Constitution Sunday: “Publius,” The Federalist XLIII [James Madison]

Independent Journal (New York)

January 23, 1788

An effective government is supposed to take care of its people’s problems. To even pretend to take care of people’s problems, a government must learn of the problems. When problems arise in smaller countries, those governments are likelier than those in large countries to have their governments learn of the problems: the proximity between the government and its people is closer. But in large countries, with their expanded geography and higher populations, arguably more problems arise, and problems can be confined to certain regions. This raises tensions between those regions—which can be far from the capital and have little chance to even voice the problems—, and it invariably leads to calls for a more responsive government. Sometimes, it even leads to calls for secession—for the region to break away and to have its own government that is tuned into the local issues. A system that has a federal government and local governments, in theory, should account for such regional issues. But there are some issues that add layers of complexity: if the local problem is one that can fester into violence, or insurrection, this raises questions about how a federal government should handle the situation. In a country with a federal government and state governments, with overlapping spheres of power between them, questions arise: what if a state begins to move away from a republican form of government or there is an outbreak of political violence or insurrection? What might the federal government do, based on the Constitution, to intervene and control the situation? There is a section of the Constitution—rarely discussed—that addresses these issues, and in The Federalist XLIII, James Madison deeply analyzed that portion of the Constitution.

That portion, Article IV, Section 4, of the Constitution states:

“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.”

In Madison’s view, it was the duty of the federal government, as “the superintending government,” to “defend the system against aristocratic or monarchical innovations” arising out of the states. With the Union being formed, the state and federal governments have aligned interests to survive in their republican form, and they have “the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.” Madison recognized that there may be no need—at least for quite some time—for the federal government to even exercise this power, and in that case, the power would “be a harmless superfluity” of the Constitution; an unused, unnecessary arrow in the quiver.

But the power may be needed. Madison wrote, “who can say what experiments may be produced by the caprice of particular states, by the ambition of enterprizing leaders, or by the intrigues and influence of foreign powers.” It wasn’t that states were restricted in pursuing variations in governance; it was that states would still need to remain republican forms of government. It need not be a surprise when a state deviates from that republican form, and the Constitution contemplated that possibility and chose to deal with it when it arose to being an invasion of the state or violence.

The concept of invasion, at that time, was not farfetched; but it was easier to imagine it being an invasion by a foreign country. However, this section was also recognizing the potential for invasions within the Union: the “history both of antient and modern confederacies, proves that the weaker members of the Union ought not to be insensible to the policy of this article.” There would be a state in the Union that could fall victim to “ambitious or vindictive enterprizes of its more powerful neighbours.” And in that situation, there was a need for some other power to come to protect the interests of the weaker state but also the integrity of having states of various sizes and influences—independent and sovereign as they are.

At a time when the trajectory of the country seemed unclear, Madison dove deeper into the potential threats facing it. He noted that while “it might seem not to square with the republican theory, to suppose either that a majority have not the right, or that a minority will have the force to subvert a government,” this is simply “theoretic reasoning” and “must be qualified by the lessons of practice.” In other words, republics had fallen in the past, and to blame the majority or the minority was not productive. For many reasons, in many different ways, democracies sometimes devolve into autocracies, and it was simply too dangerous to let any state in the Union—each being a laboratory of democracy—fall into that trap: “there are certain parts of the State Constitutions which are so interwoven with the Federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other.” And if such violence did occur, it would be better for the superintending power—the one that quells the violence—be the federal government rather than those in the majority of the local government. By the very fact that the federal government had that superintending power, Madison wrote, it would “generally prevent the necessity of exerting it.”

There always is the threat of violence, however. Frequently, it comes from tension between the majority—the ones who generally have the power to change policy, to adjust the state’s path—and the minority—which may be comprised of people who are not only out of power and unable to influence policy decisions but have taken to dedicating their efforts to reworking the system to take power. Madison posed the question: “Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succours from foreign powers, as will render it superior also in an appeal to the sword?” From this standpoint, the balance of power need not be thought of based on majority versus minority. It was perhaps better to think about it as the prepared versus the unprepared, the outraged versus the content, the well-resourced versus the deprived. And regardless, when there is such violence, anyone can be involved: it is not as if people neatly divide themselves along the lines that existed before violence such as the majority of eligible voters would face off against a minority of eligible voters; it would be a collision of citizens and alien residents, adventurers who happened to be there at the time, those who have no right to vote, all fighting. Plus, invariably, there would be those people “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.”

To calm such flares of tension and violence, a neutral umpire is best: who could be better positioned to interpose themselves amongst “two violent factions, flying to arms and tearing a State to pieces,” than representatives “not heated by the local flame?” It is this spirit that a federal republic must embody. As Montesquieu wrote, this style of federal republic has an advantage: “that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.”

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