Publius [Madison]: Federalist Numbers 62, 63, and 64.

 

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will? If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: Can a centralized modern state—indispensable in a world full of such states—nonetheless provide ‘political space’ for local and regional self-government? Or must centralization in the national capital or in the capitals of he constituent states of the federation necessarily dry up the springs of citizenship —active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it. He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three. His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than ninety percent of his attention.

I. The qualifications of senators (#62, paragraph 2).

II. The appointment of senators by the state legislatures (#62, paragraph 3).

III. The equality of representation of the states in the Senate (#62, paragraphs 4-6).

IV. The number of senators from each state and their term in office ($62, paragraphs 5-16; #63, entire).

V. The powers in the Senate (#64, #65, #66).

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least. Because the Senate exercises power over foreign policy—particularly, ratification of treaties and declarations of war—a senator should know more and exhibit greater “stability of character” than a House member. This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse. We might think the opposite, but we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent consolidation of power in the federal government, beyond any control of the states, the Framers had the senators appointed by the state legislatures. This assured the state governments a means of defending themselves from within the federal government itself. In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at the risk of his re-election. The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of their state legislatures. This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old ‘spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses. Eventually, he roads to re-election became: first, bringing home the bacon legally and second, providing constituent services to voters needing a guide through the bureaucratic maze. This corrupted the intention of the Framers and led to civic indifference among many citizens—’consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate. Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states. But he also fits the Senate into his larger conception of the regime. As he has already explained, the new regime is an extended republic (Federalist #10); it controls the effects of faction by multiplying factions over a large territory. America is also a commercial republic, unlike the military republics of antiquity—most notably, Rome. With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.” Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws passed by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate? Can republics think? Can they act faithfully, steadily? Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures. Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies. Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens. “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment. Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself. ‘Anything goes,’ indeed.

If anything goes, then respect for the regime will go, too. Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government. In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations. He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.

Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states. Despite this, Publius argues, America has lacked “a due sense of national character” in the world. He means “character” in both senses: moral soundness, but also a well-defined identity. If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know how to ‘play off him,’ so to speak. With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns. Such notable American statesmen as George Washington and Benjamin Franklin deliberately established their public faces. In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.

A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could know it—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character. He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.

The matter of character fits well with Publius’ final consideration: responsibility. Although Publius did not invent the word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map. If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government. By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.

Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires. “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?” Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.” It is one thing to slow passions down; it is another to map out the right direction for the country.

Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis. In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.

To those who fear that the Senate will become an outright aristocracy, dominating the other branches of government, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely ‘trifecta.’ Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax. Even so, the Senate remains quite far removed from a genuine hereditary aristocracy.

Publius now turns to his fifth and final topic respecting the Senate: its powers. In Federalist #64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress. Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”). State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government. One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work? The record of the nineteenth century suggests that it often did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Lodge: These men enjoyed more prominence than most of the presidents of their time. Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889. One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable reminiscences of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties. The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers. The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review. The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land. This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous. Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.” Treaties are contracts between nations not under one another’s sovereignty. They are harder to enforce than ordinary laws. Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances. This does not mean that the United States cannot withdraw from a treaty—break the contract. But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force. The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law mean that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing Constitutional law? This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war. Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus has been ‘no.’ Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any Constitutional law. If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states. The Constitution, federal statues, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: It is held by the body that represents the states. The ‘locally’-centered branch of the national government will hold the most ‘international’ power. Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments. This it might have done, but the more powerful domestic issue of slavery, undergirding what were in effect oligarchic regimes in the Southern states, overcame any such sentiments in the 1850s. Be this as it may, lodging the treaty ratification power in the senate solves one problem with the Articles of Confederation. It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Publius [Hamilton]: Federalist Number 28.

 

Publius has tuned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense. In #27 he began consideration of perhaps the most sensitive topic in a federal system, namely, military defense against internal rebellions. He argued that union finds its primary bulwark in peaceful habits of cooperation. Frequent appeals to armed enforcement of the Union will only weaken the Union—either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force. The careful limitation of federal powers—”the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.

Nonetheless, times will come when only force can preserve the Union. Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.

Recall the fundamental law of contract enunciated in #22: No party to a contract may unilaterally and legally violate the contract. This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament. The revolution occurred not because the colonists rebelled but because the British government had.

At least as often, some part of the people will rebel. Indispensable to good government, rule by law will not always suffice. Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like. Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.

As a revolutionary warrior, Publius maintains the right to revolution against tyranny. The “original right of self-defense” part of our natural right to life, always remains “paramount” to “all positive forms”—i.e., all conventional, man-made forms—”of government.” The human institution of government rightly serves God’s ‘institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority. This much we know from the Declaration of Independence: In some circumstances even the rule of law rightly gives way to illegal but just force.

Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles. Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states. The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia. A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights. The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation. “The people, by throwing themselves on either scale, will infallibly make it preponderate.” By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.

Here the argument of Federalist #10 for the value of an extensive republic reappears. There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole. Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America. States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves militarily and fight back.

This raises an obvious question: What if an unjust group or faction controlled distant states? Could the federal government suppress the rebellion? Publius cannot predict the outcome of such a struggle. If asked, he could only say that under the weak government of the articles, no such just suppression could occur at all.

Publius [Hamilton]: Federalist Number 22.

 

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15, immediately following his introductory consideration of the proposed new regime—a popularly-based, commercial republic—and federal state of extensive territory and population. To understand this critique, we need to step back and consider the problem the founders intended to solve: Can modern states practice politics? Can residents of modern states be citizens, not subjects? This seems an odd question. There seems to be no shortage of politics in the modern world. And why should politics—messy compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interests of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics. In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life. Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the rulers commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—”ruling and being ruled,” as Aristotle puts it. An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child. Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were the fathers of their countrymen.

The small, ancient polis and the larger feudal community lent themselves readily to political rule. In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts. Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/authoritarian modes. Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise. At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defends itself against other states but nonetheless political, not masterly or tyrannical. they solved the problem in principle by adopting and refining the idea of federalism. A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to? Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say ‘Jump’ and allow you to say nothing more than, ‘How high?’ you may be speaking but you are not reasoning—or, at least, you are not reasoning with me. In political life, you can talk back. To be sure, at some point, you will run up against the ‘being ruled’ side of the Aristotelian equation. But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federating, they multiplied their strength to fend off enemy states. As Publius argues earlier in this series, however, the Articles constitution contradicted itself. The general or federal government could only raise revenues and soldiers with the consent of the member states. But there can be no “sovereignty over sovereigns.” Disunion threatened. Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect. As seen in Federalist #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral. Materially, the structure of government under the Articles constitution impedes national commerce by allowing members states to enact protective tariffs against one another. Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or materiel; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it? Especially if the legislatures of the small states were to fall under the influence of foreign powers, not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with its legal system. Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.” Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress. The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the articles made the Congress more or less impotent vis-à-vis the member states. But this causes another problem. Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

All of this has suggested to many commentators that the Articles of Confederation didn’t really amount to a constitution at all, only a treaty. Although its framers did seem to be attempting to constitute a government of some sort, in effect it might as well be a treaty, however one wishes to understand it formally.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime. This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble. Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches. This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.