fp39.txt

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 
        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. 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. 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.