Welcome back to My little project attempting to cover all of the Federalist Papers. This is a long and tiring endeavor and I appreciate those who have followed me through this.
You will find Part I covering Nos. 1-12 HERE.
Part II covering Nos 13-20 is HERE
Part III covering Nos. 21-30 is HERE.
This is Part IV covering Nos. 31-40 of what has so far been the Alexander Hamilton show. By now, I'm gonna go our on a limb that even Lin-Manuel Miranda could not do justice to this great man who was probably the best political philosopher of American democracy and the finest political theorist of the 18th century. I've been reading Machiavelli alongside these papers and the difference is like comparing a Ford Model T to a Tesla Model S (I know. I felt sick writing that too.)
The TLDR for everything is basically: taxation, taxation, and evrything Hamilton planned for the financial system of the United States was approved by the Constitution.
Federalist No. 31: The Same Subject Continued: Concerning the General Power of Taxation [Alexander Hamilton]
TL;DR: And we’re back to Alex again. Hamilton builds on No. 30 by expounding more abbout the Implied Powers doctrine. This time, he arrives at the Living Constitution doctrione that follows from the assumptions of Implied Powers. Simply put, if we accept the implied powers assumpotion that a government’s powers must be equal to the responsibilities whivh are thrust upon it… it follows that the powers of a government SHOULD evolve as the threats and responsibilities it faces evolve.
I credit Hamilton with foreseeing the likes of the modern GOP in No. 22; and the future needs oof the United States in No. 30; but No. 31 goes further in expounding Hamiltonian political theory in a way that can be explained to even the thickest-skulled small-government libertarian.
Hamilton opens No. 31 by comparing political theory to math in that it is based on fundamental axioms (i.e,. assumptions). He goes on to list these axioms of Hamiltonian political theory:
a.) A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, b.) and to the complete execution of the trusts for which it is responsible, c.) free from every other control but a regard to the public good and to the sense of the people.
Hamilton goes on to say that a proper government should only be limited in one sense.
A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.
Hamilton further argues that since none among the framers of the Constitution can possibly foresse every possible scenario of national defense (although Hamilton does come close if not quite.), that no Constitution can exhaustively enumerate the powers a governmment would need to execute ALL its duties.
As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.
This brings us to another Hamiltonian formulation: the doctrine of the Living Constuitution. This doctrine stipulates thast new inventions and social change will inevitably arise such that govvernment powers should therefore evolve to deal with these changing circumstances.
If you’re familiar with the more tolerable conservative writers like Ross Douhat and George Will, you will know that conservatives HATE trhis doctrine. The next time you encounter such mouthbreathers, I ssuggest throwing a little Alexander Hamilton at them.
Hamilton also throws shade at those of the Jeffersonian (i.e. small government libertarian) persuasion who make bad faith arguments seeking to limit government powers of taxation. Hamilton conclludes that the Federal government ought to have uinqualified powers of taxation SO LONG AS such does not deprive State governments of the means to perform their own responsibilities.
. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union.
THAT the Republicans arguably did when they reduced SALT deductions with their 2017 corporate giveaway; not that post-Reagan Republicans have ever followed Hamiltonian principles. Alexander Hamilton was probably the only founding father to foresee American Greatness and call for adequate provisions to asttain it; so I find it ironic that the modern Republican Party that claims to believe in “making America Great” is so divorced from Hamiltonian principles.
Hamilton continues by discussing the need to balance State and Federal wants with regard to taxation.
But an indefinite power of taxation in the LATTER [Federal government] might, and probably would in time, deprive the FORMER [State governments] of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments.
This kind of principle has been violated ever since Reaganist tax policy started pitting States agaainst each other in a race to the bottom. In Hamilton’s conclusion, he answers the previously stated concern with an insightfiul observation made many times previously in these papers.
It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ toward insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members.
We must always remember that highlighted line whenever faced with another idiot arguing for “states rights.” This is why No. 31 ranks pretty highly among my favorites among the 85 Federalist Papers.
Federalist No. 32: The Same Subject Continued: Concerning the General Power of Taxation [Alexander Hamilton]
TL;DR:Hamilton stops his theme about expansive Federal Powers to discuss the issues of the Tennth Amendm,ent. He accepts that the doctrine of implied powers can also devolve to the state governments and discusses how to strike that delicate balance of rights and powers (i.e. how to properly interpret the Tenth Amendment).
More contemporary contrarians may argue that Hamilton’s confidence in the States being secure from Federal usurpation had a lot of merit in the pre-Civil War era when the United States WERE rather than in modern America where the United State IS. Another change brought on by the Civil War was the Sixteenth Amendment which finally authorized the Federal Government to directly collect revenue from the People without a reliance on the States.
In the following passage, notice how Hamilton adresses the topic of wehat would become the Tenth Amendment.
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. 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: a.) where the Constitution in express terms granted an exclusive authority to the Union; b.) where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and c.) where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.
Hamilton makes a lengthy discussion of these cases by disssecting taxation powers. In the first case, the Constiutution explicitly grants Congress the authority to impose and collect taxes, duties, and excises; andf, in the second case, it prohibits the States from imposing import and export duties without the consent of Congress. For trhe third case, he cites the provision in the Conssyttitution providing for a uniform rule of naturalization across the United States which implies that the Federal Government has the power to set nasturalization and citizenship law across the whole United States. The Fifteenth Amendment since adopted into the Constitution falls into the third case as it applies the Constitution’s limits on the States which implies the Federal government is authorized to enforce the strictures of the Constitution onto individual States. Such would also be the case for the First Amendment wyhich denies powers to BOTH the Federal and States governments but which the Federal Judiciary must ulltimately serve as the Supreme arbiter. I would now apologize for inserting a long quote because Hamilton’s follow-up to the third case is worth reading in full.
A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power EXCLUSIVE in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them ABSOLUTELY from the imposition of taxes of the former kind, and to leave them at liberty to lay others SUBJECT TO THE CONTROL of the national legislature. The restraining or prohibitory clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion; which is, that the States, WITH THE CONSENT of the national legislature, might tax imports and exports; and that they might tax every other article, UNLESS CONTROLLED by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind.
I felt that i was necessary to include the build-up to the highlighted sentence; and to dwell on the passages after it. Hamilton is clear here in denouncing the most common kind of Tenther argument as sophistry. Since there are still other pieces to go over, I can’t dwell on this; but another more insightful reader might find something I missed in this lengthy and complex discussion.
Lastly, Hamilton concludes that the prevention of instances of the third case makes explicit provissions divesting the States of specific powers impractical. As such, the Tenth Amendment does not necesarily disemmpower the Federal Governmment from implied powers; but implied powers also devolve to the States through the Tenth Amendment.
The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.
Federalist No. 33: The Same Subject Continued: Concerning the General Power of Taxation [Alexander Hamilton]
TL;DR: Federallist No. 33 is a lengthy rebuittal to objections to “implied powers” and the “supremacy clause.” Hamilton points out thathe has jusat spent the last few Federalist essays making a “well, duh?” argument becauisethese provisions of the Constiitution woill natuirally proceed from common sense even if they weren’t explicitly spelled out. Our Framers properly foresaw the need to idiot-proof the Constitution by inserting the Supremacy and Necessary AND Proper clauses.
Hamilton (yes, again) opens No.33 by citing the basis of the doctine of implied powers as stated in the Constitution.
THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature "to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof"; and the second clause of the sixth article declares, "that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding."
The first highlighted passsage states the constitutional basis for “implied powers”; and the second passage is the oft-cited Supremacy clause that declares Sates to have no power to nullify federal law (a Jeffersonian invention with no basis in the Constitution or in these papers).
Hamilton weighs on the supposition that these clauses can be used as vehicles for tyranny against the State governments.
These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.
Hamilton reasonably deduuces that a power is but the ability to do something; the ability to do something can then be said to be the power to employ the MEANS to execute a legistlation; and that legislation is therefore simply the powwer to make laws to impose and collect taxes; and that the means to execuite such laws are nothing more but NECESSARY and PROPER laws?
Hamilton’s train of argument leads us back to his fundamental precept of political philosophy: implied powers. Another interpretation of the highlighted line above is that Hamilton is sassing the densest idiotsd among us. The Supremacy cklause and the necessaryy and proper clause are such obvious commonsense implications of establishing a national government that their removal won’t really meaningfully affect the Constitution. Hamilton is basically saying those clauses are there to idiot-proof the Coonstyittution should a future faction arhue that their absence limits the powers of the federal government; and Al;lex here is exercising marvelous restraint in having to explain so obvious a point without ebngaging in massive amounts of sass and name-calling. It’s a sentiment echoed by that famous Kennedy vs. Mendoza-Martinez decision wherein the Supreme Court ruled that the Constitution must be interpreted with a little common sense to prevent it from turning into a suicide pact/
This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect?
[...]
I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union.
In the second highlighted passage, Hamilton makes it clear that he dwellerd on the topic of taxation because it is a fundamental poweerv that is the basis of the Federal government’s powers. In a subsequent paragraph, Hamilton also explainsd that this explicit delegation was necessary because the founders feared State governments sapping the authority of the Federal Government.
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.
This point was so critical that Congress was able to impose direct Income Taxes during the Civil War which were only later authorized by the Constitution through the Sixteenth Amendment.
Hamilton goes on to sensibly argue that a federal law without tyhe presumption of Supremacy over State strictures can hardly be called a law at all.
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY.
Hamilton does bring up his one exception to this principle; which we might relate back to his arguments about the Tenth Amendment back in No. 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.
Hamilton concludes this installment with the following paragraph reinforcing that tenth Amendment point.
gh a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.
The highlighted sentence reveals aother incorrect assumption held by Hamilton in that only sane reasonable leaders wilol find themselves to be in power in either end of the Tenth Amendment. The more contemporary failures of that assumption has contributed tyto an ongoing constitutional crisis wherein commonsense has clearly been in decline abetted by a Supreme Court prone to suborning radical usurpations of power that favor their ideological persuasion.
Federalist No. 34: The Same Subject Continued: Concerning the General Power of Taxation [Alexander Hamilton]
TL;DR — In Federalist No. 34, Alexander Hamilton expounds on the the logic of his political philosophy. Of the 85 Federalist Papers, Hamilton wrote 8 of them on the topic of taxation. This alone should tell us of how important this topic is to the intent of the Constitution. In No. 34, Hamilton logically expands on the importance of giving the State governments equivalent powers of taxation as the Federal Government. Hmilton also lays the foundation for his National Debt Plan...which is immortalized in one of those cabinet meeting rap battles from the musical Hamilton and maybe the most important precedent for the United States serving as a vehicle for economic redistribution.
The first thing Hamilton does in No. 34 is to demonstrate that the Constitution does not deprive the States of sufficient means to execute their responsibilities.
FLATTER myself it has been clearly shown in my last number that the particular States, under the proposed Constitution, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, independent of all external control.
Hamilton then defends this vertical separation of powers between State and Federal governments and argues that there does no necessarily exist a contradiction between the two authorities. He cites the example of the Roman Republic with its separate bodies representing the plebian and patrician classes. A savvy observer of Roman history might rightfully point to how this arranngement led to enough stalemate in the Roman Republic as to lead to its disintegration. Hamilton, however, argues with a hopeful note.
In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within A VERY NARROW COMPASS; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.
In terms of revenue, this has come to pass; but I would lament that the activist Roberts Court has allowed the opposite to happen with respect to federal-state powers. The Red States have become increasingly easger to usurp more powers to enable local tyrannies while the Federal Government’s duty to enforce the Constitution has rendered it unable to abstain from matters of civil rights where this separation generates conflict. In every case, the partisans in the SCOTUS have sided with the opressive tyrannies emerging in the States.
Hamilton goes on to make another argument for the Living Constitution principle.
Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government intrusted with the care of the national defense in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise?
It should be noted that these exigencies are sanctioned by the Constitution under the Necessary and Proper clause.
t is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight
It is around here and later, in No. 35, that Hamilton ventures into questions of War and Peace.
Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations.
He also spends time tackling questions of war and peace. Hamilton'ds forward thinking failed to imagine a world where the United States would be able to create a peaceful systems he makes he following fatalistic recommendation.
To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character.
I do not agree with Hamilton’s assessment though I think it has been naive on some on our side of the political spectrum to oppose defence spending. However, I am also glad the Union has been able to exceed some of even Hamilton’s arguably high expectations. Hamilton, unfortnately, failed to foresee the expanded role of the federal government following the Civil War, World War II, a, and the Civil War. Going by history, I am in agreement with President Biden: cool the talk on Build Back Better; and use the Ukraine War to justify higher taxes; then reallocate those taxes to real domestic priorities like was done after WWII and the Civil War.
What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.
Hamilton saw the Revolutionary War as a common struggle where a few states on the front lines bore the brunt of the burden (i.e. New York, New England) while the others (i.e. Virginia) were relatively unscathed. This os the crux of his economic argument for the Union: there has to be an equal sharing of the burden. (i.e. Virginia should help New York pay its war debts.)
Take a gander at this penultimate paragraph.
In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in EXCLUSION of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them.
That last line, is Alexander Fu$#%ing Hamilton, architect of American capitalism, arguing for redistribution of resources. Hamilton’s assumption plan is the basis for the Union. So there you have it, there;s historical basis for the government assuming debts, No, 34 can be handy the next time you want to argue for student loan forgiveness.
Hamilton concludes by discussing the nature of Federal-State jurisdiction on taxation. He makes it clear there is no intent to subordinate the States; ut neither is there an intent to sacrifice the Union to empower the individual States.
preceding train of observation will justify the position which has been elsewhere laid down, that "A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities.
Federalist No. 35: The Same Subject Continued: Concerning the General Power of Taxation [Alexander Hamilton]
TL;DR — In Federalist No. 35, Hamilton puts on an economist hat and gives the lecture we wish all those anti-tax libertarians would get at school. Hamilton explains his view on inequality, why all revenue and budget bills must originate from the House; how to build political coalitions based on economic interests, and lays out his forward-looking vision of the United States as a commercial rather than agrarian economy.
Hamilton opens No. 35 by making it clear that there are noo limits intended for the Federal Government’s powers of taxation, contraryy to whhat your average libertartian claims.
I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.
The clear implication of this paragraph is that split schemes like taxing capital gains sepparately from income; or not taxing wealth are perversions of the Founders’ intent. It can even be arguerd that schemes like Califpornia’s Prop. 22 are unconstitutional limits on the power of taxation in violation of the Tenth Amendment.
Hamilton goes on to cover tax policy extensively; and points out the perverse incentives that limiting government taxing power would bring. He also ends up admitting all the injuries bad tax policy would bring. In a way, he both rebuts and makes the libertariians’ point for them.
Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.
He makes all the usual points: the consumer is always the payer of a tax on items, misguided taxation can distort consumption and capital in various ways, If we quote line by line, a libertarian can easily twist Hamilton into a libertarian position on taxes; but if you read carefully, Hamilton is actually arguing the dangers of limiting government powers on taxation; and of compartamentalizing tAaxation into categorties like incoime, capital gains, consumption, salkes, etc. Be reminded that most states are reliant on sales taxes, and accordingly give undue advantages to e-commerce because sales taxes disproportionately fall on physical retailers ndue to the unique complications created by the transition to online commerce.At the same time, he also warns of the perverse incentives created bv exorbitant taxation. He should know, the country he was helping found just fought a revolution over exorbitant tax policies.
Hamilton goes on to discuss the House of Representastives by first dismissing concerns that it isn’t large enough to be truly representative of ther people which Hamilton dismisses as specious. Hamilton goes on to diuscuss coialition building. First he dismisses the idea of reprsentastion across classes as preposterous.
The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice.
Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce.
With class out of the way, Hamilton makes other observations about other fault lines in society.
With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.
But Hamilton finds a unifying issue that can unite both across class, and across professions: property.
Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number.
Hamiltoon comes up with It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to.
Notice the arguumenmt for representation; and the argument that property-owners would be naturally united in political coalition. Hamilton, in fact,. is giving us a political blueprint for coalition building.
Hamilton then lays out the bases of the norm for budget bills originating in the House, which Hamilton considers mnore likely to be attuned to the economic interests of their constituents.
we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.
The last sentence i also your ready-made rebuttal for anti-Seventeenthers still bitter about the ability of voters to directly elect their Senators.
Finally, Hamilton argues that expertise and direct accountability to the People make one less likely to resort to opressive schemes of taxation. He gives onre final explanation for why he just spent a lot of paper talking about taxes.
There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.
Federalist No. 36: The Same Subject Continued: Concerning the General Power of Taxation [Alexander Hamilton]
TL;DR — In Federalist No. 36, Hamilton spends more time justifying the choices the Constitutional Convention made in defining the Federal Government’s powers of taxation. Hamilton covers eligibility for office and the census in one neast package.
In this installment, Hamilton opens by first talking about who SHOULD be eligible to run for Congress.
WE HAVE seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, who will truly represent all those different interests and views.
Hamilton continues by adressing accusations that the above sentences would be ‘elitist’
If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient number to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation; but occasional instances of this sort will not render the reasoning founded upon the general course of things, less conclusive
Then Hamilton goes on to justify his first supposition
The subject might be placed in several other lights that would all lead to the same result; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking weaver, than between the merchant and either of them? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the representative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency.
Hamilton then adresses the supposition that the federal government will not be able to exercise its authority effectively because of a lack of knowledge of local conditions. And here is where he proposes the Founders’ solution: THE CENSUS.
Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry?
That’s right folks, the census requires a count of EVERYONE who might conceivabbly pay taxes, NOT just citizens. So keep that information handy for the next time we debate that thing.
Hasmilton then emphasizes tht certain sections of the Constitution are placed there moy because they are necessary; but because the Conveention made it a priiority to grant the Federal Government EFFECTIVE powers.
has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter resource? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual;
[...]
The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part.
It’s been a recurring theme by now; but Hamilton really makes it clear that the Federal Government SHOULDN’T be reliant on the states for the exercise of its powers. Hamiltpon finbishes by making a distinction between the powers a government possesses; and whether such powers would be exercised.
Basically, Hamnilton believes in not tying the government’s hands unecessarily or prematurely just in case some expediency may arise.
As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States1 which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource.
Federalist No. 37: Concerning the Difficulties of the Convention in Devising a Proper Form of Government [James Madison]
TL;DR — In Federalist No. 37, Madison, in contrast to the confidence and certainty he demonstrated in No. 10; and to Hamilton’s more assured tone, actually issues a disclaimer for the Constitution: “The framers are only human, we likely fucked up somewhere there. Please don’t @ us. Sorry.”
Madison opens No. 38 by srecapitulating how defective the Articles of Confederation was and how the Constitution ought to sanction a government with power equal to the task of promoting the public good. Madison enjoins everyone to evaluate the Constityution with a spirit of moderation which is essential to justlly determine its benefices and impacts to public welfare.
To Madison, as with Hamilton, every other example of a confederation to come before had some fundamental defect and that looking into these should help the framers avoid past mistakes. Yet, he still acknowledges the novelties of the undertaking.
Madison makes a longdiscussion on the importance of balancing stability, government power, and liberty. This point makes it clear that while liberty is important to the founding intent; it is by no means absolute.
Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same.
Madisonian calculations attempt to solve the contrary demands of Stability and Liberty. In doing so, he makes it clear that the Federal Government exists to constrain the States, that the power of the government must derive from the People, and that rule by bodies instead of by a single person is prefferable to Madison.
Madison then goes on to delineate the line between Federal and State Power. Here he admits the difficulty: not even the most accomplished natural scientists employing the science of Taxonomy can clearly define the booundary between plants and unorganized matter. This undertaking is then complicated by the additional difficulty of doing so in the more complezx circumstances of political science. This kind of answer has been made by the Supreme Court with respect to pornography; and more recently by Jutice KBJ in defining “ a woman.” This is a reminder that even the Founders had difficulty providing answers to alll their pressing questions; much less provide new ones for those that vex us today.
Hamilton goes on to remind readers that the framers are mere humans so they cannot make perfect laws even in the most ideal conditions.
The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects,
He also adds that the execution and interpretation of the Constitution will be done by humans working through the imperfect medium of language.
the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
And this problem in No. 38 is the foundation of all the hand-wringing lawyers do when they debate grammar and wording in court.
Madison then goes on to attempt to tasckle the State-Federall poroblem one more time:
To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.
Madison is here describing and justifying the Great Compromise that squared the Virginia Plan calling for representation in proportion to population and the New Jersey Plan calling for equality among the States. This, of course, produced the bicameral Congress. Madison himself gives another disclaimer for the Constitution. It’s not meant to be perfect; it’s meant to be the best compromise everyone could agree on.
Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
Federalist No. 38: The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed [James Madison]
TL;DR — In Federalist No. 38, Madison continues his theme of adressing the possibility of defects in the Constitutional design. He makes a long digression into history to justify some positions the Convention took. A lot of this irrelevant in 2022; but many of these thoughts are still worth noting.
Madison starts No. 38 with a long digression into the history of Greece and previous confederaciies. (It’s five paragraphs because I wasn’t kidding when I said most of this was going to be irrelevant to us in 2022. The first theme of No. 38 is howw often Greek rcity-states empowered single individualsd to reform their governments. Madison notes ghow these are dangerous precerdents for liberty although he acknowkledges how these some of reformers have suceeded as well.
History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
As in No. 37, Madison concedes that the American Republic is novel; anbd that such experiments can suffer from flaws that histtory provides no precedent for; and which the Founders cannot anticipate.
s it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out?
I believe the takeaway from this ass-covering on Madison’s Part is another reminder that the Constitution SHOULDN’T be the final authority here in 2022. Madison himself concedes the Constitution is an “untested” remedy that was created by expedience for the defects of the Confederation and that it’s swidt framing annd adoption should be treasted as a matter of experedience rather than a final word; as has been proven by the extent of the Reconstruction Amendments in the 1860s. In fact, some of the most consequential parts of the Constitution are amendments that didn’t exist when these papers were being written in the 1780s although many Amendments are based on Hamilton’s suggestions. Madison gives sage advice for those of the progressive persuasion in 2022: Don’t let the perfect be the enemy pof the good.
It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it.
This sentence, in particular, clarifies the intent of giving the federal government extensive powers to over the States because giving the States too much power was a defect of the Articles of Confederation.
shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union.
Madison concludes with this paragraph affirming the intent of goiving strong powers to ther federal government; but also warning of it usurping new powers due to an inability to do its duties (eehem, ehem, Mitch McConnell.)
not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.
Federalist No. 39: The Conformity of the Plan to Republican Principles [James Madison]
TL;DR — In Federalist No. 39, Madison makes a lengthy dissection of the conccept of Republics. Much of what he says is irrelevant to us in 2022; but some are worth reading for Madison’s views on how the Constitution should work.
At the opening of No. 39, Madison asks whether the experiment laid out in the Constitution is indeed republican (small R). He spends the next several paragraphs saying that yes, the American Constitution isd indeed republican not the least because only a republic would be consistent and acceptable to the genius of the American people.
Part of his yes is a more complicated dissection of what exactly consytitutes a republic which is mostly irrelevant to us. However, for your next argument wqith a sophist….. you might want to keep his definition handy.
If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.
Madison’s next work is in dissecting whether the Constitution is federal or national in nature.
Madison answers that the United States is a federation.
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 have 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.
But notice that the above paragraphg only refers to the CREATION of the United States. Madison has a different view for its operation.
e difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is 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. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.
Madison makes it clear that the federal government is intended to act as a NATIONAL government. wherein the will of the majhority of the people, or the presumed majority through the majority of the states ought to bind the minority.
Federalist No. 40: The Powers of the Convention to Form a Mixed Government Examined and Sustained [James Madison]
TL;DR — In Federalist No. 40, Madison tackles the controversy of whether the Constitutional Convention in Philadelphia hadf the mandate and authority to replace the Articles of Confederation. (SPOILER ALERT: Yes. Yes they did). As with No. 39. Many of these points are irrelevant to us today. However, they are relevant to deciphering the intent iof the Founding Fathers.
No. 40 is a long defense of the Constitutional Convention ciiting their instructions from the State governments and asserting that they did not exceed their authority in framing a Constitution.
I’m aware of the more pressing issues of current events; but it is unfortunate that the Founding Fathers don’t cover the Judiciary until the later papers. Tune in next time as we reach the halfway point, and Madison and Hamilton discuss separation of powers.