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We the People of the United States: The Madisonian View

In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states.  It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.

This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.

If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view?  The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39.  In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one.  Madison wrote:

In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

After analyzing the Constitution as to each of these aspects, Madison concludes:

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

(For example, Madison argued that the foundation of the Constitution is federal, not national, because the Constitution was adopted individually by the people of the separate states.)

Thus, according to Madison, the Constitution does not fit into the traditional categories of either national or federal.  Instead, it is a new, mixed form of government.

Under my analysis of the preamble, the preamble accords with Madison’s view of the Constitution as a mixture of national and federal features.  This view of the preamble then gains support from its congruence with the remainder of the Constitution.  And it is no surprise that the preamble and the other constitutional provisions would both have this mixture, since they were produced by a convention that had to compromise on these matters.  The claims of nationalists and states rights theorists are therefore problematic – they ignore the necessary compromises that led to a middle path.

Reader Discussion

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on February 05, 2015 at 11:14:34 am

As always, Madison says it best re: *compound republic.*
Regrettably, the relative indefiniteness of the "compound" seems to be its Achilles heel making it susceptible to abuse, distortion, distension, etc. and the "cleverness" of lawyers and judges.

From todays NRO Bench Memos:

"1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Sotomayor and her ilk in the Judiciary, mind you, are quite supportive of this *indefiniteness* as it provides a means by which they may make more "definite" their own views of what the Constitution is (or should be); more importantly for the Madisonians amongst us, it allows certain Black Robes to make more definite what their notion of this nation should be. Clearly, they are incapable of handling the "tension" arising out of a compound Republic - and they are clearly unable (unwilling) to recognize that within that "tension", both structurally and philosophically, resides the peoples Liberty. Liberty is not derivative of the "novel approach(es)' emanating from "indefiniteness.

I'll take a wise old dead man, instead - thank you very much!!!!

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gabe
on February 05, 2015 at 15:25:18 pm

I don't see what the confusion is over whether the Constitution is national or federal. It defines three things: The form of the national government, the general form of the state governments, and the relationship between the national and state governments.

I'll look at it this way.

The Constitution requires that all states be "a Republican Form of Government" and then does not go into a lot of detail about what that means. Over time amendments were either applied to the states or written specifically for the states which more clearly defined what a republican form of government is. I - IIIV were applied to the states, even though they were originally written for the national government. XIV in short prohibits states from creating legal classes of citizens. XV, XXIV and XXVI limit the states with respect to voting. What these amendments amount to are a list of "thou shalt nots" for states that refine the definition our republican form of government. A republican form of government does not limit free speech, or establish a state religion, or prohibit classes of people from voting, etc.

Article I, section 10 removes national sovereignty from the states so the national government would be the sole national power. This removes national and international powers from the states. The Constitution then provides national and international powers to the federal government.

The Constitution subjugates the states to the national government with respect to national and international powers. It limits what the states may do with their non-national, non-international powers to protect the freedom of their citizens, but otherwise leaves great breadth in what the states may do within their borders. For national purposes it creates a national government, but not a national form for government. For state purposes it creates a general form of state government. For the people it creates a system of two levels of governments, one to address national and international issues, and a general form of one to address local state wide issues.

When independent states use a national government as an agency to handle national and international issues for them, and they are subject to the state-relation laws of that government, and the states may not leave the nation freely of their own accord, and the national government does not create or enforce state laws, it is by definition a federal system.

In contrast, a national system of government defines the local state wide laws. In a federal system, the national government does not.

If the states can leave the freely at any time, the organization is an international union, not a nation.

I don't see where the confusion lies. We have a republican federal form of national government, and republican forms of state governments.

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Scott Amorian
on February 23, 2015 at 23:05:10 pm

[…] We the People of the United States: The Madisonian View […]

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Taking Scott Walker to School on Higher Education | Freedom's Floodgates
on March 05, 2015 at 07:30:19 am

Foundation for Defense of Democracies

We the People of the United States: The Madisonian View | Online Library of Law & Liberty

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Foundation for Defense of Democracies

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