federalist political thought. PartOne offers documents on the federal convention;Part Two provides original sources on the ratifi-cation contest. Usable by all students.

Storing, Herbert J., ed. The Anti-Federalist: Writingsby the 3pponents of Ote Constitution. Chicago: Uni-versiV of Chicago Press, 1985 Provides compre-hensive speeches and writings from the Anti-Federalists in Pennsylvania, Massachusetts, Mar-yland, Virginia, and New York. Excellent selectionand editing by Murray Dry. Usable by all students.

C. The Federalist- Anti - Federalist Debate:Secondary Sources

Dry, Murray. "The Case Against Ratification: Anti-Federalists Constitutional Thought." In The Fram-ing and Ratification of the Constitution, edited by-Leonard-W.-Levy and Denis Mahoncy. New York:Macmillan, 1987. Identifies the men comprisingthe Anti-Federalist, explains the Anti-Federalistunderstanding cf republican government, andAnti-Federalist proposals for Constitutionalchange. Usable by all students.

Epstein, David F. "The Case for Ratification. Fed-er. st Constitutional Thought." In The Framingan Ratification of the Constitution, edited by Leon-ard W. Levy and Dennis J. Mahomy. New York:Macmillan, 1987. Analyzes the most famous Fed-eralist writings by Hamilton, Madison, and Jayunder the pen name "Publius"; the Federalist at-tack on &he government under the Articles of Con-federation; the Federa::st arguments concerningmilitary preparedness, and their ideas about goodgovernment. Usable by all students.

Main, Jackson Turner. The Antifederalist. Critics of theConstitution, 1781-1789. New York: W.W. Norton,1974. Continues as one of the clearest explanationsof azuments offered by +hose men opposing thecreation of a stronger central government; offersconsiderable insight into the debate, section bysection and state by state. Usable by all students.

Storing, Herbert. J. What the Anti-Federalists Were For.The Political Thought of the Opponents of the Consti-

180

tl


tution. Chicago: University of Chicago Press, 1981.The best brief, narrative description of the argu-ments of the Anti-Federalists. Contains an excel-lent short chapter on the difficulty of classifyingAnti-Federalists as conser. atives. Also includes aclear chapter explaining their belief in a small re-public as offering the best opportunity for realiz-ing an effective republican government. Usable byall students.

IV. James Madison: Biographies and Selectionsof his Writings

A. Biographies and Issues about Madison

Alley, Robert S., ed. James Madison on Religious Lib-erty. Buffalo: Prometheus Books, 1985. A collec-tion of essays on Madison's views of religiousliberty, the separation of church and state, andthe Bill of Rights. Includes selected Madison pa-pers on relevant issues, with a strong section onthe legacy of Madison. Usable by teachers andAdvanced Placement students.

Banning, Lance. "James Madison." In Encyclopediaof the American Constitution. Vol. 3. Edited by Leon-ard W. Levy, et al. New York: Macmillan, 1986.Provides a chronological description of Madison'slife, his public service in Virginia and in the Con-tinental Congress. Also describes his preparationfen' and piftroValroifinth-eConstitutional Con-vention; his involvement in the ratification, andhis efforts to secure passage of a Bill of Rights.Usable by all students.

Ketcham, Ralph. James Madison: A Biography. NewYork: Macmillan, 1971. One of the best one vol-ume biographies on Madison. Out of print.

McCoy, Drew. The Last of the Fathers: James Madisonand the Republican Legacy. New York: CambridgeUniversity Press, 1989. Excellent on the temper-ament and character of Madison. The best analysisof Madison's views and actions on slavery. Goodon his views of Jacksonian Democracy. Providesa balanced evaluation of Madison's public service.Usable by all students.

The Elusive Republic: Political Economy in Jef-fersonian America. Chapel Hill: University of NorthCarolina Press, 1980. A history of the revolution-ary generation's efforts to reconcile classical re-publicanism with the emerging commercialsociety. Analyzes Jefferson's and Madison's fearsabout excessive economic development. An ex-cellent treatment of the changing relationship be-tween territorial expansion and republicanism.Usable by all students.

Morgan, Robert J. James Madison on the Constitutionand the Bill Rights. Westport, CT: GreenwoodPress, 1988. Contends that it was Madison's in-terest in preserving the union and republican gov-ernment, not curbing democracy, that motivated1. .m in the 1780s and 1790s. Usable by teachersand Advanced Placement students.

Rienter, Neal. James Madison: Creating the AmericanConstitution, Washington, DC: CongressionalQuarterly, Inc., 1986. Focuses on the political the-ory of James Madison and his efforts to achieverepublican government in a large state. Centerson Madison's ideas about how a republican gov-ernment should respond to disunion, large size,faction, and anti-republican danger. Usable byteachers and the most able students.

Rutland, Robert A. Jam Madison: The Founding Fa-ther. New York: Macrith.an, 1987. A biography ofInadison beginning in 1787, describes the creationof The Federalist Papers; Madison's participation inthe First Congress; and other crucial public serv-ice. Probably the best of the current biographieson Madison.

Schultz, Harold S. James Madison. Boston: TwayneT'ublishers, 1971. An excellent brief biography ofMadison covering all aspects of his pu'ilicOut of print.

--131-Edited-Writings-oflames-MadiSon

Meyers, Marvin, ed. The Mind of the Founaer: Sourcesof Political Thought of James Madison. Hanover, NH:University Press of New England, 1981. The bestone-volume collection of Madison's importantwritings with an excellent introductory analysisby Meyers. Selections are developed chronologi-cally, following Madison's public career.

Padover, Saul. The Forging of the American Federalist.Selected Writings of Tames Madison. New York:Harper and Row, 1966. Another strong selectionof Madison's writings. Out of print.

Peterson, Merrill D., ed. James Madison. A Biographyin His Own Words. New York: Harper and Row,1974. An excellent selection of writings by a notedJefferson scholar. Out of Print.

V. James Madison and the Bill of RightsA. Articles

Davis, David Brion. "The Significance of ExcludingSlavery from the Old NZIL thwest in 1787." IndianaMagazine of History 84 (March 1988). Special Issueon th..: Northwest Ordinance. Excellent on civilrights and liberties issues affecting slaves in theNorthwest Ordinance. Usable by all students.

18 1.

41.-,.....

Select Annotated Bibliography 183

Franklin, John Hope. "Shivery and the Constitu-tion." In The Encyclopedia of the American Consti-tution. Vol. 4. Edited by Lecnard Levy et al., NewYork: Macmillan. 1986. Excellent brief discussionof the debate over slavery from the Declaration ofIndependence to the Thirteenth Amendment. In-cludes an analysis of the writing of the state con-stitutions, the Northwest Ordinance, theConstitutional Convention, the slave trade, theFugitive Slave Law of 1793, the Missouri Com-promise, personal liberty laws, abolitn, the Fu-gitive Slave Law of 1850, the Dred Scott decision,and the Emancipation Proclamation. Usable by allstudents.

Levy, Leonard W. "The Bill of Rights (The UnitedStates)." In Encyclopedia of the American Constitu-tion. Vol. 1. Edited by Leonard W. Levy et al. NewYork: Macmillan, 1986. Fine description of factorsleadii.g to a Bill of Rights from the end of theConstitutional Convention to its passage in 1791.Usable by all students.

Rakova, Jack N. "James Madison and the Bill ofRights." this Constitution 18 (Spring/Summer1988). Excellent, short overview of how the issuedeveloped and Madison's participation in it. Us-able by all students.

nutland, Robert A. "George Mason's 'Objections'and the Bill of Rights." this Coni"aion 18 (Spring/

-Sinmer 1980. Very good' a..1 the lag days f theConstitutional Convention and the roles of Ma-son, Sherman, Henry, Jefferson, and Madison.Usable by all students.

B. Books

Brant, Irving. The Bill of Rights. Its Origins acrd Mean-ing. New York: Bobbs-Merrill, 1965. Brant, a lead-ing Madison scholar, contends that the primarysupport for the Bill of Rights came from "state-minded politicans who hoped to defeat the Con-stitution altogether, or had dreams of a secondconvention." Out-of-print.

Levy, Leonard W. Freedom of Speech and Press in EarlyAmerican History: The Legacy of Suppression. NewYork: Itarper & Row, 1963. Argues that the draft-ers of the state constitutions cared very little aboutprotecting their fellow citizen's rights; that the un-derstanding during the period of civil rights wasvery weak. Excellent on the contradictory viewsheld by Anti-Federalists on civil rights. Usable byall students. Out of print.

Constitutional Opinions: Aspects of the Bill ofRights. New York: Oxford University Press, 1986.An excellent selection of Levy's essays on the sillof Rights. Especially strong is Chapter 6, "The Bill

of Rights," which provides a detailed descriptionof Madison's involvement with the Bill of Rightsfrom the last days in the Constitutional Conven-tion until their passage in 1791. This essay alsoappeal in The Encyclopedia of American Political His-tory, edited by Jack P. Greene. New York, 1984.Excellent for use with all students.

Rutland, Robert A. The Birth of the Bill of Rights, 1776-1791. Hanover, NH: University Pre of New Eng-land, 1983. Very strong on Madison and the ev-olution of the Bill of Rights. Also good o: i the Billsof Rights written in the several states. Credits theAnti-Federalists with providing the pressure dur-ing the ratification fight to produce Bill of Rights.

Schwartz, Bernard. The Great Rights of Mankind: AHistory of the American Bill of Rights. New York:Oxford University Press, 1977. He suggests thatJames Wilson's "State House" speech of October6, 1787, established the basis for the Federalistresponse that a Bill of Rights was unnecessarybecause the government under the Constitutionwas one of limited and enumerated powers. Verygood on all issues. Out of print.

C. Bibliography on the Bill of Rights

Hutson, James H. "The Birth of the Bill of Rights:The State of.Current Scholarship." Prologue: Jour-nal of the National Archives. Fail, 1988. issue No.

WaShingtori: 'U. S. 'Natio-War and -Re-cords Administration. An excellent summary ofthe research on the Bill of Rights since 1955. Pro-vides annotation on all relevant books and rttides.Concludes that the scholarship on the Bill ofRights remains inadequate as of the present date,without a scholar who has tied all aspects of thetopic into a coherent picture. Usable by teachers.

6182

ERIC Resources

ERIC (Educational Resources Information Center)is managed by the Office of Educational Reseaichand Imp:Jvement (0ERI) of the U.S. Department ofEducation. ERIC includes a nationwide network ofsixteen clearinghouses, each one specializing in adifferent subject associated with education. TheERIC Clearinghouse for Social St adies/Social ScienceEducation '(ERIC/ChESS) is located at the SocialStudies Development Center of Indiana University.

Items in the following list were selected from .neERIC database. They are available in microfiche And/or paper copies from the ERIC Document Repro-duction Service (EDRS). For information aboutprices and purchasing procedures contact EDRS,3900 Wheeler Avenue, Alexandria, VA 22304; tele-phone numbers are (800) 227-3742 or (703) 823-0500.Abstracts of documents in the ERIC database areannounced monthly by the U.S. Department of Ed-ucation in Resources in Education. ERIC documentsare available for viewing in microfiche at libraries

-of documents in the following list to iden-

tify and obtain these items in the ERIC database.The ERIC documents listed below are represen-

tatives of the large number of items in the ERICdatabase on the writing and ratifying of the U.S.Constitution. Items in this list are directly related tothe contents of this volume on the ideas of JamesMadison in The Federalist.

Bums, Roger. A More Perfect Union: The Creation ofthe United States Constitution. Washington, DC: Na-tional Archives and Records Service, 1978. ED '247177.

Burroughs, Wynell G., and Jean West Mueller. UsingDocuments to Teach the Constitution. Washington,DC: National Archives and Records Service, 198t1.ED 273 547.

Command Information Division. Bicentennial II theConstitution: A Resource Guide. Washington, DC:Department of the Army, 1988. ED 299 182.

Command Information Division. Bicentennia: of theConstitution: A Resource Guide, Supplement: Ratifi-cation of the Constitution. Washington, DC: De-partment of the Army, 1988. ED 302 441.

185

Hearst Report. The American Public's Knowledge o'U.S. Constitution. New York: The Hearstration, 1987. ED 289 812.

Kramnick, Isaac. The Great National Discussion: TheDiscourse of Politics in 1787. Paper presented at aconference of the U.S. Capitol Historical Societyand the United States Congress. Washington, DC,March 27, 1987. ED 296 912.

Lennon, Donald R. From Confederation to Constitution.Paper presented at the Annual Symposium onHistory and the Social Studies, East Carolina Uni-versity, Greenville, NC, September, 26, 1986. ED275 609.

Murphy, Paul L. The Co, titution in the Twentieth Cen-tury: Implications for Citizenship Education. Paperpresented at the Symposium 9n the Constitutionand Northwest Ordinance in the Education of Cit-izens. Ball State University, Muncie, IN, March13, 1986. ED 268 041.

National Asscssment of Educational Progress.United States Grvernmentand.RoliticaLobjectives,

1988 Assessment. Princeton, NJ: Educational Test-ing Service, 1987. ED 287 875.

National Assessment of Educational Progress. TheCivics Report Card. Princeton, NJ: Educational Test-ing Service, 1990. ED 315 376.

National Assessment of Educational Progress. TheHistory Repzirt Card. Princeton, NJ: EducationalTesting Service, 1990. ED 315 377.

O'Connor, Mary Alice, and Mary L. Henze. 'I tie Jef-ferson Meeting on the Constitution: The Constitutionin the Classroom. Washing.on, DC: The JeffersonFoundation, 1984. ED 271 379.

Quigley, Charles N., et al. We the People. Calabas?,,CA: Center for Civic Education, 1987. : "D 292 692

Pat ,ck, John J., and Richard C. P.erny. Lessons on heConstitution. Washington, DC: Project '87 of .

American Historical Association and AL 4ricanPolitical Science Association, 1985. ED 2r3 891.

Patrick, John J. Teacher's Guide to the U.S. Constitu-tion. Bloomington, IN: Agency for InstructionalTechnology, 1987. ED 2'36 820.

Patrick, John J., and Clair W. Keller. Lessons on TheFederalist Papers. Bloomington, IN: Organizationof American Historians and ERIC/ChESS, 1988.ED 280 764.

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Patrick, John J. Teaching The Federalist Papers. ERICDigest EDO-SO-89-2. Blooming*.m, IN: ERIC/ChESS, 1989. ED 292 740.

Patrick, John J. The Federalist in the Curriculum. Paperpresented at the Program for Teachers on JamesMadison and The Federalist Papers at Montpelier,VA, June 29, 198 .ED 313 276.

Patrick, John J. Liberty and Order in Constitutional Gov-ernment: Ideas and Issues in The Federalist Papers.Richmorzcl, VA: The Virgin:a Jefferson Associa-tion, 1989. ED= 313 315.

Ragan, Fred D Willie Jones: The Alternate View of aNorth Carolina Anti federalist. Paper presented at theAnnual Symposium on History and the SocialStudies, East Carolina University, Greenville, NC,September 26, 1986. ED 276 661.

Rutland, Robert A. The American Solution: Origins ofthe United States Constitution. Washington, DC: Li-brary of Congress, 1987. ED 2q8 017.

Scanlon, Thomas M. James Madison and the Consti-tutional Convention. Indianapolis, IN: Indiana StateBar Association. ED 304 371.

Schecter, Stephen L. ed., Teaching about AmericanFederal Democracy. Philadelphia: Center for theStudy of Federalism at Temple University, 19b4.ED 248 161.

Smith, Melinda. Law in U.S. History: A Teacher Re-source Manual. Boulder, CO: Social Science Edu-cation Consortium, 1983. ED 205 969.

Yarbrough, Jean. "The Federalist." this Constitution:A Bicentennial Chronicle 16 (Fall 1987): 4-9. ED 300290.

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James Madison, near the end nfhis life.


I'

185

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,v

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Tombstone of James Madison at Montpelier. Madison died at hc'ne on June 28, 1836. He was 85 years old.


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ISBN 0- 94 1339 -1 1 -4

he accumulation of

all powers, legislative,

executive, and judiciary,

in the same hands,

whether of one, a few, or

many, and whether

hereditary, self-appointed,

or elective, may justly be

pronounced the very

definition of tyranny."

.MIOMMILIEr171M151

JAMES MADISONThe Federalist No. 47

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