Bench Memos

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The Perennial Publius, part 22


Publius wraps up, in Federalist No. 22, his survey of the defects of the Articles of Confederation: that under them the Union has no power to regulate commerce, no ability to raise an army effectively, no national judiciary to achieve a “general superintendance” of the conflict of laws, and so forth.  But perhaps most interestingly, Publius (Hamilton this time) singles out for criticism the “right of equal suffrage among the states”—that is, the fact that in the Confederation Congress each state had one vote regardless of population:

“Its operation contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.  Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the states will be a majority of confederated America.  But this kind of logical legerdemain will never counteract the plain suggestions of justice and common sense.”

What is notable about this argument is the difficulty one might have escaping its implications when it comes to the identical principle of equality of states’ representation in the Senate, in the very Constitution that Publius is defending.  Here Hamilton simply says nothing about that.  Forty essays later, when Madison writes of the Senate in No. 62, that feature is defended on purely practical grounds, with no notice taken of any incompatibility it might have with the principle of majority rule.

Might it make a difference that the equality of states was the whole operative principle of federal decision-making under the Articles, while it makes only a partial intrusion on a national principle of majority rule in the Constitution?  Modern critics of every federal feature in the Constitution outdo even Hamilton in their zeal for this “fundamental maxim of republican government.”  But Publius was too wise to push every political principle to its uncompromised limit.

(For explanation of this recurring feature, see here.)

Tags: Franck


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