14. American State Papers

The Declaration of Independence, the document declaring the freedom of the thirteen American colonies from British rule, was adopted by the Continental Congress on July 4, 1776. Written primarily by Thomas Jefferson, it affirms the natural rights of man and the doctrine of government by contract, which the Continental Congress felt had been repeatedly violated by King George III. The Constitution of the United States of America, the document defining the principal organs of American government and their jurisdictions, was drafted by the Constitutional Convention of 1787 and, after the ninth state had ratified it, was declared in effect by Congress on March 4, 1789. It consists of seven articles and numerous amendments, the latter affirming the basic rights of citizens as well as clarifying and updating the content of the articles. The Federalist consists of articles appearing in New York newspapers from October 1897 to April 1788 urging the people of the state of New York to ratify the Constitution. Its chief author was Alexander Hamilton, but some of its articles were contributed by James Madison (whose role in framing the Constitution was such that he is often called the “Father of the Constitution”) and some by John Jay; however all of its articles are signed “Publius.”

Mortimer J. Adler and Peter Wolff conclude the introduction to their consideration of the three “American state papers” in volume 1, An Introduction to the Great Books and to a Liberal Education, of The Great Ideas Program (Encyclopedia Britannica, 1959) with this comment about The Federalist:

“The adult who reads The Federalist for the first time will enjoy the sense of acquiring an understanding of his government which should be the property of every citizen. More than that, he will be struck by the clarity and power of both the thought and the writing. They exemplify the common level of political discourse in the days when this republic was formed. The articles which comprise The Federalist were current political journalism in the years 1787-1789. They were written for newspaper readers. If we contemplate that fact, and compare the level of their style and substance with that of political speeches, articles, or journalism in our own day, we are compelled to wonder about the education of our political leaders as well as of our citizens today.” (Adler and Wolff, An Introduction to the Great Books and to a Liberal Education, page 160)

Adler and Wolff go on to put the three papers in their historical context, to show how the Constitution displays both the tendency to give power and responsibility to the people (favoured by Jefferson) and the tendency to safeguard against the uses to which people might put such power (favoured by the Federalists), to consider the remedy proposed by Madison in The Federalist to deal with faction in a popular government, to show how the Constitution provides for the separation of the powers of government, and to discuss four other questions about the papers. I opened this post by putting the papers in historical context, and in the rest of the post I’ll summarize what Adler and Wolff say about how the Constitution displays both the tendency to give power and responsibility to the people and the tendency to safeguard against the uses to which people might put such power, about Madison’s remedy for faction in a popular government, and about how the Constitution provides for the separation of powers. However I won’t share here from their discussion of the four other questions.

The Constitution a Compromise between Two Opposed Tendencies

Jefferson favoured placing power and responsibility in the hands of the people as far as possible, but the Federalists wanted safeguards against the uses to which the people might put such power. The Constitution contains many evidences of these two opposed tendencies. Adler and Wolff identify these three: (1) the Congress of the United States consists of a Senate and a House of Representatives with the House of Representatives’s being elected by the people and having its seats up for election every two years, but the Senate’s being chosen by the state legislatures instead of being elected by the people (this was changed by the thirteenth amendment) and having only a third of its seats changed at each election; (2) the President is elected by the people rather than by the state legislatures or governors, but the election is indirect with the people’s electing electors who in turn elect the president; and (3) only the House of Representatives can initiate bills having to do with money matters (presumably because taxation is to go along with representation), but only the Senate is consulted in matters of foreign policy (presumably because it is not subject to sudden and disastrous whims). Adler and Wolff explain how each of the three represents a compromise between the two tendencies.

Dealing with Faction in a Popular Government

In The Federalist, No. 10, Madison deals with the problem of internal instability, and faction in popular governments. Here is how he describes the problem:

“Complaints are everywhere heard from our most considerate and virtuous citizens…that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” (The Federalist in volume 43 of Great Books of the Western World, Encyclopedia Britannica, 1952, page 49)

Madison blames the problem on factions, groups of citizens which try to control the government for their own special interests rather than for the common good. He says that we can prevent this either by eliminating the causes of factions or by controlling their effects. Factions can be eliminated “by destroying the liberty which is essential to [their] existence” or “by giving to every citizen the same opinions, the same passions, and the same interests” (The Federalist, page 50). However the first remedy is unwise, liberty’s being essential to political life, and the second remedy is clearly impossible. Thus he concludes that the way to deal with factions is to realize that they will always be with us and to concentrate on dealing with their effects.

Observing that a faction becomes dangerous when it becomes the majority in a popular government, Madison proposes a way to prevent a faction from becoming the ruling power‒having republican rather than democratic government. He points out these differences between a democracy and a republic:

“first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended” (The Federalist, pages 52-52).

And he claims that delegates will often recognize the true interest of the country better than the people themselves could and that a larger country suffers less from the evils of factions than a small one because it takes in a greater variety of parties and interests.

The Separation of the Powers of Government

The separation of the legislative, executive, and judicial powers is a basic provision of the Constitution. Locke mentions the separation of powers, but the doctrine that it is all-important for free government stems from Montesquieu. After explaining how liberty is threatened by the uniting of the legislative powers in the same person or body or the joining of the judicial with either of them, he affirms, “There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals” (Montesquieu, The Spirit of Laws, in volume 38 of Great Books of the Western World, Encyclopedia Britannica, 1952, page 70).

However, despite the importance of the separation of powers in the Constitution, there is considerable mixing of government powers (the so-called system of checks and balances). Although some mixture of powers is defensible, they should for the most part be kept separate. How can this be done? The Federalist answers:

“The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper place….

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others….

“It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices….

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counterattack ambition. The interest of the man must ve connected with the constitutional rights of the place.” (The Federalist, pages 162-163)

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