A Touch of Madisonian & Jeffersonian Food for Thought...

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A Touch of Madisonian & Jeffersonian Food for Thought...
« on: May 07, 2015, 12:59:08 AM »
James Madison's December 5, 1791...
"Treatise on Consolidation"


(The Founders' Constitution
Volume 1, Chapter 8, Document 40
14:137--39)


Much has been said, and not without reason, against the consolidation of the States into one government. Omitting lesser objections, two consequences would probably flow from such a change in our political system, which justify the cautions used against it. First, it would be impossible to avoid the dilemma, of either relinquishing the present energy and responsibility of a single executive magistrate, for some plural substitute, which by dividing so great a trust, might lessen the danger of it; or, suffering so great an accumulation of powers in the hands of that officer, as might by degrees transform him into a monarch. The incompetency of one Legislature to regulate all the various objects belonging to the local governments, would evidently force a transfer of many of them to the executive department; whilst the increasing splendour and number of its prerogatives, supplied by this source, might prove excitements to ambition too powerful for a sober execution of the elective plan, and consequently strengthen the pretexts for an hereditary designation of the magistrate. Second, were the State governments abolished, the same space of country that would produce an undue growth of the executive power, would prevent that control on the Legislative body which is essential to a faithful discharge of its trust; neither the voice nor the sense of ten or twenty millions of people, spread through so many latitudes as are comprehended within the United States, could ever be combined or called into effect, if deprived of those local organs, through which both can now be conveyed. In such a state of things, the impossibility of acting together might be succeeded by the inefficacy of partial expressions of the public mind, and this at length, by a universal silence and insensibility, leaving the whole government to that self directed course which, it must be owned, is the natural propensity of every government.

But if a consolidation of the States into one government be an event so justly to be avoided, it is not less to be desired, on the other hand, that a consolidation should prevail in their interests and affections; and this, too, as it fortunately happens, for the very reasons, among others, which lie against a governmental consolidation. For, in the first place, in proportion as uniformity is found to prevail in the interests and sentiments of the several states, will be the practicability of accommodating Legislative regulations to them, and thereby of withholding new and dangerous prerogatives from the executive. Again, the greater the mutual confidence and affection of all parts of the Union, the more likely they will be to concur amicably, or to differ with moderation, in the elective-designation of the chief magistrate; and by such examples, to guard and adorn the vital principle of our republican constitution. Lastly, the less the supposed difference of interests, and the greater the concord and confidence throughout the great body of the people, the more readily must they sympathize with each other; the more seasonably can they interpose a common manifestation of their sentiments; the more certainly will they take the alarm at usurpation or oppression; and the more effectually will they consolidate their defence of the public liberty.

Here then is a proper object presented, both to those who are most jealously attached to the separate authority reserved to the states, and to those who may be more inclined to contemplate the people of America in the light of one nation. Let the former continue to watch against every encroachment, which might lead to a gradual consolidation of the States into one government. Let the latter employ their utmost zeal, by eradicating local prejudices and mistaken rivalships, to consolidate the affairs of the States into one harmonious interest; and let it be the patriotic study of all, to maintain the various authorities established by our complicated system, each in its respective constitutional sphere, and to erect over the whole one paramount Empire of reason, benevolence and brotherly affection. --James Madison

JTCoyoté

"The cause of America is in a great measure the cause of all mankind.
Many circumstances hath, and will arise, which are not local, but
universal, and through which the principles of all Lovers of Mankind
are affected, and in the Event of which, their Affections are interested.
The laying a Country desolate with Fire and Sword, declaring War
against the natural rights of all Mankind, and extirpating the Defenders
thereof from the Face of the Earth, is the Concern of every Man to
whom Nature hath given the Power of feeling; of which Class, regardless
of Party Censure, is the author."
~Thomas Paine, Common Sense

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Re: A Touch of Madisonian & Jeffersonian Food for Thought...
« Reply #1 on: May 08, 2015, 02:38:57 AM »
James Madison's letter to Daniel Webster, March 15, 1833. 
On nullification/secession

   
Dear Sir

I return my thanks for the copy of your late very powerful speech in the Senate of the U. S. It crushes “nullification” and must hasten an abandonment of “Secession.” But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd. from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the state Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U. S. was formed by the people or by the States, now under a theoretic discussion, by animated partisans.

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as embodied into the several States, who were parties to it; and therefore made by the States in their highest authoritative capacity. They might, by the same authority; & by the same process, have converted the confederacy, into a mere league or treaty, or continued it with enlarged or abridged powers; or have embodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation or sovereignty, for certain purposes, and not so for others.

The Constitution of the U. S. being established by a competent authority, by that of the sovereign people of the several States who were the parties to it; it remains only to enquire what the Constitution is; and here it speaks for itself: It organizes a government into the usual Legislative Executive and Judiciary Departments; invests it with specified powers; leaving others to the parties to the Constitution, it makes the Government like other governments to operate directly on the people, and places at its command the needful physical means of executing its powers; and finally proclaims its supremacy and that of the laws made in pursuance of it, over the Constitution & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & Legislatures of the States; and subject to the Revolutionary rights of the people in extreme cases.

It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally competent in both; and that without an annulment of the Constitution itself its supremacy must be submitted to.

The only distinctive effect between the two modes of forming a Constitution by the authority of the people, is that if formed by them as embodied into separate communities, as in the case of the Constitution of the U. S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the condition in which they entered into the compact; whereas if formed by the people as one community acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express, or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle, leaves no choice but between anarchy and Despotism. Such is the Constitution of the United States de jure & de facto; and the name, whatever it be, that may be given to it, can make nothing more or less than what it actually is.

Pardon this hasty effusion, which whether according or not precisely with your ideas, presents, I am aware none that are new to you. With great esteem, and cordial salutation,  --James Madison

JTCoyoté

"It is error only, and not truth,
that shrinks from inquiry."

~Thomas Paine

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Re: A Touch of Madisonian & Jeffersonian Food for Thought...
« Reply #2 on: June 04, 2015, 12:43:01 PM »
James Madison's letter to Thomas Jefferson, February 8, 1825
On the principles of government--the best guide for the Union

   
   
   
Dear Sir,

The letters from Mr. Cabell are herein returned. I just see that he has succeeded in defeating the project for removing the College from Williamsburg.

I hope your concurrence in what I said of Mr. Barbour will not divert your thoughts from others. It is possible that the drudgery of his profession, the uncertainty of Judicial appointment acceptable to him, and some other attractions at the University for his young family, might reconcile him to a removal thither; but I think the chance slender.

I have looked with attention over your intended proposal of a text book for the Law School. It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides & guards for the purpose. Sidney & Locke are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones; but afford no aid in guarding our Republican Charters against constructive violations. The Declaration of Independence, tho’ rich in fundamental principles, and saying every thing that could be said in the same number of words, falls nearly under a like observation. The "Federalist" may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it. Yet it did not foresee all the misconstructions which have occurred; nor prevent some that it did foresee. And what equally deserves remark, neither of the great rival Parties have acquiesced in all its comments. It may nevertheless be admissible as a School book, if any will be that goes so much into detail. It has been actually admitted into two Universities, if not more—those of Harvard and Rhode Island; but probably at the choice of the Professors, without any injunction from the superior authority. With respect to the Virginia Document of 1799, there may be more room for hesitation. Tho’ corresponding with the predominant sense of the Nation; being of local origin & having reference to a state of Parties not yet extinct, an absolute prescription of it, might excite prejudices against the University as under Party Banners, and induce the more bigoted to withhold from it their sons, even when destined for other than the studies of the Law School. It may be added that the Document is not on every point satisfactory to all who belong to the same Party. Are we sure that to our brethren of the Board it is so? In framing a political creed, a like difficulty occurs as in the case of religion tho’ the public right be very different in the two cases. If the Articles be in very general terms, they do not answer the purpose; if in very particular terms, they divide & exclude where meant to unite & fortify. The best that can be done in our case seems to be, to avoid the two extremes, by referring to selected Standards without requiring an unqualified conformity to them, which indeed might not in every instance be possible. The selection would give them authority with the Students, and might controul or counteract deviations of the Professor. I have, for your consideration, sketched a modification of the operative passage in your draught, with a view to relax the absoluteness of its injunction, and added to your list of Documents the Inaugural Speech and the Farewell Address of President Washington. They may help down what might be less readily swallowed, and contain nothing which is not good; unless it be the laudatory reference in the Address to the Treaty of 1795 with Great Britain which ought not to weigh against the sound sentiments characterizing it.

After all, the most effectual safeguard against heretical intrusions into the School of Politics, will be an Able & Orthodox Professor, whose course of instruction will be an example to his successors, and may carry with it a sanction from the Visitors.

Affectionately yours.

Sketch

And on the distinctive principles of the Government of our own State, and of that of the United States, the best guides are to be found in — 1. The Declaration of Independence, as the fundamental act of Union of these States. 2. The book known by the title of the "Federalist," being an Authority to which appeal is habitually made by all & rarely declined or denied by any, as evidence of the general opinion of those who framed & those who accepted the Constitution of the United States on questions as to its genuine meaning. 3. The Resolutions of the General Assembly of Virginia in 1799, on the subject of the Alien & Sedition laws, which appeared to accord with the predominant sense of the people of the U.S. 4. The Inaugural Speech & Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the School of law which is to treat on the subject of Government, these shall be used as the text & documents of the School. --James Madison

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Re: A Touch of Madisonian & Jeffersonian Food for Thought...
« Reply #3 on: September 23, 2015, 01:37:59 AM »
Thomas Jefferson's Letter to James Madison, July 31, 1788
On religious liberty

DEAR SIR


My last letters to you were of the 3d and 25. of May. Yours from Orange of Apr. 22. came to hand on the 10th. inst. My letter to Mr. Jay containing all the public news that is well authenticated, I will not repeat it here, but add some details in the smaller way which you may be glad to know. The disgrace of the Marquis de la fayette which at any other period of their history would have had the worst consequences for him will on the contrary mark him favourably to the nation at present. During the present administration he can expect nothing, but perhaps it may serve him with their successors whenever a change shall take place. No change of the principal will probably take place before the meeting of the States general tho' a change is to be wished, for his operations do not answer the expectations formed of him. These had been calculated on his brilliancy in society. He is very feebly aided too. Montmorin is weak tho a most worthy character. He is indolent and inattentive too in the extreme. Luzerne is considerably inferior in abilities to his brother whom you know. He is a good man too, but so much out of his element that he has the air of one huskanoyed. The garde des sceaux is considered as the principal's bull dog, braving danger like that animal. His talents do not pass mediocrity. The archbishop's brother and the new minister Vildeuil and Lambert have no will of their own. They cannot raise money for the peace establishment the next year without the states general much less if there be war, and their administration will probably end with the states general. Littlepage who was here as a secret agent for the King of Poland rather overreached himself. He wanted more money. The King furnished it more than once. Still he wanted more, and thought to obtain a high bid by saying he was called for in America and asking leave to go there. Contrary to his expectation he received leave: but he went to Warsaw instead of America and from thence to join the Russian army. I do not know these facts certainly, but collect them by putting several things together. The King then sent an antient secretary here, in whom he had much confidence, to look out for a correspondent, a mere letter writer for him. A happy hazard threw Mazzei in his way. He recommended him, and he is appointed. He has no diplomatic character whatever, but is to receive Eight thousand livres a year as an intelligencer. I hope this employment may have some permanence. The danger is that he will over-act his part.--The Marquis de la Luzerne had been for many years married to his brother's wife's sister secretly. She was ugly, and deformed, but sensible, amiable, and rather rich. When he was named ambassador to London with 10000 guineas a year, the marriage was avowed, and he relinquished his cross of Malta from which he derived a handsome revenue, for life, and very open to advancement. She staid here, and not long after died. His real affection for her which was great and unfeigned and perhaps the loss of his order for so short-lived a satisfaction has thrown him almost into a state of despondency. He is now here.

I send you a book of Dupont's on the subject of the commercial treaty with England. Tho' it's general matter may not be interesting, yet you will pick up in various parts of it such excellent principles and observations as will richly repay the trouble of reading it. I send you also two little pamphlets of the Marquis de Condorcet, wherein is the most judicious statement I have seen of the great questions which agitate this nation at present. The new regulations present a preponderance of good over their evil. But they suppose that the king can model the constitution at will, or in other words that this government is a pure despotism: the question then arising is whether a pure despotism, in a single head, or one which is divided among a king, nobles, priesthood, and numerous magistracy is the least bad. I should be puzzled to decide: but I hope they will have neither, and that they are advancing to a limited, moderate government, in which the people will have a good share.

I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to Juries, Habeas corpus, Standing armies, Printing, Religion and Monopolies. I conceive there may be difficulty in finding general modification of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and Monopolies, in all cases, than not to do it in any. The few cases wherein these things may do evil, cannot be weighed against the multitude wherein the want of them will do evil. In disputes between a foreigner and a native, a trial by jury may be improper. But if this exception cannot be agreed to, the remedy will be to model the jury by giving the medietas linguae in civil as well as criminal cases. Why suspend the Hab. corp. in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime. Of course the judge will remand them. If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England: see how few of the cases of the suspension of the Habeas corpus law have been worthy of that suspension. They have been either real treasons wherein the parties might as well have been charged at once, or sham-plots where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the hab. corp. has done real good, that operation is now become habitual, and the minds of the nation almost prepared to live under it's constant suspension. A declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed. The declaration that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error. The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14. years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression. If no check can be found to keep the number of standing troops within safe bounds, while they are tolerated as far as necessary, abandon them altogether, discipline well the militia, and guard the magazines with them. More than magazine-guards will be useless if few, and dangerous if many. No European nation can ever send against us such a regular army as we need fear, and it is hard if our militia are not equal to those of Canada or Florida. My idea then is, that tho' proper exceptions to these general rules are desireable and probably practicable, yet if the exceptions cannot be agreed on, the establishment of the roles in all cases will do ill in very few. I hope therefore a bill of rights will be formed to guard the people against the federal government, as they are already guarded against their state governments in most instances.

The abandoning the principle of necessary rotation in the Senate, has I see been disapproved by many; in the case of the President, by none. I readily therefore suppose my opinion wrong, when opposed by the majority as in the former instance, and the totality as in the latter. In this however I should have done it with more complete satisfaction, had we all judged from the same position.

Sollicitations, which cannot be directly refused, oblige me to trouble you often with letters recommending and introducing to you persons who go from hence to America. I will beg the favour of you to distinguish the letters wherein I appeal to recommendations from other persons, from those which I write on my own knowlege. In the former it is never my intention to compromit myself, nor you. In both instances I must beg you to ascribe the trouble I give you to circumstances which do not leave me at liberty to decline it. I am with very sincere esteem Dear Sir Your affectionate friend & servt.,

TH: JEFFERSON

JTCoyoté

"There is...an artificial aristocracy founded on
wealth and birth, without either virtue or talents
... The artificial aristocracy is a mischievous
ingredient in government, and provisions should
be made to prevent its ascendancy."

~Thomas Jefferson

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Re: A Touch of Madisonian & Jeffersonian Food for Thought...
« Reply #4 on: February 27, 2016, 05:18:28 PM »
The following letter was in answer to the letter Madison received from Jefferson dated July 31, 1788. It appears in the previous post...

James Madison's letter to Thomas Jefferson, October 17, 1788
On the Bill of Rights

Dear Sir,--The little pamphlet herewith inclosed will give you a collective view of the alterations which have been proposed for the new Constitution. Various and numerous as they appear, they certainly omit many of the true grounds of opposition. The articles relating to Treaties, to paper money, and to contracts, created more enemies than all the errors in the system, positive and negative, put together.

It is true, nevertheless, that not a few, particularly in Virginia, have contended for the proposed alterations from the most honorable and patriotic motives; and that among the advocates for the Constitution there are some who wish for further guards to public liberty and individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety. My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time, I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and, if properly executed, could not be of disservice.

I have not viewed it in an important light--1. Because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. 2. Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was, that the Constitution, by prohibiting religious tests, opened a door for Jews, Turks, and infidels. 3. Because the limited powers of the federal Government, and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. Because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.

In Virginia, I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of conscience, it is well known that a religious establishment would have taken place in that State, if the Legislative majority had found, as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place, and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created.

Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to; and is probably more strongly impressed on my mind by facts and reflections suggested by them than on yours, which has contemplated abuses of power issuing from a very different quarter. Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful and interested party than by a powerful and interested prince. The difference, so far as it relates to the superiority of republics over monarchies, lies in the less degree of probability that interest may prompt abuses of power in the former than in the latter; and in the security in the former against an oppression of more than the smaller part of the Society, whereas, in the latter, it may be extended in a manner to the whole.

The difference, so far as it relates to the point in question--the efficacy of a bill of rights in controuling abuses of power--lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect as a standard for trying the validity of public acts, and a signal for rousing and uniting the superior force of the community; whereas, in a popular Government, the political and physical power may be considered as vested in the same hands, that is, in a majority of the people, and, consequently, the tyrannical will of the Sovereign is not to be controuled by the dread of an appeal to any other force within the community.

What use, then, it may be asked, can a bill of rights serve in popular Governments? I answer, the two following, which, though less essential than in other Governments, sufficiently recommend the precaution: 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion. 2. Although it be generally true, as above stated, that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps, too, there may be a certain degree of danger that a succession of artful and ambitious rulers may, by gradual and well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury.

Governments to danger on that side. It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark, as usually understood, does not appear to me well founded. Power, when it has attained a certain degree of energy and independence, goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it, in my opinion, applicable to the existing Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.

Supposing a bill of rights to be proper, the articles which ought to compose it admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions, however strongly marked on paper, will never be regarded when opposed to the decided sense of the public; and after repeated violations, in extraordinary cases will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Habeas Corpus be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighborhood by Britain or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security against these evils is to remove the pretext for them.

With regard to Monopolies, they are justly classed among the greatest nuisances in Government. But is it clear that, as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege, at a price to be specified in the grant of it? Is there not, also, infinitely less danger of this abuse in our Governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few, it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many, not in the few, the danger cannot be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many. . . . James Madison

Oldyoti

"Knowledge will forever govern ignorance;
and a people who mean to be their own
governors must arm themselves with the
power which knowledge gives."
~James Madison

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Re: A Touch of Madisonian & Jeffersonian Food for Thought... 'Sovereignty'
« Reply #5 on: January 07, 2017, 12:37:23 AM »
This Essay references Madison's March 1833 letter to Daniel Webster on "nullification and secession" reprinted earlier in this thread.

James Madison: Essay on Sovereignty, Dec. 1835

Sovereignty

It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible; and was in fact divided, according to the Constitution of the U. States, between the States in their United, and the States in their individual capacities that as the States in their highest sov. char. were compent to a surrender of yr whole sovereignty, and make themselves on consol. state so they surrender a part & retain as they have the other part, forming thus a mixed Govt. with a division of its attributes as marked out in the Constitution.

Of late another doctrine has occurred, which supposes that Sovereignty is in its nature indivisible; that the Societies denominated States, in forming the constitutional compact, of the U. States acted as indivisible Sovereignties; and consequently, that the Sovereignty of each, remains as absolute and entire, as it was then, or could be at any time.

This discord of opinions, arises from a propensity in many to prefer the use of theoretical guides technical language, to the divisions or depositories of pol. power, as laid down in the Constl. Charter, which expressly assigns certain powers of Govt. which are the attributes of sovereigty to the U. S. and even declares a practical supremacy of them over the powers reserved to the States; a Supremacy essentially involving that of exposition as well as of execution: For a law could not be supreme, in one depository of power, if the final exposition of it belonged to another.

In settling the question between these rival claims of power, it is proper to keep in mind, that all power in just & free Govts. is derived from Compact, that where the parties to the Compact are competent to make it, and where the Compact creates a Govt, and arms it not only with a moral power but the physical means of executing it it is immaterial by what name it is called. Its real character is to be decided by the Compact itself: by the nature & extent of the powers it specifies, and the obligations imposed on the parties to it.

As a ground of compromise let them, the advocates for State Rights acknowledge this rule of measuring the federal share of sovereign power under the Constl. Compact, and let it be conceded on the other hand, that the States are not deprived by it of that corporate existence & pol. unity, which wd. in the event of a dissolution voluntary or violent, of the Constl. replace them in the condition of separate communities, that being the condition in which they entered into the compact.

condition of an independ. & full sovereignty; as was the effect of the Decln. 1776, which dissolved our connection with the G.B. and an exclusive the States individually to the character they at the formation of the compact

An the period of our revoln. it was supposed by some that it dissolved the social compact within the Colonies and produced a state of nature which required a naturalization of those who had not participated in the revoln. The question was brought before Congs. at its first Session, by Dr. Rand<olph?> who contested the election of Wm. Smith who tho’ born in S. C. had been absent at the date of Independence. The decision was that his birth in the Colony made him a member, of the Society, in its new as well as its original State.

See letter to Webster Mar. 15. 1833.

Which of these views of the subject ought to be held the true one is a question of theoretical curiosity; but may be of less practical importance than the zeal of party has ascribed to it—

[To go to the bottom of the subject let us consult the Theory, which contemplates a certain number of individuals, as meeting & agreeing to form one political Society, in order that the rights the safety & the interest of each may be under the safeguard of the whole.

The first supposition is that each individual, being previously independent of the others, the compact which is to make them one Society, must result from the free consent of every individual.

But as the objects in view could not be attained, if every measure conducive to them, required the consent of every member of the Society, the theory further supposes, either that it was a part of the original compact, that the will of the majority was to be deemed the will of the whole; or that this was a law of nature, resulting from the nature of political society, itself the offspring of the natural wants of man.

What ever be the hypothesis, of the origin of the lex majoris partis, it is evident that it operates as a plenary substitute of the will of the majority of the Society, for the will of the whole Society; and that the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members; the reserved rights of individuals (of Conscience for example), in becoming parties to the original compact, being beyond the legitimate reach of Sovereignty, wherever vested or however viewed.

The question then presents itself how far the will of a majority of the Society, by virtue of its identity with the will of the Society, can divide, modify or dispose of the Sovereignty of the Society. And quitting the theoretic guide, a more satisfactory one will perhaps be found 1. in what a majority of a Society has done and been universally regarded as having had a right to do 2. what it is universally admitted that a majority by virtue of its sovereignty might do, if it chose to do <it>

1. The majority has divided the Sovereignty of the Society, by actually dividing the Society itself into distinct Societies, equally Sovereign. Of this operation, we have before us examples in the separation of Kentucky from Virginia; and of Maine from Massachusetts; events wch. were never supposed to require a unanimous consent of the individuals concerned. In the case of naturalization a new member is added to the Social compact, not only without a unanimous consent of the members but by a majority of the governing body deriving its powers from a majority of the individual parties to the social compact

2. As in those cases just mentioned one sovereignty was divided into two, by dividing one State into two States, So it will not be denied that two States, equally sovereign, might be incorporated into one, by the voluntary & joint act of majorities only in each. The Constitution of the U. S. has itself provided for such a contingency. And if two States, could thus incorporate themselves into one, by a mutual surrender of the entire sovereignty of each; why might not a partial incorporation, by a partial surrender of sovereignty, be equally practicable, if equally eligible. And if this could be done, by two States, why not by twenty or more.

A division of sovereignty, is, in fact illustrated by the exchange of sovereign rights often involved in Treaties between Independent Nations; and Still more in the Several Confederacies which have existed, and particularly in that which preceded the present Constitution of the U. States]

Certain it is that the Constitutional compact of the U.S has allotted the supreme powers of Govt. partly to the U States by special grants, partly to the individual States by general reservations, and if Sovereignty be in its nature divisible; the true question to be decided is whether the allotment, has been made by the competent Authority. And this question is answered by the fact, that it was an act of the majority of the people in each State in their highest sovereign capacity equipollent to a unanimous act of the people composing the State, in that capacity.

It is so difficult to argue intelligibly concerning the compound System of Govt. in the U. S. without admitting the divisibility of Sovereignty, that the idea of sovereignty as divided between the Union and the members composing the Union, forces itself into the view and even into the language of those most strenuously contending for the unity & indivizibility, of the moral being created formed by the Social compact. "For security agst. oppression from abroad we look to the Sovereign power of the U. S. to be exerted according to the compact of Union; for security agst. oppression from within, or domestic oppression, we look to the sovereign power of the State. Now all Sovereigns are equal; the Sovereignty of the State is equal to that of the Union; for the Sovereignty of each is but a moral person. That of the State and that of the Union are each a moral person; & in that respect precisely equal". These are the words, in a speech which more than any other, has analized & elaborated this particular subject; and they express the view of it finally taken by the Speaker*, notwithstanding the previous introductory one, in which he says, "The States whilst the Constitution of the U. S. was forming, were not even shorn of any of their Sovereign power by that process" Tellegraph Mar. 23. 1834 or 3 et sequent in the Enquirer of Apl. 20.

*Mr. Rowan of Kentucky

That a sovereignty would be lost & converted into a vassalage, if subjected to a foreign Sovereignty, over which it had no controul, and in which it had no participation, is clear & certain; but far otherwise, is a surrender of portions of Sovereignty by compacts among Sovereign Communities making the surrenders equal & reciprocal; & of course giving to each as much as is taken from it

Of all free Govts. compact is the basis & the essence: and it is fortunate, that the powers of Govts. supreme as well as subordinate can be so moulded & distributed, so compounded and divided by those on whom they are to operate as will be most suitable to their conditions, and best guard their freedom, and best provide for their safety & happiness. --James Madison

JTCoyoté

"Those who search for sin
in others, are only seeking
to divert their own"
~unattributed