The U.S. Constitution: A Reader

by Hillsdale College Politics Faculty

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.

In a free government the security for civil rights must be the same as that for religious rights.

It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.

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 reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Although New York had ratified the Constitution by the time this essay was published, the debate it addresses lived on. The original Constitution did not include what came to be known as the Bill of Rights. Many Anti-Federalists ended up supporting the Constitution because of the concession made in some states that the first Congress would adopt a Bill of Rights. Publius here makes no such concession, arguing that a listing of rights would be potentially dangerous. In the end, Publius lost this battle, and even James Madison, despite his earlier opposition, ended up championing the Bill of Rights.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights.

Section 9, of the same article, clause 2—"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3—"No bill of attainder or ex post facto law shall be passed." Clause 7—"No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3—"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."

Section 3, of the same article—"Treason against the United States shall consist only in levying war against them,

or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section—"The Congress shall have power to declare the punishment of treason; but no attainder of treason shall ...

The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of titles of nobility, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains.

has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights

not surrendered to the prince.

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 which are not granted; and,

on this very account, would afford a colorable pretext to claim mo...

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union.

"responsibility." Good government is not defined by its responsiveness to popular demands, but is responsible to the true, long-term interests of the people. In other words, it protects their natural rights.

A government that is responsive to every popular whim suffers from the fatal weakness of wanting to enforce those whims.

The separation of powers doctrine makes clear we can never expect good results if the government consists only in a legislative branch.

Yet Publius does not favor change for its own sake: If republican government is to succeed, some members must be distinguished by their talents and service to the people, and through constant re-election become "masters of the public business," as Publius writes in Federalist 53. Two-year terms may be necessary, but good government requires talented and experienced members who can apply their accumulated knowledge to the pressing issues of the day.

The Senate is institutionally equipped to counter the inherently myopic view of the House.

In addition—and here is another hard lesson for partisans of republican government—the Senate will be able to stand up to the people themselves, whenever they may suffer from "temporary errors and delusions" brought on by passions run amok.

The virtues of the legislature—deliberation above all—become vices in the case of the presidency. Instead, the president's primary virtue is energy. Perhaps the most important ingredient of energy is unity, which allows the president to act with "decision, activity, secrecy, and dispatch."

The judiciary is the capstone of the Constitution. It appears at first glance to be the least republican branch, and the most dangerous to republican liberties. Yet Publius in Federalist 78 retorts that without the power of the sword or the purse, it is the "least dangerous" branch. It will possess "neither force nor will but merely judgment."

Publius leaves us with yet another profound lesson in political moderation. A well-formed constitution aims not at efficient or responsive government, but at good government, and in so doing it teaches the people who live under it that there are limits to what the majority may rightfully do.

The House of Representatives is designed, Publius explains, to be closest to the people.

The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention.

The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; second, whether they be necessary or useful.

First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people.

With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.

Publius often returns to the problem posed by majority tyranny. Here he expresses his preference for biennial over annual elections.

Happily for mankind, liberty is not, in this respect, confined to any single point of time, but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society.

No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate.

Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service.

In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people.

The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code.

A branch of knowledge which belongs to the acquirements of a federal representative and which has not been mentioned is that of foreign affairs. In regulating our own commerce, he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations.

It is an inconvenience mingled with the advantages of our frequent elections, even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect.

All these considerations taken together warrant us in affirming that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberties of the people.

Under the Constitution's original formula, the House would have sixty-five members. This number was too small according to Anti-Federalists. Publius employs a number of arguments to demonstrate that the ratio of elected representatives to constituents is prudent.

The number of which the House of Representatives is to consist forms another and a very interesting point of view under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more

worthy of attention by the weight of character and the apparent force of argument with which it has been assailed.

Another general remark to be made is that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few.

The truth is that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

The true question to be decided, then, is whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating

for the United States?

Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny.

Publius explains the necessity of virtue in elected representatives and of a spirit of manly vigilance in the American people.