Beruflich Dokumente
Kultur Dokumente
Recent Scholarship
Kathleen O. Potter
2002007287
ISBN 1-931202-44-3
Printed on acid-free 250-year-life paper.
Manufactured in the United States of America.
Table of Contents
Acknowledgments................................................................... xi
Introduction ........................................................................... 1
FOUNDING PRINCIPLES IN THE FEDERALIST .................... 3
ENDS AND MEANS: DIFFERENT TYPES OF POLITICAL
PRINCIPLES...................................................................... 5
THE PUBLIUS TEAM: AN APPROACH TO MULTIPLE
AUTHORSHIP.................................................................... 7
PUBLIUS PURPOSE: A DISTINCTLY AMERICAN
POLITICAL THEORY.......................................................... 8
PUBLIUS ORIGINAL THEORY OF POPULAR
SOVEREIGNTY................................................................ 11
Chapter One: Popular Sovereignty.......................................... 15
MODERN ROOTS OF POPULAR SOVEREIGNTY............... 15
THE SOCIAL COMPACT: THE SECULAR BASIS OF
POPULAR SOVEREIGNTY................................................ 17
AN EVOLVING AMERICAN VIEW OF POPULAR
SOVEREIGNTY................................................................ 20
SUMMARY...................................................................... 27
Chapter Two: Becoming A People........................................ 29
WE THE PEOPLE........................................................... 30
AFFECTIVE BONDS OF CIVIL SOCIETY: THE TIES THAT
BIND............................................................................... 31
THE BOND OF SELF-PRESERVATION.............................. 34
THE BOUNDARIES OF CIVIL SOCIETY: A MATTER OF
CHOICE........................................................................... 37
A ROLE FOR ACCIDENT (FORTUNA)? .............................. 38
SUMMARY...................................................................... 39
vii
viii
Contents
Contents
ix
Acknowledgments
xi
Introduction
Introduction
Introduction
Introduction
Introduction
10
Introduction
11
12
Introduction
13
until the time that Publius undertakes the Federalist essays. This
overview suggests two perspectives from which to consider the
American founding. From a historical (and theoretical) standpoint, the
American founding represents a radical shift toward the popular model
of government. However, viewed though the lens of American
experience, the founding process and the Constitution itself seem like
logical, even modest, steps in the evolution of American
republicanism. Proceeding through the ensuing chapters, we discover
how Publius discussion of the proposed constitution embraces both
points of view.
Chapter Two explores the ways in which Publius adds complexity
to the first stage of the social compact (the creation of civil society) and
the implications of that complexity. Chapter Three illustrates how
Publius presents the ratification procedure for the Constitution as the
first test of social compact theory, one that potentially leads to the first
popular founding in history. Chapter Four examines how Publius
theory alters the nature of the social compact by transforming it from a
static model to a dynamic and progressive one. Chapters Five and Six
are extensions of this chapter and explore the various constitutional
provisions that support the dynamic and progressive compact. Publius
finds an important role for virtue in the social compact, and Chapter
Seven analyzes his conception of virtue in the American Republic. The
concluding chapter provides food for thought by applying Publius
view of popular sovereignty and the social compact to the world of the
twenty-first century.
CHAPTER ONE
Popular Sovereignty
An Overview
16
17
18
19
body, if this one loses its head, it dies, and the subjects of the
commonwealth revert back to their natural condition.
Hobbes ideal commonwealth would be a monarchy, but under his
theory it could just as easily be an aristocracy, oligarchy, or democracy.
The grounds of the compact define the limits in Hobbes formulation
of sovereignty; even in its most restrictive case, the Obligation of the
members may [be extinguished] when there is no farther protection of
the Subjects in their loyalty.3 Hobbes strengthens the notion of
popular sovereignty in three ways: (1) consent of the people becomes
the sole basis for the creation of a sovereign; (2) the possibility of the
creation of a popular sovereign is reintroduced; and (3) the people retain
some small vestige of sovereignty due to the conditions of the
compact.
Once the divine role in the establishment of sovereignty is
undermined and consent is recognized as the only legitimate founding
principle, the people ultimately become sovereign. It is the reach of
this sovereignty that characterizes the differing versions of popular
sovereignty offered by various theorists. Following Hobbes, other
theorists refine and expand the notion of popular sovereignty. Of
these, the most relevant to the American experience is John Locke, who
was widely read and greatly admired by the colonists. Lockes Two
Treatises on Government (1690) appeared on the scene about forty
years after Hobbes Leviathan. While Locke never explicitly uses the
terms sovereign or sovereignty, he does speak of the supreme
power of the people, which many theorists, including myself, consider
to be equivalent.4 Like Hobbes, Locke grounds sovereignty in the
compact. But for Locke the motivations that cause people to leave the
state of nature stem as much from a desire for economic progress as
from a desire to escape the harsh conditions of this pre-political state.5
In addition, Locke sees the reach of the people as necessarily extending
beyond the selection of an absolute ruler. Locke argues that bestowing
absolute and arbitrary power in a monarch, or any group, potentially
leaves the people in a worse condition than they faced in the state of
nature.
To overcome this difficulty, Locke alters the Hobbesian
formulation of the compact in three important respects. First, Locke
20
expressly divides the compact into two stages: the initial stage creates
civil society by unanimous consent; then the people delegate legislative
power (not sovereignty) to some authority by majority consent (135,
149). Second, this legislative power is limited to the public good of
the society. It is a power, that hath no other end but preservation, and
therefore can never have a right to destroy, enslave, or designedly to
impoverish the subjects (135). Third, in Lockes formulation the
legislator (or legislature) is subject to the laws (137, 143). The
government thus created is one of laws, not men. Because Locke
leaves sovereignty in the hands of the people, they retain the right to
assert their supremacy and rid themselves of a government that acts
6
Thus Locke
arbitrarily or otherwise violates its boundaries.
strengthens the Hobbesian version of popular sovereignty by explicitly
locating sovereignty in the people, by stipulating that the government
serves at the pleasure of the majority, and by reintroducing the ancient
distinction between rule of law and rule of men.
Still, even though Lockes scheme strengthens the theoretical basis
of popular sovereignty, it produces a weak or passive form of that
sovereignty except in extraordinary circumstances. By Lockes own
admission, the exercise of popular supremacy requires the ultimate
inconvenience the overthrow of the government:
And thus the community may be said in this respect to be
always the supreme power, but not as considered under any
form of government, because this power of the people can
never take place til the government be dissolved (149).
The problem is that Locke offers no mechanism for popular control.
Even in the case of an elected legislature, the people have little
authority when legislative terms are long and/or when the legislature
retains control over the constitution.7
AN EVOLVING AMERICAN VIEW OF POPULAR
SOVEREIGNTY
The Federalists and their opponents were well-versed in the
philosophical tracts of the natural rights theorists, but the notion of
21
22
23
24
1777 and were not approved by the last state legislature (Rhode Island)
until 1781. In this first constitution of the United States there is no
confusion as to where sovereignty lies; it is divided among the peoples
of the various states. The government of the union is actually an
alliance of sovereign states. This arrangement is made clear by the
method used to ratify the Articles:
Whereas it hath pleased the Great Governor of the World to
incline the hearts of the legislatures we respectively represent
in Congress, to approve of, and to authorize us [the
undersigned] to ratify the said Articles of Confederation and
Perpetual Union.
Notice that it is the legislatures of the states, not the people, that confer
authority on the new government of the union. This agreement, rather
than creating a separate national government, resembles the modern day
United Nations charter, where each member has an equal vote and each
retains its sovereignty. The provision in the Articles that gives each
state one vote, regardless of its population, makes clear the priority of
state sovereignty over national sovereignty. Indeed, as we shall see
later, Publius attributes the weakness of the union in 1787 and the
general disrepute into which it had fallen to this somewhat tenuous
13
foundation for union.
Yet the language of the Articles also indicates that union is not to
be viewed merely as a temporary arrangement for the convenience of the
states. The last two words in the passage quoted above are perpetual
union, and this notion of permanency is repeated two more times in
this final paragraph of the Articles. The emphasis on perpetual union
seems somewhat curious in light of a constitutional foundation that
leaves sovereign authority in the states, particularly in light of the
implications of a divided sovereignty suggested by the Declaration of
Independence. These seemingly incompatible objectives underscore the
real uncertainty that must have existed at the time about how best to
establish a legitimate foundation for union.
While the tensions evident in the Articles illustrate the problems
involved in the practical application of popular sovereignty, the various
state constitutions drafted during the same period indicate some
25
26
27
SUMMARY
The modern conception of popular sovereignty is grounded first in the
covenant theology revived during the protestant reformation. Natural
rights theorists then secularized the basis of popular sovereignty in the
social compact. The American constitutional system acknowledges
both the religious and secular roots of popular sovereignty.
During the period leading up to the Constitutional Convention of
1787, there is first an assertion, then a strengthening, of the principle of
popular sovereignty evidenced in the Declaration of Independence from
Great Britain and in the constitutional experiments taking place in the
various states. On the one hand, these developments exemplify radical
and profoundly democratic events in western political history;15 on the
other hand, they represent small, but logical steps in the evolution of
the American political tradition. As will become apparent in the
following chapters, Publius discussion of popular sovereignty
embraces both points of view.
CHAPTER TWO
Becoming A People
The First Stage of Publius Compact
30
Becoming A People
31
32
Becoming A People
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34
Becoming A People
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36
stage always retain their supremacy over the political institutions that
are created in the second stage. The following passage from The
Federalist might be mistaken for one from Lockes Second Treatise:
If the representatives of the people betray their constituents,
there is then no resource left but in the exertion of that
original right of self defense, which is paramount to all
positive forms of government; and which, against the
usurpations of the national rulers, may be exerted. (28H:140)
In other papers Publius reinforces the notion that the boundaries
that define a civil society are important. In 8H and 51M he pulls out
all the stops as he illustrates how original motives may lead to the
downfall of an ill-considered compact. In 8H he describes the hazards
of deciding to become a plurality of peoples instead of a single people
in the first stage of the compacting process. Disunion, he claims, is
likely to result in continual wars and plunder among the once friendly
states with the following consequences:
Safety from external danger is the most powerful director of
national conduct. Even the ardent love of liberty will, after a
time, give way to its dictates. The violent destruction of life
and property incident to war the continual effort and alarm
attendant on a state of continual danger, will compel nations
the most attached to liberty, to resort for repose and security,
to institutions, which have a tendency to destroy their civil
and political rights. To be more safe they, at length, become
willing to run the risk of being less free. (8H:34)
Publius makes a similar argument in 51M, but here he contends
that it is the want of justice that leads to the destruction of liberty:
Justice is the end of government. It is the end of civil society. It ever
has been, and ever will be pursued, until it be obtained, or until liberty
be lost in the pursuit. He goes on to explain why the size of a society
matters: In a society under the forms of which the stronger faction can
readily unite and oppress the weaker, anarchy may as truly be said to
Becoming A People
37
38
yes meant you were in; a no vote meant you were out. In
admitting to the elasticity of the boundaries of civil society, Publius
complicates this choice. Not only do the compacting people have to
decide whether to enter into civil society, but also they must decide on
the boundaries of that society. Publius suggests that two types of
variables govern that choice. Affective elements, such as common
culture, mutual affection, and a common mission are as important as a
mutual need for security.
However, Publius also points out that the continuance of civil
society requires more than love and respect or even a common need for
protection. His point is that the configuration of civil society matters.
Here he takes us right back to fundamental principles. The decision
that initiates or alters civil society must take into account the goals of
that society. In determining whether the union should consist of one
society or a plurality, Publius tells his readers to take the long view
and to consider the things that really matter to them. In this case the
key political values he highlights are those that are stated not only in
the preamble to the proposed federal constitution, but also in most of
their state constitutions: popular control, the ability to improve the
frame of government, justice, peace, security, economic well-being,
liberty, and stability.
A ROLE FOR ACCIDENT (FORTUNA)?
In his discussion of civil society, Publius approaches the intersection
of choice and accident. He concedes that the American states enjoy the
good fortune of separation from Europe by a vast ocean. But he warns
that insularity alone is not a sufficient deterrent to European meddling
in the Americas. While the combination of union and isolation creates
a bastion against foreign intrusions, this advantage quickly loses its
potency as that union breaks apart. In Number 8H Publius remarks:
If we are wise enough to preserve the Union, we may for ages
enjoy an advantage similar to that of an insulated situation.
Europe is at a great distance from us. Her colonies in our
vicinity, will be likely to continue too much disproportioned
Becoming A People
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40
CHAPTER THREE
A Popular Founding
The Second Stage of Publius Compact
INTRODUCTION
Publius adds important theoretical elements to the first stage of the
social compact, but it is in the second stage that he makes his most
significant contribution. Here he resuscitates the ancient notion that a
political founding is associated with the institution of a higher form of
political law. In the American case, the ratification represents the
founding event and the Constitution, the higher law. The American
founding is unique, however, because the ratification procedure enables
the people to give their constitution to themselves thus establishing
the first popularly founded nation in history.
The introduction of a popularly agreed upon constitution into the
second stage of the compact leads to a more substantive form of
popular sovereignty than the thinner versions offered by Publius
predecessors. This chapter examines the nature of Publius popular
founding and its implications for compact theory. It turns out that the
incorporation of a formal constitution into the compact dramatically
alters the relationship between the people and their government.
To provide some perspective on Publius contribution, it is
necessary to step back for a moment to review how his predecessors
regarded this aspect of the social compact. Recall that in the
Hobbesian version of the compact, once the people grant sovereignty to
a king or an assembly they become subjects and have no further role in
the organization or oversight of their government. The sovereign holds
absolute and arbitrary power, the only constraint being that s/he not
abandon the people.
41
42
A Popular Founding
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44
A Popular Founding
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46
A Popular Founding
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the people.8 The crucial difference is that the ancient peoples played a
passive role in the foundings of their republics, while the American
people are to become active participants in the founding of theirs. And,
while Publius is not adverse to adding the authority of superstition
to the founding process since this is precisely what he does with his
references to Providence and the almighty finger he manages to
avoid the necessity of mixing [in that] portion of violence that
accompanied the ancient foundings (38M:188). By making the people
the founders, it is not necessary for any of the revered citizens to secure
the founding by voluntary renunciation of first his country, and then
of his life (188). The ratification provision in the proposed
constitution alters the Greek precedent by transforming the political
founding from an extra-political milestone into a legitimate political
event, engaged in by the very same people who will continue to be
participants in the polis.9
Publius also points out that there are no examples of a popular
founding in his own time. The important distinction so well
understood in America between a constitution established by the
people, and unalterable by government; and a law established by the
government, and alterable by government, seems to have been little
understood and less observed in any other country (53M:277). Even
Montesquieus much-beloved British constitution provides no better
model with respect to its foundation than the ancient ones. Indeed,
the British constitution, which is unwritten and alterable by
Parliament, falls well short of the mark, as Publius explains:
Wherever the supreme power of legislation has resided, has
been supposed to reside also, a full power to change the form
of government. Even in Great Britain, where the principles
of political and civil liberty have been most discussed; and
where we hear most of the rights of the constitution, it is
maintained that the authority of the parliament is transcendent
and uncontrollable, as well with regard to the constitution, as
the ordinary objects of legislative provision. They have
accordingly, in several instances, actually changed, by
legislative acts, some of the most fundamental articles of the
government. (53M:277-78)
48
A Popular Founding
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50
A Popular Founding
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52
A Popular Founding
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54
A Popular Founding
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He does not even mention the role of the states here. The result, then,
is something more than a confederation or a league but less than a
consolidated government.
What Publius emphasizes in 39M for his contemporaries is the
federal character of the foundation of the national government. What he
says to his future readers, but does not emphasize, is that the people of
the various states, not their governments, serve as the first foundation
of that government. Therefore, the founding is both popular, though
indirect, and federal, though directed by the sovereigns themselves, not
their governments. At a state level, the procedure conforms to the
requirements of compact theory: a majority determines the constitution
of the whole. At a national level the procedure conforms to the federal
principle in that no state becomes a party to the compact without its
consent. This variation on a popular founding becomes the basis for
the principle of federalism (as we now understand it) a principle born
of necessity but which is widely acknowledged to be one of the most
important innovations to emerge from the Philadelphia convention.
Publius figures that his future readers will understand, as have
philosophers from Aristotle to Montesquieu, that the constitutional
design must suit the people. The problem is that his explanation of the
ratification procedure leaves the issue of sovereignty unresolved. He
leaves the interpretation open to the reader.
DOES THE CONSTITUTION CREATE A NEW COMPACT?
The other major departure from compact theory in the ratification
procedure lies in its potential for negating the first stage of the
compact the creation of a people in the process of creating the
political institutions. Recall from the earlier papers Publius plea to
maintain the union, presumably intact. However, the ratification
scheme for the proposed constitution allows the union to be reduced in
size by as many as four states: The ratification of the conventions of
nine States shall be sufficient for the establishment of this
Constitution between the States ratifying the same (as quoted in
43M:227).
A Popular Founding
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A Popular Founding
59
Rhode Island had ratified the Constitution, and by May, 1790, Rhode
Island had come on board. Furthermore, the very publication of The
Federalist Papers, which were addressed to the people of New York
but widely circulated in Virginia and other states, suggests that
Publius, at least, saw the need for keeping as much of the union
together as possible. Nonetheless, the construction of the ratification
provision did strengthen the case for both nullification and secession in
the next century.24
SUMMARY
What we learn from Publius application of social compact theory to
the American situation is that the first and second stages of the
compact are tightly intertwined in a way more suggestive of Hobbes
theory than of Lockes. That the boundaries chosen to define civil
society can affect the longevity of the institutions and that the
boundaries of the union can be altered in the process of installing its
political institutions demonstrate this. The implication is that even the
double bond of affection and self-preservation, which supposedly
supplies the glue that unifies civil society, is not so durable as one
might imagine.
In his discussion of the second stage of the compact, Publius
reveals that the social compact itself revolves around political realities.
These realities contribute to Publius refinements in the social compact.
In this compact the people actually express their consent, not just for
some vague delegation of political power but also for the founding of
their own political institutions. Publius seems to comprehend that the
peoples involvement in their own founding has a stabilizing effect and
enhances the probability of an enduring national government. He also
recognizes the symbolic value of the popular founding and stresses the
uniqueness and historic significance of the enterprise. Clearly, he
realizes that the founding event and the founding document supply the
symbols to nurture a further patriotic bond among the people. In his
words: This idea will add the inducements of philanthropy to those of
patriotism to heighten the solicitude, which all considerate and good
men must feel for the event (1H:4). Finally, Publius understands that
60
CHAPTER FOUR
A Continuing Compact
The Rationale
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63
them, Publius lays the basis for a sovereignty that is active and
continuous, rather than held in reserve as in Lockes plan.
Deliberation, Not Populism
The first problem, replacing one government with another, poses the
greatest theoretical and rhetorical challenge. Publius deals with it
on two levels. He shows that the constitutional design mitigates the
issue in the future, as we shall see in a moment. It is the near-term
problem of how to legitimate the rejection of the old and the
institution of a new government that is most troublesome. Realizing
that the transfer of power from one government to another constitutes a
revolution, regardless of how peaceful it may be, Publius treads
carefully. He does not want his arguments to be used to further
inflame the rebellious activity already taking place in some states or,
later, to justify similar actions against the young nation (if and) once it
is established under the Constitution. Therefore, Publius does not rely
exclusively on the majority principle, as Locke does, to legitimize this
transfer of power. Besides, he does not yet have the majority on his
side.
Instead, Publius sidesteps the majority rights rationale to some
extent by stressing the federal nature of the ratification process, which
involves majority decisions at a state level, but which renders the
Constitution operative over only those states that ratify it (see Chapter
3). Still, he realizes that the long-term viability of the new
government relies on popular consent and, ultimately, on the approval
of a solid majority of citizens in the nation. Publius works through
this difficulty by making the distinction between a deliberative
majority, which carries the banner of legitimacy, and an impassioned
one, which poses the threat of anarchy or tyranny.
In the very first Federalist essay, Publius begins making the case
for deliberative consent. He informs his readers that they are called
upon to deliberate on a new Constitution for the United States of
America. He further pronounces that they are to serve as the example
as to whether societies of men are really capable or not, of establishing
good government from reflection and choice (1H:4). For his own
part, he claims to freely admit to his convictions. At the same time,
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he promises to lay before [the people] the reasons for which they are
founded, noting that his arguments are open to all, and may be
judged by all (1H:6).
In later essays he offers his fellow citizens his full confidence
that the good sense that has so often marked [their] decisions [in the
past], will allow them their due weight and effect in this case
(14M:66). But he also reminds them of complaints . . . by virtuous
citizens that the state governments are too unstable; that the public
good is disregarded in the conflicts of rival parties; 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
4
overbearing majority (10M:43). Publius makes the contrast between
deliberative and impassioned decisions explicit throughout The
Federalist. By proceeding in this manner, he reinforces the precedent
established in the Declaration of Independence, which requires a
thorough accounting of the situation and justification for the
revolutionary action to be taken. The debate on ratification is an
important part of this deliberative process. Publius objective is to
make a clear distinction between a justifiable revolution founded on
informed and reasoned consent of the people and mere rebellion
fomented by a passionate and probably factious majority.
The Justification for a Quiet Revolution
Publius accepts Lockes premise that the original right of self defense,
which is paramount to all positive forms of government . . . may be
exerted against usurpations of the national government (28H:140). He
allows that [s]afety from external danger is the most powerful director
of national conduct (8H:34). Indeed, Publius refers to safety or
public safety as a key function of government, either explicitly or
5
implicitly, fifty-five times in thirty-three of the Federalist Papers.
And, like Locke, he considers the right of the people to revolt to secure
their safety a possible deterrent to usurpations of power by
governmental officials. Publius notes that [t]he improbability of the
attempt may be satisfactorily inferred from this single reflection, that it
could never be made without causing an immediate revolt of the great
body of the people (60H:309).
65
66
which leaves the individual in a worse state than the one he contracted
out of in order to form civil society.9
The difference between Publius and Locke is one of emphasis.
Lockes concern is with establishing individual rights and the
theoretical boundaries that respect those rights. Publius accepts
Lockes premise as a given and moves beyond it to concentrate on the
conditions that are required for a viable community. For Publius,
happiness is oriented at least as much toward the community as toward
the individual. This is apparent in the way he uses the term. Most of
the time he refers to happiness in a collective sense (29 of 41
occurrences):
USAGE
happiness of the people
public happiness
political happiness
national happiness
mutual happiness
others10
OCCURRENCES
10
7
3
2
1
6
67
68
Publius then sums up the political condition of the union with the
question: what is there of national disorder, poverty, and
insignificance that could befall a community so peculiarly blessed with
natural advantages as we are, which does not form a part of the dark
16
catalog of our public misfortunes? (15H:73). Throughout the early
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papers, Publius despairs that this instability threatens any chance that
Americans may have to fulfill their destiny as a great nation,17 and at
one point he warns that whenever the dissolution of the Union
arrives, America will have reason to exclaim, in the words of the
Poet, FAREWELL, A LONG FAREWELL, TO ALL MY
GREATNESS (2J:11).
The Role of the Convention
Publius observes that the inefficacy of the subsisting Federal
Government established under the Articles of Confederation was
evident to the people of the union and its political leaders alike. The
obvious deficiencies of the existing government are what led to the
Philadelphia Convention in 1787. It was at this meeting, later to be
dubbed the Constitutional Convention, that the proposed constitution
was drafted. As Publius describes the situation:
This intelligent people . . . still continuing no less attached
to union, than enamored of liberty . . . observed the danger,
which immediately threatened the former and more remotely
the latter; and being persuaded that ample security for both,
could only be found in a national Government more wisely
framed, they, as with one voice, convened the late
Convention at Philadelphia, to take that important subject
under consideration. (2J:9)
Then, from the perspective of the Convention delegates:
Let us view the ground on which the Convention stood. It
may be collected from their proceedings, that they were
deeply and unanimously impressed with the crisis which had
led their country almost with one voice to make so singular
and solemn an experiment, for correcting the errors of a
system by which this crisis had been produced; that they were
no less deeply and unanimously convinced, that such reform
as they have proposed, was absolutely necessary to effect the
purposes of their appointment. It could not be unknown to
them, that the hopes and expectations of the great body of
citizens, throughout this great empire, were turned with the
keenest anxiety, to the event of their deliberations. (40M:204)
70
71
72
73
74
republican principles serve a dual role, constituting both ends (in that
they encompass the shared political values of society itself) and means
for achieving the ends of that society. The republican principles
reflected in the constitutional provisions, then, are both a reminder of
the shared goals of the American people and a guarantee of continued
republican government to future generations of Americans.
Publius is specific about what he means by republican
government although, like other aspects of his theory, it is necessary to
piece together the theoretical elements from discussions of practical
issues scattered throughout The Federalist. He discusses five areas in
which American republicanism differs from what was then the usual
understanding of the term. First, he makes the distinction between a
republic and a democracy. Second, he demonstrates that there are
important differences between a large and a small republic. Third,
Publius differentiates between the wholly popular republic proposed
by the Constitution and the mixed regime, which until then had served
as the republican ideal. Fourth, he makes a distinction between the
deliberative will of the people and popular opinion taken as a snapshot.
Finally, he demonstrates that the peoples role in the American republic
is a dual one in that they serve as citizens of two entities: the union
and their respective states.
The Advantages of a Republic Over a Democracy
In two papers, 10M and 14M, Publius specifically addresses the
difference between a democracy and a republic. The distinction, he
claims, is an important one because the terms are often mistakenly
interchanged. In the former the people meet and exercise government
in person . . . [a] democracy consequently will be confined to a small
spot; in the latter they assemble and administer it by their
representatives and agents . . . [A] republic [therefore] may be extended
28
The distinction Publius makes
over a large region (14M: 63).
between democratic and republican regimes continues to have relevance
today.
Some twentieth century scholars have characterized The Federalist,
the framers of the Constitution, and the Constitution itself as antidemocratic (in the extreme view) and not democratic enough (in more
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81
82
83
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the mandate that the legislature not serve as the constitutional judges
of their own powers because it is not . . . to be supposed that the
constitution could intend to enable the representatives of the people to
substitute their will to that of their constituents. The courts, he
contends, were designed to be an intermediate body between the
people and the legislature in order, among other things, to keep the
latter within the limits assigned to their authority (78H:403).
Furthermore, Publius maintains that the judicial role in preserving the
deliberate will of the people is important for the protection of private
rights:
This independence of the judges is equally requisite to guard
the constitution and the rights of individuals from the effects
of those ill humors which the arts of designing men, or the
influence of particular conjunctures, sometimes disseminate
among the people themselves, and which though they
speedily give place to better information and more deliberate
reflection, have a tendency in the meantime to occasion
dangerous innovations in the government, and serious
oppressions of the minor party in the community. (78H:404)
Publius presents the doctrine of judicial review as a narrow power. He
emphasizes that the court acts not as a super legislature but rather as a
guardian of the higher political laws, until and unless the people
choose to change them through the proper constitutional procedure
(78H:405). In this sense the court acts on behalf of the people by
holding legislative authority within its constitutional bounds. It is not
a question of a superiority of the judicial to the legislative power,
explains Publius. It only supposes that the power of the people is
superior to both (78H:403).
Furthermore, Publius denies
unequivocally that in evaluating whether a piece of legislation exceeds
the constitutional authority the judiciary would be disposed to
exercise [their] WILL instead of [their constitutional] JUDGMENT
(78H:404). The courts role is not so much to find but to preserve the
deliberative sense of the community as expressed in the Constitution.
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of the higher political laws means that the people, present and future,
cannot be deprived of any of these republican guarantees by mere
legislative acts. Therefore, the republican nature of the government is
protected in a strong way into the future.
CHAPTER FIVE
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principles, Publius again reminds his reader that [t]he Federal and
State Governments are in fact but different agents and trustees of the
people (46M:240). Moreover, he argues that the relative competency
of the two governments will hold some sway over how the people
decide to allocate the concurrent powers:
If therefore, as has been elsewhere remarked, the people
should in future become more partial to the federal than to the
State governments, the change can only result, from such
manifest and irresistible proofs of a better administration, as
will overcome all their antecedent propensities [toward the
state governments]. And in that case, the people ought not
surely to be precluded from giving most of their confidence
10
where they may discover it to be most due. (46M:241)
The double agency, which accrues to the people through the
compound republic, provides them with an important outlet for
expression that would not exist in a conventional uni-sovereign
arrangement, irrespective of whether that sovereignty resided at a state
or national level. The ability to move the balance of power around not
only provides an additional safeguard against tyranny, but the
competitive situation it creates also supplies an incentive for each of
the governments to strive for excellence.11
Publius does not explain
exactly how the balancing of power between the two governments
occurs. Presumably, such shifts occur gradually as a result of electoral
decisions. Because the changing balance of power results from an
accumulation of decisions rather than a single act, the shift in the
allocation of power that results can be construed as a deliberative
process rather than a rash act.
Prescribed Constitutional Formulae
Flexible arrangements are also evident in constitutional formulae that
anticipate certain types of change. Such formulae constitute the second
kind of flexible arrangement and prescribe how these changes will be
incorporated into the system. Because they are part of the fundamental
laws, the formulae are not amendable by legislative action. The only
way these provisions can be changed is through the formal amendment
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process; therefore, the people retain a high degree of control in this type
of arrangement. The formulae are designed to encourage growth while,
at the same time, preserving order in the young nation. They address
those events in the future that are most predictable and, potentially, the
most contentious. These formulae install the people of the founding
generation as mediators in anticipation of future contention.
For
example, Publius as well as most others of his generation expect and,
indeed, hope that the population of the nation will grow and its
territorial boundaries will expand:
It is now no longer a point of speculation and hope, that the
Western territory is a mine of vast wealth of the United
States, and although it is not of such a nature as to extricate
them from the present distresses, or for some time to come,
to yield any regular supplies for the public expenses, yet
must it hereafter be able under proper management both to
effect a gradual discharge of the domestic debt, and to furnish
for a certain period, liberal tributes to the Federal Treasury.
(38M: 192)
The constitutional formulae, which define the rules under which
national growth is to take place, are formulated by the people, but
not the same people who are likely to have a stake in and strong
feelings about the actual expansionary activity.
If stability is to be
maintained during this expansionary era, it is essential that growth be
orderly and cause as little disruption as possible to the ordinary
political processes. For example, in the area of tax collection,
constitutional formula regulate the allocation of the burden across the
expanding nation:
Let it be recollected, that the proportion of these taxes [for the
operation of the national government] is not to be left to the
discretion of the National Legislature; but is to be determined
by the numbers of each State as described in the second
section of the first article [of the Constitution]. An actual
census or enumeration of the people must furnish the rule; a
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SUMMARY
For Publius the Constitution becomes the instrument of the
dynamic and progressive social compact. It is a document to be
revered, but it is not an artifact to be merely glassed in and admired.
He portrays the Constitution as a child of each generation of Americans
who, in their turn, must take the responsibility to nurture it. The
constitutional design incorporates an amendment provision for those
great and extraordinary occasions where substantive changes are
warranted, and it is structured to allow for certain flexibilities that are
required for a growing nation and a durable system of government.
CHAPTER SIX
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Even the judges, with all other officers of the Union, will, as
in the several States, be the choice, though a remote choice,
of the people themselves. (39M:195)
In addition, Publius contends that in the American republic to be
established by the new constitution [t]he duration of the appointments
is equally comfortable to the republican standard, and to the model of
State Constitutions in that:
The House of Representatives is periodically elective as in all
the States: and for the period of two years as in the State of
South Carolina.
The Senate is elective for the period of six years; which is but
one year more than the period of the Senate of Maryland; and
but two more than that of the Senates of New York and
Virginia.
The President is to continue in office for the period of four
years; as in New York and Delaware, the chief magistrate is
elected for three years, and in South Carolina for two years.
In the other States the election is annual. In several of the
states however, no constitutional provision is made for the
impeachment of the chief magistrate. And in Delaware and
Virginia, he is not impeachable till out of office. The
President of the United States is impeachable at any time
during his continuance in office.
The tenure by which the Judges are to hold their places, is, as
it unquestionably ought to be, that of good behavior.
(39M:195-96)
The issue of whether the proposed government is republican
enough is so important that Publius carefully structures his response to
the Constitutions critics. His primary strategy for defending the new
system is to demonstrate its similarity to existing state constitutions
and even to the Articles of Confederation. The truth, he argues, is
that the great principles of the Constitution proposed by the
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Twentieth century critics of Publius are quick to point out that the
constitutional definition (through the state definitions) of suffrage then
was quite narrow by our standards, and they are correct. What they fail
to consider, however, is the substantial broadening of voting rights this
represents by eighteenth century standards. Suffrage in the United
States varied between 35% of white males in Georgia to 90% in
Pennsylvania and New Hampshire averaging between 65% and 75%
in the union as a whole. While this statistic admittedly excludes more
than half the population, it reflects a much higher level of inclusion
than in any republic or democracy in history. For example, during the
same period in England, which at the time set the historical standard
for popular participation, 12% of adult males were eligible to vote, and
this figure is about three times higher than in democratic Athens the
next best.2
Moreover, Publius moves beyond suffrage the right to chose
ones representatives also to discuss who among the people might
have the opportunity to serve in elected national office. He observes
that the qualifications stated in the Constitution for members of the
House of Representatives are few: A Representative of the United
States must be of the age of twenty-five years; must have been seven
years a citizen of the United States, must at the time of his election, be
an inhabitant of the State he is to represent, and during the time of his
service must be in no office under the United States. This means that
. . . the door of this part of the Federal Government, is open
to merit of every description, whether native or adoptive,
whether young or old, and without regard to poverty or
wealth, or to any particular profession or religious faith.
(52M:274)3
His analysis leads one to conclude that the notion of wholly
popular can also be extended to include broad-based opportunity to
serve in national office.4 In Number 62M Publius points out that the
qualifications for the office of Senator are few as well. The only
differences between the qualifications for a senator and representative
relate to age (thirty years rather than twenty-five) and length of
residency in the United States (nine years rather than seven).5
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months (in Connecticut and Rhode Island) to two years (in South
Carolina). He observes that it would not be easy to show that
Connecticut or Rhode Island is better governed . . . than South
Carolina (53M: 277). Finally, Publius looks to the Constitution
itself, which is established by the people and unalterable by the
government (53M:277). The two-year term is set by the Constitution
and cannot be changed except by a special procedure that requires the
support of a super-majority of both the Congress and the states. He
observes that the aphorism referred to above is more applicable to the
British case where the authority of the parliament [not the people] is
transcendent and where the parliament in several instances, actually
changed, by legislative acts some of the most fundamental articles of
the government (53M: 278).
Publius continues his defense of the two-year term, arguing that
biennial elections are not only safe, but also useful, and even necessary.
He argues that the two-year term enables representatives to obtain the
extent of practical knowledge, requisite to the due performance of the
service. He observes that the term of representatives tends to be shorter
in the states because the legislators need know only the laws of a single
state. In contrast, some knowledge of the affairs, and even of the laws
of all the states, ought to be possessed by the members [of the House]
from each of the states, thereby requiring a longer term of office
(53M:279). Publius also tackles this issue from a slightly different
perspective, claiming that a term so short that new members are always
on the steep portion of the learning curve would put newly elected and
one-term members of the House and their constituents at a sizable
disadvantage. In his words: the greater the proportion of new members
[in the House], and the less the information of the bulk of the
members, the more apt will they be to fall into the snares that may be
laid for them [presumably by members who have served multiple
terms]. One infers from this statement that Publius believes the twoyear term, which allows time for the acquisition of the requisite
knowledge, also facilitates a more equitable distribution of power
among the members (53M:280).
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. . . in the next place [the aim is], to take the most effectual
precautions for keeping them virtuous, whilst they continue
to hold their public trust. The elective mode of obtaining
rulers is the characteristic policy of republican government.
The means relied on in the form of government for preventing
their degeneracy are numerous and various. The most
effectual one is such a limitation of the term of appointments,
as will maintain a proper responsibility to the people. (57M:
295)
The bottom line is that, as electors, the people not a certain class of
people but all the people are ultimately in charge of their
government:
Who are the electors of the Federal Representatives? Not the
rich more than the poor; not the learned more than the
ignorant; not the haughty heirs of distinguished names, more
than the humble sons of obscurity and unpropitious fortune.
The electors are to be the great body of the people of the
United States. They are to be the same who exercise the right
in every State of electing the correspondent branch of the
Legislature of the State. (57M: 295)
Publius devotes ten papers (52-61) to defending the republican
character of the House of Representatives. That he considers it the
most republican of the departments of government is reflected in his
reference to the House as the representative body.11 He argues that
the two-year term has the advantage of being sufficiently short to allow
for popular control but sufficiently long to allow representatives to gain
sufficient knowledge to be up to the task of representing the people
adequately. He acknowledges that the size of the body is small, but
only temporarily so. He contends that even in the short term the body
is sufficiently large to be responsive to constituents needs, and that the
people can be trusted with supplying the body with fit characters. But
Publius also touches on the importance of defining suffrage in the
Constitution, and he points out that voting rights are extended much
more broadly in the states than in Britain.12 This extended suffrage,
he claims, is a further demonstration that the House is, indeed, a
republican body.
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New York, who is elected for a three-year term without any limits on
the number of terms he may serve (356). Likewise, both the president
and the governor of New York are subject to impeachment, unlike the
King of Great Britain whose person is considered sacred and
inviolable (356).
With regard to powers, the president is given a qualified veto
similar to that of the governor of Massachusetts but falling well short
of the absolute negative of the British sovereign (357). In a later
paper Publius supports the qualified veto as one means of preserving
the deliberative sense of the community against the sudden breeze of
passion and every transient impulse which the people may receive
from the arts of men, who flatter their prejudices to betray their
interests (71H:369-70). Recall from Chapter Four that finding the
deliberative will of the people, as opposed to responding to the passion
and possibly injustice of the moment, is a key element in the
American brand of republicanism described by Publius.
As to presidential authority, Publius observes that the only
uncircumscribed power given the president is to grant reprieves and
pardons for offenses against the United States, except in cases of
impeachment (357 emphasis his). Here Publius argues that because of
the impeachment condition, the power possessed by the president is
less even than that of the New York governor. Moreover, he observes
that the other executive powers are all qualified in one way or another,
requiring concurrent action by either the entire congress or the Senate.
For example, as Commander in Chief, presidential authority would be
nominally the same with that of the King of Great Britain, but in
substance much inferior because, while the power of the British King
extends to the declaring of war and to the raising and regulating of
fleets and armies, these associated powers are given to Congress in the
U. S. Constitution (357-8). Furthermore, the British King is the sole
possessor of the power of making treaties, whereas the President shares
this power with the Senate (361). The King has the sole power of
appointments, but, in addition, he can create offices . . . confer titles
of nobility and dispose of an immense number of church
preferments. In contrast, the presidential appointment power is shared
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with the Senate, and the officers appointed by the president are limited
by the Constitution and by acts of the legislature (360). The
conclusion that Publius would have his reader draw is that the office of
the president is most dissimilar to that of a king. In the remaining
essays on the presidency, he discusses how this office is designed to
provide the energy and administrative efficiency required for a well-run
republic.
AN INDEPENDENT JUDICIARY: FRIEND OR FOE OF
POPULAR SOVEREIGNTY?
Publius biggest problem in convincing his readers that the
republic created by the Constitution is genuinely popular lies in the
judicial branch. As we discussed in Chapter Five, critics of the
Constitution feared political overreach by a national judiciary that was
independent of the legislature. In addition, a selection process for
judicial appointees that is several steps removed from the people and
the appointment of judges for a term of good behavior seemed to
stretch the credulity of the notion of wholly popular to the limits.
The peoples role in the selection of judges is so indirect that even
Publius refers to it as a remote choice (39M:195). Publius defense
of the presidential appointment of these officials with the advice and
consent of the Senate is as follows:
Some deviations therefore from the principle [of separation of
powers] must be admitted. In the constitution of the
judiciary department in particular, it might be inexpedient to
insist rigorously on the principle; first, because peculiar
qualifications being essential in the members, the primary
consideration ought to be to select that mode of choice,
which best secures these qualifications. (51M: 266)
He argues that the President can generally be trusted to select judges
with the requisite legal competence because the sole and undivided
attention of one man will naturally beget a livelier sense of duty and a
more exact regard to [his own] reputation (76H:391). Moreover, he
contends that the Senate would be an excellent check upon a spirit of
favoritism in the President and would tend greatly to preventing the
appointment of unfit characters (76H:392).
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no reexamination of the facts where they had been tried in the original
causes by juries (81H:422-23).
The third issue relates to the rights of the courts to pronounce
legislative acts void, because [they are determined to be] contrary to the
constitution. This power, say critics, implies a superiority of the
judiciary to the legislative power and enables the court to substitute its
pleasure to that of the legislative body (78H:403-04). In response
Publius presents his well-known articulation of the doctrine of judicial
review. The essence of his argument is that judicial review operates as
an adjunct to popular sovereignty rather than as a threat to popular
rights. Publius logic proceeds as follows: the judiciary . . . will
always be the least dangerous to the political rights of the constitution
because it has no influence over either the sword or the purse.
Furthermore, the independence of the courts of justice is peculiarly
essential in a limited constitution (78H:401-02). Such independence
is necessary to keep [the legislature] within the limits assigned to their
authority. Then he speaks to the judicial power generally:
The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is in fact, and must
be, regarded by the judges as a fundamental law. It therefore
belongs to them to ascertain its meaning as well as the
meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance
between the two, that which has the superior obligation and
validity ought of course be preferred; or in other words, the
constitution ought to be preferred to the statute, the intention
of the people to the intention of their agents. (78H:403)
He continues, arguing that the courts role with regard to its judgment
on constitutional law is a natural extension of its ordinary function:
This exercise of judicial discretion in determining between
two contradictory laws, is exemplified in a familiar instance.
It not uncommonly happens, that there are two statutes
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CHAPTER SEVEN
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CIVIC VIRTUE
In Publius theory a certain type of virtue is also required of citizens.
This virtue consists of what we normally term civic virtue, but Publius
also extends the meaning of virtue to include activities in the private
lives of citizens.
Civic Virtue: The Public Sort
Most of what Publius has to say about the public virtues required of
citizens has already been discussed in previous chapters or earlier in
this one. In reviewing and consolidating what has been said before,
what becomes most striking is the discovery that Publius actually has
high expectations of the American citizenry. Granted, the requirement
for virtue seems to be greater at the start-up of the nation than in its
maintenance, and much of the popular oversight was originally
mediated by intervening bodies. Still, the Constitution holds the
implicit assumption that the American people will step to the plate
with the requisite character and wisdom whenever required to do so.
The early choices faced by the people were weighty ones, and it
was assumed that the founding generation would be attentive to and
knowledgeable about fundamental political principles. For example, in
his discussion of the first stage of the social compact, Publius indicates
that the American people are a chosen people guided by Providence
and destined to greatness, but only if they stay together (2J). This
kind of responsibility certainly implies a high degree of virtue. Publius
makes essentially the same argument regarding the ratification
procedure, which he claims is a test of the capability of human beings
to choose their own government.11
Added to this moral component of public virtue is a certain
requirement for public intelligence.
As a compact theorist, Publius
maintains that the people themselves are involved at this early stage in
the institution of their political laws by right, but he adds that it is
their genius, their intelligence, and their vigilant and manly
spirit that make the wholly popular republic proposed by the
Constitution possible.12 It is also interesting how Publius recasts the
issue of virtue and republicanism in his initial defense of the republican
nature of the Constitution. He reverses the usual cause and effect
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the virtue required of the people and the virtue required of their
officials. However, even with all the auxiliary precautions provided
for in the Constitution, Publius theory also indicates the possibility of
a less glowing scenario. If the people become lazy or less politically
competent, the politically wise may not be courted for positions of
leadership. The result would be a gradual erosion of the republic.
Given that such degeneration could occur even under the original
Constitution, where the people were directly involved in the election of
only one branch of government, it seems logical to conclude that if the
virtue of the people slackens, the degenerative process would be
hastened by increasing direct popular involvement in the electoral
process.15 Thus, Publius theory implies that as popular involvement
increases so, too, does the requirement for public virtue.
Civic Virtue: The Private Sort
The second type of virtue that Publius assumes and requires of the
people in this American republic reaches into the activities of their
private lives.
The people are assumed and expected to have
industrious habits in their work if the republic is to be viable.16 In
this case Publius vision of virtue takes on a decidedly modern cast, as
it signals the belief that the good life can exist, to some extent at least,
outside public service. Like Aristotle, Publius recognizes the value of
diversity to society. But he moves beyond Aristotle toward the new
breed of political economists as he discusses benefits to the common
good from the pursuit of private gain17 and, in the process, upgrades
the status of non-political endeavors in the polis. Publius first alludes
to the modern virtue of industry in a discussion of the potential
threat of standing armies:
The industrious habits of the people of the present day,
absorbed in the pursuits of gain, and devoted to the
improvements of agriculture and commerce are incompatible
with the condition of a nation of soldiers which was the true
condition of [the ancient] republics. The means of revenue,
which have been so greatly multiplied by the increase of gold
and silver, and of the arts of industry, and the science of
finance, which is the offspring of modern times, concurring
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Implications
Popular Sovereignty: Then and Now
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A brief foray into history reveals that the Courts growth in power
has paralleled that of the national government. What made it easy for
the Court to gain influence at first was that it did so by intervening
into state matters, not by threatening the other branches of the national
government. Therefore, the constitutional check that Publius foresaw
that would pit the ambition of one branch of the national government
against the ambition of another did not occur until the Court had
already become a formidable power.1 The Civil War Amendments
(thirteen, fourteen, and fifteen) put in place to free the slaves and
guarantee them equal rights set the stage for the expansion of judicial
authority. The Fourteenth Amendment, which the Court applied much
more broadly than originally anticipated, was the primary vehicle for
the extension of its power. The due process clause of this amendment
proved to be a bonanza for the national judiciary. It reads: nor shall
any State deprive any person of life, liberty, or property, without due
process of law . . . This clause opened the door for increasing
involvement by the national judiciary into cases relating to state laws.
The doctrine of substantive due process first emerged in the late
nineteenth century. Employed by the Court in conjunction with the
due process clause of the Fourteenth Amendment, the doctrine was
used to void much of the progressive legislation passed by the states
that had sought to abolish child labor and establish better conditions in
the workplace.2 Substantive due process takes the concept of due
process an important step further than previous courts had been willing
to go. Due process has generally related to legal procedures that protect
citizens against arbitrariness and insure their fair treatment under the
law. For example, a government can deprive an individual of life
(capital punishment), liberty (imprisonment), or property (fine for an
offense), but only after following certain legal procedures (i.e. bringing
formal charges, allowing for a defense, providing a jury trial, etc.). By
introducing a substantive reading of this clause, the Court is able to
look beyond procedural fairness to examine the content of legislation.
Under this doctrine the Court can then argue that certain liberties are so
fundamental that they cannot be denied by a state unless the state can
prove a compelling interest for doing so. This substantive reading of
due process ultimately means that the states are potentially
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answerable to the Supreme Court for all sorts of laws that were not
previously under its jurisdiction.
More recently, the Roe v. Wade decision used the due process
clause of the Fourteenth Amendment in much the same way.3 In this
case the Court voided a Texas law that prohibited all abortions except
to save the life of the mother on the grounds that it violated the
constitutional right to privacy, founded in the Fourteenth
Amendments concept of personal liberty. The decision also set forth
the circumstances under which states could and could not intervene in a
womans decision to have an abortion. Dissenting justices claimed that
the majority neither established a link between abortion and a privacy
right nor weighed the interest of the state. Although the dissenting
arguments were basically in the strict constructionist vein, a number of
other scholars who generally favor broader constitutional interpretation
had concerns with the decision as well. Three factors subjected the Roe
opinion to controversy: (1) the lack of textual or other grounding in the
4
Constitution for this application of the right to privacy, (2) the
fundamental nature of the issue itself, and (3) the reliance on medical
opinion in the decision.
Archibald Cox (1976, 113) refers to the decision as a set of
hospital rules. He agrees in part with the Courts dissenters, saying
that the Court failed to establish the legitimacy of the decision and
warns that the substitution of medical judgments for sound legal
reasoning may set a dangerous precedent. Paul Freund (1983) describes
the decision as a prescription of a kind of legislative code. His
concern is that the decision by the Court not only reads too much like
legislation but that it preempts a legislative solution. Ruth BaderGinsberg (1985) finds fault with the decisions grounding in the right
to privacy; she would have preferred an equal protection justification.
In a later article (1992), she discusses quite candidly how the Court
can reinforce or signal a green light for a social change. While she
speaks of the positive role of the Court in social policy, she also urges
a temperate brand of [judicial] decision-making. She laments that the
decision in Roe halted a political process that was moving in a reform
direction and thereby . . . prolonged divisiveness and deferred stable
settlement of the issue.
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This brings us to the crux of the issue, which is: when is the
Court the appropriate forum for deciding questions of values or
liberties where the Constitution provides no clear textual guidance?
Justice Holmes in his Lochner (1905) dissent observes: I think that
the word liberty, in the 14th Amendment, is perverted when it is held
to prevent the natural outcome of a dominant opinion, unless it can be
said that a rational and fair man necessarily would admit that the
statute proposed would infringe fundamental principles as they have
been understood by the traditions of our people and our law.5 In both
types of cases discussed above, critics charge that the majority on the
Court rendered a judgment based more on its own political philosophy
than on legal or constitutional principles. In both cases the charge has
merits.
Recent research suggests that judicial intrusion might not matter
because the Court tends to follow the people anyway that is, the
Courts rulings tend to coincide with the opinions of a majority of the
American people.6 However, such a conclusion suggests that product
trumps process. Publius tells us just the opposite that the Court is a
check on the legislative process, not a substitute for it. In a federal
system based on popular sovereignty, political decisions are supposed
to be made in the institutions closest to the people. The bicameral
legislative forums in the American constitutional system provide
opportunities for the venting and cooling of passions, venues for
learning and reevaluation, and time for finding common ground.
Moreover, there is always another day for those dissatisfied with
legislation. The rough and tumble of the democratic process is much
less evident in the courts, and because the judicial process puts so
much stock in precedent, judicial decisions tend to be viewed as more
final.
Publius was right in forecasting that the judiciary would play an
indispensable role in a constitutional system of government. He did
not anticipate, however, that the Court would have a major role in
altering and adding to the Constitution. The growing role of the Court
during its two-hundred-plus year history brings to mind some
important questions: Has the Court read changes into the Constitution
that would have been more appropriately handled through ordinary
legislation? Has the Constitution become too much an object of awe,
and has this led to a reluctance to introduce formal amendments to it?
Would the Constitution become less revered if it were amended more
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often? Or has the amendment procedure become just too difficult, and
should it be simplified? Publius viewed the Constitution as belonging
to the people and stressed the importance of their role in its oversight.
Have the American people moved away from Publius vision for better
or for worse?
Popular Sovereignty in a Federal System of Government
The design of the Constitution takes into account the special situation
in America and establishes a central national government while leaving
in place a decentralized system of state governments. The American
people, Publius tells us, are sovereign over both. He views popular
sovereignty within the context of this federal system and emphasizes
that the national government has important though limited powers to
provide peace and an economic climate in which the people and states
can thrive. Everything else is left to the states.
Why does this dichotomy matter? It matters because Publius did
not expect the new constitution to change appreciably the political
habits of ordinary citizens. At the time, participatory politics in
America revolved around state and local governments, where the
political decisions that affected their daily lives were made. Publius
did not anticipate that most citizens would have the interest,
knowledge, or time to be heavily involved in national politics, except
in extraordinary circumstances. Nevertheless, the people would have
various degrees of control over the national government through the
electoral system.
At the national level, citizens primary contact with government
would be through directly elected representatives in their district.
Publius tells us that these representatives would reflect the high
standards of the people because they would, no doubt, select them on
the basis of their experience, integrity, and qualifications.
He
anticipated that an on-going relationship would develop between the
representatives and the citizens they serve and that this relationship
would ensure a reciprocal exchange of information with the people
weighing in on the issues most important to them and the
representatives explaining their views and votes. Moreover, Publius
hoped that this relationship would not only supply citizens with the
167
contact they needed with the national government but also remind the
representatives of their duties as public servants.
Publius further explains why the connections between the people
and Senate and the people and the President are less direct. A product
of the great compromise between the large and small states, the Senate
emerged as the body designated to represent the states in the federal
government. Therefore, its members were originally elected by the
state legislatures, each state being accorded two Senators.
The
President, while not elected directly by the people, would be chosen by
electors specifically selected for this task in each state.
This
intervention was designed to insure the selection of fit characters for
the presidency, the logic being that electors would be better able to
scrutinize the reputation of possible candidates than the public at large.
The Constitution gives state legislatures the power to determine the
method for choosing electors. Thus, if the legislature itself selected the
electors, the election of the President would be three steps removed
from the people.
Over the past two hundred years, as the population has increased
and suffrage has been broadened, so too have the opportunities for
popular participation in the electoral process. As might be expected,
the least change has occurred in the House of Representatives, where
members have always been elected directly by the people. Moreover,
Richard Fennos (1978) research confirms the existence of the
relationship between House members and their constituents that
Publius only hypothesized. Fenno demonstrates that representatives
spend a great deal of time with their constituents. Modern day travel
actually has made it easier for them to maintain contact with the folks
at home. Also, poll after poll shows that the public, even when
disillusioned about government in general, give high marks to their
own representatives. Indeed, the statistics bear out this advantage: with
only one exception since 1976, the percentage of House incumbents
who have been reelected has topped 90%.7 Another congressional
scholar, Morris Fiorina (1989), attributes such incumbency advantage
to constituency service helping constituents obtain funds or
services from Washington.
On the down- (or up-) side of this,
depending on ones point of view, Fiorina also suggests that the high
168
169
170
171
172
173
174
Notes
Introduction
1. From Edwards, Wattenberg, and Lineberry, Government in America, 51.
2. For an illustration of how the competitive model of democracy
views the decision making process, see Chubb and Moe, Politics, Markets,
and Americas Schools.
3. There is little new or startling in the language of the Preamble, which
is similar to that in the early state constitutions. Thus, there is scant
criticism directed towards the Preamble by opponents of the Constitution.
One notable exception appears in a speech by Patrick Henry before the
Virginia Ratifying Convention on June 5, 1788. Henry specifically
criticizes the expression we the people as evidence of the alarming
transition, from Confederacy to a consolidated Government. See Ketchum
ed., Anti-Federalist Papers, 199.
4. My reading of the Constitution and The Federalist yields a list of
eight operational principles, most of which are familiar to anyone who has
had a course in American government. They include: extensive republic,
representation, federalism, checks, balances, separation of powers,
bicameralism, and limited government.
Publius hopes that these
principles in combination will result in a deliberative form of democracy.
5. This phenomenon is not unusual in political theory. Publius
himself points out the imprecision of language in 37M, as does Hobbes i n
Leviathan. In the development of any new theory, existing language i s
seldom adequate to describe new concepts. Unlike physicists, who coin all
sorts of interesting words to attach to their new concepts, political
theorists tend to make due with the existing vocabulary (a practice long
followed because of the risks inherent in the advocacy of political change).
The result is that existing words take on new meanings. In some cases new
words or phrases are minted eventually to describe concepts that have been
accepted for years. The concept of popular sovereignty is a case in point.
According to the Oxford English Dictionary, this term was not introduced
until the late nineteenth century, although it describes a theoretical
concept and human activity that had been adopted much earlier.
6. The two most frequently cited proponents of this notion are
Douglas Adair and Alpheus T. Mason. Many scholars take exception to this
175
176
Notes
Notes
177
178
Notes
Notes
179
5. See Locke, Second Treatise, 95. He explains that the only way
anyone divests himself of his natural liberty, and puts on the bonds of
civil society, is by agreeing with other men to join and unite into a
community for their comfortable, safe, and peaceable living one amongst
another, in a secure enjoyment of their properties, and a greater security
against any, that are not of it. Also see 123.
6. Locke repeats this argument throughout the Second Treatise. See
94, 141, 149, 155, 166. He restates it again in his concluding
paragraph, 343: when they [the people] have set limits to the duration of
their legislature, and make this supreme power in any person, or assembly,
only temporary; or else, when by the miscarriages of those in authority, i t
is forfeited; upon forfeiture, or at the determination of the time set, i t
reverts to the society, and the people have a right to act as supreme, and
continue the legislative in themselves; or erect a new form, or under the old
form place it in new hands, as they think good.
7. Locke refers to an elected legislature as a fence against rebellion
(226). But, as Publius points out, this so-called fence is not very
effective in cases, such as the British constitution favored by Locke, where
the authority of the parliament is transcendent and uncontrollable, thus
allowing for ordinary legislative acts to change some of the most
fundamental articles of the government, including (in reference to the
Septennial Acts) the period of election (53M:278).
8. See Lutz, Origins of American Constitutionalism, 25-44, 53-54 and
Shain, Myth, xviii-xix, 193-240.
9. From Lutz, Origins, 32.
10. From Innes, Creating the Commonwealth, 198.
11. Ibid., 198-99. Also see Lutz, Colonial Origins, 38-9.
12. See Hyneman, The American Founding Experience, 9-12, 22 f.n.18
and Lutz, Origins, 116, for further elaboration on the evidence of a divided
or dual sovereignty expressed in this document. Both scholars conclude,
as I do, that in the Declaration the unified version of a people seems t o
predominate. Hyneman adds an additional observation that may explain
why: it seems significant that, in several states, leaders of the movement
for independence questioned the right of anyone to adopt a constitution or
to declare colonial transformation into statehood until specifically
authorized to do so by the Congress acting for the colony-states
altogether.
13. For example, Publius contends: It has not a little contributed t o
the infirmities of the existing federal system, that it never had a ratification
by the PEOPLE (22H:113). Later, he observes: A compact between
independent sovereigns, founded on ordinary acts of legislative authority,
can pretend to no higher validity than a league or treaty between parties
(43M:228).
14. See Lutz, Popular Consent, 74.
15. It was Martin Diamonds essay titled The Federalist that first
made me think of the American republic as profoundly democratic i n
character, although I do not agree with him about the reasons for that
profundity. Diamond reads an economic instrumentalism into the theory
180
Notes
of The Federalist that I do not think is there. He claims that Publius also
knows that his solution to the problem of popular majorities requires that
the country be profoundly democratic, that is, that all men must be equally
free and equally encouraged to seek their immediate gain and to associate
with others in the process . . . See Diamond, As Far as Republican
Principles Will Admit, 56.
Chapter Two: Becoming A People
1. See Engerman et al, Concordance, 86. There are 18 occurrences of
the word compact appearing in 10 papers and a further 7 occurrences of the
plural form in an additional 5 papers. My analysis eliminated several of
these references because they related to unrelated usages of the word. The
six papers in which Publius refers to a compact as such include Numbers
21H:102, 22H:113, 30H:149, 39M:198, 43M:224, 44M:230.
2. Publius contemporaries were familiar with the compacting process,
undoubtedly more so than the average American in the twentieth century.
The ideas behind the compact justified the Declaration of Independence
and also formed the foundation of the new state constitutions. Moreover,
American experience with compacts and covenants extended back to the
earliest days of the colonies.
3. In 2J:9-10 Publius suggests that the origination of the compact
may have occurred sometime around 1774 when imminent danger induced
the people of America to form the Memorable Congress of 1774.
Although this is the only paper in which he discusses this topic directly,
he typically refers to union as the norm and disunion as an aberration. See,
for example, 3J:12, 5J:20, 6H:27, 7H:28, 14M:66, 15H:72.
4. Publius more full-bodied view of the modern project seems t o
coincide, to some extent, with that proposed more recently by Toulmin i n
Cosmopolis. Toulmins thesis is that modernism generally is construed
too narrowly and that its concentration on the rationalism of the
seventeenth century to the virtual exclusion of the humanism of the
previous century diminishes the ability of the concept to adequately
describe or contribute to an understanding of the human condition.
5. See also 1H:6-7.
6. The role of Providence is obviously important to this discussion. It
is mentioned no less than three times in three successive paragraphs. The
first mention appears in the paragraph prior to the one quoted in the text:
Providence has in a particular manner blessed it [Independent America]
with a variety of soils and productions, and watered it with innumerable
streams, for the delight and accommodation of its inhabitants (2J:8). The
third mention appears in the paragraph immediately following: This
country and this people seem to have been made for each other, and i t
appears as if it was the design of Providence, that an inheritance so proper
and convenient for a band of brethren, united to each other by the strongest
ties, should never be split into a number of unsocial, jealous and alien
sovereignties (2J:9).
Notes
181
182
Notes
job of the courts to be an intermediate body between the people and the
legislature to resolve such conflicts (78H:403). It also should be noted
that judicial review is not initiated by the courts but results from legal
action taken by a citizen.
4. This provision and its implications will be dealt with more
extensively in Chapter Five. For now it should be sufficient to recognize
the role of the amendment procedure in supporting popular control of
constitutional law.
5. Publius discusses constitutional limits in several places, among
them 14M:65, 17H:84 (limits as the division of responsibilities between
the states and the national government), 78H:402 (limits as exceptions t o
legislative authority, e.g. rights) 83H:429 (limits as delegated powers),
84H:443 (limits specifically as rights).
6. Also see 15H, especially pp.75,77-8 and 22H:113.
7. Also see 37M:185 and 85H:454 .
8. The fact is the act of founding has always been problematic i n
democratic theory. Plato, in The Republic, tells us why most theorists
ignore it: The only way of overlaying a new founding on an existing
society is to make the children orphans. Aristotle seems to leave this job
to his statesmen. Machiavelli is one of the few theorists who takes the
founding seriously. The Prince is really a how to guide for political
foundings, while The Discourses is about how to preserve a nation once i t
is founded. Hobbes and Locke address the legitimacy of the founding, but
they speak in abstract rather than in concrete terms. Even Rousseau, i n
Social Contract (67-70), does not advocate a popular founding. With all
his talk of democracy and equality, it seems that the actual founding i s
reserved for the legislator, who seems to be self-appointed and acts alone.
9. A brief note about Gary Rosens new book(1999)
may be
appropriate here. Although Rosens project is different from mine, our
paths cross at certain points. This is one of them. Rosens reading of The
Federalist is directed at the task of reconciling the seeming contradictions
in Madisons points of view over time, while my concern is with the theory
of the fictional character Publius. With regard to the founding, Rosen
claims that Madison emulates the Greek model; mine is that he basically
rejects it, by altering the key characteristics and, more importantly, b y
bringing it into the political process. In a sense we are both right, but I am
more right. While Madison (Publius) does indeed value the indispensable
role of elites in the process of drawing up a constitution, it is the
ratification procedure that is significant in the American case. The only way
he can justify the role of the Convention is to point out that their draft was
only recommendary. Unlike the Greek foundings that represented extrapolitical milestones, the American founding is portrayed as a legitimate
political event. It is the involvement of the people on multiple levels i n
the selection of the convention, however indirectly, then in the ratification
process that supports this claim to legitimacy. Because the American
constitution is submitted for approval by and not given to the people, its
Notes
183
184
Notes
United States would have been divided into two parts. Carey and
McClellan eds., The Federalist, xi.
Why are nine states required for ratification rather than eight, ten or
twelve? Perhaps this is spillover from the Articles, which required the
agreement of nine states for enactments to become law.
22. According to the Kessler edition of The Federalist Papers, the
previous example refers to Rhode Islands refusal to send delegates to the
Constitutional Convention in Philadelphia.
23. Rhode Island was not expected to sign on since it did not even
send delegates to the convention.
24. See Calhoun, A Discourse on the Constitution and Government,
in Union and Liberty. He specifically mentions the ratification provision
at the beginning of his inquiry into whether the act of ratification, of
itself, or the constitution, by some one, or all of its provisions, did, or did
not, divest the States of their character of separate, independent, and
sovereign communities, and merge them all in one great community or
nation, called the American people (87-88).
Chapter Four: A Continuing Compact: The Rationale
1. Progressive here is defined in the ordinary sense as marked b y
progress, reform, or continuing improvement. It does not allude to the
late nineteenth/early twentieth century political movement.
2. For example, the census provision and apportionment criteria
established in Article I, Section 2, the provision to add new states in Article
IV, Section 3, and the provision in the same section that gives congress the
power to regulate territories that are not yet states.
3. Engeman et al., The Federalist Concordance, 217, 411.
4. The deliberate decision-making that he describes in 1H:4, 2J:10,
and 14M:66 is far different in its operation and result than that of
impassioned majorities (9H:38, 10M:43, and 14:63).
5. Ibid., 479. There are 58 occurrence of safety in The Federalist. I
have eliminated five because they represented different usages of the word.
6. Ibid., 236, 239. The pairing occurs in Numbers 2J, 15H, 22H, 40M,
43M, and 56M; both items are mentioned in 1H, 20M, 30H, 38M, 41M,
45M, 59M, and 84H.
7. Ibid. Numbers 5J, 9H, 14M, 24H, 31H, 36H, 37M, 38M, 46M, 57M,
62M, 71H, and 78H.
8. See Lutz, Colonial Origins, 273.
9. See Locke, Second Treatise. He asserts that when a government
exerts absolute, arbitrary power over the people they are no better than they
were in the state of nature (13) and he who attempts to get another man
into his absolute power . . . does thereby put himself into a state of war with
him (17). Dissolution of the government does not require that the
majority of the people are adversely affected, only that the government
demonstrates a willingness to act arbitrarily (209). Also see 168 and
243.
Notes
185
186
Notes
Notes
187
188
Notes
Notes
189
as circular, perhaps spiraling its way to the truth. Science, then, for Publius
is more of a process than a set of laws. The novelty of some of the
Constitutional provisions provides confirmation of this view. These
innovations, suggested by past failures, have yet to be tested.
7. Lutz (Colonial Origins, 271) observes that William Penn may have
been the first European to propose and use an amendment procedure.
8. Recall from the discussion in Chapter Three Publius assertion that
the Articles were a mere alliance because they were formed by consent of
sovereign states, not by consent of the people themselves. He articulates
this position in 15H:75, 22H:113, 42M:219, 43M:228, among others.
However, there may have been another, more practical, reason for not
attempting to ratify the Articles. Publius tells us that the amendment
provision in the Articles was too stringent to be of any practical value. He
claims that its requirement for unanimity subjects the fate of 12 States t o
the perverseness or corruption of a thirteenth (40M:203). Also see
43M:227. The fact that the thirteenth state (Rhode Island) did not even
send delegates to the Convention (see 40M:205) makes it doubtful that
any amendments to the Articles proposed by the Convention would have
been adopted.
9. Publius makes the distinction between limits on the types of
powers delegated to the national government and limits on the scope of the
delegated powers. At one point he goes so far as to say that the powers that
relate to the common defense ought to exist without limitation (23:119).
The idea that the means ought to be proportioned to the end is a recurring
theme in The Federalist, particularly in the series of papers between
Numbers 23 and 36, where he discusses the powers granted the government
under the Constitution. The issue comes up again later in a discussion of
the necessary and proper clause, in Article I, Section 8, of the proposed
constitution. Again Publius asserts: No axiom is more clearly established
in law, or in reason, than that wherever the end is required, the means are
authorized; wherever a general power to do a thing is given, every
particular power necessary for doing it, is included (44M:232) .
10. The competency factor, relating to the goodness or badness of the
governments administration, is also suggested in 27H:136.
11. Present day scholars, having the benefit of hindsight, confirm that
the dualism inherent in federalism does indeed provide important
flexibility in the allocation of political power. Daniel Elazar observes that
the federalist principles are not a single way of doing things, but rather
two orientations. Federalism has been interpreted as limiting government
action and as providing the basis for government intervention to require
private individuals to behave in a morally and correct way. Thus federalism
as a political way provided a basis for the secession of the southern states
on one hand and, on the other, for their reintegration into the union on an
equal footing with their northern sisters (from Ostrom, Compound
Republic, xxii). Grant McConnell, in Private Power, views federalism as
engendering two oppositions initially a centralizing force, which over
time becomes a decentralizing one. Osborne and Gaebler (Reinventing
Government, 276-77) maintain that the competence of the respective
190
Notes
Notes
191
popular creed, they would utterly unfit the people of this country for any
species of government whatever.
10. Publius does not acknowledge that disproportionate population
increases might occur in the small states, which would dampen the
enthusiasm of large states for augmentation.
11. The phrase appears in other papers, including: 26H, 35H, 60H,
63M, 78H, 84H (Engeman et al. Concordance, 56-7).
12. Publius comments on the limited right to suffrage in Britain i n
57M:298.
13. Since the ratification of the seventeenth amendment in 1913,
Senators have been elected directly by the people in each state.
14. As Publius explains this provision it seems to be the American
version of Rousseaus deliberating alone. In Rousseaus scheme, when
the people meet in assembly, they are to consider their decision in private.
He suggests that discussions with others create factions, which in turn
place private interest ahead of public good. Rousseau (On the Social
Contract, I.3).
15. Also see 78H:402.
16. Also see 81H:418.
Chapter Seven: Virtue in the American Republic
1. Also see 15H:76 where Publius asks, Why has government been
instituted at all? Because the passions of men will not conform to the
dictates of reason and justice, without constraint . . . .
2. Publius uses the term democracy narrowly to describe a system i n
which the people participate directly in their government.
3. See Websters New World Dictionary of the American Language.
1964. College Edition. The World Publishing Co: Cleveland.
4. For example, Publius refers to enlightened statesmen in 12H and
36H, the most enlightened legislators in 37M, and the most enlightened
and respectable in 64J. In 3J:13 he refers to the best men in the
country; in 4J, the ablest men. In 57M Publius indicates that rulers
ought to be men who possess most wisdom to discern, and most virtue t o
pursue the common good; in 68H he speaks of characters preeminent for
ability and virtue . . . These citations do not include a complete list of
such references, but they should be sufficient to convey Publius point of
view on the subject.
5. This formula for leadership is expressed either explicitly or
implicitly throughout The Federalist. See 2J:10, 10M:48, 14M:66,
36H:174, and 68H:354.
6. For example, see 1H:5-6 and 10M:47.
7. Publius claims that at that time, turnover in the state legislatures
was around fifty percent (62M:322).
8. This passage appears in a paper where Publius defends the longer
term of Senators, which he contends is necessary to counteract the
likelihood of high turnover in the House.
9. Publius discusses the practical value of a limited constitution i n
several papers. He observes that the limited responsibilities of the national
192
Notes
government are so weighty that public officials would have little time or
little incentive to extend these powers (14M:65, 17H:84, 53M:280,
78H:402, 83H:429, and 84H:443). The special expertise that is required i s
reflected in Publius reference to two of these powers (war and finance) as
sciences (29H:143).
10. See 63M:325 and 71H:370.
11. See discussion in Chapters Two and Three.
12. See Chapter Three and also numbers: 12H:56, 22H:108, 39M:194,
2J:9, 49M:260, and 57M:297.
13. See Chapter Four.
14. See especially 10M:47-8 and 35H:169.
15. The popular role has expanded in the selection of national
officials, first, with the passage of the Seventeenth Amendment, which
provided for the popular election of Senators, and, more recently, with the
democratization of the presidential candidate selection process.
16. See 8H:35 and 44M:230.
17. Adam Smiths Wealth of Nations (1776) is most generally
associated with the idea that selfish pursuits produce common benefits.
However, Locke advances a normative formulation of this view much earlier
in his Second Treatise (1690) as he conditions title to property on the
concept of added value.
18. Publius continues: By multiplying the means of gratification, b y
promoting the introduction and circulation of the precious metals, those
darling objects of human avarice and enterprise, it serves to vivify and
invigorate the channels of industry, and to make them flow with greater
activity and copiousness (12H:55).
Implications
1. In the 1930s, when the Court started to use substantive due process
reasoning to invalidate acts of Congress, and in the process much of
Roosevelts New Deal, it did elicit a reaction. Roosevelt proposed what has
become known as his court-packing plan, which would have allowed him
to appoint a new justice for each existing justice over 70 years old, up t o
fifteen justices in total. This threat is what supposedly caused two justices
to switch sides on subsequent cases, thus changing the balance of the
Court. Roosevelts plan was never voted on by Congress. This battle also
tarnished the doctrine of substantive due process, which has not been used
overtly by the Court since.
2. Although a due process clause also exists in the Fifth Amendment
to the Constitution, an earlier decision in Barron v. Mayor and the City
Council prevented the Court from applying any of the first eight
amendments to the states. The important words in the Fourteenth
Amendment are therefore: nor shall any state deprive . . .
3. Privacy as a reproductive right was actually established in an
earlier case (Griswold v. Connecticut) and was then asserted in Roe. Like
Roe, the Griswold decision generated much legal controversy so much
Notes
193
that an entire edition of the Michigan Law Review (64:219-234, 1965) was
dedicated to the case. The substantive due process standard, while lurking
in the background, was not really applied in this case, however. Indeed, the
criticism of Griswold, among even liberal jurists, was that the Court did not
provide any clear Constitutional justification for the assertion of this
right. As a result, some jurists have recommended a cautious return to some
form of substantive due process method because it forces the courts t o
clearly articulate the rights involved and the reasons those rights outweigh
other interests of the state.
4 . The right to privacy, as it applies to abortion, is not considered
textually grounded because this right is not specifically mentioned in any
part or amendment of the Constitution. In contrast, violations of privacy
specifically related to the search of a person or the seizure of his
belongings can be tied directly to the Fourth Amendment.
In
constitutional law, direct textual grounding is not necessarily a
requirement for constitutional support of a right, but in such cases the
Court generally attempts to explain how the right is implied from certain
provisions in the Constitution, or how it is so rooted in tradition and law
that it justifies constitutional protection.
5. Lochner v. New York (1905) is the case most associated with the
doctrine of substantive due process. This case is famous for both its
articulation of the standard and for Justice Holmes dissent. Here the Court
invalidates a New York statute establishing maximum hours of work for
bakery employees on the grounds that the state does not prove a
compelling reason for depriving employees and employers of the liberty
(as understood by the Court in the due process clause of the Fourteenth
Amendment) to contract.
6. See David Barnum, The Supreme Court and Public Opinion, 652666.
7. The exception was in 1994, when the re-election rate was 89%. From
Norman J. Ornstein, Thomas E. Mann and Michael J Malbin, Vital
Statistics on Congress, 1995-1996 (Washington, DC: CQ Press, 1996) i n
Edwards et al, Government, 298.
8. Since 1960 the following presidents received less than 50% of the
popular vote: Kennedy (49.7%), Nixon in 1968 (43.4%), Clinton in 1992
(43%), Clinton in 1996 (49.2%), Bush in 2000 (47.9%). Edwards et. al.,
Government, 585, and www.uselectionatlas.org/USPRESIDENT.
9. Nelson W. Polsby was one of the first political scientists to suggest
this possibility in his fascinating examination of the party reform
movement and its consequences. See Consequences of Party Reform,
Oxford: Oxford University Press, 1983.
10. While there has been no research establishing a causal link, the
numbers indicate that a downturn in voting rates occurred in the early
1970s, at the same time that democratic reforms were being implemented.
McDonald and Popkin (The Myth, 697) show that when turnout i s
adjusted to account for the overstatement of registered voters, the turnout
rate drops in 1972 to around 55% for presidential elections and holds at
that level for the remainder of the twentieth century.
194
Notes
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Bibliography
199
Index
Amendment
as dynamic element, 97
Bill of Rights, 162
Civil War, 163
difficulty of, 71, 95-97
electoral college, 169
First, 172
Fourteenth, 163, 164, 165,
174
history of, 92
in Articles of Confederation,
71
proposing, 94, 166
purpose of, 62, 90, 91, 93, 95,
98, 108, 135, 161, 162
reflects federal system, 94-95
role of states, 93, 94, 95
role of the people, 43, 61, 9294, 99, 110
Seventeenth, 168
to state constitutions, 170
Aristotle, 2, 54, 56, 78, 91, 153,
155, 159
Articles of Confederation, 11,
23, 24, 35, 44, 50, 58, 67, 69,
70, 71, 72, 91, 92, 96, 111
Beard, Charles A., 1, 188 n. 29
Carey George, 176 n. 6, 177
n. 9, 184 n. 21
Checks and balances, 5, 6, 118,
119, 140, 141, 142, 171
Chubb, John E. and Terry Moe,
117, 175 n. 2
Civil society
American, 50, 51, 58, 62, 65
bonds of, 12, 34-37, 39, 59
boundaries, 30, 36, 37-38, 40,
59, 158
choices, 13, 38, 40
formation, 20, 22, 35, 66
goals, 35, 86
survival, 30
Compact
American, 23, 29, 34, 35, 39,
41, 43, 44, 58
continuing, 61-62, 92, 161
dynamic, 13, 62, 71, 86
first stage, 13, 30, 31, 32, 36,
37, 40, 41, 56, 57, 151, 158
goals of, 73
ill-considered, 36
Mayflower, 2, 21
popular founding, 50
principles of, 12, 29
progressive, 97
reasons for, 35
second stage, 41-59, 73
secular basis of popular
sovereignty, 17-20, 27
Compact theory, 18, 22, 29, 30,
37, 41, 42, 56, 62, 145, 151,
157, 161
Concurrent powers, 98, 99-100,
161
Congress
Continental, 23, 25
201
202
of New Hampshire, 25
under Articles of
Confederation, 96
Congress of United States, 121
as check on president, 130
checks on, 83
committees of, 171
critique of, 171
limits on, 93, 123
powers of, 98, 133
role of, 172
role in structuring lower
courts, 105-108, 137
Constitution
British, 42, 47, 50
Massachusetts, 26, 65
New Hampshire, 25
Pennsylvania, 2527, 65, 92
South Carolina, 25
state, 4, 22, 24, 38, 44, 65, 78,
80, 106, 111, 113, 114,
120, 124, 133, 160, 175
Virginia, 65
Constitution of United States, 1,
30
as a compact, 12, 29
as experiment, 91
as higher law, 41, 43-44, 48
as new compact, 58
as remedy for faction, 76
body, 5, 6
continuing compact, 86, 108
criticism of, 80
design, 170
electoral college, 167
extensive republic, 37
federalism in, 85
flexibilities in, 162
framers, 2, 12, 74, 89, 90
improvable, 73, 86, 92
Preamble, 3, 4, 5, 30, 38
principles in, 6, 160
product of science, 90
ratification, 4, 7, 8, 9, 10, 11,
13, 29, 44, 45, 47, 50, 51,
52, 53, 55, 56, 62, 63, 71,
81, 161
Index
reflects deliberate will of
people, 83
republicanism in, 77, 109
role of the people, 166, 174
textual guidance from, 165
theory, 7
todays, 162
virtue in, 143, 144, 147, 151,
154, 155
work in progress, 62, 89
Constitutional Convention, 7,
15, 27, 30, 44, 46, 54, 55, 56,
57, 58, 73, 85, 91, 92, 95, 97,
106, 112, 114, 126, 129, 133
Convention
for proposing amendments,
94
role of the people, 26
special, 98
state, 51, 56, 90
Virginia, 25
Court of the United States, 84,
93, 99, 106, 107, 108, 137,
140, 162, 164, 165, 172, 174
Also see Judicial branch
Cox, Archibald, 164
Dahl, Robert, 1, 117, 188 n. 29,
189 n. 35
Declaration of Independence, 22,
23, 24, 27, 62, 64, 70, 133
Deliberate, 46, 63, 81, 84
Deliberate Sense of the
Community, 8084, 173
Democracy, 2, 3, 10, 19, 39, 75,
110, 158, 159, 161, 170, 174
Diamond, Martin, 2, 180 n. 15,
189 n. 35
Epstein, David F., 2
Federal
compared to national, 52, 53,
79, 92, 94
compound republic, 126
legislation, 123
nature of founding, 55, 56, 63
representatives, 125
treasury, 101
Federal compromise, 99
Index
Federal constitution, 3, 53, 70,
113, 161
Federal government, 100, 115
Federal judiciary, 106, 132, 133,
162
Federal principle, 56, 141
Federal republic, 2
Federal structure, 143
Federal system, 77, 85, 94, 99,
118, 119, 120, 157, 159
Federalism, 6, 11, 56, 112
Federalist, The
no. 1H, 45, 59, 63, 75, 81
no. 2J, 31, 32, 69
no. 6H, 35, 75, 139
no. 8H, 36, 39, 64, 154
no. 9H, 140
no. 10M, 64, 67, 76, 79, 140,
141, 145, 147
no. 11H, 33
no. 12H, 154
no. 14M, 32, 46, 58, 64, 74,
78, 85, 91
no. 15H, 67, 68
no. 22H, 50
no. 23H, 104, 105
no. 25H, 96
no. 26H, 10
no. 27H, 148
no. 28H, 36, 64, 99
no. 30H, 154
no. 31H, 99
no. 32H, 86, 99
no. 34H, 103, 104
no. 35H, 146149
no. 36H, 79, 102, 104
no. 37M, 46, 54, 89, 91
no. 38M, 46, 47, 97
no. 39M, 50, 55, 73, 78, 80,
94, 110, 111, 112, 126, 152
no. 40M, 55, 57, 69, 70, 91,
112
no. 41M, 34, 35, 39, 105
no. 42M, 97
203
no. 43M, 35, 44, 52, 55, 58,
65, 71, 90, 95, 97, 102, 113,
154
no. 46M, 100
no. 49M, 96
no. 51M, 36, 75, 116, 117,
118, 119, 131, 132, 140,
141, 142, 174
no. 52M, 114, 115, 120
no. 53M, 42, 47, 120, 121,
149
no. 55M, 48, 49, 122, 123,
140, 143
no. 56M, 123, 124, 149
no. 57M, 82, 114, 124, 125,
144, 147, 148
no. 58M, 103, 124
no. 60M, 64
no. 62M, 95, 115, 126, 148,
150
no. 63M, 81, 82, 83, 126, 127,
148
no. 67H, 127, 129
no. 68H, 127, 128, 129, 148
no. 69H, 129
no. 71H, 81, 130
no. 73H, 83
no. 76H, 131, 143, 144, 148
no. 78H, 71, 84, 92, 93, 106,
132, 134, 135, 136
no. 79H, 132
no. 80H, 107
no. 81H, 134, 135, 136
no. 82H, 89, 106, 107
no. 83H, 9, 97, 106, 133
no. 84H, 10, 51, 66, 98
no. 85H, 48, 49, 90, 92, 94
Fenno, Richard Jr., 167, 189 n.
38
Fiorina, Morris, 167
Freund, Paul A., 164
Ginsberg, Ruth Bader, 164
Hamilton, Alexander, 7, 8, 9. 176
n. 7, n. 8, 178 n. 17, 190 n. 42
204
Hobbes, Thomas, 2, 16, 17, 18,
21, 34, 35, 37, 39, 41, 59, 73,
139, 158
House of Representatives, 48,
81, 82, 102, 103, 110, 111,
113, 114, 115, 119-125, 132,
146, 147, 148, 149, 150, 152,
167, 168, 169
Human nature, 10, 34, 39, 48, 62,
71-73, 86, 123, 141, 144, 155
Jay, John, 7, 9
Jefferson, Thomas, 65, 96
Judicial branch, 80, 81, 84, 105,
106, 107, 116, 162, 163, 165
Laswell, H., 1
Locke, John, 2, 12, 16, 19, 21,
22, 30, 34, 35, 36, 37, 39, 43,
50, 51, 59, 63, 64, 65, 66, 139
Lowi, Theodore J., 2
Lutz, Donald S., 2, 16, 118, 179
n. 8, n. 9, 180 n. 11, n. 12,
n. 14, 185 n. 8, 190 n. 7, 192
n. 2
Macedo, Stephen, 3
Machiavelli, 72, 78
Madison, James, 5, 7, 8, 9, 176 n.
7, n. 8, 178 n. 17, 183 n. 9,
188 n. 29, 189 n. 35, n. 39
Montesquieu, 2, 78, 139
Pitkin, Hanna Fenichel, 3, 189 n.
39
Plato, 10, 145
Popular sovereignty, 1, 3, 4, 6,
15-27, 134
constitutional commitment
to, 109
definition of, 11, 15
in a federal system, 85-86,
166-171
in Mayflower Compact, 2
Publius theory of, 41, 63,
157, 160, 174
reinforcement of, 92
strengthening of, 78
President, 81, 83, 110, 111, 118,
123, 127-131, 144, 148, 150,
167, 168, 169, 170
Principles
Index
Articles of Confederation, 112
constitutional, 111, 165
founding, 1, 2, 25, 58, 160
fundamental, 8, 9, 10, 38, 151,
152
Great Britain, 47
in the Preamble, 6
inherent in the compact, 29,
161
operational, 5-6
political, 118, 122, 155
republican, 73-86
shared, 11, 31
Republic
American, 1, 10, 47, 50, 115,
119
ancient, 153
as mixed regime, 2, 78
British, 78
compound, 100, 118, 126,
141
Czechoslovakia, 158
distinguished from
democracy, 74
extensive, 10, 37, 46, 78, 141
Holland, 78
large, 32, 159
small, 10
wholly popular, 151, 7780,109-116
Republican principles, 62, 7386, 100, 112, 114, 123, 126,
151
Rossiter, Clinton, 8
Rousseau, 10, 181 n. 9, 183 n. 8,
193 n. 14
Schattschneider, E. E., 1
Senate, 82, 83, 103, 110, 111,
113, 118, 123, 126, 130, 131,
132, 144, 150, 167, 168
Separation of Powers, 5, 6, 107,
127, 131, 132, 141, 143
Supreme Court, see Court of
United States
Tocqueville, Alexis de, 39
Virtue
aim of a constitution, 124
civic, 156
Index
in republican government,
123
in the American founding, 48
in the American people, 122
in the American republic, 139156
in the compact, 12, 13, 40
of the people, 155, 174
of the president, 128
Wholly popular, 77-80, 109116, 151
205