Observations on the New Constitution 1788

Background Information:

- Mercy Otis Warren was a distinguished member of a revolutionary family and a well-educated woman.

- She published her work in 1788 under the pseudonym "a Columbian Patriot."

- Warren, like other Anti-Federalists, had concerns about the new Constitution and its framers' intentions.

Excerpts and Analysis:

1. Introduction:

- Warren expresses her deep concern for the United States and its hard-won liberties.

- She warns against the threat of tyranny and domination, emphasizing the need for vigilance against such tendencies.

- She highlights the sacrifices made during the American Revolution.

2. Concerns About the Constitution:

- Warren criticizes the Constitution for its ambiguities and undefined provisions, which she believes can be exploited to establish an aristocratic tyranny.

- She fears that these ambiguities may lead to uncontrolled despotism.

3. Opposition to Arbitrary Power:

- Warren denounces the efforts of those supporting arbitrary power, which she views as a threat to the principles of liberty.

- She emphasizes the importance of maintaining the freedom and dignity of the country.

4. Critique of the Government Form:

- She argues that the Republican form of government is founded on principles of monarchy which is a democratic branch with features of aristocracy, which she finds problematic.

- Warren believes that some candidates for office urge for a government due to the embarrassments of trade, desiring for the US to be respected abroad and to restore public faith as well as commerce, industry, agriculture, etc. While she agrees that these are truths everyone desires but they have not sufficiently argued why they must adopt this federal republic government which she calls a “many-headed monster”

5. Annual Elections and Responsibility:

- Warren asserts that the fundamental principle of a free government is the equal representation of a free people.

- She underscores that annual elections are vital for maintaining integrity and honor in government.

6. Lack of Freedom of Conscience and Press:

- She expresses concern about the absence of security for rights of conscience and the liberty of the press in the proposed system.

- Warren warns that despotism may restrict freedom by censoring and silencing the press & other complaints once it gains power.

7. Unclear Judiciary Powers:

- She criticizes the lack of well-defined limits on the judiciary's powers that make it difficult to clearly comprehend, which she considers dangerous.

8. Blending of Executive and Legislative Powers:

- Warren argues that the blending of executive and legislative powers in the Constitution due to the ambiguous and vague terms is a cause for alarm.

9. Abolition of Trial by Jury in Civil Cases:

- She criticizes the abolition of the right to a trial by jury in civil cases.

10. Opposition to Standing Army:

- Warren argues against the idea of a standing army, despite claims that it is necessary for America's dignity and safety.

- She fears that such an army could be used to suppress dissent and may no longer be under civil authority's control but under the control of a Monarch/aristocracy.

- The militia, traditionally a defense for national liberty, could be used for alternative purposes, including extorting money to maintain the ruler’s power or sent to foreign countries to fulfill treaties.

11. Guarantee of Republican Form of Government:

- Despite the promise of guaranteeing a republican form of government to every state, Warren doubts its meaning and effectiveness.

- She believes that the new system leaves no resources for the states’ internal governance or payment of debt since all revenue sources are monopolized by Congress.

12. Congressional Salaries and Drain on Public Money:

- Warren expresses concern about Congress determining its own salaries, fearing they may not be moderate, leading to significant public money drainage.

13. Lack of Term Limits and Checks:

- She criticizes the absence of term limits or provisions preventing the perpetuity of office, which she believes could lead to bribery that will exclude capable individuals from getting elected into office.

- Term limits serve as a check against overbearing officials and that by preventing one official from serving too long, it helps them understand what it is like for the governed and thus better govern when it is his turn.

14. Supreme Federal Court Jurisdiction:

- She objects to the wide jurisdiction of the Supreme Federal Court, which she believes extends excessively into personal liberty, life, and property matters across the vast continent of America.

15. Inadequate Representation:

- Warren finds the representation of one Representative per thirty thousand inhabitants inadequate.

- She opposes Congress's interference with the regulations for choosing Representatives.

16. Aristocratic Concentration of Power:

- She criticizes the limited number of electors in each state, which she believes concentrates the choice of the first magistrate in an aristocratic group rather than the people and allows for despotism.

17. Perpetuity of Senate Appointments:

- Warren warns that a Senate chosen for six years could effectively become a lifelong appointment due to its influence and lack of accountability. This, she believes, contradicts the principles of a free government.

18. Lack of a Bill of Rights:

- She points out the absence of a bill of rights to protect against power encroachments.

- Warren disagrees with the notion that the entire constitution is a declaration of rights, arguing that individual rights need explicit protection.

15. Impracticality of Single Legislature:

- She argues that a single legislature governing a vast territory from the Mississippi to the Atlantic Ocean is impractical and unworkable.

16. Unanticipated Scope of Constitutional Changes:

- Warren asserts that state legislatures did not anticipate the extent of change proposed by the Constitutional Convention.

- She criticizes the destruction of state governments and the offering of a consolidated system.

17. Ratification of Nine States:

- She sees the provision stating ratification by nine states to be sufficient to establish a new system as divisive and potentially leading to anarchy and civil strife.

18. Hasty Recommendation to the People:

- Warren criticizes the attempt to force the Constitution on the people without Congress or state legislatures' advice, thus without people’s full understanding.

- She laments that the whole process has been marked by a disregard for the sovereignty of the states and the independence of their governments.

Federalist Number 10

Introduction:

- The document is part of the debate on the ratification of the Constitution.

- The central question is how to create a government that upholds the achievements of the Revolution without compromising its principles.

Key Points:

1. Addressing the Problem of Faction:

- Madison highlights the dangers of factionalism and its potential harm to popular governments.

- He acknowledges that public councils plagued by instability, injustice, and confusion have caused the fall of popular governments.

- Madison sees the problem as a major threat to the character and survival of popular governments.

2. American Constitution Improvements:

- Madison praises the American constitutions for making valuable improvements on both ancient and modern popular government models.

- He points out that these improvements, while admirable, haven't entirely eliminated the dangers of factionalism as desired.

3. Public Distrust and Alarm:

-People complain that governments are unstable and that the public good is disregarded in the conflicts of rival parties with measures decided by the overbearing majority instead of according to justice and the rights of the minor party

- Madison notes that public and personal liberties are under threat due to instability and injustice caused by a factious spirit within public administrations.

- There is an increasing distrust of public engagements and concerns for private rights throughout the country.

4. Definition of Faction:

- Madison defines a faction as a group of citizens, whether a majority or minority, driven by a common impulse of passion or interest that goes against the rights of other citizens or the collective interests of the community.

5. Curing Faction Mischief:

- Madison outlines two methods for addressing the problems caused by faction.

- The first method involves removing the causes of faction, while the second method is about controlling the effects of faction.

6. Removing Causes of Faction:

- The first method of removing the causes of faction would involve either destroying the liberty that sustains it or making every citizen share the same opinions, passions, and interests.

- Madison rejects the idea of destroying liberty, equating it to air for fire, something essential for political life.

7. Impracticality of Uniform Opinions:

- Madison deems the second method, attempting to make every citizen have the same opinions, passions, and interests, as impractical.

- He recognizes that human reasoning is fallible, leading to different opinions and that people's passions and opinions mutually influence each other.

8. Diversity and Protection of Property:

- Madison emphasizes the diversity in people's faculties, which gives rise to property rights.

- He argues that this diversity of faculties makes uniform interests unattainable.

- Protecting these diverse faculties is essential.

9. The Nature of Faction:

- Madison explains that the most common source of factions is due to the unequal distribution of property, which leads to different interests and divisions within society.

- He recognizes that latent causes of faction are inherent in human nature and can become more or less active depending on the circumstances of civil society.

- These divisions can be based on various factors, including religion, government opinions, and personal interests.

10. Dangers of Factions:

- Madison warns that factions can lead to animosity and mutual oppression instead of cooperation for the common good.

- Even minor and frivolous distinctions have been known to incite conflicts and animosities.

- The most common source of factions has historically been the unequal distribution of property and differences between creditors and debtors.

11. Interests and Parties in Society:

- In a complex and civilized society, various interests naturally emerge, such as landed, manufacturing, mercantile, and moneyed interests.

- Legislation often deals with the regulation of these conflicting interests, which introduces the spirit of party and faction into government operations.

12. Legislators as Parties:

- Madison points out that legislators, while entrusted to make impartial decisions, often represent the interests of specific groups. Which makes it so the most numerous thus powerful faction prevails.

- Laws that affect creditors and debtors, for example, have the parties themselves serving as judges, which can lead to bias.

- Questions related to domestic and foreign manufactures can result in different decisions depending on the interests of the landed and manufacturing classes.

13. Challenges of Impartiality:

- Madison highlights the challenges of achieving impartiality in matters like tax apportionment when powerful factions may prioritize their own interests over justice.

- He argues that even enlightened statesmen may struggle with these issues, as their decisions can be influenced by immediate interests.

14. Controlling Faction Effects:

- Madison concludes that the causes of faction cannot be eliminated and, therefore, the focus should be on controlling its effects.

- If a faction is a minority, the republican principle allows the majority to counter its goals through regular voting.

- However, if a majority forms a faction, it can potentially harm the public good and the rights of other citizens.

15. Balancing Public Good and Private Rights:

- The primary goal is to secure the public good and private rights while preserving the essence of popular government.

- Madison believes this is the key to redeeming the reputation of this form of government and making it more appealing to people.

16. The Means to Control Faction:

- Madison explains that the prevention of faction is achievable through one of two methods.

- The first method involves preventing a majority from having the same passion or interest at the same time.

- The second method entails rendering a majority, with coexistent passions and interests, unable to coordinate and execute oppressive schemes.

- Madison asserts that moral and religious motives alone cannot adequately control factions when the impulse and opportunity coincide.

17. Ineffectiveness of Pure Democracy:

- Madison argues that a pure democracy, consisting of a small number of citizens who directly administer the government, offers no cure for faction.

- In such democracies, common passions or interests typically exist among the majority, leading to the suppression of the weaker party or individuals.

- Madison notes that pure democracies are often marked by turbulence, contention, and a lack of personal security or respect for property.

18. Advantages of a Republic:

- In contrast, a republic, which employs representation, offers a different perspective and the potential solution for addressing faction.

- Madison identifies two primary differences between a democracy and a republic: a republic delegates the government to a small number of elected representatives and the greater sphere of the country that the representatives have power over.

19. Effect of Representation:

- Representation refines and enlarges public views by passing them through the judgment of chosen citizens who are likely to prioritize the country's true interests.

- While the public voice from representatives may align better with the public good, the opposite could also occur where individuals with ulterior motives and factions may betray the interests of the people.

20. Small vs. Large Republics:

- Madison contends that the question of whether small or extensive republics are more favorable to electing proper guardians of the public weal depends on two key considerations.

- In a small republic, the proportion of representatives to constituents is greater, which can provide a greater option and likelihood of a suitable choice.

- In a large republic, each representative is chosen by a greater number of citizens, making it more challenging for unworthy candidates to manipulate elections and increasing the probability of electing individuals with attractive merit and established characters.

21. Balancing Representation:

- Madison acknowledges that there is a balance to be struck, as both small and large republics have their own set of inconveniences.

- Enlarging the number of electors can disconnect representatives from local circumstances and interests, while reducing the number of electors can lead to excessive attachment to these local concerns rather than national concerns.

- The federal Constitution, Madison asserts, achieves a balance between these extremes with larger interests referred to the national legislature and local interests referred to the State legislatures.

22. The Benefits of an Extended Republic:

- Madison discusses two key differences between a republic and a democracy, emphasizing that a larger, extended republic is more effective in controlling the effects of faction.

- The first difference is the delegation of government to representatives chosen by the citizens.

- The second significant difference is the greater number of citizens and the broader territory that can be encompassed by a republican government, compared to a democratic one.

23. Reducing the Impact of Factions:

- Madison explains how an extended republic is less susceptible to factious combinations due to its size.

- In smaller societies, there are fewer distinct parties and interests, making it more likely that a majority will be of the same party.

- Smaller majorities within a limited area can more easily plan and execute oppressive actions.

- Extending the sphere by having a larger number of parties and interests reduces the probability of a common motive to infringe upon the rights of other citizens.

- Even if such a common motive exists, it is more challenging for all those who feel it to coordinate and act together.

24. Advantages of an Extended Union:

- Madison concludes that the advantages of a republic over a democracy in controlling faction are also enjoyed by a large republic over a small one.

- An extended union, like the United States, holds the same advantage.

- This advantage can be attributed to the substitution of enlightened representatives who are less prone to local prejudices and schemes of injustice.

25. The Security of a Diverse Union:

- The greater variety of parties within the Union enhances security against any one party becoming overwhelmingly powerful and oppressing the rest.

- An extended union offers more significant obstacles to the coordination and accomplishment of unjust and self-interested agendas.

26. Preventing Localized Factions:

- Madison notes that while factious leaders may incite turmoil within their particular states, their influence will not easily spread throughout other states.

- Different religious sects across the entire nation help safeguard national councils against danger originating from religious faction.

- Maladies such as a desire for paper money, debt abolition, or property redistribution are less likely to pervade the entire nation and are more likely to affect specific regions rather than entire states.

27. A Republican Remedy for Republican Government:

- Madison concludes that the extended union's structure serves as a republican remedy for the issues most common in republican governments.

- He suggests that the degree of pride and pleasure felt in being a republican should inspire zeal for cherishing the spirit and supporting the character of Federalists.

Summary of Observations on the New Constitution

• Republican form of government = risk of tyranny or despotism because founded on principles of monarchy and aristocracy + ambiguous wording of Constitution

  1. Need equal representation of all people—need annual elections

  2. No safety for freedom of the Press and speech

  3. Lack of well-defined limits of Judiciary branch

  4. Executive and Legislative branches are blended with ambiguous and vague terms

  5. Abolition of trial by jury for civil cases may cause lack of accountability

  6. Creation of a standing army is dangerous could potentially be used for ulterior motives not to protect the civilians

  7. Lack of resources or funds to support the State governments

  8. Congress may be inclined to determine their own salaries = drain on public funds

  9. Nothing to prevent a perpetual position in office

  10. The Supreme Federal Court should not be able to drag citizens from their own county to the borders of the Continent to be trialed—should be trialed locally in state

  11. Inadequate number of representatives—1 for every 30,000

  12. Only ten electors in the State of Massachusetts inadequate excludes the voice of the people and enabling aristocratic committees to engage in despotism

  13. Elected senate serves for 6 years—too long people will forget their wrongdoings

  14. Lack of bill of rights that clearly outlines rights of citizens; Constitution itself insufficient replacement for bill of rights

  15. Difficult and impracticable to exercise the powers of government through a single legislature over the entire territory of the US

  16. During the Constitutional Convention, the States that sent the delegates had no idea they would be making such drastic changes by creating an entirely new Constitution

  17. The rule that the ratification of 9 states was sufficient for the establishment of the Constitution is insufficient

  18. Constitution recommended to people without the advice of State legislatures or Congress = citizens lack a sufficient understanding of the Constitution before approving it

• The new republican government is contradictory to the principles of government and annihilation of the sovereignty of the 13 states

Summary of Federalist Number 10

• Preventing factions- citizens united by common interest or passions that goes against the rights of other citizens and the greater good of the community

• Dangerous when the faction becomes the majority

• 2 ways: A) Removing the causes of the faction B) Controlling the effects of a faction

  • To remove the causes of a faction- A) Destroy liberty B) Give every citizen the same passions and interests—both of which are not viable

• Causes of a faction:

  • The Nature of Man- men naturally have different opinions concerning different matters

  • Unequal distribution of property-distinct interests between property owners and those without property, debtors and creditors, etc.

• Hypothetically no man should judge his own cause because athey have biases and men cannot be both judges and parties at the same time; However in reality parties must also be the judges thus the most numerous party or most powerful faction will prevail. Even enlightened statesmen will proritize their own interests over the objective public good

• Conclusion: Causes of a fraction cannot be removed we can only control its EFFECTS

• If a faction is in the minority the majority can undermine it through regular vote and the faction cannot execute its plans. When a majority is in the faction in a popular government the public good and rights of other citizens are sacrificed.

• 2 ways to preserve the public good + rights of citizens: A) Preventing the existence of the same passions and interests in the majority at one time B) The majority with a coexisting passion or interests must be rendered unable to carry their schemes into effect

• Cons of a pure democracy: Unable to prevent factions since a common passion or interest likely felt by the majority; nothing to check their power and prevent weaker parties from being sacrificed; Democracies are turbulant and often fail.

• Why is a republic is able to prevent factions more effectively?

• Differences between democracies and republics:

  • Greater number of citizens and greater sphere

    • Effects: Larger society = more distinct parties less likely for majority to be of the same party with a common motive to invade the rights of others and/or more difficult to act in unison on those motives

  • Delegation of government—republic has small number of citizens elected by the rest

    • Effects: Enlarges public views passed through a body of chosen citizens = more likely to discern the true interests of the country and more representative of the public good

    • However, opposite effect may occur where facticious people with sinister motives get elected then betray the interests of the people

      • Brings up the question: Are small or large republics more favorable to the election of proper representatives? Large republics.

• Representatives must have a minimum number to prevent factions yet also be limited to prevent confusion of multitude. If the proporation of fit represenatatives is not less in the large republic than the small one, a large republic produces a greater probability of a fit choice. As each representative will be chosen by a greater number of citizens = less likely for unworthy candidates to be elected

• A balance must be achieved, enlarging the number of electors too much means representatives less aquainted with local or lesser interests and reducing it means too attached to local interests to pursue national interests—the Constitution strikes a perfect balance between the two with large interests referred to the national legislature and local ones to the States

• The Union with its largeness and variety of parties gives it an advantage in controlling the effects of factions; Although factious leaders may affect certain states, it will be unable to spread to the whole Union.

• based on this statement what is she implying to be placed in the constitution: bill of rights