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Federalist Paper #39

Alexander Hamilton, James Madison, and John Jay

❶The Authority of Publius:

Conformity of the Plan to Republican Principles

Federalist No. 39
50 Documents That Tell America’s Story
by James Madison

It is not the power of choosing to office merely that designates sovereignty, or else corporations who appoint their own officers and make their own by-laws, or the heads of department who choose the officers under them, such as commanders of armies, etc.

The exercise of sovereignty does not consist in choosing masters, such as the senators would be, who, when chosen, would be beyond control, but in the power of dismissing, impeaching, or the like, those to whom authority is delegated. The power of instructing or superseding of delegates to Congress under the existing confederation has never been complained of, although the necessary rotation of members of Congress has often been censured for restraining the state sovereignties too much in the objects of their choice.

As well may the electors who are to vote for the president under the new constitution, be said to be vested with the sovereignty, as the State legislatures in the act of choosing senators. The senators are not even dependent on the States for their wages, but in conjunction with the federal representatives establish their own wages. The senators do not vote by States, but as individuals. The representatives also vote as individuals, representing people in a consolidated or national government; they judge upon their own elections, and, with the Senate, have the power of regulating elections in time, place and manner, which is in other words to say, that they have the power of elections absolutely vested in them.

That the State governments have certain ministerial and convenient powers continued to them is not denied, and in the exercise of which they may support, but cannot control the general government, nor protect their own citizens from the exertion of civil or military tyranny-and this ministerial power will continue with the States as long as two- thirds of Congress shall think their agency necessary.

But even this will be no longer than two-thirds of Congress shall think proper to propose, and use the influence of which they would be so largely possessed to remove it.

But these powers of which the Freeman gives us such a profuse detail, and in describing which be repeats the same powers with only varying the terms, such as the powers of officering and training the militia, appointing State officers, and governing in a number of internal cases, do not any of them separately, nor all taken together, amount to independent sovereignty.

They are powers of mere ministerial agency, which may, and in many nations of Europe are or have been vested, as before observed, in heads of departments, hereditary vassals of the crown, or in corporations; but not that kind of independent sovereignty which can constitute a member of a federal republic, which can enable a State to exist within itself if the general government should cease.

I have often wondered how any writer of sense could have the confidence to avow, or could suppose the people to be ignorant enough to believe that, when a State is deprived of the power not only of standing armies this the members of a confederacy ought to be , but of commanding its own militia, regulating its elections, directing or superseding its representatives, or paying them their wages; who is, moreover, deprived of the command of any property, I mean source of revenue or taxation, or what amounts to the same thing, who may enact laws for raising revenue, but who may have these laws rendered nugatory, and the execution thereof superseded by the laws of Congress.

Even the power of making inspection laws, which, for obvious conveniency, is left with the several States, will be unproductive of the smallest revenue to the State governments; for, if any should arise, it is to be paid over to the officers of Congress. May not the exercise of this power of Congress, when they think proper, operate not only to destroy those ministerial powers which are left with the States, but even the very forms?

The State governments may contract for making roads except post-roads , erecting bridges, cutting canals, or any other object of public importance; but when the contract is performed or the work done, may not Congress constitutionally prevent the payment? 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.

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.

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: 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 by the adversaries of the plan of the convention 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. But the operation of the government on the people in their individual capacities, in its ordinary and most essential proceedings, will, in the sense of its opponents, 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 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, even when tested by the rules laid down by its antagoists, 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.

Carey and James McClellan Indianapolis:

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Federalist No. 39, titled "The conformity of the Plan to Republican Principles", is an essay by James Madison, the thirty-ninth of The Federalist Papers, published on January 18, Madison defines a republican form of government, and he also considers whether the nation is federal or national.

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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.

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The Federalist Papers Questions and Answers. The Question and Answer section for The Federalist Papers is a great resource to ask questions, find answers, and discuss the novel. The Federalist Papers Summary No Madison January 16, Madison begins the “candid survey of the plan of government reported by the Convention” by defining a republican form of government and then answering critics concerning whether the proposed plan is federal or national, that is, a confederacy of States or a consolidation of States.

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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 . Federalist 39 was written for the Independent Journal, a New York newspaper, on January 16, by James Madison. In this essay Madison starts by defining and describing a republican government. In this essay Madison starts by defining and describing a republican government.