<p>PUBLIUS <SPAN name="link2H_4_0039" id="link2H_4_0039"></SPAN></p>
<h2> FEDERALIST No. 39. The Conformity of the Plan to Republican Principles </h2>
<h3> For the Independent Journal. Wednesday, January 16, 1788 </h3>
<p>MADISON</p>
<p>To the People of the State of New York:</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>If we resort for a criterion to the different principles on which
different forms of government are established, we may define a republic to
be, or at least may bestow that name on, a government which derives all
its powers directly or indirectly from the great body of the people, and
is administered by persons holding their offices during pleasure, for a
limited period, or during good behavior. It is ESSENTIAL to such a
government that it be derived from the great body of the society, not from
an inconsiderable proportion, or a favored class of it; otherwise a
handful of tyrannical nobles, exercising their oppressions by a delegation
of their powers, might aspire to the rank of republicans, and claim for
their government the honorable title of republic. It is SUFFICIENT for
such a government that the persons administering it be appointed, either
directly or indirectly, by the people; and that they hold their
appointments by either of the tenures just specified; otherwise every
government in the United States, as well as every other popular government
that has been or can be well organized or well executed, would be degraded
from the republican character. According to the constitution of every
State in the Union, some or other of the officers of government are
appointed indirectly only by the people. According to most of them, the
chief magistrate himself is so appointed. And according to one, this mode
of appointment is extended to one of the co-ordinate branches of the
legislature. According to all the constitutions, also, the tenure of the
highest offices is extended to a definite period, and in many instances,
both within the legislative and executive departments, to a period of
years. According to the provisions of most of the constitutions, again, as
well as according to the most respectable and received opinions on the
subject, the members of the judiciary department are to retain their
offices by the firm tenure of good behavior.</p>
<p>On comparing the Constitution planned by the convention with the standard
here fixed, we perceive at once that it is, in the most rigid sense,
conformable to it. The House of Representatives, like that of one branch
at least of all the State legislatures, is elected immediately by the
great body of the people. The Senate, like the present Congress, and the
Senate of Maryland, derives its appointment indirectly from the people.
The President is indirectly derived from the choice of the people,
according to the example in most of the States. Even the judges, with all
other officers of the Union, will, as in the several States, be the
choice, though a remote choice, of the people themselves, the duration of
the appointments is equally conformable to the republican standard, and to
the model of State constitutions The House of Representatives is
periodically elective, as in all the States; and for the period of two
years, as in the State of South Carolina. The Senate is elective, for the
period of six years; which is but one year more than the period of the
Senate of Maryland, and but two more than that of the Senates of New York
and Virginia. The President is to continue in office for the period of
four years; as in New York and Delaware, the chief magistrate is elected
for three years, and in South Carolina for two years. In the other States
the election is annual. In several of the States, however, no
constitutional provision is made for the impeachment of the chief
magistrate. And in Delaware and Virginia he is not impeachable till out of
office. The President of the United States is impeachable at any time
during his continuance in office. The tenure by which the judges are to
hold their places, is, as it unquestionably ought to be, that of good
behavior. The tenure of the ministerial offices generally, will be a
subject of legal regulation, conformably to the reason of the case and the
example of the State constitutions.</p>
<p>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.</p>
<p>"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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
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