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In a response of 475-550 words, please answer one of the following:
(1) In Federalist 42, Madison asserts: “To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.” Do you agree with Madison’s argument that the U.S. Congress under the proposed Constitution should regulate commerce among the several states? Was this not a provision of the New Jersey Plan to rectify a defect in the Articles of Confederation? If the states could impose tolls on goods passing through their territory, what would be the ramifications for commerce in the U.S.? Could this ability to regulate commerce be taken too far? You may wish to consider the implications of the Wickard v. Filburn case, 317 U.S. 111 (1942)? Also, how did the Supreme Court holding in United States v. Lopez, 514 U.S. 549 (1995) narrow the extent of Congress’ regulatory authority that was afforded in the Wickard v. Filburn case?
(2) Towards the end of Federalist 43, Madison quotes Article I, Section VIII: “’To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.’” Madison then goes on to state: “The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc. , established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment.” Do you agree with Madison that the seat of the federal government (which ultimately would permanently be established in Washington, D.C.) should have been ceded from the existing states and should have remained a federal district so as to protect it from the jealousies and/or neglect of the other states? With that said, as people began moving to the district and the population of the city increased, as residents they were precluded from voting in presidential elections before the passage of Amendment XXIII, “Section I[,] The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section II[,] The Congress shall have power to enforce this article by appropriate legislation.” Did the conferral of presidential electors under Amendment XXIII sufficiently provide for the voting rights of D.C. residents or do you agree with the movement now underway to transform Washington, D.C. into a state, thus providing at a minimum two U.S. Senators and one seat in the U.S. House of Representatives for D.C. residents? Does Madison’s belief that the citizens in the federal district (now D.C.) would be represented by the Congress collectively (i.e. the 435 representatives, as well as, the delegates and resident commissioner from the territories) and efficaciously, or do D.C. residents in not having a Congressional delegation for whom they can vote for lead to the grievance on the part of some residents who argue that they, like the American colonists under the British, are subject to “taxation without representation,” which is famously emblazoned on D.C. license plates.
(3) In Federalist 44, Madison writes, “The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest.” He then goes on to quote from Article I, Section VIII: “’Of these the first is, the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.’” Finally, Madison contemplates the ramifications of the necessary and proper clause (which has later been termed the elastic clause given the way in which Congress has over the past two hundred years expanded its powers via this provision) by stating: “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.” Do you find Madison’s defense of the necessary and proper clause to be persuasive? When you consider that in addition to Congress’ enumerated powers in the first 17 clauses of Article I, Section VIII, the broad assumption of powers by Congress from clause 18 from Article I, Section VIII (the necessary and proper clause), which has been generally upheld by the U.S. Supreme Court has over the years been to some extent off-set by the assertion of presidential (or executive) powers via the inherent powers of the president derived from broad constitutional statements such as being commander-in-chief and of his or her duty to “preserve, protect, and defend the Constitution of the United States,” in addition to his or her expressed powers (i.e. the specific powers in Article II, Section II (the constitutional powers of the presidency), as well as, powers conferred by Congress (the statutory powers of the presidency). The aforementioned all taking place simultaneously with the assertion of broad and expansive judicial powers by the U.S. Supreme Court since the landmark case, Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803). Has the growth of federal powers at the expense of state and local powers been a positive development and in keeping with the original understanding of the U.S. Constitution and its scope or does it lend credence to some of the concerns and objections voiced by the Anti-Federalist critics of the Constitution?
(4) In Federalist 45, Madison states, “HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.” Do you agree with Madison’s argument that the federal government under the Constitution would and will not prove fatal to the state governments and their powers? The fears that Madison seeks to allay has proven an ongoing tension between individuals constituting parties and factions in the U.S. over the past two hundred plus years. The issue violently metastasized and culminated in the U.S. Civil War, with some arguing for the right of state sovereignty or state’s rights. The opening words to Article I, Section X, which were adapted from the Articles of Confederation and incorporated into the U.S. Constitution are: “No State shall enter into any Treaty, Alliance, or Confederation[.]” Such a statement, was in the minds of many in the country at the time of the U.S. Civil War, grounds challenging the legitimacy of the Confederacy (the Confederate States of America). In Abraham Lincoln’s First Inaugural Address he states: “Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.” Here Lincoln is arguing that the government should be majoritarian, but constrained “by constitutional checks and limitations[,]” implying that dissenters do not have a right to secede from the Union, but rather that the popular will as it changes over time should govern a nation, bound by constitutional limitations and constraints. Do you agree with this argument? In Article VI of the Articles of Confederation it states, “No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.” Did the delegates at the Constitutional Convention comply with this provision when they sought permission from their state governments to meet in Philadelphia to consider the exigencies of the Union? Did the subsequent ratification of the Constitution by each state and its concomitant supersession of the Articles adhere to the letter and spirit of that provision in the Articles? Interestingly, in the Constitution of the Confederate States of America, which mirrors the U.S. Constitution almost word for word at times, in Article I, Section X it states: “No State shall enter into any treaty, alliance, or confederation[;]” hence implying the right of a state to secede from that government was also rather dubious despite the authors of that Constitution averring to the supposed fact that their Confederacy was predicated on the rights of each of its constituent states (or state’s rights).
(5) In Federalist 46, Madison writes, “It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States.” Do you agree with Madison’s assertion that members of Congress will be more apt to concern themselves with local matters than to focus their attention on issues of national concern? Does the expression, “all politics is local,” as articulated by former House Speaker Tip O’Neill hold true in that politicians concern themselves with the interests of their constituents in order to remain in office by winning elections? What does that say about members of Congress seeking earmarks for their districts (also know as “bringing home the bacon”), which were banned for the past decade before being restored? Are earmarks a cost prohibitive or exorbitant waste of taxpayer dollars that generally serve to endear House and Senate members with their constituents as their detractors’ claim, or are they a way of providing valuable services and projects to otherwise neglected districts?
(6) In Federalist 47, Madison states, “If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY. ” Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department.” Madison goes on to cite other states and the intermixture of powers between the different branches of government. Do you agree with Madison in his departure from an absolute adherence to a separation or disaggregation of powers between the different branches of government and of his allowance for a partial intermixture of powers between the branches in order to yield a system of checks and balances?
(7) In Federalist 48, Madison writes, “What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities.” Do you agree with Madison’s belief that parchment barriers, as seen in the various constitutions of the states between their respective branches of government, will prove inadequate in preventing the accumulation of power in a given branch? Consequently, is Madison’s solution of placing the branches of government in tension with each other by affording each with a partial intermixture of powers a sufficient safeguard in ensuring that none of the branches usurp such powers from the others to bring about a tyrannical sway over the rest of the government, and by extension, the people?
(8) In Federalist 49, the author (either Hamilton or Madison) states, “We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people.” Do you agree with the author’s argument that the legislative branch (i.e. Congress) was potentially the most dangerous branch in a republican system of government or representative democracy? Consequently, is there any danger in the people rallying to a call from either the executive or judicial departments? Would the people be split between their devotion to a member of Congress who happens to be denizen of their local community or state, or conversely would they be drawn to the rousing pronouncements of a potential demagogue presently in or seeking election to the executive branch?
(9) In Federalist 50, the author (either Hamilton or Madison) argues, “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of
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