I had hoped to complete this survey prior to the [year 2000 federal] election,
but since I did not accomplish that, at least it is done prior to the election
results being known.
I hope that you find this of more than merely academic interest, especially
since I added a section on the mode of selection of the President.
(19 November, 2000 20:24:07 PST)
My parents have a copy of The Federalist among their collection of Great
Books. I remember seeing it at their home many times, but while living
there I never got any more deep into it than to scan through the section headings.
A couple of months ago, I read a review of a biography of James Madison that
made me want to track down more information about the man. In a bookstore
not much later, browsing through the revolutionary history section, I came
across a paperback version of The Federalist Papers, and this note is a result.
There is much to the state of affairs facing Americans at the end of the
18th century beyond what is given in most grade school classrooms, at least
those in which I sat. What motivated those revolutionaries to take up
arms in a desperate attempt to free themselves from rulers far removed from
their lives, and to persevere through what must at times to have seemed a
hopeless struggle against a well armed, well financed, and experienced adversary?
And then, having won the war for independence, what path led to the construction
of this national government, that seems so oppressive now? How did this
land evolve from one with the motto "live free or die", to one where our
lives are regulated, taxed, restricted, constricted, limited, allowed, disallowed,
penalized, criminalized, stamped, led, bridled, saddled, and shorn, leashed,
controlled, formulated, numbered, licensed, arrested, prosecuted, and imprisoned?
I don’t have answers to those rhetorical questions, but one can tell from
The Federalist that the newly independent country constituted a fractious
society in many ways, and the states were setting out their own paths.
The government established by the Articles of Confederation was largely powerless;
no resolution had any effect with out being separately approved by the individual
states, and often those resolutions were rejected or simply ignored.
Foreign debts were languishing, risking more conflict. States were establishing
their own military forces, imposing taxes unevenly upon citizens of the several
states, and issuing paper money.
This situation was not lost upon Madison; as member of the Confederation
congress he pushed for a convention that would give additional power to the
national government. During the Philadelphia convention, Madison advocated
the new government be able to exercise power upon the people directly rather
than through the states. He pushed for legislative representation proportional
to population, and only reluctantly agreed to the federal aspects of the Senate.
When the convention concluded, Madison joined Alexander Hamilton and with
John Jay anonymously penned these papers, which were published first in New
York beginning October 27, 1797. No one was fully happy with the result
of the convention, but these men saw it as the last best hope to secure the
Union of states with the benefits of liberty and republican government.
The government of the Articles would soon collapse, and any future constitutional
convention would likely do not much better, if not a whole lot worse.
With that thought they set about to place the Constitution in context, rationalize
its necessity, explain the resulting structure, and justify the powers this
new government was to hold.
When completed, The Federalist was considered the defining statement of
the intention of the framers, and to represent what the people understood
to be the implications of their ratification of this document. Thomas
Jefferson wrote, ca. 1825, that The Federalist was “an authority to which
appeal is habitually made by all, and rarely declined or denied by any as
evidence of the general opinion of those who framed, and of those who accepted
the Constitution of the United States, on questions as to its genuine meaning”.
So, what of them?
The Papers first addressed that Union was beneficial and should be retained.
Why? A Union would keep the states from fighting each other, as European
states had done for centuries, and thereby free the people from the costly
burden of individual military establishments, not to mention the more likely
prospects of war. A Union would improve the prosperity of the nation,
through the benefits of unhindered trade among the people of the several states.
The Papers progress to address the insufficiency of the current government
to retain the Union, and the necessity for a national government at least
as “energetic” as the one proposed by the Constitution. And finally,
the specific powers proposed, and the specific structure and other provisions;
these topics draw the attention of the remaining papers. Throughout
the papers are references to other attempts at representative republican government,
from ancient Greece and Rome to then-contemporary European nations.
In previous years, Madison had obtained a full set of two encyclopedias, recently
published in Europe, which described these examples in as much detail as
was known at the time.
I read The Federalist primarily with an eye to two related questions: was
the specification of enumerated powers really meant to limit the resulting
government, and what hints were there, even then, of the threat of erosion
of these limits? In the process of reading The Federalist, secondary
questions came to mind: was the right to bear arms really meant as a defense
against an oppressive government that might ensue; what of the question of
state authority with respect to the national? Beyond answers to these
questions, I found astute observations of human culture, and politics in particular.
Finally, since the operation of the electoral college is the subject of
substantial scrutiny these days, I have also provided extended excerpts discussing
the selection of President.
What follows then, are some excerpts and minor commentary. Supplementing
this note are larger extracts that provide context to my excerpts. CAPITALIZATION
emphasis is as found in the source. I encourage you to read The Federalist
for yourself; the entirety is available on line, and my paperback edition
was only $7. The paperback, by the way, includes copies of The Declaration
of Independence, The Articles of Confederation, The Call for the Federal
Constitutional Convention, The Constitution itself (annotated with pointers
to relevant specific papers), and a very helpful collection of notes to explain
most of the obscure classical history references.
When first starting this investigation, I thought I may have to look deeply
to see the expression of limitations to the government powers, but nothing
could be further from the truth – that the enumerated powers represent limits
on the new government is emphasized time and again.
“Its jurisdiction is limited to certain enumerated objects” Number
“[The] laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects
of its jurisdiction, will become the SUPREME LAW of the land” Number 17;
“[The] State governments would clearly retain all the rights of sovereignty
which they before had, and which were not, by that act, EXCLUSIVELY delegated
to the United States” Number 32;
“[It] will not follow from this doctrine that acts of the large society
which are NOT PURSUANT to its constitutional powers, but which are invasions
of the residuary authorities of the smaller societies, will become the supreme
law of the land. These will be merely acts of usurpation, and will deserve
to be treated as such” Number 33;
“[The] proposed government cannot be deemed a NATIONAL one; since its jurisdiction
extends to certain enumerated objects only” Number 39;
“For what purpose could the enumeration of particular powers be inserted,
if these and all others were meant to be included in the preceding general
power?” Number 41;
“[The] States will retain all PRE-EXISTING authorities which may not be
exclusively delegated to the federal head” Number 82;
“[The] power of Congress, or, in other words, of the NATIONAL LEGISLATURE,
shall extend to certain enumerated cases. This specification of particulars
evidently excludes all pretension to a general legislative authority, because
an affirmative grant of special powers would be absurd, as well as useless,
if a general authority was intended” Number 83.
What of the erosion of those limits? It was in this subject that I
found a degree of schizophrenia and naivete (I can say with 200+ years of
hindsight), which might inform the question of how this country got to the
state in which it now lies. There are many citations expressing this
risk; The Federalist foresaw the threat, but nonetheless advocated unlimited
authority over the areas it controlled. But granting that power was a trade
off. Their experience with the Articles showed how the government would
assume powers it was not authorized, when the necessity for doing so seemed
apparent. So, they argued, the new government should clearly define the purposes
to which it was created and be provided all powers necessary to satisfy those
“[There] can be no limitation of that authority which is to provide
for the defense and protection of the community” Number 23;
Would the bonds of the Constitution limit the government in the long term?
Their argument on this subject amounts to whether the people would put up
with it were it to do so. I think here they failed to account for the
creeping encroachments which would surely arise, each of which individually
would be too minor a change to cause a rebellion, but which in combination
has brought us here. And in this regard the comment in Number 57 is
particularly apt: in that instance “the people will be prepared to tolerate
any thing but liberty”. Number 84 also states the point that the constitutional
provisions to limit power would not withstand the desire of the people to
broach those limits. Only a few years after ratification, the constitutional
bonds were being broken to expand the government beyond the enumerated powers.
The “General welfare” clause in Article 1 Section 8 was used during the Adams
administration to justify a national bank and the Alien and Sedition Acts.
Writing from the Virginia state legislature, in their report on the Virginia
Resolutions, Madison argued that if the “General welfare” was interpreted
to apply beyond the enumerated powers, it effectively removed all limits to
the Federal power. In retrospect I can imagine at least two provisions
that might have helped to maintain those limits (both found in Heinlein):
a provision that normal legislative acts require a supermajority of some size,
and another for the regular repeal of acts by an equivalently constituted
“[How] unequal parchment provisions are to a struggle with public necessity”
“[Every] breach of the fundamental laws, though dictated by necessity, impairs
that sacred reverence which ought to be maintained in the breast of rulers
towards the constitution of a country, and forms a precedent for other breaches
where the same plea of necessity does not exist at all, or is less urgent
and palpable.” Number 25;
“If there is any thing exceptionable, it must be sought for in the specific
powers upon which this general declaration is predicated. The declaration
[allowing for passage of all necessary and proper laws, Article 1, Section
8, final clause], though it may be chargeable with tautology or redundancy,
is at least perfectly harmless.” Number 33;
“It is in vain to oppose constitutional barriers to the impulse of self-preservation.
It is worse than in vain; because it plants in the Constitution itself necessary
usurpations of power, every precedent of which is a germ of unnecessary and
multiplied repetitions.” Number 41;
“[The] most minute provisions become important when they tend to obviate
the necessity or the pretext for gradual and unobserved usurpations of power”
“It will not be denied, that power is of an encroaching nature, and that
it ought to be effectually restrained from passing the limits assigned to
it.” Number 48
“That the people and the States should, for a sufficient period
of time, elect an uninterupted succession of men ready to betray both; that
the traitors should, throughout this period, uniformly and systematically
pursue some fixed plan for the extension of the military establishment; that
the governments and the people of the States should silently and patiently
behold the gathering storm, and continue to supply the materials, until it
should be prepared to burst on their own heads, must appear to every one more
like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations
of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.”
“Let us not insult the free and gallant citizens of America with the suspicion,
that they would be less able to defend the rights of which they would be in
actual possession, than the debased subjects of arbitrary power would be
to rescue theirs from the hands of their oppressors. Let us rather no longer
insult them with the supposition that they can ever reduce themselves to
the necessity of making the experiment, by a blind and tame submission to
the long train of insidious measures which must precede and produce it.”
“If it be asked, what is to restrain the House of Representatives from making
legal discriminations in favor of themselves and a particular class of the
society? I answer: the genius of the whole system; the nature of just and
constitutional laws; and above all, the vigilant and manly spirit which actuates
the people of America, a spirit which nourishes freedom, and in return is
nourished by it. If this spirit shall ever be so far debased as to tolerate
a law not obligatory on the legislature, as well as on the people, the people
will be prepared to tolerate any thing but liberty.” Number 57;
“It will not be in the power of the President and Senate to make any treaties
by which they and their families and estates will not be equally bound and
affected with the rest of the community; and, having no private interests
distinct from that of the nation, they will be under no temptations to neglect
the latter.” Number 64;
“When occasions present themselves, in which the interests of the people
are at variance with their inclinations, it is the duty of the persons whom
they have appointed to be the guardians of those interests, to withstand the
temporary delusion, in order to give them time and opportunity for more cool
and sedate reflection.” Number 71;
“[It] is not to be inferred from this principle, that the representatives
of the people, whenever a momentary inclination happens to lay hold of a majority
of their constituents, incompatible with the provisions in the existing Constitution,
would, on that account, be justifiable in a violation of those provisions”
“[As for any specific freedom,] its security, whatever fine declarations
may be inserted in any constitution respecting it, must altogether depend
on public opinion, and on the general spirit of the people and of the government.”
How about human nature and politics? I quote from Numbers 15 and 70
regarding the former; Number 62 had a lot to say about the excess of
laws, and how there are always those who are able to benefit especially from
legislation; and Number 73 has an endorsement of legislative gridlock.
“Regard to reputation has a less active influence, when the infamy
of a bad action is to be divided among a number than when it is to fall singly
upon one” Number 15;
Are armed citizens a defense against oppressive government? Yes!
“[The] faculty and excess of law-making seem to be the diseases to which
our governments are most liable....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;
if they be repealed or revised before they are promulgated, or undergo such
incessant changes that no man, who knows what the law is to-day, can guess
what it will be to-morrow.....Every new regulation concerning commerce or
revenue, or in any way affecting the value of the different species of property,
presents a new harvest to those who watch the change, and can trace its consequences”
“Men often oppose a thing, merely because they have had no agency in planning
it, or because it may have been planned by those whom they dislike.” Number
“[Every] institution calculated to restrain the excess of law-making, and
to keep things in the same state in which they happen to be at any given period,
as much more likely to do good than harm;” Number 73
“[That] army can never be formidable to the liberties of the people
while there is a large body of citizens, little, if at all, inferior to them
in discipline and the use of arms, who stand ready to defend their own rights
and those of their fellow-citizens” Number 29;
I even found recognition of jury nullification.
“[To the prospect of an oppressive federal army] would be opposed a militia
amounting to near half a million of citizens with arms in their hands,”
and “Notwithstanding the military establishments in the several kingdoms of
Europe, which are carried as far as the public resources will bear, the governments
are afraid to trust the people with arms” Number 46
“[Relative to impeachment trials by the Senate] There will be
no jury to stand between the judges who are to pronounce the sentence of the
law, and the party who is to receive or suffer it.” Number 65;
As for the method for selection of the President, there is one full paper
devoted to this subject (Number 68), and several references elsewhere (Numbers
39, 45, and 77), which I quote at length below. At its heart, the mode
of selecting the President is simply one more means by which the original
government balanced the competing forces in society to limit the federal power.
The entire constitution is more than just a balance among the legislative,
executive, and judicial branches of government. It is also a balance
between big and small states (as shown by the makeup of the Senate and the
House of Representatives), and between the power of distributed (state) versus
central (federal) authority. The framers and the people at that time
were very concerned that this new government would become a national one
and end up controlling all aspects of the nation, leading eventually to an
elite class and hereditary power. Furthermore, they knew they were
not the same from state to state; the last thing they wanted was for this
new government to be the means by which some contrary measure would be imposed
from outside. Certainly the issue of slavery was part of this situation,
but so were the differences between agrarian and mercantile economic interests,
religious beliefs, and other economic and cultural forces.
“[The] common-law courts of this State ascertain disputed facts by a jury,
yet they unquestionably have jurisdiction of both fact and law”
“Though the proper province of juries be to determine matters of fact, yet
in most cases legal consequences are complicated with fact in such a manner
as to render a separation impracticable” Number 83;
By making the President at least partially dependent on the states to be
selected, this made the eventual winner in some ways dependent on the states,
and thereby (in theory, at least), less likely to extend federal power at
the expense of state authority. This is also why the Senate was set
up originally selected by the state legislatures rather than by popular vote.
The Federalist reveals no indication of the theory broached recently in
the media, that the method of electors was constituted because of the limited
ability at that time to transmit information about candidates across the several
states, so that the people would be able to elect the president directly.
Number 68 provides other explanations: 1) that a small number of people, selected
by the general mass of citizens, were “most likely to possess the information
and discernment requisite to such complicated investigations”, and 2) “The
choice of SEVERAL, to form an intermediate body of electors, will be much
less apt to convulse the community with any extraordinary or violent movements,
than the choice of ONE who was himself to be the final object of the public
When we consider the selection of GWB and AG (not to mention current President
WJC), we must accept the comment that follows as so much wishful thinking.
“Talents for low intrigue, and the little arts of popularity, may alone
suffice to elevate a man to the first honors in a single State; but it will
require other talents, and a different kind of merit, to establish him in
the esteem and confidence of the whole Union, or of so considerable a portion
of it as would be necessary to make him a successful candidate for the distinguished
office of President of the United States”
An electronic copy of The Federalist can be found at:
In the following, author attributions are per Clinton Rossiter.
Number 14 – Madison
Objections to the Proposed Constitution From Extent of Territory Answered
From the New York Packet. Friday, November 30, 1787.
[It] is to be remembered that the general government is not to
be charged with the whole power of making and administering laws. Its jurisdiction
is limited to certain enumerated objects, which concern all the members of
the republic, but which are not to be attained by the separate provisions
of any. The subordinate governments, which can extend their care to
all those other subjects which can be separately provided for, will retain
their due authority and activity. Were it proposed by the plan of the convention
to abolish the governments of the particular States, its adversaries would
have some ground for their objection; though it would not be difficult
to show that if they were abolished the general government would be compelled,
by the principle of self-preservation, to reinstate them in their proper jurisdiction.
Number 15 – Madison (others attribute this to Hamilton)
The Insufficiency of the Present Confederation to Preserve the Union
For the Independent Journal.
Regard to reputation has a less active influence, when the infamy
of a bad action is to be divided among a number than when it is to fall singly
upon one. A spirit of faction, which is apt to mingle its poison
in the deliberations of all bodies of men, will often hurry the persons of
whom they are composed into improprieties and excesses, for which they would
blush in a private capacity.
Number 23 – Hamilton
The Necessity of a Government as Energetic as the One Proposed to the Preservation
of the Union
From the New York Packet. Tuesday, December 18, 1787.
The principal purposes to be answered by union are these the common
defense of the members; the preservation of the public peace as well against
internal convulsions as external attacks; the regulation of commerce with
other nations and between the States; the superintendence of our intercourse,
political and commercial, with foreign countries.
[There] can be no limitation of that authority which is to provide
for the defense and protection of the community, in any matter essential to
its efficacy that is, in any matter essential to the FORMATION, DIRECTION,
or SUPPORT of the NATIONAL FORCES.
The result from all this is that the Union ought to be invested
with full power to levy troops; to build and equip fleets; and to raise
the revenues which will be required for the formation and support of an army
and navy, in the customary and ordinary modes practiced in other governments.
Number 25 - Hamilton
The Same Subject Continued
(The Powers Necessary to the Common Defense Further Considered)
From the New York Packet. Friday, December 21, 1787.
All violent policy, as it is contrary to the natural and experienced
course of human affairs, defeats itself. Pennsylvania, at this instant, affords
an example of the truth of this remark. The Bill of Rights of that State
declares that standing armies are dangerous to liberty, and ought not to
be kept up in time of peace. Pennsylvania, nevertheless, in a time of
profound peace, from the existence of partial disorders in one or two of
her counties, has resolved to raise a body of troops; and in all probability
will keep them up as long as there is any appearance of danger to the public
peace. The conduct of Massachusetts affords a lesson on the same subject,
though on different ground. That State (without waiting for the sanction of
Congress, as the articles of the Confederation require) was compelled to
raise troops to quell a domestic insurrection, and still keeps a corps in
pay to prevent a revival of the spirit of revolt. The particular constitution
of Massachusetts opposed no obstacle to the measure; but the instance is still
of use to instruct us that cases are likely to occur under our government,
as well as under those of other nations, which will sometimes render a military
force in time of peace essential to the security of the society, and that
it is therefore improper in this respect to control the legislative discretion.
It also teaches us, in its application to the United States, how little the
rights of a feeble government are likely to be respected, even by its own
constituents. And it teaches us, in addition to the rest, how unequal parchment
provisions are to a struggle with public necessity.
It was a fundamental maxim of the Lacedaemonian commonwealth,
that the post of admiral should not be conferred twice on the same person.
The Peloponnesian confederates, having suffered a severe defeat at sea from
the Athenians, demanded Lysander, who had before served with success in that
capacity, to command the combined fleets. The Lacedaemonians, to gratify
their allies, and yet preserve the semblance of an adherence to their ancient
institutions, had recourse to the flimsy subterfuge of investing Lysander
with the real power of admiral, under the nominal title of vice-admiral.
This instance is selected from among a multitude that might be cited to confirm
the truth already advanced and illustrated by domestic examples; which is,
that nations pay little regard to rules and maxims calculated in their very
nature to run counter to the necessities of society. Wise politicians will
be cautious about fettering the government with restrictions that cannot be
observed, because they know that every breach of the fundamental laws, though
dictated by necessity, impairs that sacred reverence which ought to be maintained
in the breast of rulers towards the constitution of a country, and forms
a precedent for other breaches where the same plea of necessity does not
exist at all, or is less urgent and palpable.
Number 27 - Hamilton
The Same Subject Continued
(The Idea of Restraining the Legislative Authority in Regard to the Common
From the New York Packet. Tuesday, December 25, 1787.
The plan reported by the convention, by extending the authority
of the federal head to the individual citizens of the several States, will
enable the government to employ the ordinary magistracy of each, in the execution
of its laws. It is easy to perceive that this will tend to destroy, in the
common apprehension, all distinction between the sources from which they might
proceed; and will give the federal government the same advantage for securing
a due obedience to its authority which is enjoyed by the government of each
State, in addition to the influence on public opinion which will result from
the important consideration of its having power to call to its assistance
and support the resources of the whole Union. It merits particular
attention in this place, that the laws of the Confederacy, as to the ENUMERATED
and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of
the land; to the observance of which all officers, legislative, executive,
and judicial, in each State, will be bound by the sanctity of an oath.
Thus the legislatures, courts, and magistrates, of the respective members,
will be incorporated into the operations of the national government AS FAR
AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered
auxiliary to the enforcement of its laws. Any man who will pursue,
by his own reflections, the consequences of this situation, will perceive
that there is good ground to calculate upon a regular and peaceable execution
of the laws of the Union, if its powers are administered with a common share
of prudence. If we will arbitrarily suppose the contrary, we may deduce any
inferences we please from the supposition; for it is certainly possible,
by an injudicious exercise of the authorities of the best government that
ever was, or ever can be instituted, to provoke and precipitate the people
into the wildest excesses. But though the adversaries of the proposed Constitution
should presume that the national rulers would be insensible to the motives
of public good, or to the obligations of duty, I would still ask them how
the interests of ambition, or the views of encroachment, can be promoted
by such a conduct?
Number 29 - Hamilton
Concerning the Militia
From the Daily Advertiser. Thursday, January 10, 1788
[But] if circumstances should at any time oblige the government
to form an army of any magnitude that army can never be formidable to the
liberties of the people while there is a large body of citizens, little, if
at all, inferior to them in discipline and the use of arms, who stand ready
to defend their own rights and those of their fellow-citizens. This appears
to me the only substitute that can be devised for a standing army, and the
best possible security against it, if it should exist.''
Number 32 - Hamilton
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser. Thursday, January 3, 1788.
But as the plan of the convention aims only at a partial union
or consolidation, the State governments would clearly retain all the rights
of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY
delegated to the United States. This exclusive delegation, or rather this
alienation, of State sovereignty, would only exist in three cases: where the
Constitution in express terms granted an exclusive authority to the Union;
where it granted in one instance an authority to the Union, and in another
prohibited the States from exercising the like authority; and where it granted
an authority to the Union, to which a similar authority in the States would
be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to
distinguish this last case from another which might appear to resemble it,
but which would, in fact, be essentially different; I mean where the exercise
of a concurrent jurisdiction might be productive of occasional interferences
in the POLICY of any branch of administration, but would not imply any direct
contradiction or repugnancy in point of constitutional authority. These three
cases of exclusive jurisdiction in the federal government may be exemplified
by the following instances: The last clause but one in the eighth section
of the first article provides expressly that Congress shall exercise ``EXCLUSIVE
LEGISLATION'' over the district to be appropriated as the seat of government.
This answers to the first case. The first clause of the same section empowers
Congress ``TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES''; and the
second clause of the tenth section of the same article declares that, ``NO
STATE SHALL, without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, except for the purpose of executing its inspection laws.''
Hence would result an exclusive power in the Union to lay duties on imports
and exports, with the particular exception mentioned; but this power is abridged
by another clause, which declares that no tax or duty shall be laid on articles
exported from any State; in consequence of which qualification, it now only
extends to the DUTIES ON IMPORTS. This answers to the second case. The third
will be found in that clause which declares that Congress shall have power
``to establish an UNIFORM RULE of naturalization throughout the United States.''
This must necessarily be exclusive; because if each State had power to prescribe
a DISTINCT RULE, there could not be a UNIFORM RULE.
Number 33 – Hamilton
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser. January 3, 1788.
[Regarding Article 1, Section 8, final clause, stating “The Congress shall
have the Power … To make all laws which shall be necessary and proper for
carrying into Execution the foregoing Powers”]
And it is EXPRESSLY to execute these powers that the sweeping
clause, as it has been affectedly called, authorizes the national legislature
to pass all NECESSARY and PROPER laws. If there is any thing exceptionable,
it must be sought for in the specific powers upon which this general declaration
is predicated. The declaration itself, though it may be chargeable with tautology
or redundancy, is at least perfectly harmless.
But it will not follow from this doctrine that acts of the large
society which are NOT PURSUANT to its constitutional powers, but which are
invasions of the residuary authorities of the smaller societies, will become
the supreme law of the land. These will be merely acts of usurpation, and
will deserve to be treated as such. Hence we perceive that the clause which
declares the supremacy of the laws of the Union, like the one we have just
before considered, only declares a truth, which flows immediately and necessarily
from the institution of a federal government. It will not, I presume, have
escaped observation, that it EXPRESSLY confines this supremacy to laws made
PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution
in the convention; since that limitation would have been to be understood,
though it had not been expressed.
Number 39 – Madison
The Conformity of the Plan to Republican Principles
For the Independent Journal.
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] 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.
Number 41 - Madison
General View of the Powers Conferred by The Constitution
For the Independent Journal.
How could a readiness for war in time of peace be safely prohibited,
unless we could prohibit, in like manner, the preparations and establishments
of every hostile nation? The means of security can only be regulated by the
means and the danger of attack. They will, in fact, be ever determined by
these rules, and by no others. It is in vain to oppose constitutional barriers
to the impulse of self-preservation. It is worse than in vain; because it
plants in the Constitution itself necessary usurpations of power, every precedent
of which is a germ of unnecessary and multiplied repetitions.
But what color can the objection have, when a specification of
the objects alluded to by these general terms immediately follows, and is
not even separated by a longer pause than a semicolon? If the different parts
of the same instrument ought to be so expounded, as to give meaning to every
part which will bear it, shall one part of the same sentence be excluded altogether
from a share in the meaning; and shall the more doubtful and indefinite terms
be retained in their full extent, and the clear and precise expressions be
denied any signification whatsoever? For what purpose could the enumeration
of particular powers be inserted, if these and all others were meant to be
included in the preceding general power? Nothing is more natural nor common
than first to use a general phrase, and then to explain and qualify it by
a recital of particulars. But the idea of an enumeration of particulars which
neither explain nor qualify the general meaning, and can have no other effect
than to confound and mislead, is an absurdity, which, as we are reduced to
the dilemma of charging either on the authors of the objection or on the authors
of the Constitution, we must take the liberty of supposing, had not its origin
with the latter.
Number 42 - Madison
The Powers Conferred by the Constitution Further Considered
From the New York Packet. Tuesday, January 22, 1788.
It is true, that where treaties of commerce stipulate for the
mutual appointment of consuls, whose functions are connected with commerce,
the admission of foreign consuls may fall within the power of making commercial
treaties; and that where no such treaties exist, the mission of American consuls
into foreign countries may PERHAPS be covered under the authority, given
by the ninth article of the Confederation, to appoint all such civil officers
as may be necessary for managing the general affairs of the United States.
But the admission of consuls into the United States, where no previous treaty
has stipulated it, seems to have been nowhere provided for. A supply of the
omission is one of the lesser instances in which the convention have improved
on the model before them. But the most minute provisions become important
when they tend to obviate the necessity or the pretext for gradual and unobserved
usurpations of power. A list of the cases in which Congress have been betrayed,
or forced by the defects of the Confederation, into violations of their chartered
authorities, would not a little surprise those who have paid no attention
to the subject; and would be no inconsiderable argument in favor of the new
Constitution, which seems to have provided no less studiously for the lesser,
than the more obvious and striking defects of the old.
Number 44 - Madison
Restrictions on the Authority of the Several States
From the New York Packet. Friday, January 25, 1788.
Had the convention taken the first method of adopting the second
article of Confederation [i.e. limiting Article 1 Section 8 final clause to
apply to powers “expressly granted by the Constitution], it is evident that
the new Congress would be continually exposed, as their predecessors have
been, to the alternative of construing the term ``EXPRESSLY'' with so much
rigor, as to disarm the government of all real authority whatever, or with
so much latitude as to destroy altogether the force of the restriction.
It would be easy to show, if it were necessary, that no important power, delegated
by the articles of Confederation, has been or can be executed by Congress,
without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION.
As the powers delegated under the new system are more extensive, the government
which is to administer it would find itself still more distressed with the
alternative of betraying the public interests by doing nothing, or of violating
the Constitution by exercising powers indispensably necessary and proper,
but, at the same time, not EXPRESSLY granted.
Number 45 – Madison
The Alleged Danger From the Powers of the Union to the State Governments
For the Independent Fournal.
The State governments may be regarded as constituent and essential
parts of the federal government; whilst the latter is nowise essential to
the operation or organization of the former. Without the intervention of the
State legislatures, the President of the United States cannot be elected at
all. They must in all cases have a great share in his appointment, and will,
perhaps, in most cases, of themselves determine it. The Senate will be elected
absolutely and exclusively by the State legislatures. Even the House of Representatives,
though drawn immediately from the people, will be chosen very much under
the influence of that class of men, whose influence over the people obtains
for themselves an election into the State legislatures. Thus, each of the
principal branches of the federal government will owe its existence more
or less to the favor of the State governments, and must consequently feel
a dependence, which is much more likely to beget a disposition too obsequious
than too overbearing towards them. On the other side, the component parts
of the State governments will in no instance be indebted for their appointment
to the direct agency of the federal government, and very little, if at all,
to the local influence of its members.
Number 46 - Madison
The Influence of the State and Federal Governments Compared
From the New York Packet. Tuesday, January 29, 1788.
The only refuge left for those who prophesy the downfall of the
State governments is the visionary supposition that the federal government
may previously accumulate a military force for the projects of ambition. The
reasonings contained in these papers must have been employed to little purpose
indeed, if it could be necessary now to disprove the reality of this danger.
That the people and the States should, for a sufficient period of time, elect
an uninterupted succession of men ready to betray both; that the traitors
should, throughout this period, uniformly and systematically pursue some
fixed plan for the extension of the military establishment; that the governments
and the people of the States should silently and patiently behold the gathering
storm, and continue to supply the materials, until it should be prepared
to burst on their own heads, must appear to every one more like the incoherent
dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit
zeal, than like the sober apprehensions of genuine patriotism. Extravagant
as the supposition is, let it however be made. Let a regular army, fully
equal to the resources of the country, be formed; and let it be entirely
at the devotion of the federal government; still it would not be going too
far to say, that the State governments, with the people on their side, would
be able to repel the danger. The highest number to which, according to the
best computation, a standing army can be carried in any country, does not
exceed one hundredth part of the whole number of souls; or one twenty-fifth
part of the number able to bear arms. This proportion would not yield, in
the United States, an army of more than twenty-five or thirty thousand men.
To these would be opposed a militia amounting to near half a million of citizens
with arms in their hands, officered by men chosen from among themselves,
fighting for their common liberties, and united and conducted by governments
possessing their affections and confidence. It may well be doubted, whether
a militia thus circumstanced could ever be conquered by such a proportion
of regular troops. Those who are best acquainted with the last successful
resistance of this country against the British arms, will be most inclined
to deny the possibility of it. Besides the advantage of being armed, which
the Americans possess over the people of almost every other nation, the existence
of subordinate governments, to which the people are attached, and by which
the militia officers are appointed, forms a barrier against the enterprises
of ambition, more insurmountable than any which a simple government of any
form can admit of. Notwithstanding the military establishments in the several
kingdoms of Europe, which are carried as far as the public resources will
bear, the governments are afraid to trust the people with arms. And it is
not certain, that with this aid alone they would not be able to shake off
their yokes. But were the people to possess the additional advantages of
local governments chosen by themselves, who could collect the national will
and direct the national force, and of officers appointed out of the militia,
by these governments, and attached both to them and to the militia, it may
be affirmed with the greatest assurance, that the throne of every tyranny
in Europe would be speedily overturned in spite of the legions which surround
it. Let us not insult the free and gallant citizens of America with the suspicion,
that they would be less able to defend the rights of which they would be
in actual possession, than the debased subjects of arbitrary power would
be to rescue theirs from the hands of their oppressors. Let us rather no
longer insult them with the supposition that they can ever reduce themselves
to the necessity of making the experiment, by a blind and tame submission
to the long train of insidious measures which must precede and produce it.
Number 48 - Madison
These Departments Should Not Be So Far Separated as to Have No Constitutional
Control Over Each Other
From the New York Packet. Friday, February 1, 1788.
It will not be denied, that power is of an encroaching nature,
and that it ought to be effectually restrained from passing the limits assigned
It will be no alleviation, that these powers will be exercised
by a plurality of hands, and not by a single one. One hundred and seventy-three
despots would surely be as oppressive as one.
Number 57 – Madison (some attribute this to Hamilton)
The Alleged Tendency of the New Plan to Elevate the Few at the Expense of
the Many Considered in Connection with Representation
From the New York Packet. Tuesday, February 19, 1788.
If it be asked, what is to restrain the House of Representatives
from making legal discriminations in favor of themselves and a particular
class of the society? I answer: the genius of the whole system; the nature
of just and constitutional laws; and above all, the vigilant and manly spirit
which actuates the people of America, a spirit which nourishes freedom, and
in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law
not obligatory on the legislature, as well as on the people, the people will
be prepared to tolerate any thing but liberty.
Number 62 – Madison (some attribute this to Hamilton)
For the Independent Journal.
[The] faculty and excess of law-making seem to be the diseases
to which our governments are most liable...
[The] internal effects of a mutable policy are still more calamitous.
It poisons the blessing of liberty itself. 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; if they be repealed or revised before they are promulgated,
or undergo such incessant changes that no man, who knows what the law is to-day,
can guess what it will be to-morrow. Law is defined to be a rule of action;
but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage
it gives to the sagacious, the enterprising, and the moneyed few over the
industrious and uniformed mass of the people. Every new regulation concerning
commerce or revenue, or in any way affecting the value of the different species
of property, presents a new harvest to those who watch the change, and can
trace its consequences; a harvest, reared not by themselves, but by the toils
and cares of the great body of their fellow-citizens. This is a state of things
in which it may be said with some truth that laws are made for the FEW, not
for the MANY.
Number 64 - Jay
The Powers of the Senate
From the New York Packet. Friday, March 7, 1788.
[The] judgments of our courts, and the commissions constitutionally
given by our governor, are as valid and as binding on all persons whom they
concern, as the laws passed by our legislature. All constitutional acts of
power, whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the legislature; and
therefore, whatever name be given to the power of making treaties, or however
obligatory they may be when made, certain it is, that the people may, with
much propriety, commit the power to a distinct body from the legislature,
the executive, or the judicial. It surely does not follow, that because they
have given the power of making laws to the legislature, that therefore they
should likewise give them the power to do every other act of sovereignty by
which the citizens are to be bound and affected.
It will not be in the power of the President and Senate to make
any treaties by which they and their families and estates will not be equally
bound and affected with the rest of the community; and, having no private
interests distinct from that of the nation, they will be under no temptations
to neglect the latter.
Number 65 - Hamilton
The Powers of the Senate Continued
From the New York Packet. Friday, March 7, 1788.
[Relative to impeachment trials by the Senate] There will be no
jury to stand between the judges who are to pronounce the sentence of the
law, and the party who is to receive or suffer it. The awful discretion which
a court of impeachments must necessarily have, to doom to honor or to infamy
the most confidential and the most distinguished characters of the community,
forbids the commitment of the trust to a small number of persons.
Number 68 – Hamilton (repeated in its entirety)
The Mode of Electing the President
From the New York Packet. Friday, March 14, 1788.
To the People of the State of New York:
THE mode of appointment of the Chief Magistrate of the United
States is almost the only part of the system, of any consequence, which has
escaped without severe censure, or which has received the slightest mark of
approbation from its opponents. The most plausible of these, who has appeared
in print, has even deigned to admit that the election of the President is
pretty well guarded (1). I venture somewhat further, and hesitate not to affirm,
that if the manner of it be not perfect, it is at least excellent. It unites
in an eminent degree all the advantages, the union of which was to be wished
It was desirable that the sense of the people should operate in
the choice of the person to whom so important a trust was to be confided.
This end will be answered by committing the right of making it, not to any
preestablished body, but to men chosen by the people for the special purpose,
and at the particular conjuncture. It was equally desirable, that the immediate
election should be made by men most capable of analyzing the qualities adapted
to the station, and acting under circumstances favorable to deliberation,
and to a judicious combination of all the reasons and inducements which were
proper to govern their choice. A small number of persons, selected by their
fellow-citizens from the general mass, will be most likely to possess the
information and discernment requisite to such complicated investigations.
It was also peculiarly desirable to afford as little opportunity
as possible to tumult and disorder. This evil was not least to be dreaded
in the election of a magistrate, who was to have so important an agency in
the administration of the government as the President of the United States.
But the precautions which have been so happily concerted in the system under
consideration, promise an effectual security against this mischief. The choice
of SEVERAL, to form an intermediate body of electors, will be much less apt
to convulse the community with any extraordinary or violent movements, than
the choice of ONE who was himself to be the final object of the public wishes.
And as the electors, chosen in each State, are to assemble and vote in the
State in which they are chosen, this detached and divided situation will expose
them much less to heats and ferments, which might be communicated from them
to the people, than if they were all to be convened at one time, in one place.
Nothing was more to be desired than that every practicable obstacle
should be opposed to cabal, intrigue, and corruption. These most deadly adversaries
of republican government might naturally have been expected to make their
approaches from more than one querter, but chiefly from the desire in foreign
powers to gain an improper ascendant in our councils. How could they better
gratify this, than by raising a creature of their own to the chief magistracy
of the Union? But the convention have guarded against all danger of this sort,
with the most provident and judicious attention. They have not made the appointment
of the President to depend on any preexisting bodies of men, who might be
tampered with beforehand to prostitute their votes; but they have referred
it in the first instance to an immediate act of the people of America, to
be exerted in the choice of persons for the temporary and sole purpose of
making the appointment. And they have excluded from eligibility to this trust,
all those who from situation might be suspected of too great devotion to
the President in office. No senator, representative, or other person holding
a place of trust or profit under the United States, can be of the numbers
of the electors. Thus without corrupting the body of the people, the immediate
agents in the election will at least enter upon the task free from any sinister
bias. Their transient existence, and their detached situation, already taken
notice of, afford a satisfactory prospect of their continuing so, to the
conclusion of it. The business of corruption, when it is to embrace so considerable
a number of men, requires time as well as means. Nor would it be found easy
suddenly to embark them, dispersed as they would be over thirteen States,
in any combinations founded upon motives, which though they could not properly
be denominated corrupt, might yet be of a nature to mislead them from their
Another and no less important desideratum was, that the Executive
should be independent for his continuance in office on all but the people
themselves. He might otherwise be tempted to sacrifice his duty to his complaisance
for those whose favor was necessary to the duration of his official consequence.
This advantage will also be secured, by making his re-election to depend on
a special body of representatives, deputed by the society for the single purpose
of making the important choice.
All these advantages will happily combine in the plan devised
by the convention; which is, that the people of each State shall choose a
number of persons as electors, equal to the number of senators and representatives
of such State in the national government, who shall assemble within the State,
and vote for some fit person as President. Their votes, thus given, are to
be transmitted to the seat of the national government, and the person who
may happen to have a majority of the whole number of votes will be the President.
But as a majority of the votes might not always happen to centre in one man,
and as it might be unsafe to permit less than a majority to be conclusive,
it is provided that, in such a contingency, the House of Representatives shall
select out of the candidates who shall have the five highest number of votes,
the man who in their opinion may be best qualified for the office.
The process of election affords a moral certainty, that the office
of President will never fall to the lot of any man who is not in an eminent
degree endowed with the requisite qualifications. Talents for low intrigue,
and the little arts of popularity, may alone suffice to elevate a man to the
first honors in a single State; but it will require other talents, and a
different kind of merit, to establish him in the esteem and confidence of
the whole Union, or of so considerable a portion of it as would be necessary
to make him a successful candidate for the distinguished office of President
of the United States. It will not be too strong to say, that there will be
a constant probability of seeing the station filled by characters pre-eminent
for ability and virtue. And this will be thought no inconsiderable recommendation
of the Constitution, by those who are able to estimate the share which the
executive in every government must necessarily have in its good or ill administration.
Though we cannot acquiesce in the political heresy of the poet who says:
``For forms of government let fools contest That which is best administered
is best,'' yet we may safely pronounce, that the true test of a good government
is its aptitude and tendency to produce a good administration.
The Vice-President is to be chosen in the same manner with the
President; with this difference, that the Senate is to do, in respect to the
former, what is to be done by the House of Representatives, in respect to
The appointment of an extraordinary person, as Vice-President,
has been objected to as superfluous, if not mischievous. It has been alleged,
that it would have been preferable to have authorized the Senate to elect
out of their own body an officer answering that description. But two considerations
seem to justify the ideas of the convention in this respect. One is, that
to secure at all times the possibility of a definite resolution of the body,
it is necessary that the President should have only a casting vote. And to
take the senator of any State from his seat as senator, to place him in that
of President of the Senate, would be to exchange, in regard to the State from
which he came, a constant for a contingent vote. The other consideration is,
that as the Vice-President may occasionally become a substitute for the President,
in the supreme executive magistracy, all the reasons which recommend the
mode of election prescribed for the one, apply with great if not with equal
force to the manner of appointing the other. It is remarkable that in this,
as in most other instances, the objection which is made would lie against
the constitution of this State. We have a Lieutenant-Governor, chosen by
the people at large, who presides in the Senate, and is the constitutional
substitute for the Governor, in casualties similar to those which would authorize
the Vice-President to exercise the authorities and discharge the duties of
1 Vide FEDERAL FARMER.
Number 70 - Hamilton
The Executive Department Further Considered
From the New York Packet. Tuesday, March 18, 1788.
Men often oppose a thing, merely because they have had no agency
in planning it, or because it may have been planned by those whom they dislike.
But if they have been consulted, and have happened to disapprove, opposition
then becomes, in their estimation, an indispensable duty of self-love. They
seem to think themselves bound in honor, and by all the motives of personal
infallibility, to defeat the success of what has been resolved upon contrary
to their sentiments. Men of upright, benevolent tempers have too many opportunities
of remarking, with horror, to what desperate lengths this disposition is sometimes
carried, and how often the great interests of society are sacrificed to the
vanity, to the conceit, and to the obstinacy of individuals, who have credit
enough to make their passions and their caprices interesting to mankind. Perhaps
the question now before the public may, in its consequences, afford melancholy
proofs of the effects of this despicable frailty, or rather detestable vice,
in the human character.
Number 71 - Hamilton
The Duration in Office of the Executive
From the New York Packet. Tuesday, March 18, 1788.
When occasions present themselves, in which the interests of the
people are at variance with their inclinations, it is the duty of the persons
whom they have appointed to be the guardians of those interests, to withstand
the temporary delusion, in order to give them time and opportunity for more
cool and sedate reflection. Instances might be cited in which a conduct
of this kind has saved the people from very fatal consequences of their own
mistakes, and has procured lasting monuments of their gratitude to the men
who had courage and magnanimity enough to serve them at the peril of their
Number 73 - Hamilton
The Provision For The Support of the Executive, and the Veto Power
From the New York Packet. Friday, March 21, 1788.
It may perhaps be said that the power of preventing bad laws includes
that of preventing good ones; and may be used to the one purpose as well
as to the other. But this objection will have little weight with those who
can properly estimate the mischiefs of that inconstancy and mutability in
the laws, which form the greatest blemish in the character and genius of
our governments. They will consider every institution calculated to restrain
the excess of law-making, and to keep things in the same state in which they
happen to be at any given period, as much more likely to do good than harm;
because it is favorable to greater stability in the system of legislation.
The injury which may possibly be done by defeating a few good laws, will be
amply compensated by the advantage of preventing a number of bad ones.
Number 77 – Hamilton
The Appointing Power Continued and Other Powers of the Executive Considered
From the New York Packet. Friday, April 4, 1788.
We have now completed a survey of the structure and powers of
the executive department, which, I have endeavored to show, combines, as far
as republican principles will admit, all the requisites to energy. The remaining
inquiry is: Does it also combine the requisites to safety, in a republican
sense, a due dependence on the people, a due responsibility? The answer to
this question has been anticipated in the investigation of its other characteristics,
and is satisfactorily deducible from these circumstances; from the election
of the President once in four years by persons immediately chosen by the
people for that purpose; and from his being at all times liable to
impeachment, trial, dismission from office, incapacity to serve in any other,
and to forfeiture of life and estate by subsequent prosecution in the common
course of law. But these precautions, great as they are, are not the only
ones which the plan of the convention has provided in favor of the public
security. In the only instances in which the abuse of the executive authority
was materially to be feared, the Chief Magistrate of the United States would,
by that plan, be subjected to the control of a branch of the legislative
body. What more could be desired by an enlightened and reasonable people?
Number 78 - Hamilton
The Judiciary Department
From McLEAN'S Edition, New York.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of the commission
under which it is exercised, is void. No legislative act, therefore, contrary
to the Constitution, can be valid. To deny this, would be to affirm, that
the deputy is greater than his principal; that the servant is above his master;
that the representatives of the people are superior to the people themselves;
that men acting by virtue of powers, may do not only what their powers do
not authorize, but what they forbid.
Though I trust the friends of the proposed Constitution will never
concur with its enemies, in questioning that fundamental principle of republican
government, which admits the right of the people to alter or abolish the
established Constitution, whenever they find it inconsistent with their happiness,
yet it is not to be inferred from this principle, that the representatives
of the people, whenever a momentary inclination happens to lay hold of a
majority of their constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation of those
provisions; or that the courts would be under a greater obligation to connive
at infractions in this shape, than when they had proceeded wholly from the
cabals of the representative body. Until the people have, by some solemn
and authoritative act, annulled or changed the established form, it is binding
upon themselves collectively, as well as individually; and no presumption,
or even knowledge, of their sentiments, can warrant their representatives
in a departure from it, prior to such an act. But it is easy to see, that
it would require an uncommon portion of fortitude in the judges to do their
duty as faithful guardians of the Constitution, where legislative invasions
of it had been instigated by the major voice of the community.
Number 81 - Hamilton
The Judiciary Continued, and the Distribution of the Judicial Authority
From McLEAN's Edition, New York.
In the first place, there is not a syllable in the plan under
consideration which DIRECTLY empowers the national courts to construe the
laws according to the spirit of the Constitution, or which gives them any
greater latitude in this respect than may be claimed by the courts of every
State. I admit, however, that the Constitution ought to be the standard of
construction for the laws, and that wherever there is an evident opposition,
the laws ought to give place to the Constitution. But this doctrine is not
deducible from any circumstance peculiar to the plan of the convention, but
from the general theory of a limited Constitution; and as far as it is true,
is equally applicable to most, if not to all the State governments. There
can be no objection, therefore, on this account, to the federal judicature
which will not lie against the local judicatures in general, and which will
not serve to condemn every constitution that attempts to set bounds to legislative
Though the common-law courts of this State ascertain disputed
facts by a jury, yet they unquestionably have jurisdiction of both fact and
law; and accordingly when the former is agreed in the pleadings, they have
no recourse to a jury, but proceed at once to judgment. I contend, therefore,
on this ground, that the expressions, ``appellate jurisdiction, both as to
law and fact,'' do not necessarily imply a re-examination in the Supreme Court
of facts decided by juries in the inferior courts.
Number 82 - Hamilton
The Judiciary Continued
From McLEAN's Edition, New York.
The principles established in a former paper teach us that the
States will retain all PRE-EXISTING authorities which may not be exclusively
delegated to the federal head; and that this exclusive delegation can only
exist in one of three cases: where an exclusive authority is, in express terms,
granted to the Union; or where a particular authority is granted to the Union,
and the exercise of a like authority is prohibited to the States; or where
an authority is granted to the Union, with which a similar authority in the
States would be utterly incompatible. Though these principles may not apply
with the same force to the judiciary as to the legislative power, yet I am
inclined to think that they are, in the main, just with respect to the former,
as well as the latter. And under this impression, I shall lay it down as
a rule, that the State courts will RETAIN the jurisdiction they now have,
unless it appears to be taken away in one of the enumerated modes.
Number 83 - Hamilton
The Judiciary Continued in Relation to Trial by Jury
From MCLEAN's Edition, New York.
Having now seen that the maxims relied upon will not bear the
use made of them, let us endeavor to ascertain their proper use and true meaning.
This will be best done by examples. The plan of the convention declares that
the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall
extend to certain enumerated cases. This specification of particulars evidently
excludes all pretension to a general legislative authority, because an affirmative
grant of special powers would be absurd, as well as useless, if a general
authority was intended.
For my own part, the more the operation of the institution has
fallen under my observation, the more reason I have discovered for holding
it in high estimation; and it would be altogether superfluous to examine to
what extent it deserves to be esteemed useful or essential in a representative
republic, or how much more merit it may be entitled to, as a defense against
the oppressions of an hereditary monarch, than as a barrier to the tyranny
of popular magistrates in a popular government.
Though the proper province of juries be to determine matters of
fact, yet in most cases legal consequences are complicated with fact in such
a manner as to render a separation impracticable.
Number 84 - Hamilton
Certain General and Miscellaneous Objections to the Constitution Considered
From McLEAN's Edition, New York.
[Regarding the lack of explicit provision for a bill or rights, contrasting
the situation with that of state constitutions, notably that of New York,]
[To] the pretended establishment of the common and state law by
the Constitution, I answer, that they are expressly made subject ``to such
alterations and provisions as the legislature shall from time to time make
concerning the same.'' They are therefore at any moment liable to repeal
by the ordinary legislative power, and of course have no constitutional sanction.
The only use of the declaration was to recognize the ancient law and to remove
doubts which might have been occasioned by the Revolution. This consequently
can be considered as no part of a declaration of rights, which under our
constitutions must be intended as limitations of the power of the government
But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is merely
intended to regulate the general political interests of the nation, than to
a constitution which has the regulation of every species of personal and private
concerns. If, therefore, the loud clamors against the plan of the convention,
on this score, are well founded, no epithets of reprobation will be too strong
for the constitution of this State. But the truth is, that both of them contain
all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and
to the extent in which they are contended for, are not only unnecessary in
the proposed Constitution, but would even be dangerous. They would contain
various exceptions to powers not granted; and, on this very account, would
afford a colorable pretext to claim more than were granted. For why declare
that things shall not be done which there is no power to do? Why, for instance,
should it be said that the liberty of the press shall not be restrained, when
no power is given by which restrictions may be imposed? I will not contend
that such a provision would confer a regulating power; but it is evident that
it would furnish, to men disposed to usurp, a plausible pretense for claiming
that power. They might urge with a semblance of reason, that the Constitution
ought not to be charged with the absurdity of providing against the abuse
of an authority which was not given, and that the provision against restraining
the liberty of the press afforded a clear implication, that a power to prescribe
proper regulations concerning it was intended to be vested in the national
government. This may serve as a specimen of the numerous handles which would
be given to the doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place, I observe,
that there is not a syllable concerning it in the constitution of this State;
in the next, I contend, that whatever has been said about it in that of any
other State, amounts to nothing. What signifies a declaration, that ``the
liberty of the press shall be inviolably preserved''? What is the liberty
of the press? Who can give it any definition which would not leave the utmost
latitude for evasion? I hold it to be impracticable; and from this I infer,
that its security, whatever fine declarations may be inserted in any constitution
respecting it, must altogether depend on public opinion, and on the general
spirit of the people and of the government.(Note 3) And here, after all, as
is intimated upon another occasion, must we seek for the only solid basis
of all our rights.
Note 3: To show that there is a power in the Constitution by which
the liberty of the press may be affected, recourse has been had to the power
of taxation. It is said that duties may be laid upon the publications
so high as to amount to a prohibition. I know not by what logic it
could be maintained, that the declarations in the State constitutions, in
favor of the freedom of the press, would be a constitutional impediment to
the imposition of duties upon publications by the State legislatures. It
cannot certainly be pretended that any degree of duties, however low, would
be an abridgment of the liberty of the press. We know that newspapers
are taxed in Great Britain, and yet it is notorious that the press nowhere
enjoys greater liberty than in that country. And if duties of any kind may
be laid without a violation of that liberty, it is evident that the extent
must depend on legislative discretion, respecting the liberty of the press,
will give it no greater security than it will have without them. The same
invasions of it may be effected under the State constitutions which contain
those declarations through the means of taxation, as under the proposed Constitution,
which has nothing of the kind. It would be quite as significant to declare
that government ought to be free, that taxes ought not to be excessive, etc.,
as that the liberty of the press ought not to be restrained.
Commentary copyright John Russell Palmer