Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Originally published in the “90-Day Study of the United States Constitution,” Constituting America, May 13, 2011.

 

Here the Framers speak to the heart of their intentions for America.

In the Declaration of Independence, they had objected to George III’s actions because he had violated the laws of nature and of nature’s God. One might suppose that the Americans’ complaints amounted to no more than an accusation that this king had turned tyrant—that some other, more just, monarch (a Henry IV) might have appeased them. Indeed he might have done—for a time.

But a more careful reading of the Declaration shows that not only the king but also Parliament had angered the colonists. Americans judged that the whole British regime, and the structure of the British empire, deserved to be overthrown in America—replaced by a new regime and a new imperial structure. The new regime was republican—republicanism as they, not the Europeans, understood it—and federal—a federalism informed but not simply as defined by the great French political philosopher, Montesquieu.

What danger did this clause address? The highly respected Massachusetts delegate, Nathaniel Gorham, joined John Randolph and George Mason of Virginia and James Wilson of Pennsylvania in issuing the warning: “An enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole and the General Government be compelled to remain an inactive witness of its own destruction.” That is, these Framers anticipated the kind of career undertaken by Napoleon in France a decade before the fact, and they moved decisively to prevent it from happening here.

As usual, James Madison (writing in the forty-third Federalist) provides the clearest overview. “In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.” Why so? Because the United States is not only a republic but a federal union: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained” (emphasis in original). What is more, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature,” he writes, citing Montesquieu’s research as proof. Not only the federal government but the constituent states of the federal union must be republican. Only this can stand as what Jefferson called “an empire of liberty.”

“But a right implies a remedy,” Madison continues. What power within the United States can safely prevent an anti-republican faction from seizing control of a state? “What better umpires could be desired by two violent factions, flying to arms and tearing a State into pieces, than the representatives of confederate States not heated by the local flame? To the impartiality of Judges they would unite the affection of friends.” And even more ambitiously: “Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of all mankind.” This would require that republican regimes achieve a sort of ‘critical mass’ throughout the world; in 1787, they had achieved such a critical mass only in the United States. If republicanism failed here, when and where would it revive? When and where would a general civil peace obtain—the condition for securing unalienable human rights?

Protection against invasion includes not only invasion by foreigners—the United States was bordered by the non-republican empires of Spain and Great Britain, as well as by the non-republican (and still formidable) Amerindian nations in the West—but also by other states of the Union. Although (as Montesquieu had remarked, commercial-republican regimes had not fought one another in the past, the Framers were taking no chances.

The Constitution guarantees federal intervention in times of anti-republican rebellion and of invasion foreign or domestic. Intra-state violence that is not anti-republican raised another problem. Massachusetts had suppressed Shays’ Rebellion only a few months before the Convention convened. Daniel Shays and his men had rebelled out of desperate indebtedness; far from being anti-republican, many had served in the war on the Patriot side. Convention delegates Elbridge Gerry and Luther Martin objected that intervention in such cases could be dangerous and unnecessary unless the afflicted state consented to it. At the same time, whatever Jefferson may have thought about a little rebellion now and then, armed rebellion does tend to throw cold water on the rule of law, and republics normally operate according to the rule of law. The delegates therefore agreed to require the federal government to obtain consent from the state governments before intervening in such disputes. On balance, the local authorities will judge best when a republican rebellion requires the heavy hand of federal intervention.

In his Federalist essay, Madison did not hesitate to notice a force that might intervene in any disorder, whether anti-republican or republican, foreign or interstate or intrastate. An “unhappy species of population abound[s] in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.” The presence of slave in the United States raised the harshest questions about both the American regime and the American federal union. By nature, the slaves were men; by law, they were a self-contradictory mixture of personhood and property. Civil disorder of any kind might induce them to rise up and claim their natural rights, perhaps at the expense of the natural rights of their masters; slave revolts had occurred in New York during the colonial period, and of course the freeman Toussaint Louverture would lead a (temporarily) successful insurrection in Haiti beginning in 1791. “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man,” Madison declared. Would a slave revolt be an attack on republicanism or a vindication of it? Madison and the other Founders sought some way to avoid such a revolt, which might overturn republicanism in the name of republicanism or perhaps install some other regime as a remedy for the evils of slaveholding republicanism—yet another self-contradiction.

Put in a somewhat different way, the dilemma was as simple as it was stark. As Madison wrote in Federalist #43, the republican guarantee clause “supposes a pre-existing government of the form which is to be guaranteed.” That is, the basis of the federal Union—the new empire of liberty replacing the old empire of tyranny—is the republican regime of each constituent state. Each state entered the Union acknowledged as a republic by all of the others. But how ‘republican’ were those states in which slaves “abounded”? Madison knew the answer, which he would write down in an unpublished note a few years later: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact. The power lies in the part instead of the whole, in property instead of numbers. All the ancient popular governments were, for this reason, aristocracies. The majority were slaves….The Southern States of America, are on the same principle aristocracies.” In his own Virginia, he observed, the population of non-freeholding white and black slaves amounted to three-quarters of the population (Papers of James Madison, Volume XIII, p. 163).

Such regimes were republics in Montesquieu’s sense—”aristocratic” rather than “democratic” republics. For Montesquieu (following Machiavelli), “republic” meant simply that the regime did not amount to the ‘private’ possession of one person—a despotism. The definition derived from the Latin root of the word: res publica or ‘public thing.’ But to Madison and the rest of the Founders “republic” meant the “democratic” republic, only; in the words of Federalist #39, “it is essential” to republican government “that it be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” And “it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people”—i.e., the representative principle. Representatives represent the people at large, not some “favored class.” In his 1787 critique of the Articles of Confederation, “Vices of the Political System of the United States,” Madison went so far as to publish the sentence, “Where slavery exists the republican theory”—namely, that right and power are co-extensive because the majority rules under the laws of nature and of nature’s God—”becomes still more fallacious” than it does under conditions in which there is a large number of disenfranchised paupers.

All of this being so, the republican regime and the federal Union—the unity of the United States—began its life on a knife edge. The Framers hoped that their new Constitution would provide a framework for the peaceful resolution of the problem of self-government under conditions in some ways favorable—remoteness from Europe, commercial interdependence of the states, and all the other features described in the first Federalist —and in some ways ominous—the existence of anti-republican regimes on the borders and of anti-republican “domestic institutions” undergirding aristocratic ‘republics’ in many of the states themselves. They inserted the republican guarantee clause as one way of strengthening that framework. In a way, it did. But its enforcement came at horrible cost, decades later.

 

Article II, Section 2, Clause 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Originally published in the “90-Day Study of the Constitution,” Constituting America, April 27, 2010.

 

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive, and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the President alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate cases arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: As James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of ‘corruption’ as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George III “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive ‘say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

Article I, Section 3, Clause 1: “The Senate of the united States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Originally published as part of the “90-Day Study of the U. S. Constitution,” Constituting America, February 28, 2011.

 

Publius famously asserted that “the science of politics” had “received great improvement” in modern times. (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “an new political science for a world altogether new.”) The newness of American politics and of American political science consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized governments of Europe. The “New World” that Europeans had ‘discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes. It was new to the Europeans. The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule. For example, although most states required property ownership of voters and office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow. The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the declaration of Independence, vindicated in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes. They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures. The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because they had to. In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings among them, and defend imperial borders.

The modern state changed this. Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with some of the centralization of the polis or ‘city-state.’ With their standing, professional armies funded by revenues collected by state employees or ‘bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful political entities ever seen.

The American Founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state. But could a centralized, modern state have a republican regime (and keep it, as Benjamin Franklin pointedly remarked)? Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few? European statesmen thought so; for the next century, they expected the new republic to implode. On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

At the Philadelphia Convention, the Framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States. Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a ‘mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor. The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen. The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers. “The two forces will control each other,” providing “a mutual check and a mutual security,” Morris asserted. The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy. John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly. The Senators would represent no particular class or caste; they would represent the constituent states of the United States. Without titles of nobility (banned in the Constitution) or any other set standard of wealth, the senators as such would have no interests separate from those of the people. The Senate therefore would fit easily into a pure or unmixed republic. At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that was unlikely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism. Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangers of excessive decentralization. At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states. The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population. Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population. Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state. All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item. How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other. If the senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen. The compromise established that state legislators choose the senators. The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it. For his part Sherman joined George Mason of Virginia in arguing that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes. As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics. This comported with the ‘aristocratic’ character of the Senate. At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness. Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the ‘regime’ questions and the ‘polity’ question. The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack. The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.