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Often appears with: forms of government · political legitimacy and consent · assemblies, councils, and senates · elections and representation · counsel and advisers to rulers · revolution and the fall of states · justice as a virtue · faction, party, and civil strife · rights and liberties · courts, trials, and pleading · separation of powers and checks · censorship and the press
Usually: argument (199) · detachment (136) · skepticism (72) · exhortation (32) · censure (28) · narrative (26) · the fall of the great (26) · curiosity (20) · indignation (19) · injustice endured (18)
“Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. freedom and security.” Thomas Paine, Common Sense · insight
“For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” Thomas Paine, Common Sense · precept
“Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out?” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · vivid
“This view of the matter, at any rate, puts it out of all doubt that the supposed ABOLITION of the trial by jury, by the operation of this provision, is fallacious and untrue.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
“The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · insight
“I never expect to see a perfect work from imperfect man.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · precept
“It is this that the national rulers, whenever nine States concur, will have no option upon the subject.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · observation
“A nation, without a national government, is, in my view, an awful spectacle.” Alexander Hamilton; John Jay; James Madison, The Federalist Papers · vivid
“Until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy, and political greatness and wisdom meet in one, and those commoner natures who pursue either to the exclusion of the other are compelled to stand aside, cities will never have rest from their evils,--nor the human race, as I believe,--and then only will this our State have a possibility of life and behold the light of day.” Plato, The Republic · precept
“The cause of this difference lies in the simple fact that the Americans have acknowledged the right of the judges to found their decisions on the constitution rather than on the laws.” Alexis de Tocqueville, Democracy in America — Volume 1 · insight
Pepys records further decisions and maneuvering: the House voids actions against the Lords, Parliament dissolves and cheers the Speaker, posters and inscriptions about Charles are renewed, and proclamations force Cavaliers and certain officers out.
home I found Mr. Hunt, who told me how the Parliament had voted that the Covenant be printed and hung in churches again. Great hopes of the King's coming again. 6th. Shrove Tuesday. I called Mr. Shepley and we both went up to my Lord's lodgings, at Mr. Crewe's, where he bid us to go home again and get a fire against an hour after. Which we did at White Hall, whither he came, and after talking with him about our g…
After watching “The Mayd’s Tragedy” Pepys records Parliament passing the “great Proviso,” the King’s hostile reaction, and worries it will inflame court-commons conflict, amid plague-era theatre reopening and coal shortages.
the great plague, they having acted now about fourteen days publickly. But I was in mighty pain, lest I should be seen by any body to be at a play. 8th. The great Proviso passed the House of Parliament yesterday: which makes the King and Court mad, the King having given order to my Lord Chamberlain to send to the playhouses and brothels, to bid all the Parliament-men that were there to go to the Parliament presentl…
King John addresses English officials and loyal subjects, confirming the freedom of the English Church and granting specified liberties to free men, beginning with relief payments for heirs of deceased landholders and reduced obligations for underage heirs.
The Magna Carta Contents The Text of Magna Carta Magna Carta 1215 The text of THE MAGNA CARTA A note from Michael Hart, preparer of the 0.1 version. This file contains a number of versions of the Magna Carta, some of which were a little mangled in transit. I am sure our volunteers will find and correct errors I didn’t catch, and that version 0.2 - 1.0 will have significant improvements, as well as at least one …
A parallel version repeats the opening: John confirms the freedom of English church elections (ratified by Pope Innocent III), grants liberties to freemen, and reiterates relief payments and inheritance rules for underage heirs.
Hubert de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip d’Aubigny, Robert of Roppesley, John Marshall, John Fitz Hugh, and others, our liegemen. 1. In the first place we have granted to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolat…
It repeats requirements for unblemished offerings, orders investigation and execution of individuals found worshiping strange gods (even with witnesses), provides procedure for hard legal cases via priests and judges at the chosen place, outlines kingship rules, and requires the king to copy and read the law continually.
Thou shalt offer unto the LORD thy God no ox or sheep wherein is any deformity, whatsoever evil favouredness it be: for that is an abomination unto the LORD thy God. If there be found among you in any of thy cities which the LORD thy God giveth thee man or woman that hath wrought wickedness in the sight of the LORD thy God, that they have gone beyond his appointment, so that they have gone and served strange gods and…
Moses recounts Israel’s experiences in Egypt, praises God’s past acts, reminds them of forty years in the wilderness, then renews the covenant with Moses’ audience before the LORD in Moab.
These are the words of the appointment which the LORD commanded Moses to make with the children of Israel in the land of Moab, beside the appointment which he made with them in Horeb. And Moses called unto all Israel and said unto them: Ye have seen all, that the LORD did before your eyes in the land of Egypt, unto Pharao and unto all his servants, and unto all his land, and the great temptations which thine eyes hav…
Appius Claudius argues he is not bound by the Aemilian law on censorial duration, while his opponent attacks his family’s past tyranny and demands that the law’s newest order governs.
held to be the law, and valid:--yet neither he, nor any of those who had been created censors subsequent to the passing of that law, could be bound by it." 34. While Appius urged such frivolous arguments as these, which carried no conviction whatever, the other said, "Behold, Romans, the offspring of that Appius, who being created decemvir for one year, created himself for a second; and who, during a third, without …
The debate continues as Appius’s opponent denounces his refusal to resign the censorship, compares his actions to earlier abuses, and argues the people are bound by the latest law.
proceeding of their colleague, three gave their support to Appius, on his appealing to them, and he held the censorship alone, to the great disgust of all ranks of men. 35. While such was the state of affairs at Rome, the Etrurians had laid siege to Sutrium, and the consul Fabius, as he was marching along the foot of the mountains, with a design to succour the allies, and attempt the enemy's works, if it were by any…
Livy recounts efforts to repair Rome’s weakened institutions by refilling the senate after years of losses, disputes over granting Latin senators freedom, and the decision to create a censor-like dictator.
Quintus Fulvius Flaccus, in the room of Publius Scantinius deceased, and of Lucius Aemilius Paulus the consul, and of Quintus Aelius Paetus, who had fallen in the battle of Cannae. 22. The fathers having repaired, as far as human counsels could effect it, the other losses from a continued series of unfortunate events, at length turned their attention on themselves, on the emptiness of the senate-house, and the pauci…
Herzl rejects Rousseau’s social-contract model and develops a legal justification for forming a State during its creation using Rome’s concept of negotiorum gestio, where a gestor leads for the people (dominus).
conceived as a peculiarly modern structure on unspecified territory. But a State is formed, not by pieces of land, but rather by a number of men united under sovereign rule. The people is the subjective, land the objective foundation of a State, and the subjective basis is the more important of the two. One sovereignty, for example, which has no objective basis at all, is perhaps the most respected one in the world.…
In Federalist No. I, Hamilton urges the people of New York to deliberate on a new U.S. Constitution because the existing federal government has proved ineffective, warning about factions and promising open arguments for adopting the plan.
No. LXXXIII. The Judiciary Continued in Relation to Trial by Jury FEDERALIST No. LXXXIV. Certain General and Miscellaneous Objections to the Constitution Considered and Answered. FEDERALIST No. LXXXV. Concluding Remarks THE FEDERALIST. No. I. General Introduction For the Independent Journal. HAMILTON To the People of the State of New York: After an unequivocal experience of the inefficacy of the subsisting fede…
Madison (in Federalist No. XXXVII) urges fair judgment of the Constitution, blaming human bias for unfair scrutiny, and explains why the convention’s work was exceptionally difficult and required compromise.
That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that th…
Madison continues by describing how republican liberty demands frequent elections and independent officeholders, while stability requires longer terms, creating a central design tension the convention had to resolve.
it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foun…
Madison adds that conflicts between large and small states, plus other regional interests, forced the convention away from abstract symmetry toward compromise and practical political outcomes.
the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws an…
Hamilton argues that many ancient governments were founded or reformed by prominent individuals and explains that although some steps were “regular,” leaders like Solon and Lycurgus still faced risky limits on single-person reform.
and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The founda…
He claims errors in the constitutional plan are likely from lack of prior experience and points to the Articles of Confederation’s ratification debates, where states’ objections largely failed without unified reform.
of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them. Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from…
Using a patient-and-physicians analogy, Madison/“Publius” argues that America should follow the unanimous advice for the Constitution despite adversaries’ conflicting objections about representation, bills of rights, taxation, and separation of powers.
in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following…
Publius suggests that even if opponents formed a new convention to fix the Constitution, the same discord would arise and would still leave Americans waiting for “another” plan rather than a “better” one.
the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself. As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to …
Madison rejects vague uses of “republic” by critiquing examples and then defines a republic in terms of power deriving from the great body of the people and officeholders being appointed by the people under defined tenures.
as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the Sta…
He argues that the Constitution is “federal” rather than “national” in how it is established because it rests on the unanimous ratification of independent states, not a majority vote of the whole people.
are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is…
Madison argues the Constitution is a “mixed” system—partly national and partly federal—depending on whether one looks at its foundation, sources of power, how it operates, its jurisdiction, and the amendment method.
general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORI…
Madison asks whether the Philadelphia convention had authority to frame a mixed Constitution, tracing its powers to the Annapolis Convention recommendation (Sept. 1786) and Congress’s February 1787 call for a revision of the Articles.
To the People of the State of New York: The second point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis…
Madison applies rules of legal interpretation to reconcile the convention’s commission: if a national government was the essential end, then authorized alterations and new provisions can change details without exceeding delegated power.
to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end.…
Madison argues the States would not have convened with broad latitude unless substantial reform was planned, and he checks claimed “fundamental principles” of the Articles to show the new Constitution preserves or expands them.
The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Con…
Madison claims the new Constitution expands older confederation principles rather than creating wholly new ones, and he dismisses the main objection that only nine states approve it instead of all twelve.
The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of …
Hamilton argues that the Constitution’s general welfare and defense wording is constrained by listed powers, rejecting the claim that it grants Congress an unlimited authority to legislate in all necessary ways.
A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare. “But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If…
Madison justifies establishing the Constitution through ratification by nine states rather than all thirteen, arguing self-preservation supersedes unanimous consent and that moral duties toward dissenting states remain, followed by the start of Federalist No. XLIV.
it. 9. “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. “This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the capr…
Madison surveys state constitutions—New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, and others—showing that Americans never achieved absolute separation, yet the proposed federal plan still respects the proper limits.
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. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compile…
He continues the state-by-state review (including South Carolina and Georgia) and concludes that mixing has often been excessive or poorly maintained in practice, but that the Anti-Federalist charge misunderstands the maxim.
of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to …
In Federalist No. 49, Madison reviews Jefferson’s proposed convention-trigger rule (two-thirds concurrence) for correcting constitutional breaches, but objects that it may not address two-department alliances and would weaken stability by frequent popular appeals.
the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately re…
Hamilton claims that periodical appeals to the people cannot reliably enforce constitutional limits, since censures would be too distant, abuses could mature, and a Pennsylvania Council of Censors (1783-1784) showed party passions driving outcomes.
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…
Hamilton outlines the House of Representatives’ design: suffrage must be defined in the Constitution, elected representatives must meet specific eligibility requirements, and biennial elections are defended as necessary for dependence on the people.
some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is n…
Madison replies to the proverb “where annual elections end, tyranny begins” by comparing state election cycles, arguing that liberty is secured by a paramount Constitution rather than fixed election intervals.
To the People of the State of New York: I shall here, perhaps, be reminded of a current observation, “that where annual elections end, tyranny begins. “ If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof …
Hamilton or Madison argues that when there is no higher Constitution, governments may change election periods and even extend themselves, creating alarm that annual elections supposedly prevent, but that such fears do not apply federally.
They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by …
Madison responds to the claim that the House will not grow with population by explaining census-based reapportionment every ten years and the legal limit of one representative per thirty thousand inhabitants.
To the People of the State of New York: The remaining charge against the House of Representatives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well supported, would have great weight. The following observations will show that, like most other objections ag…
Hamilton defends Congress’s power to regulate elections by arguing that every government must contain means for its own preservation, allowing Congress to adjust election rules while leaving ordinary regulation to states.
To the People of the State of New York: The natural order of the subject leads us to consider, in this place, that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members. It is in these words: “The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof…
Hamilton answers why election time was not fixed in the Constitution by arguing it could be safely left to legislative discretion, and he adds that fixing it might reduce states’ convenience in holding their own elections at the same times.
of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year. It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the q…
Hamilton responds that if perfect institutional arrangements can’t be achieved, society must still adopt a workable constitutional plan, since adversaries must prove the whole system is bad, not merely individual provisions are improvable.
likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men. But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this r…
Hamilton argues against the claim that the President can fill Senate vacancies during recess, saying the relevant constitutional clauses cover other officers, not senators, and that this interpretation is unjustified.
the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing. The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, an…
He further explains that the recess-appointment clause is meant as a temporary method for officer vacancies, not Senate seats, contrasting it with the later clause authorizing state executives to fill Senate vacancies.
appointments are OTHERWISE PROVIDED FOR in the Constitution,[2] and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the oth…
He concludes that the Constitution’s enumerated federal judicial powers match the governing principles for the department, and he says Congress may add exceptions and procedural rules to address any partial inconveniences.
be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole. It has also been asked, what need of the word “equity What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of FRAUD, ACCI…
Hamilton defends a Supreme Court as a distinct, final tribunal rather than a legislative branch, rejecting claims that its spirit-of-the-constitution interpretation would be unprecedented, uncontrollable, and beyond remedy.
To the People of the State of New York: Let us now return to the partition of the judiciary authority between different courts, and their relations to each other, “The judicial power of the United States is” (by the plan of the convention) “to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.”[1] That there ought to be one court of supreme and …
He claims the convention’s broad appellate jurisdiction wording aims to let Congress tailor review across common-law and civil-law cases without risking an across-the-board jury abolition, concluding that jury trials remain protected.
that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determina…
He argues that state courts retain their existing jurisdiction unless the Constitution removes it, and he interprets the judiciary clause to allow concurrent state jurisdiction over federal causes with Supreme Court appellate review.
the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be PECULIAR …
He addresses whether appeals can go from state courts to inferior federal tribunals, arguing that Congress’s power to create inferior courts and the undefined scope of their authority implies Congress may establish such appellate routes.
instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance…
Hamilton argues that alleged legal maxims about excluding generals and one expression implying the exclusion of others were misapplied, and that the Constitution’s criminal jury guarantee does not forbid juries in civil cases.
to support it by certain LEGAL MAXIMS of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this nature: “A specification of particulars is an exclusion of generals”; or, “The expression of one thing is the exclusion of another.” Hence, say they, as the Constitution has established the trial by ju…
He notes Britain and Connecticut limit jury trial over time despite constitutions, criticizes reformers who expand encroachments while claiming to defend liberty, and concludes constitutional genius matters more than detailed provisions.
salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature. This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revol…
Hamilton explains why formal bills of rights are historically tied to limiting kings and says they are unnecessary—and sometimes dangerous—in a people’s government, quoting examples from Magna Carta onward and emphasizing “We, the People.”
Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. It 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 pri…
The author argues that adopting the imperfect U.S. Constitution should not be delayed to make it perfect, because collective bodies will inevitably compromise and new conventions are unlikely.
which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. “Why,” say they, “should we adopt an imperfect thing? Why not amend it and make it perf…
He claims later constitutional amendments would be easier than initial ratification, because amendments are single proposals requiring less than thirteen states to concur.
time be effected by nine States. Here, then, the chances are as thirteen to nine[2] in favor of subsequent amendment, rather than of the original adoption of an entire system. This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expec…
He counters objections that national authorities would resist change by citing the Constitution’s Article V requirement that Congress must call an amendment convention when two-thirds request it.
to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Tho…
Hamilton tells New York voters that the failing U.S. government demands a new Constitution and urges them to base their choice on the public good rather than local interest or ambitious faction.
THE FEDERALIST PAPERS By Alexander Hamilton, John Jay, and James Madison FEDERALIST No. 1 General Introduction For the Independent Journal. Saturday, October 27, 1787 HAMILTON To the People of the State of New York: AFTER an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks …
Hamilton states his support for adopting the Constitution, outlines a planned series of arguments on union, weaknesses of the Articles, needed energetic government, republican principles, and added security for liberty and property.
of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to you…
He claims that Montesquieu’s argument for small republics actually points toward confederate republics, rejects splitting states into many jealous commonwealths, and uses modern concepts like separated powers to strengthen liberty.
sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence. When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina,…
Madison answers objections that a large republic cannot govern, distinguishing republic from democracy, arguing representation permits wide extension, and defending the constitution’s limited federal jurisdiction.
To the People of the State of New York: WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to o…
He further distinguishes federal and national features by comparing how powers operate, how far they extend, and how amendments are adopted, concluding the Constitution is a mixed system rather than purely either.
so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features. The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their poli…
Madison argues that a convention authorized by Congress to revise the Articles of Confederation was empowered to create a firm national government adequate to government needs and to preserve the Union.
suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT: "Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and e…
He maintains that the convention’s alterations could include changing the confederation’s title and inserting new articles, so long as changes remain within delegated authority rather than becoming a government transmutation.
ALTERATIONS or PROVISIONS in the articles of the confederation could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS the…
Madison claims the Constitution’s core principles were expansions of those already in the Articles, not a wholly new system, and he addresses the objection that confirmation should require all state legislatures.
new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune und…
Madison argues that fixing a single election date in the Constitution was unnecessary because legislative discretion can adapt by experiment, and because uniform federal timing supports Senate rotation and annual legislative assembly.
of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year. It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the q…