The Federalist. Hamilton Alexander
Publius strongly believes it is necessary to maintain the separation of powers provided for in Articles I, II, and III of the proposed Constitution. In No. 47, he indicates in no uncertain terms why it is necessary to maintain this partition. Echoing the accepted wisdom of that period, he writes that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” By tyranny, as he makes clear by quoting from Montesquieu, he means arbitrary, capricious, and oppressive rule by those possessing any two of these powers. Thus, he believes that for the proposed Constitution to succeed it is imperative that no one branch be able to exercise the whole power of another.
In the remaining papers in this group, Publius sets out to canvass the means by which the departments can be kept separate in order to prevent tyranny. In the first of these (No. 48), he inquires whether “parchment barriers” or written provisions in the Constitution to the effect that each department should stay within its own sphere would be sufficient to maintain the separation. In answering this question, he emphasizes that the legislature is most to be feared because it “is every where extending the sphere of its activity and drawing all power into its impetuous vortex.” For this reason, he urges the people “to indulge all their jealousy, and exhaust all the precautions” against this branch of government. Noting that the legislature possesses so many means and pretexts for aggrandizing the powers of the other branches, and mindful of difficulties experienced by some State governments, he concludes that a delineation of powers of the branches in the constitution will not, by itself, serve to prevent a “tyrannical concentration” of powers.
He next turns his attention (No. 49) to a critical examination of Jefferson’s proposal for keeping the branches within their proper spheres. The Jefferson plan called for appeals to the people whenever two-thirds of the membership of two branches of government so requested. Upon such an appeal a popularly elected convention would meet to resolve the conflict. Aside from certain technical difficulties that he notes, Publius finds the plan seriously deficient from a theoretical point of view. He believes that such occasional appeals to the people over constitutional questions would, particularly if frequent, serve to undermine popular “veneration” of the government in that they would suggest serious defects in the system. The favorable opinion of the people upon which the authority of government ultimately rests would then, he maintains, suffer a serious, if not complete, erosion. Moreover, passions would be aroused over these constitutional matters, thereby disturbing the “public tranquillity” and the very stability of the constitutional order. But the “greatest objection,” in his mind, is that the legislature is most likely to encroach on the other branches and that its members, because of their influence and popularity with the people, would most likely be the members of any convention elected to redress the alleged violations. Consequently, the legislators would be the judge of their own cause. But even if this were not the case, Publius argues that “passions,” not “reason,” would most likely prevail in these conventions.
Publius then considers (No. 50) whether periodic appeals to the people at fixed intervals might serve the purpose of maintaining the necessary separation of powers. Again he sees fatal flaws in any such scheme. If the appeals occur too close to the time of the alleged infraction, they will be attended with all the “circumstances” which “vitiate and pervert the result of” occasional appeals. And if the interval between the appeal and the alleged transgression is a long one, he sees good reasons why the appeal is not likely to serve its purpose: the prospect of distant censure will not restrain those bent upon aggrandizement; the transgressors might have already accomplished their ends, thereby rendering the remedy superfluous; or the transgression may, in the interval, have taken “deep root” so that it cannot be remedied. He notes that the experience of Pennsylvania with its Council of Censors bears out his observations concerning the ineffectiveness of this barrier.
Having rejected paper barricades, and occasional and periodic appeals, Publius proceeds in Federalist No. 51 to set forth his solution to the problem of maintaining the necessary constitutional separation. “The only answer,” he contends, consists in “contriving the interior structure of government” so that the departments “by their mutual relations” will keep “each other in their proper places.” This, in turn, requires “giving to those who administer each department, the necessary constitutional means, and personal motives, to resist the encroachment of others.” After noting that the “compound” nature of the republic with “two distinct governments” controlling each other will provide a “double security . . . to the rights of the people,” he concludes this essay by reformulating the arguments used in his Federalist No. 10 to show how the extended federal republic, with its multiple and diverse interests, will render the formation of majority factions “improbable, if not impracticable.” He reasserts the proposition “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.”
D. The House of Representatives
With Federalist No. 52, Publius begins his examination of the specific institutions of the proposed Constitution: the House of Representatives, the Senate, the executive, and the judiciary. This survey runs through No. 83, or all but the last two essays of the volume.
Essay No. 52 is also the first of ten devoted to describing and explaining the constitutional provisions and features of the House of Representatives. In this particular paper, Publius remarks on the propriety of the constitutional provisions relating to the qualifications for voting for members of the House and the qualifications for membership in this chamber. He then takes up the more controversial matter of whether the two-year term for members of the House will endanger the liberties of the people. Surveying the experiences of Great Britain and Ireland but particularly those of the States, he concludes that biennial elections pose “no danger” to liberty.
Publius resumes his discussion of the appropriateness of a two-year term (No. 53) by taking up and debunking the notion “that where annual elections end, tyranny begins.” In this endeavor, he explicitly sets forth for the first time the American doctrine of constitutionalism, which holds that a constitution, resting on the consent of the people, is “unalterable by the government” it creates. The major portion of the essay deals with the necessity and utility of two-year terms. On this score, he emphasizes the need for representatives to have sufficient time to acquire “the knowledge requisite for federal legislation.”
Publius next (No. 54) confronts the matter of apportioning representatives among the States according to population and, specifically, to the matter of counting slaves as three-fifths of a person. Speaking through the medium of “one of our Southern brethren,” he offers up the reasons for the three-fifths “compromise” that emerged from the Philadelphia Convention. Among those he cites are that the laws regard slaves as both property and persons; that the Southern States would regard it as inequitable to count slaves for purposes of taxation but not for representation; and that there should be some allowance for the comparative wealth of the States in apportioning seats. Though conceding that this reasoning is “a little strained in some points,” he finds that, taken as a whole, it “fully reconciles” him to the compromise. He concludes this essay by noting that the “common measure” for purposes of representation and taxation will render it unlikely that the States will attempt to distort their actual populations. That is, the disposition to reduce the number of inhabitants for purposes of taxation will be counteracted by the potential loss of representatives.
With Federalist No. 55, Publius begins a series of four papers that deal with four major criticisms that have been leveled against the House of Representatives regarding its composition and capacity to represent the people. This paper is concerned with the question of size and whether the House—initially to consist of only sixty-five members—is a safe “depository of the public interests.” Noting that there is no exact formula for determining the proper size of a legislative assembly, he maintains that the number must be sufficient for purposes of “consultation and discussion” and to prevent cabals. On the other hand, he emphasizes that it must also be limited “in order to avoid the confusion and intemperance of a multitude.” In this connection, he writes, “Had every Athenian citizen been a Socrates, every Athenian