Federalist Paper Number 1

SummaryFederalist Number One is an introduction to the series of essays. It explains why the essays are being written and why the author believes the Constitution is important enough to argue for.

Read Federalist Number OneRead the first Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Number One With A MentorNow that you have read and highlighted Federalist Paper Number One for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. If you answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

Can People Self-Govern?

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, 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.”

Hamilton is saying that what America decides in this moment, the moment where they choose whether or not to adopt the Constitution, will determine the question of whether it is possible for people to deliberately choose and design a good government or whether the government people live under is always a matter of chance and force.

• Why do you think Hamilton thought the adoption of the Constitution was such a big deal, not only for Americans, but for all of mankind? What was different about the American experience versus other people before the Founder’s day?

• Do you agree that the adoption or rejection of the Constitution was of great historical significance for all people everywhere? Give examples of why you take the position you do.

Keep an Open Mind

“ So numerous indeed and so powerful are the causes which serve to give a false bias to the

Layers of Learning

judgment, that we, upon many occasions, see wise and good men on the wrong as well as the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy.”

In modern terms Publius is saying “keep an open mind”. Very often even highly educated and well-meaning people support the wrong side in an argument. We should never assume that we are not part ofthe group that is on the wrong side. Wise people are humble enough to change their minds when it becomes evident that they have been on the wrong side.

• Think of some time when you have formed an opinion about something, not necessarily political, and later you changed your mind after gaining more knowledge or being presented with a new option.

Force Cannot Make Converts

“For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.”

This is saying that people can not be persuaded to change their minds or be convinced of political policies through force.

• If, as Hamilton says, force cannot be used to persuade men to your side politically then what does work? Or is it hopeless?

Layers of Learning

This is a Bolshevik sign that reads “Death to the bourgeois and their helpers.Long live the Red Terror.” This is the only way that force can be used

effectively in politics. You have to either find a way to change the minds ofthose who oppose you or you kill them. Publius, in this essay, takes mass

murder off the table. Image courtesy of Wikimedia, Public domain.

Yelling At The Opposition

“To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamation and the bitterness of their invectives.”

This means that most people try to convince others of their position by loudly yelling and insulting their opponents.

• Do you agree that in politics most people behave this way? Do you see examples of yelling, frequently and loudly drowning out the opposition, and name calling in modern politics?

• Do you think that drowning out the opposition and name calling actually work to change minds? Has your mind ever been changed on an issue after you observed this behavior?

The Contents of the Federalist Papers

“I propose, in a series of papers, to discuss the following interesting particulars: – The utility of the UNION to your political prosperity – The insufficiency of the present Confederation to preserve that Union – The necessity of a government at least equally energetic with the one proposed, to the attainment of this object – The conformity of the proposed Constitution to the true principles of republican government – It’s analogy to yourown state constitution – and lastly, The additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.”

Hamilton explains why he is writing the papers. He hopes to convince his audience that:

1. A union of the states is necessary. 2. The Articles of Confederation are not strong enough to preserve the union. 3. A strong federal government is necessary to preserve a union. 4. The Constitution creates a republican form of government. 5. The Constitution is similar to the constitution of the state of New York. 6. The adoption of the Constitution will secure the liberty and property of the people.

• The Constitution was not only called into question in Hamilton’s day, it has been debated and supported or denigrated ever since by various people with various belief systems. Make a list of your own of things you would attempt to persuade people about the Constitution if you were defending it today.

Layers of Learning

Federalist Paper Number 5

SummaryFederalist Paper Number Five argues that the union of the states will preserve the safety of the people by preventing quarrels and wars that would occur between them if they were not united under one strong federal government. It further states that a united America will have greater standing in the world making it less likely that a foreign nation will either attack militarily or break treaties, both of which are the most prevalent causes of just wars. Also, a united nation will be able to muster all its resources in defense in the event that a war with a foreign state does become necessary.

Read Federalist Number FiveRead the fifth Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Number Five With a MentorNow that you have read and highlighted Federalist Paper Number Five for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. If you answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

A United America Prevents War

After reminding his audience of the history of the wars between England, Scotland, and Wales before their union, Publius says this:

“Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different “interests,” envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits.”

If America were divided into individual states or factions of states there would be fighting between the different factions.

• Only once in America’s history has a group of states succeeded from the union. The result was the most costly war in the history of the nation. Do you think that all succession attempts would necessarily end the same way?

Layers of Learning

• America has now been united for well over two hundred years. But people, for various political reasons, talk of succession, of breaking up the union even today. What do you think the real life consequences of this would be? Would the different parts become bitter enemies and jealous of one another? Would this be a source of continual fighting even to the point of war between the different parts?

• Do you think that Publius’ argument that a united America causes more safety by preventing war between the states is a valid argument?

Once part of the United States did separate from the rest. The result was a horrible bloody war. Image courtesy of Wikimedia, public domain.

Separate States Would Be Vulnerable to Foreign Attack

“. . . those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills, of arms, and of resources, which would be necessary to putand keep them in a formidable state of defense against foreign enemies.”

People had proposed that a loose confederation of states, as under the Articles of Confederation, could unite together to defeat common enemies when it became necessary for defense or offense in time of war. Publius says that no set of nations, each with their own interests, will ally readily or for long against a foreign enemy because different states have different needs and desires. Without a united

Layers of Learning

defense the states could not mount a formidable defense.

• Is Publius right? Is it impossible for foreign nations to consistently unite together against foreign foes? Think of some examples from history of nations that united together for a common military goal. How long did they remain united? The next time there was a threat did they unite again?

• If America became disunited today what is the probability, from your point of view, that the different parts would aid one another in defense should one part be attacked?

Does the United Nations Solve Publius’ Problems?

In Federalist Number Four Publius says that the just causes of war arise from violations of treaties or from direct violence. Violations of treaties cause wars because treaties are the only way different nations have of ensuring peace between them. The only way to compel a foreign nation to honor trade agreements, border agreements, or weapons agreements is through the force of arms. You cannot vote in their elections or become a member of their parliament or write their laws or command their armies.

This is a meeting of the UN in 2007. The UN attempts to prevent war and ensure human rights acrossthe globe by creating a place where nations can talk out their differences.

Image by Redux, Wikimedia, CC license.

The United Nations was formed as a way for foreign nations to interact with one another so that there would be a place to vote and discuss differences between nations so that war can be avoided. It’s basically a good idea because avoiding war is always a good thing. But it has limitations. Nothing the UN does has any force behind it so only nations that respect the UN abide by its decisions. The problem countries in the world are of course the ones that do not respect the UN. Any effectiveness the

Layers of Learning

UN has had over the years has been almost entirely due to the military might of the USA and other countries which support and often enforce the UN decisions that are made. Without that military might the UN would be pointless.

• Do you think the UN is an important part of world peace today?

Federalist Four, Seven, and Eight are also about how the union protects the states from foreign wars.

Layers of Learning

Federalist Paper Number Ten

SummaryFederalist Number Ten explains why a republican form of government is superior to a democracy and how having a larger republic is better than having a smaller republic. It also delves into the problem of factions. Factions are defined as groups that have common interests and try to destroy the rights and interests of others to get their own way. Publius argues that a federated republic is better at controlling factions than a small republic would be.

Read Federalist Paper Number TenRead the tenth Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things:

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Number Ten With A MentorNow that you have read and highlighted Federalist Paper Number Ten for yourself, read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. If you answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

Factions Aim to Destroy the Rights of Others

“By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Publius is defining his terms here and explaining what he means by faction. A faction is a group of people who all want something and in order to get it they are willing to destroy the rights or interests ofeverybody else.

• According to this definition factions are always bad. List some modern day factions that you know of. Taking each faction separately, if their aims are met are the rights of others destroyed at least in part?

• Is it possible to have a political group that has aims that do not destroy rights of other individuals? Think of some examples of groups that are not “factions”.

Layers of Learning

How To Control Factions

“There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”

You can get rid of the problems of factions by either removing the cause of the factions or by controlling the effects. To remove the causes you have to either destroy liberty so that people are not allowed to speak out on their ideas or you have to make sure that everyone has identical ideas and opinions in the first place. Obviously it is not possible to have both liberty and a lack of factions since people will never be united in their opinions.

“As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other, and the former will be objects to which the latter will attach themselves.”

As long as people base their opinions on faulty logic and emotion there will be differences of opinion. Everyone bases at least some of their opinions on faulty logic and emotion. So there will always be differences of opinion.

PETA is a group that wants to give animals the same rights possessed by humans. Is PETA a faction? Image by David Shankbone, Wikimedia, CC license.

Layers of Learning

“If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.”

A minority faction can be defeated by votes in a republic.

• Does this always work in practice? Can you think of at least one example of a time when the majority of voters was defeated by a minority faction (remember the definition of faction)? Howdid the republican process break down or how was it corrupted so that this could occur?

Two Ways to Prevent a Majority Faction from Trampling the Minority

“Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such co-existent passion or interest, must be rendered, bytheir number and local situation, unable to concert and carry into effect schemes of oppression.”

There are two ways to keep a majority faction from destroying the rights of the minority.

1. Prevent a majority from forming 2. Prevent the majority from organizing so they cannot carry out their plan to oppress the minority

Democracy Cannot Control the Negative Effects of Factions

“. . . a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.”

A pure democracy where each citizen gets an equal vote cannot prevent the majority from trampling onthe rights of the minority.

“Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as violent in their deaths.”

Because they do not protect the minority democracies end up in chaos and violence. The only way the minority can restore its rights is through violence.

• How does this description of democracy relate to today’s politics? Do you see instances of individuals calling for majority rule or of using the excuse of a vote to destroy the rights of some group either presently or in the history of the United States?

Layers of Learning

This is Themistocles, one of a long line of Athenian rulers from its days as a democracy. He gainedpower by creating a faction of common men. Eventually he alienated the nobility and they createdtheir own faction which led to rivalries resulting in his exile. During his exile, Themistocles turned

traitor offering his aid to the Persian king against his own native Athens. Image courtesy of Wikimedia, public domain.

A Large Federated Republic is the Best Way to Avoid the Problems of Factions

Now that he has established that the only way to preserve the freedom of the majority is through a republic, Publius gives reasons why a large, federated republic is better at preserving the rights of the minority than a small republic.

“. . . the [large republic] will present a greater option, and consequently a greater probability of a fit choice [for public office].”

In a large republic it is more likely you will find leaders of good morals, experience, and character to lead than in a small republic.

“The federal Constitution forms a happy combination in this respect [that both local and national interests need to be met]; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

Both local interests of citizens and national interests of citizens need to be met and a federated republic is best for this since the federal government can handle the national interests and the local governments

Layers of Learning

can handle the local interests.

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”

If you have a larger republic then it is less likely you will ever a get a majority of citizens who all agreeto the same opinions. If you do get a majority opinion it is less likely that the majority will realize they are a majority and be able to act.

• List in your own words the three reasons Publius says that a large federated republic better controls a majority faction than a small republic. Do you agree with the three reasons?

Layers of Learning

Federalist Paper Number Thirty-Nine

SummaryFederalist Paper Number Thirty-Nine explains that the Constitution sets up a republic and that the formof government is a combination of a national and federal government.

Read Federalist Paper Thirty-NineRead the thirty-ninth Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Paper Thirty-Nine With A MentorNow that you have read and highlighted Federalist Paper Number Thirty-Nine for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

America Must Have A Republic

Publius here is answering charges that the Constitution doesn’t really set up a republic and that in any case it is more of a national government than a federal one. Publius explains that only a republican form of government will do for the United States,

“It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”

• Do you think that self-government is still the best option for America? Do you think that Americans have proven by and large that self-government works?

Republic In Name Only

Publius goes on to explain that merely calling yourself a republic doesn’t make you one. He gives the examples of the Dutch “republic” from which no powers are derived from the people, the English “republic” in which one half of the government is a hereditary monarchy and aristocracy, and the Venetian “republic” which is entirely an oligarchy of powerful families, among others. So what then makes for a true republic?

Layers of Learning

“. . . we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour.”

• List the some of the elements of the Constitution that make the government it creates a republic.

The Soviet Union called itself a republic as it starved, shot, and imprisoned its own people by themillions. Venezuela, Cuba, China, and North Korea all call themselves republics as well. A true

republic derives its power from its people and cannot therefore destroy their life, liberty, or property.

National vs. Federal Government

After establishing that the Constitution does set up a republic Publius goes on to address the concerns about the Constitution setting up a national rather than federal government.

A federal government considers each state a sovereign and the federal government would act politicallyonly on the states. In a national government the government can act directly on citizens. Publius will explain that actually the government created by the Constitution is a mixture of the two.

“It is to be the assent and ratification of the several States, derived from the supreme authority in each State, – the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.”

No state would be a part of the federation or subject to it until the people of that state agreed to be.

Layers of Learning

Even once the 9 states had ratified making the Constitution valid, those who had not yet ratified would still be independent. No bare majority of the people or of the states would allow for the federal government to rule within a state that did not agree to it.

• Do you think it is relevant that each state chose freely to become part of the United States of America under the Constitution?

“The House of Representatives will derive its power from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far, the government is national, not federal. The Senate on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate . . . so far the government is federal, not national.”

The House of Representatives gains its power directly from the people who vote for these representatives. This make the government national. But the senate is voted on by the state legislatures and so it gains its power from the states. This makes the government federal.

• The set up of the people being represented by the House and the states being represented by the people was undermined with the Seventeenth Amendment which changed the Senators from being appointed by their state legislatures to being elected by majority votes of the people from their states. The power was shifted then from federal toward national government. Do you thinkthis is good or bad? Why?

“The difference between a federal and national government, as it relates to the operation of government, is supposed to consist in this, that in the former, the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on theindividual citizens composing the nation, in their individual capacities.”

In a federal government the powers operate on the states. In a national government the powers operate on the individual people.

• What do you think of the distinction between national and federal government? Which seems toyou best if you have to pick between the two?

• Why do you think the Founders mixed the government to make it partly federal and partly national?

• The Founders and their detractors were both very concerned with how much the federal government could directly act on citizens. Today citizens are subject to federal rules, the breaking of which can lead to imprisonment or the taking of property or both, that are written byun-elected bureaucrats in the federal government, the EPA, for example. What do you think of this ability of the federal government?

Layers of Learning

This is the president, vice president, and the entire cabinet. The cabinet comprises the departments ofthe executive branch of the federal government. Many of these people make rules that are enforced as

though they are law, even though that power is clearly reserved to the legislative branch of thegovernment.

“But if the government be national with regard to the operation of its powers, it changes again when we contemplate it in relation to the extent of its powers . . . the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

The federal government can act upon individual citizens, but only in the specific areas allowed it by theConstitution. The States have absolute authority over all other areas of government.

• Go back to the Constitution, section 1 and read the specific powers granted to the federal government by the Constitution. List them on one side of a piece of paper. Then list other functions of government that are left to the states. How many of these state-reserved functions has the federal government encroached on? Do you think this is a problem? Why?

Layers of Learning

Federalist Paper Number Twenty-Two

SummaryFederalist Number Twenty-Two continues explaining the problems with the Articles of Confederation and why it needs to be replaced. Publius explains that the national government under the Articles has no power to coerce the states to do anything whatsoever including complying with laws, revenue requests or foreign treaties.

There is no uniform rule for commerce between states under the Articles and some states had been taxing and regulating the commerce from their neighboring states. The states were equally represented by one vote each under the Articles and this meant that a minority population could easily override the will of the majority population.

An equal vote also extends the problem of corruption. Elected officials in a republic are easily bribed, but it is far harder to bribe a larger number of officials elected to represent citizens than it is to bribe a smaller number representing states.

Treaties must be considered the law of the land and states must be obliged to honor them or no foreign nation can have any faith in the United States.

All questions of constitutionality and the definition of laws must be answered by a court system, which the Articles lacked. A single court of last resort, a supreme court, must exist to answer the legal questions for all of the states as a whole.

Finally, the Articles of Confederation were never ratified by the people, but only by the state legislatures. Many people were questioning where the national government got its authority. Publius argues that the authority and the ratification must come from the people so that the government is legitimate.

Read Federalist Paper Twenty-TwoRead the twenty-second Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things:

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discussion on Federalist Number Twenty-TwoNow that you have read and highlighted Federalist Paper Number Twenty-Two for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

Layers of Learning

The Federal Government Can Coerce the States

“No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Unionmight at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest.”

No foreign nation will make treaties of trade with the United States since they can’t depend on the treaties being honored by the different parts of the United States and since the bits in favor of Americantrade were unlikely to be enforced by any authority.

• This argues for the federal government’s ability to coerce the states to obey federal law and foreign treaties made by the federal authority. In the Constitution is there any protection for states or for the people from the federal authority contracting a bad treaty? Is there a safeguard in the Constitution for the states and the people if the federal government does make a bad treaty?

A Majority Should Prevail in a Republic

Speaking of equal votes between the states Publius says:

“It’s operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.”

The problem was that a majority of states does not necessarily mean a majority of the people since all states do not have an equal number of inhabitants.

• The Constitution balances the rights of the states and the rights of the people by making a bicameral legislature, one part of which represents the states and the other part of which represents the people. Which part of the congress represents the people? Which part was designed to represent the states?

Elected Officials Are Easily Corrupted

“One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption . . . In republics, persons elevated from the mass of the community, by the suffrages of their fellow citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.”

A weakness in republics is that elected and non-elected officials are easily bribed. Individually they have only a small interest in the outcome of the nation, shred with the whole rest of the citizens. Their interest is easily outweighed with bribes or promises. This makes it easy for foreign nations to influence the governments of republics.

• Do you see signs of corruption of this sort among our federal government officials? Among

Layers of Learning

your state elected officials? Among your local officials? Do you think this is a problem? Can you think of any solutions to deter the offering or the taking of bribes?

A Supreme Court is Essential

“Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land . . . To produce uniformity in [judicial] determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.”

Without a court system laws are dead, or powerless. Treaties made by the United States have to be considered the law of the land, supreme to other laws. A high court must be the final court to deiced in all cases where necessary.

• What is the purpose of having one supreme federal court? • Imagine if there was no court system at all. Perhaps we just had laws and policemen. What

problems would arise when individual policemen started arresting people for disobeying laws? Why are laws a “dead letter” without courts?

Where Does the Power Come From?

“It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE . . . owing its ratification to the laws of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates . . . The fabric of the American empire ought to rest on the solid basis of the CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of alllegitimate authority.”

The Articles of Confederation were never ratified by the people. This has caused people to say that since the states ratified the Articles they can also repeal them. Publius despises a philosophy where a party can break a contract. However he believes that the Constitution should have a stringer authority than the states. The people need to vote in and grant power to the Constitution and make the compact an unbreakable one.

• Where does the power of government come from according to Publius? Do you agree that this isthe only legitimate authority? Write some of your thoughts about who has the right to rule over people.

• There are many people today who contend that the states have the right to secede since they created the federal government and existed prior to the federal government and not the other way around. How do you think Publius would answer this argument? What do you personally think about this issue? Can states legally secede?

• Did the process of adopting the Constitution involve the consent and power of the people? Lookthis up.

Layers of Learning

Federalist Paper Number Forty-One

Summary of Federalist Forty-OneFederalist Number Forty-One answers charges that the Constitution gave greater powers to congress than it ought to have. Specifically the allowance of standing armies and the funding of them as well as the power to “lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States.” This last clause was seen as too broad and it was argued at the time was essentially permission for the government to legislate in anything whatsoever. Publius explains why these powers are not out of control and why the last is an absurdity.

Read Federalist Paper Number Forty-OneRead the forty-first Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Forty-One With A MentorNow that you have read and highlighted Federalist Paper Number Forty-One for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

Security From Foreign Attacks

“Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union.”

Publius is answering a charge that the military powers granted to the federal government in the Constitution were too great. Here he asserts that the most basic of functions of government is to protectcitizens from foreign aggression.

In particular objectors had a problem with the unlimited powers of the federal government to make war.There are no limits to the size of the army or for the period of time for which they can be called up.

Layers of Learning

The primary function of any government is to protect its citizens from foreign attacks and domestic mobs. Photo by Robert, Wikimedia, CC license.

“With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense?”

If the federal government cannot limit the size or duration of an attack by a foreign nation, how can it possibly be limited in responding to an attack?

• Considering the history of the United States at war and amidst enemies do you agree that the defense functions of the federal government have been essential?

• Do you agree that the power of raising and equipping armies should be unlimited? If not, how would you limit them while still preserving the safety of the American people?

“It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worsethan in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.”

If you limit the defensive powers of the federal government you set up a situation where the Constitution must be broken because at some point the necessary response to foreign threats will

Layers of Learning

exceed the powers granted. Every time the Constitution is broken it sets a precedent that says it may be broken and the weaker the laws and protections for the people become.

• The Founders believed they ought not create a situation where a rule had to be broken. Have you been in a situation where a rule had to be broken because of circumstances? How did that affect the whole body of rules? Did it cause disrespect for the rules as a whole and lead to further breaking of rules as the Founders said would happen?

Suspicious of Standing Armies

Speaking of the need for standing armies, Publius recounts the history behind the standing armies of Europe. Until King Charles VII of France decided to have a standing army in peace time, no other European nation did so. But once he did they all had to follow suit or become overrun by France. The armies became not only a defense, but a deterrent. Publius said the same thing would very possibly become necessary in North America. At the time of these debates Americans did not like the idea of standing armies in peace time and there wasn’t one.

“But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things.”

If America ever weakened she would need standing armies and if ever there was a split there would certainly be standing armies. Only the vast oceans and wide frontiers kept her safe and isolated.

Obviously, in the modern world America is no longer isolated.

• Are armies in peace time necessary? Is it a necessary evil or is it a positive good to have standing armies? How do standing armies affect aspects of our lives besides our physical safety from foreign invasion?

• Do standing armies make it easier and more likely for the federal government to go to war, perhaps unnecessarily?

• If it weren’t so easy to go to war do you think some of the wars in American history might have been avoided or do you think that instead the conflicts would have been more difficult and morefrequent because our enemies would have been emboldened?

• America has been remarkably free from invasions on our soil over the course of our history. Is this because we have standing armies or is there another explanation?

“Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added.”

An important way to control the danger from standing armies is to force the government to re-fund and vote on tax dollars to be given to the army on a regular basis. The Constitution does this.

• What are these dangers that might arise from standing armies? • Have we experienced any negative effects from having standing armies in the United States? • How can controlling the funding for the army control the ability of the army or the president to

make war that the congress or the country does not agree with? Do you think the control of funding for the military has helped to keep the military in its proper place and keep wars only tothose that are just? Why or why not?

Layers of Learning

Providing For Defense and General Welfare

“It has been urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”

People were saying that the phrase quoted above from the Constitution could be construed to mean thatthe congress can do anything that provides for defense or the general welfare, which essentially means the federal government can do anything and everything they wish to since anything can be made to fit under one of those two heads. Publius says their desperation is showing since this whole idea is absurd.

• Of course now we see that this is the very excuse for the many expanding powers of the federal government. Read back through the specific powers granted to the federal government in the constitution, particularly sections one and two.

Publius explains why he thinks this argument is absurd.

“. . . shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any significance whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant tobe included in the preceding general power?”

Why would the vague powers be honored and the specific enumerated powers be ignored? Why would we bother to enumerate powers at all if we intended the government to just do whatever it wanted?

“But the idea of an enumeration of particulars which neither explain nor qualify the generalmeaning, and can have no other effect than to confound and mislead, is an absurdity, which,as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”

Since there is a specific list of powers given to the federal government there can be no reason for such alist to exist unless to confuse people if the intent was to give the federal government all powers from the start.

Many of the powers and functions of the modern American government are unconstitutional, they are not based on the specific powers granted in the Constitution.

• Hopefully you went back and read sections one and two and took note f the powers given the legislative and executive branches. Brainstorm some of the departments or functions of the federal government that are not allowed specifically by the Constitution.

• Do you think the unconstitutional federal powers could be performed by the states? Why do youthink the federal government wanted these powers?

• Earlier we saw that there was concern that if the Constitution were set up in a way that forced it to be violated it would be weakened and violated again and again. We can see that it has been violated again and again and grows ever weaker, but was this inevitable? Are some of the federal departments necessary for the functioning of the nation? Why or why not?

Layers of Learning

Federalist Paper Number Fifty-One

Summary of Federalist Paper Fifty-OneIn Federalist Paper Fifty-One Publius explains the checks and balances between the branches of government and between the states and federal and why they are necessary. The nature of men is such they are selfish and seek to abuse their fellow man in the quest for power and riches. This inherent selfishness of mankind is the reason for government in the first place and so any plan for government that seeks to protect individuals must take this tendency into account.

Read Federalist Paper Fifty-OneRead the Fifty-first Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Paper Fifty-One With A MentorNow that you have read and highlighted Federalist Paper Number Fifty-One for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

How the Three Branches Keep the Government in Check

Publius explains how the Constitution is arranged so that the branches of government appointed stay divided “. . . contriving the interior structure of the government as that its several constituent parts may,by their mutual relations, be the means of keeping each other in their proper places.”

This means that the way the branches, the executive, legislative, and judicial, interact with each other isdesigned to keep them antagonistic or at least that the interests of one branch will keep it from colluding with other branches.

• Well over two hundred years since the adoption of the Constitution the three branches are still separate. Do you think they are functioning the way the founders foresaw or is there some contamination of interests between them? Do some of the branches, or some of the members feel more allegiance to parts of the government outside their own branch than they ought? Why do you give the answer you do?

Layers of Learning

Color code this worksheet as you read the Constitution to find out what powers are granted to eachbranch.

“But in the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others.”

The Constitution keeps the powers of government from concentrating in one branch by giving each branch the power to resist the others.

• What power does the executive have to keep the legislative from making him irrelevant? • What power does the legislative have to keep the judicial from making them ineffective? • What power does the judicial have to keep the executive from making their job pointless? • Are there ways in which the power of one branch seems to have been weakened by one of the

other branches?

“Ambition must be made to counteract ambition.”

Ambition here means a desire for power. Publius is accepting that people elected or appointed to powerwill crave more and more of it. The Constitution attempts to make this desire work against the desire for power from the members of the other branches to keep all in check.

Layers of Learning

• Does the Constitution seem to make each branch want to guard its power from the other branches?

• Is it working? Does the legislative branch pull together to check the power of the executive branch? Does the executive branch martial its forces to keep the power of the judicial from getting out of balance?

• If you answered that it is not working, then why do you think it isn’t working?

If People Were Good They Would Not Need Government

“It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were togovern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

People have tendencies toward selfishness and other evils. That is the reason we have government in the first place. If people were perfectly kind and loving toward one another no government would be needed. But the problem is that someone, those same fallible people, must be in positions of power over other fallible people. So unless you want to trade anarchy for despotism you have to create a system where those in charge are forced to restrict themselves only to certain powers and to honor the rights of their fellowman.

• Given that government assumes powers that can take the life, liberty, and property of individuals do you agree that no person can be wholly trusted with your life, liberty, and property?

• Publius says that the first and most important defense against government increasing its own power is the people. Do you think the people of the United States have done a good job in keeping the government in its limited powers as written in the Constitution? Why do you think this is true or how has this been made possible?

• Some people seem to want the government to have unlimited powers to interfere in the personallives of citizens. Is it in the interest off all citizens, regardless of their political persuasions, to keep the power of the government limited?

• Are there some powers you wish the government had that it does not? What do you think the long term effects of granting the government this new power might have? (If you do not think the government should have any more powers, imagine what would happen if they did have a new power or describe what has happened since the federal government took a new power.)

Layers of Learning

If people were always good then we wouldn’t need policemen or prisons, judges, or laws. Photo by Nonie from Melbourne, Australia, Wikimedia, CC license.

The Legislature Is Divided to Weaken Its Powers

“In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”

The most powerful branch in a republic in naturally the legislative branch. To counter this the Constitution divides the legislative into two parts and makes sure that the two parts are different in function, election, and in some of their powers.

• Make a list of the ways the Senate and House of Representatives are different and divided. Doesit seem to you that these two legislative bodies collude together or are they most often antagonistic to one another?

• When the Seventeenth Amendment was passed it changed the process of electing the sentaors from an vote in each state’s legislature to a popular vote in each state. This eroded the power ofthe states, which were no longer represented in the Federal government. Does this also erode thechecks between the House and Senate?

Layers of Learning

Having State and Federal Government Gives Double Security

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each sub-divided among distinct and separate departments. Hence a double security arises to the rights of the people.The different governments will control each other, at the same time that each will be controlled by itself.”

The powers of the state and federal governments are distinct, with the power of the federal government being less in scope – the federal government has power over fewer things. The states will naturally be jealous of the federal government taking their power and this will be another safeguard to the rights of the people. The federal government on the other hand, being above the state governments, can strike down unconstitutional laws and force states to recognize the rights of the people. So the Constitution was set up to not only balance the branches of the federal government, but to balance the power of the states against the power of the feds, all for the protection of the rights of the people.

The Seventeenth Amendment, removing state representation in the federal government, destroyed all power of the states to do anything to control the federal government and so a major protection of the people was removed.

• Does the federal government do a good job controlling the powers of the state governments? Give examples.

• Do the state governments do a good job controlling the powers of the federal government? Giveexamples.

• Given that the goal of these checks is to restrain the overall power of government and secure therights of individuals do you think the checks and balances are working? Are there any breakdowns in the system? If so, what do you think caused the breakdown?

Layers of Learning

Federalist Paper Number Fifty-Four

SummaryFederalist Paper Number Fifty-Four addresses the three fifths rule that counts only three fifths of slavesfor the purposes of representation in the House of Representatives and for taxation of the states. The opposing views of the north and the south are set forth. Finally the rationale for having the rule of representation and the rule of taxation be the same is explained.

Read Federalist Paper Fifty-FourRead the fifty-fourth Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discuss Federalist Paper Number Fifty-Four With A MentorNow that you have read and highlighted Federalist Paper Number Fifty-Four for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

What the Constitution Says About the 3/5ths Rule

Before we begin this discussion it will be helpful to read the passage of the Constitution that sets forth the three-fifths rule. From Article I, Section 2:

“Representatives and direct Taxes shall be apportioned among the several States which maybe included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

So for the purposes of determining how many Representatives each states gets in the House of Representatives and for the purposes of determining the amount each state is taxed, free persons and indentured servants will be counted once each, Indians will not be counted at all, and 3/5ths of the slaves will be counted.

Layers of Learning

Though slavery and racism were both terrible problems in early America, the charge that theConstitution institutionalized slavery and still demeans black people is just not true. In fact, the

Constitution and other founding documents confirmed the value of all people and paved the way forfreeing the slaves.

This painting is attributed by John Rose of South Carolina, c. 1785, Wikimedia, Public Domain.

Not incidentally the number of electors, who cast votes for president of the United States on behalf of their states, are also determined by the census and the same apportionment as is given to the representatives. So the states' power in the federal government, both in the House and in the Presidencyis determined by how the census count is taken.

This clause for the counting of slaves was a hotly contested item in the Constitution at the time of the Convention in 1787.

Most slaves were in the South and most slaves were black (but not all). Indentured servants were mostly white, but also black. And there was a large population of free blacks in both the north and south. So the Constitution divides people not based on the color of their skin, but on their legal situation. Further the Constitution, in this very clause, defines slaves as “Persons” with a capital P, the same terminology used for free Persons. Finally most people when paraphrasing this bit of the Constitution say that the Constitution counts blacks as three fifths of a person, but it actually says that three fifths of slaves are to be counted, an important distinction.

James Madison wrote, “[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men.” (Records of the Convention, August 25, 1787). The Founders were

Layers of Learning

very careful in their wording of the Constitution to avoid the very institutionalized racism that they are now accused of. For more about the Founders views on slavery and how the struggle for their own freedom turned the thoughts of Americans to the plight of the slaves visit Wall Builders. (http://www.wallbuilders.com/libissuesarticles.asp?id=122)

This is not to say that attitudes toward blacks were not despicable or that blacks were not targeted for slavery by whites. It was and they were. But the political realities of the times were that if there was to be a union then a compromise had to be reached. The South, in particular North Carolina, South Carolina, and Georgia, wanted all of the slaves counted so they could increase their power in the federal government. The North wanted none of the slaves counted so their power could be augmented in the federal government and also because they felt it was immoral to give slave holders the votes of those they had enslaved.

No one today argues over whether slavery was right or not . . . we all agree it was and is an immoral practice. Is there still racism?

No doubt. But it is not to be found in the Constitution. The freedom in that document is for all mankind.

The result was that the South had augmented power in the federal government and prevented the ending of slavery until 1865. On the other hand the North would never have been able to elect

Layers of Learning

President Lincoln if all the slaves had been counted. It is conceivable that even today slavery would persist. Its official end around the world was influenced and enforced by American and English hegemony. Further, if there had never been a compromise the union would have failed. There would have been at least two countries instead of one united one and again, slavery would have existed much longer, possibly even to the present day in the South.

• Do you think a Union was important enough to compromise on this issue? • Do you think the three-fifths rule slowed down or sped up the ending of slavery? • What moral problem existed that caused this disagreement over the counting of slaves?

Slaves Should Not Be Counted At All

Now back to Federalist Paper Fifty-four. First Publius presents the argument given by the northern states against counting slaves at all.

“ . . . does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons.”

Slaves were considered under state laws to be property. No slaves could vote. No slaves were protectedfrom human rights abuses or had access to courts of law. They were not citizens and could not enjoy any of the privileges or rights of citizens. Therefore they should not be counted in a census for the purposes of representation in congress since only citizens are represented.

• Given what you know about American history and the different attitudes of the north and south to slavery why do you think the northerners didn’t want to count slaves at all for representation?

• What argument did they use to try to keep slaves from being counted? From a legal, and not moral, position do you agree with the argument that slaves, as property, should not have been counted as persons for representation?

Neither the northerners nor the southerners were entirely honest about their reasons for the way they thought slaves ought to be counted. The real reasons involved a power struggle so the North could hardly come out and say “We want to not count the slaves so that your power will be reduced and we can control congress and abolish slavery.”

Slaves Should Be Counted Because They Are Not Only Property

Publius spends most of the time laying out the case for the South. He puts in quotes the southern argument so the reader understands these arguments are not from Publius, but are from another.

“We subscribe to the doctrine,” might one of our Southern brethren observe, “that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact that slaves are considered merely as property, and in no respect whateveras persons. The true state of the case is, that they partake of both of these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.”

The Southerners agree that only persons should be represented in government and that property should

Layers of Learning

be taxed, but they assert that slaves are both persons and property and so should be counted for representation as well as taxation. The “southerner” goes on to explain that while slaves are forced to work for a master and can be beaten at the will of the master and have no standing in a court of law (like property) their lives are also protected by the law so that even their masters cannot kill them without consequences and that if a slave kills another he is held accountable before the law (like persons).

• Do you agree that the bare protections of the southern law for the life of slaves made them legally persons or that southerners perceived the slaves as persons?

Slaves Are Inhabitants

“ . . . slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other states, are not admitted to all the rights of citizens.”

The Southerner goes on to argue that since other mere inhabitants of the states are counted for the census slaves also ought to have been counted fully.

• Today we have some inhabitants, people who are not full citizens in that they cannot vote, who are counted for the census and others who are not counted for the census. For example, children and felons cannot vote, but they are counted. Foreigners who reside in the United States either legally or illegally cannot vote and are also not counted in the census. Is being an inhabitant enough to be counted for apportionment purposes? What makes someone a citizen?

Slaves Are Not Inhuman But They Are Not Fully Human Either, says the Southerner

“Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two-fifths of the man.”

Our imaginary Southerner is here urging the Northerners to accept the compromise. Here the false argument that the Constitution removes a portion of the inherent value of slaves as people is first put forth. Presumably this was spoken of at the Constitutional Convention since Publius, who was present at the Convention is repeating the arguments of the Southerners.

• Do you think the Constitution embraces slavery and perpetuates the devaluing of black people because of this clause? Explain your position.

Publius Decides To Side With The South

Speaking of the Southern argument, Publius says:

“. . . although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.”

• Publius spent the bulk of this paper laying out the argument for the South. Why do you think he does this and why do you think he wants to convince New York to go along with this proposal,

Layers of Learning

though he personally agrees with the Northern position?

It may seem like the north gave up everything and the south nothing. But in fact, the Constitution confirms the personhood of slaves, an important point in the struggle to end slavery. Also, the south did not get all the slaves counted fully as they wanted to. Blacks who were free or indentured servants were always counted as whole persons and were full citizens under the Constitution. More importantly the union was preserved and so the force of law would act on the southern slave holders at whatever point in the future slavery could be successfully fought.

The Census Determines Representation and Taxes

Finally Publius addresses the reason the rates of taxation and the rates of representation are the same.

“In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend . . . on the co-operation of the States, it is of great importance that the States should feel as little bias as possible to swell or to reduce the amount of their numbers . . . By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.”

States might be tempted to report higher numbers for their census than actually exist since the number of representatives they get in congress (and therefore their power) is increased by a larger population. On the other hand states might be tempted to under report their numbers in the census because they are taxed based on the number of citizens in the state.

The Constitution was designed so that the federal government would have as little contact with individual citizens as possible. So the states were taxed by apportionment. There was no federal incometax and no IRS until FDR and the 1930s when the sixteenth amendment was passed allowing direct

Layers of Learning

taxation of individuals by the federal government.

Since the states were benefited by both under-reporting and over-reporting their numbers in exactly the same proportion it was hoped that the census would remain honest. So this was yet another check and balance in the Constitution.

This was an item of discussion since apportionment in taxes really isn’t quite fair. The various states did not have wealth directly related to the number of people in their borders. Idaho and Wyoming do not have the same average wealth for their citizens as Massachusetts or Connecticut because of differences in natural resources, geographic position (Idaho and Wyoming are both landlocked for example), history, infrastructure, and other factors. But the benefits of balancing the representation withtaxation seemed to outweigh the economic considerations especially since the tax burden on states was expected to remain low.

• Half of the balance was taken from the census count with the passing of the sixteenth amendment. So now the states are only benefited, and not hurt, by larger census numbers. Do you think this circumstance has affected the census or the desire of states to have persons, like illegal aliens and foreign inhabitants, counted?

• Do you think the federal government should tax states or individuals? Which is more fair economically speaking? Which is more fair politically speaking? Which protects the rights of the people more effectively?

Layers of Learning

Federalist Paper Number Fifty-Seven

Summary of Federalist Paper Number Fifty-SevenFederalist Fifty-Seven is about the election process of the representatives and how this process protects the people from abusive or power hungry politicians.

Read Federalist Paper Number Fifty-SevenRead the fifty-seventh Federalist Paper, highlighting passages that stand out to you and writing notes inthe margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discussion GuideNow that you have read and highlighted Federalist Paper Number Fifty-Seven for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

A Republic Needs Virtuous Rulers

“The aim of every political constitution is, or ought to be, first to obtain for rulers men whopossess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they hold the public trust.”

The people who become the rulers ought to be wise, knowledgeable, and virtuous so they can chose wisely for society. A good constitution provides the best possible way of choosing these wise, virtuous men and women and then ensuring that they remain virtuous while in office.

• Look up the word “virtue” in a dictionary. Do you think virtue is a necessary component of someone who is a ruler?

• Make a list of specific character traits, skills, and knowledge you think the ideal ruler ought to have. While the perfect ruler is impossible, consider the candidates who are running for office inthe next election and compare them to your list or examine the traits of your current representative and see how he or she stacks up against your ideal.

Layers of Learning

This is the US House of Representatives in 2013 listening to the president deliver the State of the UnionAddress. Have Americans done their job in electing virtuous people? Why does Publius think virtue is

the most important quality? Image in the public domain, Wikimedia.

Publius explains four ways the Constitution is designed to put good people in charge of ruling.

“In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it and which promise a sincere and scrupulous regard to the nature of their engagements.”

Since hopefully the people will choose knowledgeable and trustworthy people to rule over them, these good people will be less likely to be the type that will abuse their position.

“In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents.”

Since the people elect them to their positions they must feel gratitude to these people and wish to returnthe favor by serving them well.

Layers of Learning

Who are your elected officials grateful to once they reach power? Is it to the constituents who voted forthem or is it to powerful business and special interest lobbies? Their power should come from the

people so that their loyalties lie to their people. Image in the public domain, Wikimedia.

“In the third place . . . Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than the innovations in the government subversive of the authority of the people.”

Since their power comes from the people, if they hope to keep that power, they cannot then do things that will harm the people or take away their liberty.

“. . . in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection to their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease . . .”

The House of Representatives is elected every two years. So before the politician can forget what he owes to his people he will be up for reelection again. If he wants to maintain power he will have to do what they want and not what will increase his own power.

Layers of Learning

“I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society.”

Whatever laws are made the members of the House are just as subject to them as everyone else and so they are unlikely to make laws that harm the people.

• The most important element in restraining the government or individual lawmakers from becoming tyrannical is the people. What qualities and tools do the people have to have to fulfill this role?

• Are the people doing their job of remaining vigilant and protecting their own power or not? • One of the balances in the Constitution is the assumption that the people will jealously guard

their power from the federal government. In other words, the federal government and the people will be antagonistic toward one another in terms of powers. Do you think this is actually how the power struggle in the United States has played out? What groups in the United States seem to struggle the most for power?

What Keeps A “Privileged Class” From Emerging?

“If it be asked what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant, and manly spirit which actuates the people of America – a spirit which nourishes freedom, and in return is nourished by it.”

What is to prevent the rulers from exempting themselves from laws that apply to everyone else? The checks and balances of the Constitution, the basic principle of republican government that says all citizens are equal, and most of all the independent spirit of the American people which will not stand for encroachments on freedom.

• Has the legislative branch, executive branch, or judicial branch ever enacted laws or made rules that exempted themselves or certain groups from the laws or decisions? If so, give examples.

• Do you think the American people as a whole still value their freedom and guard it from encroachments?

Layers of Learning

Our elected officials are not above us, they simply represent us. We are all citizens together rulingourselves. And so we must ensure that everyone is held to the law. There cannot be privileged classes in

a republic or it ceases to be a republic. Image in the public domain, Wikimedia.

If The People No Longer Care, They Will No Longer Be Free

Speaking of the spirit of freedom, Publius says:

“If this spirit shall ever be so debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”

If the people ever tolerate the legislative branch in making laws that do not apply to everyone, including the legislators themselves, then the people are not longer capable of governing themselves and they deserve to be ruled over.

• What does it mean to govern yourself and how is self-government related to freedom? • Does America still want to be free or do Americans want to be ruled? How can you tell? • One of the requirements of freedom is that you also have to let others be free to make decisions,

even if you think they are making bad decisions. Do you want to be free to make decisions in your own life and are you willing to let others also be free? Think of some things you have a really hard time letting other people decide for themselves. (Freedom to decide does not includeactual harm to another person’s property or person; your freedom cannot encroach on another person’s.)

Layers of Learning

Federalist Paper Number Sixty-Two

Summary of Federalist Paper Number Sixty-TwoFederalist Paper Number Sixty-Two explains why the senate is arranged the way it is. Senators are chosen by the state legislatures to represent the states in the federal government and to create a tie between federal and state government. Senators are older, have to be citizens for a longer term, and serve for six years instead of two like the House in order to provide experience, loyalty, wisdom, and stability to the government. One major purpose of the senate is to purposely slow down the process of law making so that proper deliberation might occur and the laws might not be changeable and transitory.

Read Federalist Paper Number Sixty-TwoRead the Sixty-Second Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discussion GuideNow that you have read and highlighted Federalist Paper Number Sixty-Two for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

The State Legislatures Should Select the Senators

Publius speaks of why the state legislatures, and not the people, select the senators:

“It is recommended by the double advantage of favouring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the twosystems . . . In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.”

When the state legislators select the senators the appointment is more likely to be someone truly competent and states have a voice in the federal government, a measure that helps the states retain sovereignty in their sphere.

• When the Seventeenth Amendment was passed the states lost their voice and power in the federal government. Has this had the effect of making the states weaker and less able to guard

Layers of Learning

their sovereignty as Publius thought it would? • Remember the debate between the character of a national and federal government? (Federalist

Paper 39) Publius thought a blend of the two was important. How does having the States appoint their Senators make the government more federal in nature?

This is the Idaho state capitol building in Boise. Publius and the Founders believed that the legislatureof Idaho should pick Idaho senators to represent the State in Washington D.C. Who changed this

Constitutional law and why? Image in the public domain, Wikimedia.

A Bicameral Legislature Protects The People

Publius speaks of the two parts of the legislative branch being required to pass a bill.

“No law or resolution can now be passed without the concurrence, first, of a majority of thepeople, and then of a majority of the states.”

No law can be passed unless both the House (the people) and the Senate (the states) approve of it in majority.

• Do you think the need to pass a law in two different houses has protected the people from bad laws? Can you think of an example?

Answering the charge that two houses to pass a bill makes it too hard to get things done, Publius says:

“. . . facility and excess of law-making seem to be diseases to which our governments are most liable.”

Republican government tends to have the opposite problem, too many laws are passed too quickly.

Layers of Learning

• Think of reasons why it might be in the interest of the people for laws to be slow in the making. When might fast law making be good or necessary for the people?

Senators Should Be Measured and Experienced

Publius gives reasons why senators serve six years, unlike the representatives who serve just two beforereelection.

“It ought, moreover, to posses great firmness, and consequently ought to hold its authority by a tenure of considerable duration . . . It is not possible that an assembly of men called forthe most part from pursuits of a private nature, continued in appointments for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust.”

Senators should be firm and deliberate. They should be skillful and knowledgeable about foreign and domestic affairs and the workings of government. Since it is not possible to gain these skills and knowledge in a short time they serve longer so as to be the guiding and firm hand of government.

• Publius fears as much from incompetence as he does from hunger for power or wealth from the rulers. What do you fear the most in present day government? Incompetence or a lack of virtue?Why?

This is the US Senate in 2008. These people are elected for six years, longer than either therepresentatives or the president, so that they can provide a rock of stability and experience. Image in

the public domain, Wikimedia.

Layers of Learning

Good Government Requires Knowledge of Correct Principles

“A good government implies two things: first, fidelity to the object of government, which isthe happiness of the people; secondly, a knowledge of the means by which that object can be best obtained. Some governments are deficient in the first. I scruple not to assert that in American government too little attention has been paid to the last.”

A good government makes its people happy and in order to do so its rulers have to understand the principles that lead to happiness. American government tends to ignore the necessity of knowledge on the the part of the rulers.

• What are the principles that lead to happiness for people as individuals? Do these same principle apply to government?

• Do you think Americans, when choosing their rulers, consider knowledge more or consider the hearts and intent of their candidates more? What do you think should be the most important? Is it possible to get both good intentions and a firm understanding?

Uncertainty in the Law Undermines A Republic

“The internal effects of a mutable policy are still more calamitous. It poisons the blessing ofliberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

Having constantly changing laws is disastrous for the liberty of the people. If the laws are so extensive or change so often that the people don’t even know what they contain or have no way of knowing whether they are complying with them then this is destructive of liberty.

• The tax code is the most voluminous set of laws in the United States. Many people have asserted that there is no one who is in complete compliance with the tax laws. There are laws that contradict one another so that citizens cannot comply with both. The laws are so extensive that not even tax accountants or the IRS itself knows them all or can advise individuals or businesses whether they are in compliance with any degree of certainty. Do you think this circumstance is destructive of liberty? How?

• The longer term of the senate was supposed to help guard against these extensive and voluminous laws. Has it worked? If not, what further measures could be taken?

Layers of Learning

This is the IRS Building in Washington D.C. The IRS has more than 82,000 employees and runs on anannual budget of more than $12 billion. It takes that many people to process the more than 174 million

tax returns from individuals and businesses each year. Every year the tax laws are added to andchanged. Today the tax code is approaching 80,000 pages. Image by Cliff from Arlington, Virginia,

USA, CC license, Wikimedia.

Publius deplores unstable government, a government which changes quickly, frequently, and unexpectedly:

“But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable without possessing a certain portion of order and stability.”

• Do you think that modern Americans as a whole respect and love their government, or at least the forms and institutions of their government, if not the current people in power? Why or why not?

Layers of Learning

Federalist Paper Number Sixty-Nine

Summary of Federalist Paper Number Sixty-NineFederalist Paper Number Sixty-Nine compares the powers of the president to the powers of the king of Great Britain as an answer to charges that the Constitution made the president into a king. Publius goes item by item comparing the powers of each office.

Read Federalist Paper Number Sixty-NineRead the sixty-ninth Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discussion GuideNow that you have read and highlighted Federalist Paper Number Sixty-Nine for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

For this Paper, use the printable sheet, Federalist Paper Sixty-Nine, below, to fill in the powers of the president and the king of Great Britain (as his powers stood at the time of the writing of the Federalist Papers). The powers are contrasted in Federalist Paper Sixty-Nine.

• Does the power of the president seem to you to be sufficiently controlled to keep the president from becoming a king or dictator?

• Do the controls on the power of the president as outlined in the Constitution and in Federalist Paper Sixty-Nine remain in place today?

• Presidents, according to the Constitution, cannot make new laws or new regulations that the people are subject to. Executive departments, like the EPA or Department of Education, and executive orders have been given the force of law in many cases. Does this erode the separation of powers and give the president the authority of a king?

Layers of Learning

Federalist Paper Sixty-NinePower

President of the UnitedStates

King of Great Britain

Term of office

Process of removal fromoffice

Power to override thelegislative branch

Power of the legislativebranch to override the

chief magistrate

Power over the military

Power to adjourn thelegislative

Power to appoint peopleto offices and honors

Power over the church

Layers of Learning

Layers of Learning

Federalist Paper Sixty-Nine

PowerPresident of the United

StatesKing of Great Britain

Term of office

Process of removal fromoffice

Power to override thelegislative branch

Power of the legislative tooverride the chief magistrate

Power over the military

Power to adjourn thelegislative

Power to appoint people tooffices and honors

Power over the church

Layers of Learning

Federalist Paper Number Seventy-Eight

Summary of Federalist Paper Seventy-EightFederalist Paper Number Seventy-Eight explains the role and powers of the judiciary branch. Publius explains why judges are to sit for life on the bench and why their role in reviewing laws and striking down unconstitutional laws is such an important safeguard for the people.

Read Federalist Paper Seventy-EightRead the Seventy-Eighth Federalist Paper, highlighting passages that stand out to you and writing notesin the margins. The notes you write in the margins can do one of these things

• Restate the argument Publius makes (Publius is the pen name of the authors) • State a question you have about the argument • Give your own opinion of the argument

Discussion GuideNow that you have read and highlighted Federalist Paper Number Seventy-Eight for yourself, read the passages that stood out to us, and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. Ifyou answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.

Life Terms Keep Judges Impartial

“The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government tosecure a steady, upright, and impartial administration of the laws.”

Declaring that judges serve for life during good behavior prevents the justices from undue influence from the executive or legislative branches. It is the best possible way to secure the impartial applicationand interpretation of the laws.

• Look up “during good behaviour” online. The Heritage Foundation has an excellent article on this topic. Read it: http://www.heritage.org/constitution#%21/articles/3/essays/104/good-behavior-clause

• In what way does a life time appointment make it less likely that a judge will make decisions based on politics than based on the impartial application of what the law actually says?

Layers of Learning

The “good behavior” clause is not an excuse to get rid of justices, but rather a safeguard to keep theother branches from interfering with them. Image in the public domain, Wikimedia.

The Judiciary Must Remain Independent

“The judiciary . . . has no influence over either the sword or the purse . . . but merely judgment . . . liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

• Why would a union with either the legislative or executive department make the judiciary into athreat to the liberty of the people? Have you seen signs of this sort of a union in American government?

The Judicial Branch Exists To Defend the Constitution

Speaking of the limitations placed on the legislative and executive branches, Publius says:

“Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. With this, all the reservations of particular rights or privileges would amount to nothing.”

The limitations on the executive and legislative branches of the government are only enforceable if the

Layers of Learning

court has the power to strike down unconstitutional laws or acts. It is the job of the courts to maintain the integrity of the Constitution.

• Research the presidency of Franklin D. Roosevelt, his push to enact unconstitutional laws, and his attempt to add more justices of the court (https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937), known as “court-packing”, so that he could appoint justices sympathetic to his unconstitutional measures.

This is Supreme Court Justice Samuel Alito being sworn in to office in 2006. Justices solemnly swear tosupport and defend the Constitution. Above all other officers of the government this is the duty of the

Judicial branch. Image in the public domain, Wikimedia.

“. . . the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as fundamental law.”

The reason the courts exist in this balance of power between branches is to hold the other two branches accountable for any violations of the Constitution. The Constitution must always be regarded by the judges as the supreme law of the land, superior to any other laws or acts of government.

• The Constitution protects the minority from the abuses of the majority and it also protects the majority from a vocal and organized minority whenever these factions seek to subvert the Constitution and the freedoms of the people protected by the Constitution. Think of examples when the courts protected the rights of people. Think of examples when the courts failed to protect the rights of people. This exploration about the First Amendment discusses several court

Layers of Learning

cases and how the court decided: http://www.layers-of-learning.com/the-first-amendment-for-kids/

• In 2012 Chief Justice John Roberts said “It is not our [the Supreme Court’s] job to protect the people from the consequences of their political choices.” After reading this Federalist Paper do you agree with that statement?

The Supreme Court Must Decide Based on Law

“The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

If courts make decisions based on what they want to have happen (their will) instead of on what the lawsays (judgment) then they have become a legislative body.

• Many people want the courts to rule in their favor, or in favor of policies that they want to see enacted instead of in favor of the Constitution. Is this a good idea? What is the danger of favoring your opinions over the Constitution?

This is a common image of Lady Justice. It is an allegory that shows that the law is blind andbalanced. Blindness in the law indicates that cases are decided on the merits of the case as applied tothe law and not on a person’s circumstances such as ethnic background, religion, sex, or status. This

ideal can only be achieved if politics and ideology are left at the door and the rule of law reigns. Image by Tim Evanson, CC license, Wikimedia.

Layers of Learning

The Constitution Can Be Altered, But Not Through Ordinary Legislation

Publius asserts that the people always have the right to alter or abolish their constitution then goes on tosay,

“. . . yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body.”

Even though it is possible to alter or abolish the Constitution it does not follow that legislation can disregard it whenever the people or their representatives decide they want something that is forbidden by the Constitution. The Constitution can only be changed under the proper channels and until it is the laws must follow and the legislators be constrained by it.

• But if the majority of the people want something and it is unconstitutional, why can they not just do it anyway? After all the majority are in favor of the law or measure.

It Is Tempting To Abuse The Law

“. . . no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today.”

You cannot know if the injustice you leveled on someone else today will be leveled against you in the future.

• It is very tempting to use the power of government to force the opposition to do what you want them to, but it is dangerous because the force you unleash can and probably will be turned against you. How can individuals guard against the temptation of using government power as a weapon?

• How is the Supreme Court designed to prevent the law from becoming a weapon?

“To avoid an arbitrary discretion by the courts, it is indispensable that they should be bounddown by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . .”

Courts have to be bound by the actual law of the land and by precedents in case law. If they do not follow these rules then they make arbitrary decisions.

• The United States uses common law as the foundation of our legal system. This means our law is based on case law and precedent rather than statutory law handed down from on high. You can learn about common law here: www.layers-of-learning.com/common-law-and-civil-law/

• Why would it be bad for the decisions of courts to be arbitrary?

Layers of Learning