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Federalist No. 85

In the last of the Federalist papers, Federalist No. 85, Hamilton concludes by arguing that the preceding papers should demonstrate that the proposed constitution is fundamentally sound, and that it should be ratified regardless of any few faults or reservations that people might have because revision prior to ratification would be more difficult than amendment after ratification.

In making his argument Hamilton made reference to Article V. In light of a recent discussion where Connor argued the potential dangers of a modern constitutional convention I read through Article V again. While there is always the possibility of people organizing their efforts to remake the government the dangers that Conner discusses are in excess of the provisions of Article V. If such a convention were called it under Article V it could do no more than propose amendments to the existing Constitution. Once such a proposal (or proposals) is made the ratification process is the same as for amendments proposed in Congress – they would need to be ratified by ¾ of the state legislatures. Such amendments are also limited in that they cannot propose to deprive any state of equal suffrage or representation in the senate without the consent of that state.

Based on the words of Article V as well as my resolute faith in the principle of agency I no longer have any shred of discomfort with the idea of a modern constitutional convention. The outcome of  such a gathering would either be illegal or have limited impact. The risks posed by  a legal Article V convention are no greater than the risks we face from Congress every day. As for the risks posed by an unrestrained (illegal) convention – we face those risks from Congress every day as well.

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General

Federalist No. 84

In his penultimate federalist paper, Federalist No. 84, Hamilton ties up a few loose ends and once again shows his prescience. As I was reading this thought on the need (or lack thereof) for a Bill of Rights:

a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.

I thought about how our present government had become the kind to "regulation of every species of personal and private concerns"and began to wonder if the Bill of Rights opened the door to a larger, more intrusive government than was intended. Then I got to this:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.  (emphasis added)

The argument that I had in my head before reading that was probably substantially the same but I would have said that without the explicit Bill of Rights which was later added the voters might feel more urgency to check their representatives and replace them when they began to make incursions upon the rights that the voters felt were important.

Later in the paper I found yet another argument against the now static size of our House of Representatives:

It is evident that . . . a continuance of the present number {in Congress} would, in a more advanced stage of population, be a very inadequate representation of the people.

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General

Federalist Nos. 80 – 83

Some of the items of discussion in the federalist papers are so obvious that I must conclude that the purpose of these papers was not onyl to answer critics of the proposed constitution, but also to endeavor to generally educate those who had not considered the necessities of government in order that they might make an informed choice on the issue of ratification. In my opinion, this effort to disseminate information is one of the hallmarks that separates a statesman from a politician. Politicians seem to love pontificating and posturing, but do not seem to care much whether they actually inform or enlighten.

Federalist No. 80 lays out the types of cases and situations that would properly fall under federal jurisdiction and argues that only those cases have been covered in the powers granted to the federal courts. Federalist No. 81 explains the purpose of allowing for lesser federal courts to be instituted rather than relying on a single supreme court, or dependence on state courts in any case of federal jurisdiction. Federalist No. 82 contends that the judicial systems of the states are not adversly affected in any material way by the federal judicial system as proposed. Federalist No. 83 discusses the value and limitations of trial by jury and contradicts the assertion that trial by jury might be prohibited in civil cases on the grounds that it is mandated in criminal cases. I found it interesting to note some similarities in the reasons to recommend a trial by jury when compared to the reasons that recommend the use of an electoral college. It was also interesting to read how different the judicial systems of the various states were from each other.

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General

Federalist Nos. 78 – 79

I had always been taught that the Executive, Legislative, and Judicial branches were fundamentally equal in power within the federal government (checks and balances etc.) but Federalist No. 78 says otherwise:

the judiciary is beyond comparison the weakest of the three departments of power.

I wonder if my understanding is a byproduct of the power grabs by the Supreme Court from the earliest days of the nation by which it made itself the equal of the other two departments. I read the whole paper wondering if anything different could have been done regarding the term of office for judges ("during good behavior"). I considered an absolute maximum term of service and concluded that it would have no positive effect. Hamilton argues that an age limitation (the state of New York cut judges after the age of 60 at that time) was not feasible. I have concluded that it would be feasible today due to our current society whereby pensions are relatively normal. In fact, we already have a soft age limit whereby judges are allowed, but not required, to retire. We could choose to make retirement mandatory, but I don’t think we would see any benefit from such a move. My conclusion was that the judiciary was as well designed as it could have been.

The one drawback to our modern judiciary was foreseen:

The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. (emphasis original)

We have seen unfortunate cases where courts (state courts as often as federal) do not merely judge the merits of a case or a law, but order legislative bodies to act accordingly. This seems to display a misunderstanding of the power of the courts. The courts never need to order the executive or judicial branches to do something (except in cases pitting the two departments against each other). If the court rules that a law is unconstitutional the law become null – the court has no need to require the legislature to write a different law.

Federalist No. 79 addresses the provision that the salary of a judge cannot be decreased. There does not seem to be any need for discussion on this point because the reasoning is the same as for the president having a fixed salary and is equally applicable.

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General

Federalist Nos. 76 – 77

Federalist Nos 76 and 77 discuss the power of the president to nominate people for high government offices. I notice that these papers use some of the very same arguments in defending these powers of the president as were used to defend other powers that were to be vested in the proposed executive. I also noticed another instance of an assumption which has since been completely reversed:

A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him.

Contrary to what Hamilton expected, it is now the exception when one president retains the services of someone appointed by a previous president unless the previous president came from the same party as the current president.

I also took note of the pattern by which the government was laid out. Those powers which had the greatest need for expedience (such as nominating and the making of treaties) were placed in the executive branch with the power to negate being given to the Senate where necessary. Those powers which had the greater need for deliberation (such as the making of laws) were granted to the legislative branch with the conditional power to negate (meaning that the veto was not absolute) given to the President. The setup realy is a very well constructed balance with the judicial branch present to independently arbit between parties when there were doubts regarding conflicting opinions

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General

Federalist Nos. 74 – 75

Federalist No. 74 discusses the power of the president to command the military and grant pardons. Federalist No. 75 discusses the power of the president related to the making of treaties. Neither of the papers is particularly remarkable unless you have concerns related to those issues (I don’t) but it was interesting to read Hamilton’s remarks discussing the way that the making of treaties did not comfortably fit entirely within the powers of the legislative branch, nor completely within the powers of the executive branch – thus necessitating the mixture of presidential and senatorial influence on the process.

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Federalist No. 73

Federalist No. 73 demonstrates two instances where the framers of the Constitution designed not for a virtuous system, but for a system riddled with human fallibility. The static nature of executive compensation helps mitigate the human fallibility of the executive.

There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils; and in the main it will be found that a power over a man’s support is a power over his will.

On the other hand, the qualified veto helps to mitigate the human fallibility that would be present in the legislative branch:

The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn.

This paper also includes what could be used as a yardstick to measure how well our government is working:

It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.

The measure is that the more we see the different branches of government succumbing to the same undesirable forces the worse off our government is doing. Hamilton obviously recognized this as he expressed this hope:

It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive.

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General National

Federalist Nos. 71 – 72

In three sentences Federalist No. 71 conveys the primary reason to prefer a republic over a democracy:

It is a just observation, that the people commonly INTEND the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always REASON RIGHT about the MEANS of promoting it. (emphasis original)

By separating the people from direct decision-making a republic insulates the nation from mob rule.

I found great irony in the following truth:

The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity.

Sometimes today it seems that the representatives of the people in our "popular" assembly have fancied that they are the people themselves and they often appear impatient or disgusted at opposition from the voters when they are busy trying to promote the will of the President.

In talking about the duration in office of the president (Federalist No. 72), Hamilton comes out in staunch opposition to term limits:

Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates, I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it.

As in various other decisions in the original Constitution we have changed our stance on that since that time. Unlike other such examples I believe that this change has been positive or at least neutral for the nation. In fact I have been one to favor the possibility of adding term limitations to other elected positions. There is one way in which I could see someone arguing that term limits may have contributed to our imperial presidency:

An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory;

I’d love to hear other perspectives on whether our two term limit on the presidency has been a good or bad thing for the country now that we have had half a century to see the results.

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General

Federalist Nos. 69 – 70

In Federalist No. 69 Hamilton argues that the president is not as powerful a position as some have made it out to be while in Federalist No. 70 he argues that having any less power vested in the president would be a recipie for bad government.

I have found it to be very interesting, not only in these Federalist Papers, to see the proposed government compared to the state governments that existed as well as to foreign governments. For example, Hamilton shows how the office of president as proposed holds powers inferior not only to the king of Great Britain (to which it had been compared by detractors) but also in virtually every instance to many of the governors of individual states. The other thing that I find interesting in this study is how closely subsequent state governments model the federal Constitution when they were being established.

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National

Federalist No. 68

Due to the number of people in recent years who have called for the abolition of the electoral college I was very interested in what Hamilton would say on the subject in Federalist No. 68. Imagine my surprise then when that paper opened with this:

THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.

Even the opponents of the Constitution in 1788 felt that the electoral college system was praiseworthy. Of course, the electoral college today does not operate as the founders envisioned it back then. They planned a system where the people would choose members of the college to represent them in selecting the best person to become our president (and vice-president). Today the average citizen does not know the name of a single member representing them in the electoral college – we vote for a President and electors who have pledged to vote for the people’s choice (usually on a winner-take-all basis within each state) are assigned to officially cast the votes in the electoral college. no longer do the members of the electoral college deliberate on which presidential candidate will be the best for the nation – they simply vote blindly for the choice of the people if the people choose the same person they have pledged to vote for. In other words, we have already gutted the electoral college system and turned that element of our republic into a democracy while maintaining the weighted balancing between states that the founders sought.

Here is a description of what we have gutted from the process:

The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Perhaps instead of calling for the abolition of the electoral college we should be calling for the reinstatement of the electoral college.