Federalist No. 51, Part I: Context

            After jumping around a little bit over the course of the last few months – from Mercy Otis Warren, to Jefferson the constitution-maker, to young Hamilton, to Ethan Allen – I thought it might be a good idea to use these next few posts to get back to basics. In that spirit, I recall that I started this series for several reasons. In part, I wanted very much to maintain a connection to the topic I had spent so much time and money studying. Creating a public forum for my various thoughts and investigations seemed like a way to cultivate a sense of obligation – if people are reading, I have to keep writing – and encourage a modicum of disciple on my part. America, On Paper has been a success in this sense, in as much as it has kept me writing and thinking and seeking out new topics. I thank my dedicated readers – whoever you are – for giving me a reason to stay at it.

            The other major motivation for undertaking this project served what I would consider to be a slightly more public function. While I don’t pretend to be anything close to influential, I do believe that being able to broaden the perspective of even one person is a worthwhile endeavor. Therefore, though I had no sense of what my weekly audience would turn out to be, I determined early on that I would endeavor with my writing to show the continued relevance of the American Founding to the present day. I attempted this not as a function of some clandestine political agenda – though any number of ulterior motives could be attributed to the opinions I have voiced – but rather because I honestly feel that the men and women who together created the United States of America still have a great deal to teach us about the purpose and function of representative government. My success in this quarter is much harder to measure. While I have tried to maintain and communicate an appreciation for the contemporary importance of the documents I’ve delved into, I’ll grant that I may not always succeed in adequately conveying the significance of this phrase or that idea. Additionally, even when I do succeed I have no way of knowing what, if any, impact my words have had. I hope that I have done some people some good, but my audience can all the same be forgiven if they occasionally ask themselves why in God’s name any of the things I prattle on about are so damned important. With that in mind, I’d like to return to our old friend James Madison (1751-1836) and our old stomping grounds the Federalist Papers for a brief discussion of the ways a piece of 18^th century polemic writing can tell us about why the United States government functions the way it does.

As the title of this post gives away, Federalist No. 51 will be the specific topic of discussion for the next few weeks. First published in the Independent Journal on the sixth day of February, 1788, No. 51 sought to address the manner by which the proposed federal constitution contained within it a mechanism to prevent an abuse of power by one or more of the new government’s various branches. The Presidency was viewed by many critics of the proposed federal charter as particularly dangerous if left unchecked, and some explanation of how it might be made safe was urgently required lest the entire project be defeated by a rejection at one or more of the ongoing state ratification conventions. Madison’s response in No. 51, though quite brief, accordingly presented a rather novel understanding of the way a complex government could function, the value of human ambition, and the limits of majoritarian democracy. Though it may be practically impossible to measure the influence No. 51 specifically exerted on the successful ratification of the United States Constitution, it has since become one of the most influential of the Federalist Papers, established itself as a cornerstone of American constitutional interpretation, and been frequently cited by the United States Supreme Court. The reason this piece of hastily dashed-off political discourse has so resonated with subsequent generations, and the fundamental truths it so successfully illuminated, will be explored in the weeks to come. In the meantime, a little background would seem appropriate.

 In light of the fact that the author of Federalist No. 51 – James Madison – has appeared in this series more than once already, it would not do to repeat the same tired biographical details as in previous instances. It will suffice for the moment to say that he was from Virginia, that he was a friend and ally of Thomas Jefferson, that he was a graduate of the College of New Jersey (now Princeton), and that he had served in some public office or other nearly continuously from 1776 (the year he turned twenty-five) to 1788. Rather than delve any further than that into the details of Madison’s education, war service, or political experience, the remainder of this introductory post will instead attempt to provide some context for the particular discussion that No. 51 attempted to address.

Part of what made the draft constitution released by the Philadelphia Convention in September, 1787 cause for such acute anxiety in so many of the people who read it stemmed from the novelty of the government it proposed. The Presidency in particular seemed an exceedingly powerful office for a single person to hold. Without any limitation on the number of times someone could be elected President, it was widely feared that a particularly popular, corrupt, or manipulative individual would maintain a hold on the chief executive indefinitely, effectively transforming the American republic into a kind of elected monarchy. That the President was to also possess a veto on any acts approved by Congress and the power to singlehandedly oversee the negotiation of treaties that would subsequently become law were likewise cause for concern among a population that had so recently shed blood in opposition to the claimed prerogatives of a unrepresentative government. The relationships that the proposed constitution seemed to describe between the Supreme Court and the President – Justices of the former being appointed by the latter for a life term – and the Senate and the President – the former exercising approval of the latter’s appointments and treaties – were no less concerning, and seemed to portend of dangerous combinations set to form within the projected government. Once approved of and implemented, many feared the new federal legislature, executive, and judiciary would swiftly ally with one another in a scheme to monopolize power in the hands of a few and ensure that “the People” could never again make their voices heard.

Suspicions of this kind owed in part to the still-vivid memories of the efforts of Parliament and the British Crown in the 1760s and 1770s to deny the citizens of the American colonies the rights and privileges they had become accustomed to. George III had shown himself no more willing to heed his American subjects than the ministers that formed his government and accusations by many colonists of conspiracy and corruption were the inevitable result. But Americans also found reason to be concerned in with what they read in the draft constitution placed before them in 1787 because of how fundamentally it diverged from the Articles of Confederation under which the United States were then organized. The government provided by the Articles, drafted in 1777 and implemented in 1781, possessed neither an executive nor a judicial branch. Power was vested entirely in a unicameral legislature patterned after the Continental Congress, to which states sent delegates selected in a manner of their choosing. The resulting Congress of the Confederation possessed a very limited suite of responsibilities – mainly in the realm of foreign relations – and was largely beholden to the states for a source of revenue. Fear of creating another unaccountable, arbitrary authority in place of Parliament and the Crown was responsible for the birth of this intentionally weak federal government whose slim domestic profile ensured that it would not be able to interfere with the prerogatives of the individual state governments.      

 The proposed federal charter shattered this arrangement by in fact closely resembling a state constitution; or at least by resembling some of the state constitutions then in force. Most of them, drafted in the immediate aftermath of the declaration of American independence, sought to prevent the emergence of a strong executive by vesting the greatest share of power in the legislative branch. State governors in these cases tended to be appointed by the relevant legislature, were limited in their autonomy, and often shared their power with advisory bodies also chosen by state lawmakers. Delaware’s 1776 constitution, in this mold, decreed that the chief executive (in this case a President) was to be elected every three years by a joint ballot of the two houses of the General Assembly. The independence of the President was further limited by their being prohibited from making any appointments – to the courts, the militia, or the magistracy – without the advice and consent of a Privy Council whose four members were also elected by the General Assembly. The 1776 constitution of North Carolina described a similarly weak chief executive (in this case a Governor), also appointed at three-year intervals by a joint ballot of the General Assembly and accompanied by a Council of State chosen by the same procedure. By thus creating an executive that was neither popularly-elected nor hereditary – neither of the people nor above them – state constitutions on this model hoped to hinder the ability of a governor or president from resorting either to demagoguery or the unchecked exercise of arbitrary authority.

Other states attempted to tackle the problem presented by the existence of a strong executive in yet more novel ways. Pennsylvania’s 1776 constitution, for instance, departed even further from inherited notions of executive authority by vesting power in a twelve-member Supreme Executive Council. Each of the eleven counties in Pennsylvania, along with the city of Philadelphia, was to elect one member to the Council, and the Councillors were in turn responsible for choosing a President and Vice-President from among their own membership. The 1776 constitution of New Hampshire went further still by making no provision for an executive of any kind. The lower house of the state legislature, referred to as either the House of Representatives or the Assembly, was to select twelve individuals to form an upper house, called simply the Council. These two bodies were to govern New Hampshire between them – legislating and making all judicial, civil, and military appointments – and the highest offices in the land were to be the Speaker of the Assembly and the President of the Council. By thus either dispersing or eliminating the power of chief executive, constitutions on this pattern aimed to stave off the emergence of a centralized authority that could either appeal to the people or to the power of tradition, precedent, or custom.    

In addition to the state constitution whose basic structure effectively negated the existence of a strong executive, however, there existed at least two that seemed to embrace the idea that some kind of centralized authority was necessary to the existence of a stable republic. One, that of Massachusetts (adopted in 1780), strongly resembles in its structure the model later adopted by the proposed federal constitution of 1787. The state government was to possess a legislature branch (a General Court composed of a House of Representatives and a Senate), an executive branch (including a Governor and Lieutenant-Governor), and a judicial branch (including a number of different courts and magistrates). The Governor and Lieutenant-Governor were to be elected annually by a popular ballot, and a Council – composed of nine members of the Senate as chosen by a joint ballot of the General Court – was to be provided to aid the Governor in their duties. Judicial, civil, and military appointments were deemed the responsibility of the Governor, with the “advice and consent” of this Council, along with pardons and proroguing sessions of the General Court. Thus empowered, the Governor of Massachusetts represented a much more formidable political force than the weak, circumscribed executives of most other states, though the office was still subject to certain important limitations. By shackling the popularly-elected Governor to a legislatively-appointed Council, the framers of the Massachusetts constitution doubtless sought to ensure that the General Court could act as a kind of brake on the exercise of executive power. This aim was surely aided by the imposition of an annual election cycle, intended to prevent any Governor (or legislator) from become too entrenched or too alienated from popular opinion.

The 1777 constitution of New York also made provision for a popularly-elected chief executive. Contrary to the limits placed upon the Governor of Massachusetts, however, the Governor of New York was to be perhaps the single most powerful executive officer in any of the various United States. Elected once every three years with no limits on re-election, the office enjoyed sole authority to convene and prorogue the state legislature and issue pardons. Along with the Chancellor (the highest-ranking judicial official in the state) and the judges comprising the state Supreme Court, the Governor was also to sit on a Council of Revision empowered to reject by a majority vote all acts approved by the legislature. This gave the Governor, with the aid of only one other councillor in the event of the three-person quorum the constitution permitted, an effective veto over the laws of the legislative branch. No other chief executive in Revolutionary America possessed this power, let alone in combination with such generous terms of election. The office of Governor of New York, particularly under its inaugural occupant George Clinton (1739-1812), consequently came to dominate state politics at the behest of a comparatively weak bi-cameral Assembly. This was, as it happened, mostly intentional. New York’s fractious ruling elite aimed to maintain their prominence in spite of the transition from British colony to independent state, and the 1777 constitution was structured – with high property qualifications for voting and a strong executive – and ratified – by the provisional legislature rather than the general population – accordingly.

It might seem fairly obvious how the residents of the states named above would have reacted to the federal constitution put before them in 1787 based on the character of their respective state constitutions. Citizens of Delaware, North Carolina, Pennsylvania, and New Hampshire, it might easily be assumed, could not have but viewed the government proposed by the new federal charter with distinct and mortal alarm. Their states and other like them operated under the assumption that if executive power was in fact a necessary ingredient of stable republican government – and that was still a matter of debate – it needed to be restrained or weakened so as to be made safe from abuse. This would seem a fair assessment, and almost certainly a correct one. One should not conclude, however, that the peoples of Massachusetts and New York would have conversely welcomed the strong executive provided by the federal constitution because their own constitutions allowed for similarly-empowered governors. However familiar certain elements of the proposed constitution might have seemed to residents of the Empire and Bay states, respectively, the fact that the government it intended to establish claimed jurisdiction over the whole of the United States was cause for concern all the same. The reasons for this, and for the shape assumed by many other contemporary state governments, are several.

   For the most part, state governments in late 18^th century America tended to be structured in such a way as to strengthen the power of the legislative branch and severely limit the power of the executive branch. This purposefully unbalanced arrangement came as a reaction to the abuse suffered by colonial Americans at the hands of a distant British monarch whose reliance on certain traditional prerogatives – like refusing his assent to acts of law – frequently gave the lie to any pretension of colonial legislative independence. Parliament had been largely complicit in these abuses of monarchical power, but the philosophical legacy of the Glorious Revolution (1688) and the Bill of Rights (1689) ensured that the late 18^th century American political class continued to perceive popularly-elected legislatures as the surest guardians of the popular will. One of the practical results of this enduring sentiment was that the governors/presidents of many states were directly appointed by the relevant legislature. This ensured that the chief executive in question was beholden to the most representative branch of government and was incapable of interfering in specifically legislative prerogatives. While many state governments structured thusly still delegated some responsibilities to the executive branch, mainly in the realm of appointments, it nonetheless seemed clear in most cases that Americans in the immediate post-independence era trusted legislative power and were exceedingly suspicious of executive power.    

Another legacy of the Anglo-American crisis of the late 18^th century was a tendency on the part of most residents of the post-independence United States to harbor a strong suspicion of any government that wasn’t local to their given circumstances. The Parliament in distant Westminster had attempted in the 1760s and 1770s to exert its authority over a population it did not represent and at a distance of some three thousand miles. Many colonial Americans questioned the ability of any legislature to carry out its constitutional obligations under such circumstances, and over the course of the Revolution became convinced that the only legitimate government was one that was reflective of and easily accessible to the people it sought to govern. The state governments they accordingly formed fit this bill, and became objects of confidence and affection because they were small, near-at-hand, and often subject to frequent elections. Certainly there were safeguards that were widely applied to the structure and operation of these governments – restrictions on executive power, term limits, etc. – and distance did still play a role in generating resentment between different segments of the population. It’s also worth noting that not every state government was particularly respected or revered by its citizens. The aforementioned 1777 constitution of New York never seemed to sit well with a certain percentage of the state population, and was ultimately replaced in the early 1820s after a failed attempt to do the same in 1801. That being said, even citizens of New York who actively disliked the 1777 constitution doubtless took some comfort in the fact that the government it created was neither so powerful nor so alien – the farthest a person could be from the state capitol in Poughkeepsie while still living in the state was three hundred seventy-five miles – that it couldn’t be countered, reformed, or replaced.

The actions of British monarchs and ministers in the 1760s and 1770s, and an appreciation of human weakness drawn from classical antiquity, also led many of the framers of the various post-independence state constitutions to develop an acute fear of the effect of personal ambition on public service. While it may not have been possible to inculcate a sense of self-sacrifice – befitting the Cicero’s and Cato’s of ancient Rome – in the general population of a given state, structural roadblocks could be erected that limited the ability of any one person or group to turn what was intended to be a public trust into an engine of self-promotion or personal enrichment. The structures of many state governments were accordingly designed to constrain or counteract the tendencies of ambition as they ground against the needs of the public good.  This was accomplished either by weakening a given office to such as extent that it was unable to act as a platform for individual aspiration – as in the case of most state governors – or by dispersing power across a large enough number of offices so as to ensure that only actions that served the community could be taken – as in the case of most state legislatures. While it is arguable whether or not safeguards like these actually succeeded in inhibiting the personal aspirations of legislators, governors, or other officials, their existence seems at least to indicate a consensus of opinion among post-independence Americans that ambition was dangerous and could not be left unchecked in the halls of power.

The federal constitution broke with all three of these common sentiments –legislatures needed to be more powerful than the executives; a good government was small and local; ambition needed to be purged from public service – in the process of establishing the structure of a new, energetic federal government for the United States. Not only would the various branches of this government possess equal power to pursue their various prerogatives, but each would have every reason to attempt to counter the actions of any other branch whenever it threatened to intrude upon their given domain. The House of Representatives and the Senate, for example, doubtless appeared destined to come into conflict over their respective legislative agendas, and the Senate’s relationship with the executive branch, and the House’s relationship with the voters. Far from a flaw resulting from poor design, such conflicts were built into the system. Rather than attempt to deny or constrain a fundamental aspect of human nature, the federal constitution conversely sought to channel ambition in such a way as to benefit the public good. Surely this appeared to certain citizens of states like Pennsylvania, Massachusetts, New Hampshire, and North Carolina like an utterly illogical and dangerous inversion of the lessons gleaned from the recent Revolution. Even people who supported the contemporary government of New York – hardly a model of republican restraint and balance – were doubtless struck by the scope and power of the federal government that the draft constitution proposed. It was to be distant from the interests of any given state, far-reaching in its power, and complex in form and function. Hardly anything could have prepared the citizens of the United States of America – not a break with Britain, an alliance with France, or eight years of war – for the appearance of such a novel rearrangement of their national government.