The Conformity of the Plan to Republican Principles
For the Independent Journal.
To the People of the State of New York:
THE last paper having concluded the observations which were
meant to introduce a candid survey of the plan of government
reported by the convention, we now proceed to the execution
of that part of our undertaking. The first question that offers
itself is, whether the general form and aspect of the government
be strictly republican. It is evident that no other form would
be reconcilable with the genius of the people of America; with
the fundamental principles of the Revolution; or with that honorable
determination which animates every votary of freedom, to rest
all our political experiments on the capacity of mankind for
self-government. If the plan of the convention, therefore, be
found to depart from the republican character, its advocates
must abandon it as no longer defensible.
What, then, are the distinctive characters of the republican
form? Were an answer to this question to be sought, not by recurring
to principles, but in the application of the term by political
writers, to the constitution of different States, no satisfactory
one would ever be found. Holland, in which no particle of the
supreme authority is derived from the people, has passed almost
universally under the denomination of a republic. The same title
has been bestowed on Venice, where absolute power over the great
body of the people is exercised, in the most absolute manner,
by a small body of hereditary nobles. Poland, which is a mixture
of aristocracy and of monarchy in their worst forms, has been
dignified with the same appellation. The government of England,
which has one republican branch only, combined with an hereditary
aristocracy and monarchy, has, with equal impropriety, been
frequently placed on the list of republics. These examples,
which are nearly as dissimilar to each other as to a genuine
republic, show the extreme inaccuracy with which the term has
been used in political disquisitions.
If we resort for a criterion to the different principles on
which different forms of government are established, we may
define a republic to be, or at least may bestow that name on,
a government which derives all its powers directly or indirectly
from the great body of the people, and is administered by persons
holding their offices during pleasure, for a limited period,
or during good behavior. It is ESSENTIAL to such a government
that it be derived from the great body of the society, not from
an inconsiderable proportion, or a favored class of it; otherwise
a handful of tyrannical nobles, exercising their oppressions
by a delegation of their powers, might aspire to the rank of
republicans, and claim for their government the honorable title
of republic. It is SUFFICIENT for such a government that the
persons administering it be appointed, either directly or indirectly,
by the people; and that they hold their appointments by either
of the tenures just specified; otherwise every government in
the United States, as well as every other popular government
that has been or can be well organized or well executed, would
be degraded from the republican character. According to the
constitution of every State in the Union, some or other of the
officers of government are appointed indirectly only by the
people. According to most of them, the chief magistrate himself
is so appointed. And according to one, this mode of appointment
is extended to one of the coordinate branches of the legislature.
According to all the constitutions, also, the tenure of the
highest offices is extended to a definite period, and in many
instances, both within the legislative and executive departments,
to a period of years. According to the provisions of most of
the constitutions, again, as well as according to the most respectable
and received opinions on the subject, the members of the judiciary
department are to retain their offices by the firm tenure of
good behavior.
On comparing the Constitution planned by the convention with
the standard here fixed, we perceive at once that it is, in
the most rigid sense, conformable to it. The House of Representatives,
like that of one branch at least of all the State legislatures,
is elected immediately by the great body of the people
(see
Constitution 1.2).
The Senate, like the present Congress, and the Senate of Maryland,
derives its appointment indirectly from the people (see
Constitution 1.3.1).
The President is indirectly derived from the choice of the people,
according to the example in most of the States
(see
Constitution 2.1).
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 (see
Constitution 2.4).
The tenure by which the judges are to hold their places, is,
as it unquestionably ought to be, that of good behavior (see
Constitution 3.1).
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 (see
Constitution 7.1).
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
(see
Constitution 1.2.1).
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 (see
Constitution 1.3.1).
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 (see
Constitution 2.1).
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 (see
Constitution 1.8),
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 (see
Constitution 3.2).
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 (see
Constitution 5).
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
