The Federalist Papers (39 page)

On examining the first relation, it appears, on one hand, that the constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state ... the authority of the people themselves. The act, therefore, establishing the constitution, will not be a
national,
but
a federal
act.

That it will be a federal, and not a national act, as these terms are understood by the objectors, the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a
majority
of the people of the union, nor from that of a
majority
of the states. It must result from the
unanimous
assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority; in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the states, as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new constitution will, if established, be a
federal,
and not a
national
constitution.

The next relation is, to the sources from which the ordinary powers of government are to be derived. The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. So far the government is
national,
not
federal.
The senate, on the other hand, will derive its powers from the states, as political and co-equal societies; and these will be represented on the principle of equality in the senate, as they now are in the existing congress. So far the government is
federal,
not
national.
The executive power will be derived from a very compound source. The immediate election of the president is to be made by the states in their political characters. The votes alloted to them are in a compound ratio, which considers them partly as distinct and co-equal 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 co-equal bodies politic. From this aspect of the government, it appears to be of a mixed character, presenting at least as many
federal
as
national
features.

The difference between a federal and national government, as it relates to the
operation of the government,
is, by the adversaries of the plan of the convention, supposed to consist in this, that in the former, the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the constitution by this criterion, it falls under the
national,
not the
federal
character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it in this relation, a
national
government.

But if the government be national, with regard to the operation of its powers, it changes its aspect again, when we contemplate it in relation to the
extent
of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them within its own sphere. In this relation, then, the proposed government cannot be deemed a
national
one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states, a residuary and inviolable sovereignty over all other objects. It is true, that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the constitution: and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local governments; or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly
national,
nor wholly
federal.
Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention, is not founded on either of these principles. In requiring more than a majority, and particularly, in computing the proportion by states, not by
citizens,
it departs from the
national,
and advances towards the
federal
character. In rendering the concurrence of less than the whole number of states sufficient, it loses again the
federal,
and partakes of the
national
character.

The proposed constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal constitution; but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, and partly national; in the operation of these powers, it is national, not federal; in the extent of them again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national.

PUBLIUS

No. 40

THE SECOND POINT TO be examined is, whether the convention were authorized to frame, and propose this mixed constitution.

The powers of the convention ought, in strictness, to be determined, by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from congress, in February, 1787, it will be sufficient to recur to these particular acts.

The act from Annapolis recommends the “appointment of commissioners to take into consideration the situation of the United States; to devise
such further provisions,
as shall appear to them necessary to render the constitution of the federal government,
adequate to the exigencies of the union;
and to report such an act for that purpose, to the United States in congress assembled, as, when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same.”

The recommendatory act of congress is in the words following: “Whereas, there is provision in the articles of confederation and perpetual union, for making alterations therein, by the assent of a congress of the United States, and of the legislatures of the several states; and whereas experience hath evinced, that there are defects in the present confederation; as a mean to remedy which, several of the states, and
particularly the state of New York,
by express instructions to their delegates in congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states,
a firm national government:

“Resolved, That in the opinion of congress, it is expedient, that on the 2d Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the
articles
of
confederation,
and reporting to congress and the several legislatures, such
alterations and provisions therein,
as shall, when agreed to in congress, and confirmed by the states, render the federal constitution
adequate
to
the exigencies
of
government, and
the
preservation of the union.
”

From these two acts, it appears, 1st, that the object of the convention was to establish, in these states,
a firm national government;
2d, that this government was to be such as would be
adequate to the exigencies
of
government,
and the preservation of the
union;
3d, that these purposes were to be effected by
alterations and provisions in the articles of confederation,
as it is expressed in the act of congress; or by
such further provisions as should appear necessary,
as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to congress, and to the states, in order to be agreed to by the former, and confirmed by the latter.

From a comparison, and fair construction, of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a
national government,
adequate to the
exigencies of government,
and
of the union;
and to reduce the articles of confederation into such form, as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part: the means should be sacrificed to the end, rather than the end to the means.

Suppose, then, that the expressions defining the authority of the convention, were irreconcileably at variance with each other; that a
national
and
adequate
government could not possibly, in the judgment of the convention, be effected by
alterations
and
provisions
in the
articles
of confederation; which part of the definition ought to have been embraced, and which rejected? Which was the more important; which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of confederation should be disregarded, and an adequate government be provided, and the union preserved; or that an adequate government should be omitted, and the articles of confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed.

But is it necessary to suppose, that these expressions are absolutely irreconcileable to each other; that no
alterations
or
provisions
in the
articles of the confederation,
could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention?

No stress, it is presumed, will, in this case, be laid on the
title;
a change of that could never be deemed an exercise of ungranted power.
Alterations
in the body of the instrument are expressly authorized.
New provisions
therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted, that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative, ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of
alterations and further provisions,
and that which amounts to a
transmutation
of the government. Will it be said, that the alterations ought not to have touched the substance of the confederation? The states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some
substantial
reform had not been in contemplation. Will it be said, that the
fundamental principles
of the confederation were not within the purview of the convention, and ought not to have been varied? I ask, what are these principles? Do they require, that in the establishment of the constitution, the states should be regarded as distinct and independent sovereigns? They are so regarded by the constitution proposed. Do they require, that the members of the government should derive their appointment from the legislatures, not from the people of the states? One branch of the new government is to be appointed by these legislatures; and under the confederation, the delegates to congress
may all
be appointed immediately by the people; and in two states
^x
are actually so appointed. Do they require, that the powers of the government should act on the states, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the states in their collective characters. In some instances also, those of the existing government act immediatelyon individuals. In cases of capture; of piracy; of the post-office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land, by different states; and, above all, in the case of trials by courts martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate: in all these cases, the powers of the confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied, without the intermediate agency of the states? The confederation itself, authorizes a direct tax, to a certain extent, on the post-office. The power of coinage, has been so construed by congress, as to levy a tribute immediately from that source also. But, pretermitting these instances, was it not an acknowledged object of the convention, and the universal expectation of the people, that the regulation of trade should be submitted to the general government, in such a form as would render it an immediate source of general revenue? Had not congress repeatedly recommended this measure, as not inconsistent with the fundamental principles of the confederation? Had not every state, but one; had not New York herself, so far complied with the plan of congress, as to recognize the principle of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the states should be left in possession of their sovereignty and independence? We have seen that, in the new government, as in the old, the general powers are limited; and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.