Federalist #76

The Appointing Power of the Executive  (Hamilton)

The president has the power to nominate and, with the advice and consent of the Senate, to appoint ambassadors, other public ministers, judges of the Supreme Court, and all other officers of the United States was appointments or not otherwise provided for in the Constitution. Congress may by law give the appointments of inferior officers as they think appropriate to the president alone, or in the courts of law, or in the heads of departments. The president has the power to fill vacancies which happen during the recess of the Senate by granting commissions which shall expire at the end of the next session.

The true test of good government is that attitude and tendency to produce good administration. It is not easy to come up with a better plan than this to promote a judicious choice of men for filling the offices of the union, and it will not need proof that this point essentially depends on the character of its administration. The power of appointment in ordinary cases can be properly modified in only one of three ways. It should be vested in a single man, in the select assembly of a moderate number, or in a single man with the concurrence of such an assembly. Giving this power to a large number of people is impractical because it would leave them little time to do anything else. 

Giving the power of appointment to one man will naturally make them have a livelier sense of duty and a more exact regard for his reputation. He will feel strongly obligated and more interested to investigate with care the qualities of the people he appoints to fill the positions. He will be less likely to have personal attachments to those he chooses. He will also be less liable to be influenced by friendship. Personal considerations innominees are dangerous because it agitates the passions of men. In any appointment process, we are likely to see a full display of all the private and party likes and dislikes of those who compose the assembly. It will be a victory for one party or the other or compromise between the parties. In either case, the merits of the nominee will be put on the back burner. In the first case, the qualifications that meet the goals of the party will be more important than those of the potential nominee. In the last, the coalition will commonly turn upon some interested equivalent.

Critics contend the president ought to have sole power to make appointments. However, it is easy to show the advantages of the arrangement the Constitution calls for. In the  act of nomination, it is his judgment alone that would be exercised. In this case there would be no difference between appointing and nominating. If the president just has the power to nominate someone his nomination may be overruled. However, it is not likely that the Senate will often refuse nominees without special and strong reasons for refusal. 

To what purpose would the cooperation of the Senate be useful? Hamilton says their concurrence would have a powerful, though in general, silent operation. It is a check upon the favoritism of the president. In addition, it would help prevent the appointment of unfit nominees based on state prejudice, family connection, personal attachment, or popularity. It will also provide a source of stability in the administration. 

It is easy to comprehend that any man who had the sole disposition of nominating persons to offices would be governed much more by his private inclination and interest then someone who is bound to submit the propriety of their choices to the discussion and determination of a different and independent body. The risk of rejection would force him to carefully choose nominees. The danger to his own reputation and political existence would keep him from showing us his favoritism or pursuing a popular choice to the observation of a body whose opinion determines whether the person gets the job or not.  He would be ashamed and afraid to bring forth candidates who have no other merit than that of coming from the same states to which he belongs or who are merely instruments to please the president.

Critics have said that the president, through the power of nomination, may get be Senate to comply with his views. The executive might occasionally influence certain members of the Senate but it is  improbable to think that he could influence the whole body. The country can rest satisfied that it will be impractical for the executive to corrupt a majority of the members of the Senate, but the necessity of its cooperation with the executive in the business of appointments will be a considerable restraint upon the conduct of the executive. The Constitution has provided some important guards against the danger of executive influence upon the legislature. It declares that no senator or representative during the time for which he was elected be appointed to any civil office under the United States, which shall have been created. No person holding any office of the United States may be a member of either house during his time in office.

Federalist #65

The Powers of the Senate (cont.)  (Hamilton)

  

Hamilton discusses the remaining powers of the Senate.  In particular, he broaches the idea of the Senate as the “court for the trail of impeachments.”  The people tried before the Senate would be those whom violated “public trust…immediately to the society itself.”  Hamilton realizes an impeachment court would be hard to form in a branch that is “wholly elective” because there is the danger “that the decision will be regulated more by comparative strength of parties then by real demonstrations of innocence or guilt.”  However, Hamilton states even though there may be problems, the “…convention….thought the Senate the most fit depository of this important trust.”  Hamilton continues in the following paragraph to describe why the Senate is the best fit for the job of impeachment.  He then ponders, which other body if not the Senate, could be the operators of the impeachment process?

The Supreme Court is the next body Hamilton analyzes as an arbitrator of impeachments.  He explains that it is “much to be doubted whether the members of that tribunal would…be endowed with so eminent a position of fortitude called for in the execution of so difficult a task.”  He also believes the justices would not “possess the degree and authority” needed to carry out the impeachment trials.  If the Supreme Court did not possess these two attributes, Hamilton argues this would pose a danger to “the accused” and “public tranquility.”  Hamilton also lists other factors that would make the Supreme Court an inept decision maker in impeachment trials.  First, there is a necessity for a “numerous court.”  Second, there will be “no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.”  These factors alone, in Hamilton’s point of view, are enough to deem the Supreme Court “an improper substitute for the Senate” in regards to fair and balanced impeachment ability.

 
Hamilton next considers combining the Supreme Court and the Senate to handle the demands of the impeachment process.  He concurs that there would be a few advantages to the combined body.  However, Hamilton stresses the cons would definitely outweigh the pros in this situation.  Mostly, Hamilton fears the “double prosecution to which the offender would be liable.”  Next, Hamilton proposes a panel of “persons wholly distinct from the other departments of government.”  Hamilton argues this would “increase the complexity of the political machine…add to a new spring to the government…be attributed with a heavy expense…and be subject to a variety of casualties and inconveniences.”  In closing, Hamilton suggests that, even if the measures listed above are not desirable, the Constitution should not be rejected.  He continues that is “mankind were to resolve to agree on an institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy.”

Federalist #1

General Introduction  (Hamilton)

In this essay, Hamilton offers an introduction to The Federalist. He declares that he supports ratification of the Constitution and that he intends through a series of papers to give the reasons for his support. He lists the subjects that will be covered in the papers and then concludes with a brief introduction to the particular subject addressed by the next several papers: “the utility of the union to your political prosperity.”

Hamilton begins the essay with an appeal to the people’s sense of “philanthropy” by suggesting that the choice they are about to make will settle the “important question,” not simply of whether or not this particular Constitution would be ratified, but of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” He pleads with his fellow citizens to try to make their “choice” through a “judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good.”

However, most of the rest of the essay is quite pessimistic about the ability for human beings to make such untarnished judgments regarding how best to promote the public good. A truly impartial mode of deliberation, he concedes, “is a thing more ardently to be wished than seriously to be expected.” After all, the proposed Constitution “affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.” What is worse, “[a]mbition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.” And none of this is helped by the fact, Hamilton points out further, that both sides in the debate have demonstrated that they “hope to evince the justness of their opinions, and to increase the number of their converts,” not by the soundness of their reasoning, but “by the loudness of their declamations and the bitterness of their invectives.” Nevertheless, while admitting that no one but he can know for certain that he is as unbiased and committed to the public good as he claims—“[m]y motives must remain in the depository of my own breast”—he promises to offer arguments “open to all” so that they “may be judged of by all,” and to do so “at least … in a spirit which will not disgrace the cause of truth.”

Hamilton then announces his intention to cover the following six subjects in subsequent essays: (1) “the utility of the union to your political prosperity;” (2) “the insufficiency of the present confederation to preserve that union;” (3) “the necessity of a government at least equally energetic with the one proposed, to the attainment of this object;” (4) “the conformity of the proposed constitution to the true principles of republican government;” (5) “its analogy to your own state constitution;” and (6) “the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.”

Finally, he offers a segue to the next set of essays by positing that his fellow citizens face a stark choice between “adoption of the new Constitution or a dismemberment of [the] Union.” Thus, he argues, it is important to begin by thoroughly considering “the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution." So it is to that subject that Publius turns next.

Federalist #2

Concerning Dangers from Foreign Force and Influence  (Jay)

John Jay writes the second Federalist paper, where he concerns himself with the dangers of a weak federal government and with the States having too much power.  He first outlines the power of the government, in relations to the power of the citizenry.  The citizenry, he believes, must cede some of their natural rights to the government, and allow the country to be one union under a federal government, rather then a a split confederacy.  The essay answers the question: should America be one nation under one federal government, or should it give to the head of each State that power and divide into separate sovereign powers?

After the union was created, there was a move towards a government that was weak with the states having more of the power.  John Jay believed that the prosperity of the American people was being undermined by politicians who believe that the prosperity of this country lies in its division of the states into distinct confederate States.  The “variety of soils and productions...innumerable streams...navigable water”, all was given to Americans by providence.  It was from God, John Jay believed, in order to unite the people into one country.  The people, who are connected by race, religion, and customs, should never be “split into a number of unsocial, jealous, and alien sovereignties”.  So this move away from one strong Union is an act against America’s destiny as set out by providence.

John Jay goes on to argue that the history of America has been at war, made peace, defeated America’s enemy, formed alliances, and made treaties as one strong Union.  He believes that people are moving away from this and advocate something different.  The press with their pamphlets and weekly paper, and those that have their objective be against the public good, Jay believes, are were trying to undermine the Union.  John Jay believes that many people were deceived, but “the great majority of the people reasoned and decided judiciously”.

The future of the Union, according to John Jay, rests on whether the United States will have a strong federal government, or its going to have strong, independent, sovereign States. Rejecting the idea that the union should be one united Union, with the Federal Government being the anchor, would ultimately put the Union in jeopardy. John Jay hoped that the good citizen would realize that the dissolution of the Union would arrive if America is not one strong Federal Union, and decides to be a weak and divided confederacy.

Federalist #3

Concerning Dangers From Foreign Force and Influence (cont.)  (Jay)

Federalist No. 3 begins with an observation that, among all of the reasons why a people might endeavor typo enter into a union like the United States of America, safety is their first concern as this safety is necessary for peace and tranquility.  In order to secure this safety it is necessary to defend against both foreign and domestic threats alike.  In No. 3, Jay argues that a strong national government devised through “cordial union” is the surest means of defense against these threats.  He goes on to discuss how the union might defend against foreign threats in a way superior to that available under the Articles.

Jay begins by pointing out that a united America will be less bellicose than the each individual state would be on its own, or at the very least responsible for less aggression as the ambitions of one nation are mathematically one-thirteenth those of thirteen individual sovereign states, each with its own agenda.  For this reason Jay argues that a united America will be more likely to preserve the peace than thirteen states.

Jay also observes that, at the time No. 3 was written, the United States had entered into treaties with six nations, 5 of which had sufficient maritime power to threaten her.  As one just cause of war is given as the violation of treaties, Jay argues that a united America is less likely to find itself in the position of having to fend off another nation which has violated a treaty.  Also, Jay argues that one national government is more likely than those of the thirteen states to observe “the laws of nations” thus minimizing the risk of breaking a treaty.  Jay reasons that such a national government is more likely to keep the peace for two main reasons: first that the national government will more consistent in signing and obeying treaties than will the governments of the thirteen states; and, second, because the national government will be theoretically less vulnerable to the interests of regional factions than will the governments of the thirteen states.

Jay concludes by offering two illustrative examples, one from America’s own history and one from Europe’s.  Jay observes that none of the Indian Wars from fought from 1776 to 1787 had been the result of violence instigated by the federal government under the Articles but rather by the governments of individual states, each acting in their own interests.  Jay also notes that Louis XIV of France was able to compel the Doge of Genoa to appease him following hostilities in a way that he would not have been able to compel Britain, Spain or any other powerful nation.  The comparison here is obvious; Genoa was a city state on the disunited Italian peninsula.  As Jay would have been familiar with Machiavelli’s argument that a united Italy would be better able to resist foreign aggressors, he is no doubt drawing a parallel argument with this example.

Federalist #4

Concerning Dangers From Foreign Force and Influence (cont.)  (Jay)

Federalist #5

Concerning Dangers From Foreign Force and Influence (cont.)  (Jay)

Federalist #8

The Consequences of Hostilities Between the States  (Hamilton)

Hamilton, in an effort to illuminate the true effects of potential disunion, argues that hostilities between the states would be a harbinger to liberty. War between the states would have the consequence of destroying property, plundering and causing a lot of devastation since war has become “ towns taken and retaken, of battles that decide nothing; of retreats more beneficial than victories, of much effort and little acquisition.”

Hamilton, in a clear reference to Hobbes and the state of nature, argues that the large (more populous) states would quickly overrun their less populous neighbors. He paints a picture in which small states would have no choice but to create standing armies (which was well-known to be a threat to liberty almost universally by the populace) in order to protect themselves. In addition, these small states are likely to create confederacies of their own in order to secure greater security against more powerful populace states. He argues that there will be frequent war and constant apprehension that will erode liberty. “ Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates.” Or as Benjamin Franklin famously put it, “Those who sacrifice liberty for security are guaranteed neither.”

Hamilton goes on to compare Great Britain with the current situation with the states. He argues that Great Britain can get by without a standing army because it is isolated from its neighbors on the continent and there is internal peace with Scotland. However, the situation in America is different. There were still foreign armies not far from the Confederacy and with the current state of relations between the states, standing armies were inevitable, leading to eroding liberty. Only by staying united can America gain the same advantages of Great Britain. If instead, the confederacy dissolves into complete separated states or more likely, two or three confederacies, liberty will be destroyed by fighting one another and they will be unable to prevent themselves from being at the mercy of the European powers (since only by remaining united will the states be able to repeal any attempt by Europe to interfere in their part of America).

Federalist #7

Concerning Dangers from Dissensions Between the States (cont.)  (Hamilton)

Hamilton’s Federalist paper #7 convincingly argues why a strong federal government is crucial and indispensable in order to avoid dissensions between the states of the union.  With respect to the dangers of rivalries among the states, the Federalist paper (#7) begins by asking the following key question: What inducements the states could have, if disunited, to make war upon each other? This question, for Hamilton, deserves “full answer” with respect to the United States as an emerging nation. Accordingly, if disunities persist in the State of the Union, the desired results are not any different from the ones experienced, at different times, in other nations in the world.  Hamilton’s Federalist paper suggests four different types of conflicts that could lead to war if a strong federal government is not established: Territorial disputes, commercial disputes, debt liability and dispute over conflicting laws. First, dispute over territory is the source of hostility among nations.  The United States is not exempt from such a conflict because of “a vast tract of unsettled territory within its boundaries. More importantly, each of the states, Hamilton argues, would have equally good claim to the title of a land if the federal government were to be dissolved (e.g., real boundary dispute between Pennsylvania and Connecticut) Second type of conflict, disputes over commerce is that the very fact that states are unequal in natural resources and that each tends to pursue its own commercial policy, contention is inevitable. A federal government is thus necessary to prevent conflict between the states, and prevent one from taking advantage of the other. The third type of conflict, debt acquired during the war of independence, would be a source for friction or a further cause of collusion between the separate states of confederacies. Hamilton observes that some states felt morally obligated to pay off the war-time debt while other states had no interests in paying off the debt. Thus, federal government arbitration is crucial. Fourth and last, dispute over conflicting laws would be a source for contention between the separate states. For instance, a private contract between two parties might be legal in one state but not in another. According to Hamilton, a federal court under a federal government could help provide the coercive force necessary to make sure that the losing parties in one state complies with the ruling of the judge to avoid recurrence to arms.

Shortly, Hamilton believes that, given the dangers from dissensions between the states, federal government would be the real solution to the newly sovereign states of the union. Giving up certain rights to the federal or national government would stop behaviors that could lead the states to war against each other. Therefore, for Hamilton, disunity among the states of the union could not be an option because, America, if not connected all, would gradually find itself engaged in a Hobbesian war or in “all the pernicious labyrinths of European politics and wars.”