Federalist Paper XXXIX part 2 – A National or Federal Government

Posted by Jason | Posted in Government, History | Posted on 09-04-2010


In the first part of Federalist Paper XXXIX, Madison talked about what a republic is, and I posed the question “Are we a republic?” While in the first part Madison talks about what a republic is, in the second part of the paper he discusses whether our government is a national (democracy) government, where states no longer hold power, or whether our government is a federal government meaning it is divided into “sovereign States”.

“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.

First, one must ask why those who just fought the revolutionary war wanted to preserve the “FEDERAL form”. The reason is individual states knew that their values, ideas, industry, etc were not the same. Just like individuals with different backgrounds value things differently, so did the states. They knew that if the states gave into a national government, they would have outright democracy where the majority rules over the minority. While you would still have democracy on the state level, those within the individual states would have similar backgrounds and interests. If on the other hand it was a national government, meaning a nationwide democracy, the highly populated states could force their values and economics on a larger number of lesser populated states. Quickly the more heavily populated states would control the government, and you would have tyranny. By keeping the “CONFEDERACY”, states could govern the way their people wanted to be governed. Southern states could have low tariffs to help export tobacco, while northern states could raise tariffs hoping to boost domestic industry. If the government is national, it would favor the populated states at the expense of lesser populated states.  It would and unfortunately it did raise tariffs, which was one of the reasons for the civil war. The southern economy suffered under tariffs that were put into place to support northern industry.

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.

Here Madison highlights that it is the states as “distinct and independent States” that are ratifying the Constitution. It is not automatically ratified by a majority, but it must be unanimous, meaning that is it not democratic. States, if they did not want to ratify the Constitution, would not be compelled into membership by the majority. It would appear that membership into the union is voluntary, which would mean that it is not democratic. Democracy is not voluntary for those who disagree with the majority.

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.

Here Madison is just saying that the government powers will be exercised nationally, because they ultimately are laws on individuals. They would not be applied to individuals in one state and not another. Also, they would not be laws on the States.

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.

Here Madison lays out some great points about a national versus a federal government. In a national government, the national government is the ultimate power. It rules over all other governments, including local governments. It would have the power to abolish those governments and tell them how to operate. Under a federal government, the federal government is not all powerful. It cannot exercise power over states, municipalities, or even the local school board. This is why you see our government use other measures. It long ago found a way around this limitation. By stealing our incomes through the income tax, it is now able to to use that money to bribe states and local governments. If states and municipalities want federal funding, they have to submit to the federal government’s will and do what they tell them do to. If they don’t, they basically have their money stolen and handed to the other governments who bow down to their master. They are then bribing the other states to participate in what they disagreed with.

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.

Lastly, Madison goes into how the government is changed. The amendment process is not federal, because it does not require each state to ratify it. It is not democratic either, because it requires more than a simple majority to ratify an amendment. Also, it is not ratified directly by the people. It is ratified by the states.

I think Madison points out in most instances it’s federal with some national hues to it. Unfortunately, I think he thought it would remain this way. We have moved further and further toward national government where every issue now becomes national. Every law, idea, etc is pushed to the national level and implemented on the whole of the people. We are no longer more federal than national, and while Madison’s argument was compelling at the time, I think those who opposed the Constitution were more prescient.

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