The Federalist Papers
the great body of the people. The Senate, like the present Congress,
and the Senate of Maryland, derives its appointment indirectly from
the people. The President is indirectly derived from the choice of the
people, according to the example in most of the States. Even the judges,
with all other officers of the Union, will, as in the several States,
be the choice, though a remote choice, of the people themselves, the
duration of the appointments is equally conformable to the republican
standard, and to the model of State constitutions The House of
Representatives is periodically elective, as in all the States; and for
the period of two years, as in the State of South Carolina. The Senate
is elective, for the period of six years; which is but one year more
than the period of the Senate of Maryland, and but two more than that
of the Senates of New York and Virginia. The President is to continue
in office for the period of four years; as in New York and Delaware, the
chief magistrate is elected for three years, and in South Carolina for
two years. In the other States the election is annual. In several of the
States, however, no constitutional provision is made for the impeachment
of the chief magistrate. And in Delaware and Virginia he is not
impeachable till out of office. The President of the United States is
impeachable at any time during his continuance in office. The tenure
by which the judges are to hold their places, is, as it unquestionably
ought to be, that of good behavior. The tenure of the ministerial
offices generally, will be a subject of legal regulation, conformably to
the reason of the case and the example of the State constitutions.
Could any further proof be required of the republican complexion of this
system, the most decisive one might be found in its absolute prohibition
of titles of nobility, both under the federal and the State governments;
and in its express guaranty of the republican form to each of the
latter.
"But it was not sufficient," say the adversaries of the proposed
Constitution, "for the convention to adhere to the republican form.
They ought, with equal care, to have preserved the FEDERAL form, which
regards the Union as a CONFEDERACY of sovereign states; instead of
which, they have framed a NATIONAL government, which regards the Union
as a CONSOLIDATION of the States." And it is asked by what authority
this bold and radical innovation was undertaken? The handle which has
been made of this objection requires that it should be examined with
some precision.
Without inquiring into the accuracy of the distinction on which the
objection is founded, it will be necessary to a just estimate of its
force, first, to ascertain the real character of the government in
question; secondly, to inquire how far the convention were authorized
to propose such a government; and thirdly, how far the duty they owed to
their country could supply any defect of regular authority.
First. In order to ascertain the real character of the government, it
may be considered in relation to the foundation on which it is to be
established; to the sources from which its ordinary powers are to be
drawn; to the operation of those powers; to the extent of them; and
to the authority by which future changes in the government are to be
introduced.
On examining the first relation, it appears, on one hand, that the
Constitution is to be founded on the assent and ratification of the
people of America, given by deputies elected for the special purpose;
but, on the other, that this assent and ratification is to be given
by the people, not as individuals composing one entire nation, but as
composing the distinct and independent States to which they respectively
belong. It is to be the assent and ratification of the several States,
derived from the supreme authority in each State, the authority of the
people themselves. The act, therefore, establishing the Constitution,
will not be a NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms are
understood by the objectors; the act of the people, as forming so many
independent States, not as forming one aggregate nation, is obvious
from this single consideration, that it is to result neither from the
decision of a MAJORITY of the people of the Union, nor from that of a
MAJORITY of the States. It must result from the UNANIMOUS assent of the
several States that are parties to it, differing no otherwise from their
ordinary assent than in its being expressed, not by the legislative
authority, but by that of the people themselves. Were the people
regarded in this transaction as forming one nation, the will of the
majority of the whole people of the United States would bind the
minority, in the same manner as the majority in each State must bind the
minority; and the will of the majority must be determined either by a
comparison of the individual votes, or by considering the will of the
majority of the States as evidence of the will of a majority of the
people of the United States. Neither of these rules have been adopted.
Each State, in ratifying the Constitution, is considered as a sovereign
body, independent of all others, and only to be bound by its own
voluntary act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution.
The next relation is, to the sources from which the ordinary powers of
government are to be derived. The House of Representatives will
derive its powers from the people of America; and the people will be
represented in the same proportion, and on the same principle, as they
are in the legislature of a particular State. So far the government is
NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its
powers from the States, as political and coequal societies; and these
will be represented on the principle of equality in the Senate, as they
now are in the existing Congress. So far the government is FEDERAL,
not NATIONAL. The executive power will be derived from a very compound
source. The immediate election of the President is to be made by the
States in their political characters. The votes allotted to them are in
a compound ratio, which considers them partly as distinct and coequal
societies, partly as unequal members of the same society. The eventual
election, again, is to be made by that branch of the legislature which
consists of the national representatives; but in this particular act
they are to be thrown into the form of individual delegations, from
so many distinct and coequal bodies politic. From this aspect of the
government it appears to be of a mixed character, presenting at least as
many FEDERAL as NATIONAL features.
The difference between a federal and national government, as it relates
to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that
in the former the powers operate on the political bodies composing
the Confederacy, in their political capacities; in the latter, on
the individual citizens composing the nation, in their individual
capacities. On trying the Constitution by this criterion, it falls
under the NATIONAL, not the FEDERAL character; though perhaps not so
completely as has been understood. In several cases, and particularly in
the trial of controversies to which States may be parties, they must
be viewed and proceeded against in their collective and political
capacities only. So far the national countenance of the government on
this side seems to be disfigured by a few federal features. But this
blemish is perhaps unavoidable in any plan; and the operation of
the government on the people, in their individual capacities, in its
ordinary and most essential proceedings, may, on the whole, designate
it, in this relation, a NATIONAL government.
But if the government be national with regard to the OPERATION of its
powers, it changes its aspect again when we contemplate it in relation
to the EXTENT of its powers. The idea of a national government involves
in it, not only an authority over the individual citizens, but an
indefinite supremacy over all persons and things, so far as they are
objects of lawful government. Among a people consolidated into one
nation, this supremacy is completely vested in the national legislature.
Among communities united for particular purposes, it is vested partly
in the general and partly in the municipal legislatures. In the former
case, all local authorities are subordinate to the supreme; and may be
controlled, directed, or abolished by it at pleasure. In the latter, the
local or municipal authorities form distinct and independent portions of
the supremacy, no more subject, within their respective spheres, to the
general authority, than the general authority is subject to them, within
its own sphere. In this relation, then, the proposed government cannot
be deemed a NATIONAL one; since its jurisdiction extends to certain
enumerated objects only, and leaves to the several States a residuary
and inviolable sovereignty over all other objects. It is true that in
controversies relating to the boundary between the two jurisdictions,
the tribunal which is ultimately to decide, is to be established under
the general government. But this does not change the principle of the
case. The decision is to be impartially made, according to the rules of
the Constitution; and all the usual and most effectual precautions
are taken to secure this impartiality. Some such tribunal is clearly
essential to prevent an appeal to the sword and a dissolution of the
compact; and that it ought to be established under the general rather
than under the local governments, or, to speak more properly, that it
could be safely established under the first alone, is a position not
likely to be combated.
If we try the Constitution by its last relation to the authority by
which amendments are to be made, we find it neither wholly NATIONAL
nor wholly FEDERAL. Were it wholly national, the supreme and ultimate
authority would reside in the MAJORITY of the people of the Union; and
this authority would be competent at all times, like that of a
majority of every national society, to alter or abolish its established
government. Were it wholly federal, on the other hand, the concurrence
of each State in the Union would be essential to every alteration that
would be binding on all. The mode provided by the plan of the convention
is not founded on either of these principles. In requiring more than
a majority, and principles. In requiring more than a majority, and
particularly in computing the proportion by STATES, not by CITIZENS, it
departs from the NATIONAL and advances towards the FEDERAL character;
in rendering the concurrence of less than the whole number of States
sufficient, it loses again the FEDERAL and partakes of the NATIONAL
character.
The proposed Constitution, therefore, is, in strictness, neither a
national nor a federal Constitution, but a composition of both. In its
foundation it is federal, not national; in the sources from which the
ordinary powers of the government are drawn, it is partly federal and
partly national; in the operation of these powers, it is national, not
federal; in the extent of them, again, it is federal, not national;
and, finally, in the authoritative mode of introducing amendments, it is
neither wholly federal nor wholly national.
PUBLIUS
FEDERALIST No. 40
On the Powers of the Convention to Form a Mixed Government Examined and
Sustained For the New York Packet. Friday, January 18, 1788.
MADISON
To the People of the State of New York:
THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution.
The powers of the convention ought, in strictness, to be determined