The Federalist Papers #55: How Big Should the House of Representatives Be?

June 12, 2022 by Miles Kimball

The Federalist Papers #55 discusses the optimal size for the House of Representatives. The author (Alexander Hamilton or James Madison) argues that there is a large range of reasonable answers:

… no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents.

Nevertheless, there are some concerns that could make the size of the House of Representatives too big or too small. The danger from being too big (besides the expense, which is not mentioned) is that it might act like a mob:

… the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason.

Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

The behavior of large groups of people is something about which we have some social science evidence (synchronized movement can help submerge the individual within the group) and some experience that tends to bear out this concern (Occupy Wall Street and Black Lives Matter have gone to extremes because they have had no centralized leadership).

But it was the dangers of a too-small House of Representatives that were more on the minds of critics of the proposed Constitution. Quoting relevant passages, here are some of the concerns:

so small a number of representatives will be an unsafe depositary of the public interests
they will not possess a proper knowledge of the local circumstances of their numerous constituents
they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many
it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives

The author of the Federalist Papers #55 allows that the first concern is important:

… a certain number at least seems to be necessary… to guard against too easy a combination for improper purposes

and adds a 5th reason for a body that is not too small:

5. a certain number at least seems to be necessary to secure the benefits of free consultation and discussion

It is taken as obvious that, at least numerically, 60 or 70 is enough to go a long way toward getting most of the benefit of having more heads to think something through. Answers to the 2d, 3d and 4th concerns is deferred to a later number.

On the worry that, if small in number, the House of Representatives could easily be bribed or could easily conspire, the Federalist Papers #55 argues that the number will soon be several hundred, and that the men who would be representatives when the body is initially less than one hundred had already passed the test of not trying to take tyrannical power during the Revolutionary War and after:

The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellow citizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term.

They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny.

There is a strange discussion of whether the President and Senate would be rich enough to bribe the House of Representatives, motivated by the President and the Senate being a new element in the picture. But the key argument is the one above—that the likely members of the House of Representatives when it would be small were men who had been shown trustworthy by events.

How have things turned out? Now, the United States has 435 members of the House of Representatives. There are definitely concerns about those representatives being bought by moneyed interests, but I don’t see why those moneyed interests couldn’t work their co-opting magic on 4000 representatives. And I don’t notice a degeneration into acting like a mob from having so many as 435.

The question of how large a deliberative body should be is one that comes up all around the world, in many contexts. To mention just one, how many voting members should a monetary policy committee have?

Below is the full text of the Federalist Papers #55:

FEDERALIST NO. 55

The Total Number of the House of Representatives

From the New York Packet
Friday, February 15, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated.

Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument with which it has been assailed.

The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States. Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason.

Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. With these general ideas in our mind, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred, and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution. From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The Congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellow citizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and prior to the ratification of the federal articles, for a still longer term.

But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election.

No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties: and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Everything is Changing

May 28, 2022 by Miles Kimball

Today is the 10th anniversary of this blog, "Confessions of a Supply-Side Liberal." My first post, "What is a Supply-Side Liberal?" appeared on May 28, 2012. I have written an anniversary post every year since then:

I don’t say lightly that I feel more than ever in my adult life that the world is changing. The pandemic, besides its direct stresses, has made us all look at work differently. Large-scale war has returned to Europe. Political polarization and associated bad behavior is worse than it has been since the 1960s.

More parochially, the audience for blogs seems to be changing. I feel I am serving a different readership than I was a few years ago, as many are drawn off toward following the news of the other changes I mentioned above. I can’t predict where things will go in the future.

In my personal life, everything seems different in 2022. New Year’s day found me and my family temporary refugees from a wildfire that destroyed about 10% of the houses in my town of Superior, Colorado and the neighboring city of Louisville, Colorado. (See “New Year's Gratitude on the Occasion of the Marshall Fire.”) Soon after that I began a semester in which I put a concerted effort into creating a new course and improving an existing course. (See “Ethics, Happiness and Choice—Miles's Economics 4060,” “Intermediate Macroeconomics—Miles's Economics 3080.”) It felt more like I was changing than simply what I was teaching. On May 15, our youngest, Jordan, married Caroline. That, too, has far-reaching ramifications us as a family as well as for them as a couple. (Our daughter Diana married Erik in 2017. Jordan’s marriage to Caroline means both of our children are now married.)

To handle everything going on (my research continued at full speed), for the first time in a long time I missed doing some blog posts in my usual 3-times-a-week schedule (not counting link posts). But as I look back over the year’s blog posts using the “Archive” button up above I am amazed at how well I did manage to keep up the pace on my blog.

For the past decade, blogging has been a major part of my life. It gives meaning to every week as I put down in words what I have been learning and thinking and try to influence in some small way the path our civilization is taking.

A decade from now, I plan to retire. I think I can do a lot in that time, personally, academically and on this blog. And I have big plans for my retirement after that, beginning with writing an autobiography.

I look forward to seeing where the world will go in the next ten years. I am an optimist. Event sometimes thrust us into the underworld, but we learn things there and with a little luck and a lot of fortitude, we can come back stronger and more true to our deepest values. May we all strive toward a better world ten years from now than the one we see around us now. I’ll meet you there.

The Federalist Papers #54: Defending the Indefensible—How Attempting to Justify the 3/5 Rule for Slaves Digs the Hole Deeper

May 22, 2022 by Miles Kimball

*image source*
*Link to the full texts of the Federalist Papers #51–#60*

The Federalist Papers #54 provides some evidence for those who want to argue that—to an important but not total extent—the United States of America was founded on slavery. And what the Federalist Papers #54 says about slavery is only part of its horror. Below, let me lay out some of the passages that are rightly shocking to modern sensibilities, separated passages by added bullets. On slavery:

All this is admitted, it will perhaps be said; but 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 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. This is the objection, as I understand it, stated in its full force.
… 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 whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.
In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character.
Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred?
Let the case of the slaves be considered, as it is in truth, a peculiar one. 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.
Such is the reasoning which an advocate for the Southern interests might employ on this subject; and 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.

Saying that wealth or “property” is a legitimate basis of political power:

Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government.
It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives.
Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation.

Not every idea in the Federalist Papers #54 is bad. This bit—logically separable from the horrifying bits—one can agree with:

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, in a considerable degree on the disposition, if not 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. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. 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.

Below is the full text of the Federalist Papers #54, to show that I have not misrepresented the thrust of this number, which is quite willing to accommodate slavery for the sake of having states that are into slavery in a big way assent to union with the other states. The author of this number (Alexander Hamilton or James Madison) is sometimes putting an argument of another imagined interlocutor, but everything I quote above about slavery is treated by the author as a reasonable argument with no hint of strong disagreement. The author actually distances himself most from anti-slavery attitudes—as you can see from this bit:

Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren …

FEDERALIST NO. 54

The Apportionment of Members Among the States

From the New York Packet
Tuesday, February 12, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE next view which I shall take of the House of Representatives relates to the appointment of its members to the several States which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent the people of each State. The establishment of the same rule for the appointment of taxes, will probably be as little contested; though the rule itself in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection.

In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. All this is admitted, it will perhaps be said; but 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 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. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. "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 whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. "This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain? "It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation? In rejecting them altogether, the Constitution would, in this respect, have followed the very laws which have been appealed to as the proper guide. "This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives.

In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the 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. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. 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. "After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea?

Government is instituted no less for protection of the property, than of the persons, of individuals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government. In the federal Constitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. "For another reason, the votes allowed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A State possesses no such influence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the representatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation. The new Constitution is, in this respect, materially different from the existing Confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes. "Such is the reasoning which an advocate for the Southern interests might employ on this subject; and 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. 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, in a considerable degree on the disposition, if not 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. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. 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.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Being Less Controlling by Softening Attachment

May 08, 2022 by Miles Kimball

As one of the few economists who is also a life coach, I offer free Positive Intelligence training for economists:

The first step in that training is taking the saboteur assessment. The saboteur assessment is very quick and very revealing. When I took this assessment, the Hyper-Rational, Hyper-Achiever and Victim saboteurs were no surprise to me. But I learned something from my high score for the Controller saboteur. I am working on being less controlling.

To explain what it means to be controlling or not, Shirzad Chamine, the author of the book Positive Intelligence and the originator of the Positive Intelligence curriculum gives the analogy of vainly trying to control the wind and the waves or alternatively, surfing on whatever winds and waves come along.

Another helpful way of thinking about what the alternatives to being controlling are is to think about attachment. Here I use the word in the sense Buddhist’s use it: attachment is not rolling well with the punches that life lands, living in fear of those punches, or acting in fear. A basic principle of Buddhism is that the root of suffering is attachment.

I find the description of different levels of attachment in Don Miguel Ruiz Jr.’s brief book “The Five Levels of Attachment” useful. This book is billed in its subtitle as “Toltec Wisdom for the Modern Age.” To the extent that it actually reflects ancient Toltec wisdom, there is a convergence between Toltec wisdom and Buddhism.

*Link to the Amazon page for* The Five Levels of Attachment

Here are Don Miguel Ruiz Jr.’s 5 levels of attachment, as he describes them using the example of soccer fandom:

Level One: The Authentic Self

Imagine that you like soccer, and you can go to a game at any stadium in the world. It could be a magnificent stadium or a dirt-filled field. The players could be great or mediocre. You are not rooting for or against a side. It doesn't matter who is playing. As soon as you see a game, you sit, watch, and enjoy it for those ninety minutes. You simply enjoy watching the game for what it is. The players could even be kicking around a tin can, and you still enjoy the ups and downs of the sport! The moment the referee blows the whistle that ends the game—win or lose—you leave the game behind. You walk out of the stadium and continue on with your life. …

Level Two: Preference

This time, you attend a game—again, at any stadium in the world, with any teams playing—but now you root for one of the teams. … You created a story of victory or defeat that shaped the experience, but the story had nothing to do with you personally, because the story was about the team. You engaged with the event and the people around you, but at the end of the game, you simply say, “That was fun,” and let go of the attachment. …

Level Three: Identity

This time, you are a committed fan of a particular team. Their colors strike an emotional chord inside of you. When the referee blows the whistle, the result of the game affects you on an emotional level. … You feel elated when your team wins; when your team loses, you feel disappointed. But still, your team's performance is not a condition of your own self-acceptance. And if your team loses, you're able to accept the defeat as you congratulate the other side. … if your team loses, you might have a bad day at work, argue with someone about what or who is responsible for the team losing, or feel sad despite the good things going on around you. No matter what the effect is, you've let an attachment change your persona. Your attachment bleeds into a world that has nothing to do with it.

Level Four: Internalization

… at Level Four your association with your favorite team has now become an intrinsic part of your identity. The story of victory and defeat is now about you. Your team's performance affects your self-worth. When reading the stats, you admonish players for making us look bad. If the opponent team wins, you get angry that they beat you. You feel disconsolate when your team loses, and may even create excuses for the defeat. Of course you would never sit down with one of their fans in a pub for a friendly chat! …

Level Five: Fanaticism

At this level, you worship your team! Your blood bleeds their colors! If you see an opposing team's fan, they are automatically your enemy, because this shield must be defended! This is your land, and others must be subjugated so that they, too, can see that your team is the real team; others are just frauds. What happens on the field says everything about you. Winning championships makes you a better person, and there is always a conspiracy theory that allows you to never accept a loss as legitimate. There is no longer a separation between you and your attachment of any kind. You are a committed to your team through and through, a fan 365 days a year. Your family is going to wear the jersey, and they better be fans of your team. If any of your kids become a fan of an opposing team, you will disinherit them. … at Level Five you don't waste your time with people who don't love the sport.

The real power in this idea of attachment is in applying it to areas of life far beyond sports. Here are some areas in which I notice a lot of attachment by people I know (a set that includes me):

political party
particular political issues such as climate change or animal rights
academic discipline
field within economics
style of research within a field in economics
having particular technical skills
having particular social and organizational skills

There is a subtle distinction to be made between devoting oneself to a project or a cause and becoming attached to it. One can devote oneself to a cause and do one’s utmost to advance that cause without your heart being occupied with anger at those who don’t see the importance of that cause or even work against it and without your heart being occupied by the bad things that might happen that are completely beyond your control.

To use a military analogy, Napoleon kept some of his forces in reserve to send into battle at the crucial place a the crucial moment. If all of his forces were in the thick of the fight from the beginning—attached to a particular part of the battle already, with little ability to extricate themselves—he couldn’t have taken advantage of opportunities that arose.

Decision of how long to persist in a particular direction of action and when to do a course correction are crucial in life. Attachment interferes with making those decisions well. You might be too attached to a particular course of action that you persist to long or you might be so attached to winning that you quit too soon when the chance of failure gets to the same order of magnitude as the chance of success.

The more you spy out excesses of attachment and notice the temptations you face to try to control things beyond what is gracefully possible, the more calm and effective you will be. People differ in how big a problem attachment and being controlling is in their lives, but this is an issue at some level for almost everyone.

Posts on Positive Mental Health and Maintaining One’s Moral Compass:

The Federalist Papers #53: The Wide Knowledge Required for Federal Legislation Makes Biennial Elections to the House of Representatives Better than Annual Elections

May 01, 2022 by Miles Kimball

The Federalist Papers #53, authored by either Alexander Hamilton or James Madison, continues the argument of #52 that elections to the House of Representatives every two years strikes a reasonable balance.

First, after pointing out that the exact period between elections is somewhat arbitrary—

No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power.

—the author argues that the maxim “where annual elections end, tyranny begins" arose where constitutions were unwritten and more mutable than the difficult-to-amend, written Constitution being proposed for the US. In those contexts, the year as a salient length of time had to make up for lesser tensile strength of the relevant constitutions:

The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. … An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. … Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions?

That argument only says that two years between elections to the federal House of Representatives is not a danger to liberty. But why would it be superior to annual elections? Here, the argument is that being a member of the US House of Representatives is more difficult than being in a state legislature (for which annual elections were common), and so benefits more from experience:

No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. … The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation?

Most of the rest of the Federalist Papers #53 elaborates on these arguments. In addition, there is some consideration of how a high probability of reelection or reappointment can make shorter formal terms of office consistent with having the requisite experience and how on the other hand slow resolution of election disputes makes short terms problematic.

Below is the full text of the Federalist Papers #53.

FEDERALIST NO. 53

The Same Subject Continued: The House of Representatives

From the New York Packet
Tuesday, February 12, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

I SHALL here, perhaps, be reminded of a current observation, "that where annual elections end, tyranny begins. " If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded? No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time; but lies within extremes, which afford sufficient latitude for all the variations which may be required by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina; or that either the one or the other of these States is distinguished in these respects, and by these causes, from the States whose elections are different from both. In searching for the grounds of this doctrine, I can discover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An attention to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form: does the period of two years bear no greater proportion to the knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws which are uniform throughout the State, and with which all the citizens are more or less conversant; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowledge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a proportional degree of information with regard to them. It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and accurate source of information to new members. The affairs of the Union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single State, as to justify the longer period of service assigned to those who are to transact it. A branch of knowledge which belongs to the acquirements of a federal representative, and which has not been mentioned is that of foreign affairs. In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government.

And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may, no doubt, be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature.

There are other considerations, of less importance, perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circumstance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true; but their re-election is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the proportion of new members, and the less the information of the bulk of the members the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Sight: Enjoying Our 7-Dimensional Visual World

April 24, 2022 by Miles Kimball

This post has many photos. But it is not about photography. It is about encouraging you to delight in all the sights we can see, even in a typical day.

One powerful Zen koan is the question “Who Am I?” In the Zen training I got from my Waking Up app, an answer I really like is “I am everything I see, hear and otherwise experience.” (See “Zen Koan Practice with Miles Kimball: 'I Don't Know What All This Is'.”) This is quite literally true in the sense that everything we experience directly has already been highly processed by the sensory parts of our brain (with inputs from other parts). It is also metaphorically true in the sense that evolution designed us to be connected to the world and to each other. Or as Max Ehrmann’s poem “Desiderata” has it, “You are a child of the universe no less than the trees and the stars.” Here is the full poem, which was extremely popular when I was young:

Go placidly amid the noise and the haste, and remember what peace there may be in silence. As far as possible, without surrender, be on good terms with all persons. Speak your truth quietly and clearly; and listen to others, even to the dull and the ignorant; they too have their story. Avoid loud and aggressive persons; they are vexatious to the spirit. If you compare yourself with others, you may become vain or bitter, for always there will be greater and lesser persons than yourself. Enjoy your achievements as well as your plans. Keep interested in your own career, however humble; it is a real possession in the changing fortunes of time. Exercise caution in your business affairs, for the world is full of trickery. But let this not blind you to what virtue there is; many persons strive for high ideals, and everywhere life is full of heroism. Be yourself. Especially do not feign affection. Neither be cynical about love; for in the face of all aridity and disenchantment, it is as perennial as the grass. Take kindly the counsel of the years, gracefully surrendering the things of youth. Nurture strength of spirit to shield you in sudden misfortune. But do not distress yourself with dark imaginings. Many fears are born of fatigue and loneliness. Beyond a wholesome discipline, be gentle with yourself. You are a child of the universe no less than the trees and the stars; you have a right to be here. And whether or not it is clear to you, no doubt the universe is unfolding as it should. Therefore be at peace with God, whatever you conceive Him to be. And whatever your labors and aspirations, in the noisy confusion of life, keep peace in your soul. With all its sham, drudgery and broken dreams, it is still a beautiful world. Be cheerful. Strive to be happy.

How do I get to 7 dimensions? The first is time, represented by the one photo at the top. This is a view out of my bedroom window in the “blue hour” between when it gets light and sunrise. Things look very different at that time of day than when the sun is up. And a whole new set of wonders becomes visible at night.

The next 3 dimensions, to give their local names, are north/south, east/west and high/low. That gives your position—your standpoint. Then there are two dimensions for the spherical angle in which you are looking. Finally narrow/wide focus gives a very different visual experience. That makes 7. And I am not even counting other dimensions such as color, which are less straight forward, but still possible to focus on or not.

The point is that there are riches of visual experience to be had—here the blessing of dimensionality rather than the curse of dimensionality.

In what follows, I’ll dump in the photos I took yesterday on a single walk. At 4 or 5 locations I looked in a set of 4 horizontal directions at 90-degree angles from each other and straight up and straight down at wide focus and at narrow focus. (Straight up was similar enough at the different locations I sometimes skipped that.) I think the high dimensionality of visual potential is clear from these photos. And even though I used an iphone to document these views, seeing them doesn’t require any technology at all.

(Note: This post is still under construction. More photos to come.)

The Federalist Papers #52: On the Franchise + Elections to the House of Representatives Every Two Years are Frequent Enough to Preserve Liberty

April 17, 2022 by Miles Kimball

*Link to the Wikipedia article “HIstory of the United States House of Representatives”*
*Link to the full texts of the Federalist Papers #51–#60*

The Federalist Papers #52, written by either Alexander Hamilton or James Madison, only tries to accomplish two things. First, it argues it frames the constitutional requirement of having the same franchise in any state for the US House of Representatives as for the corresponding part of the state’s legislature as prevention against excessive strategic game-playing through manipulation of the franchise for the US House of Representatives by either the federal or state governments. There is a hint that reducing state power further than that by specifying the franchise did not seem feasible in 1787:

To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention.

Of course, later amendments to the US Constitution did specify the franchise more tightly (bullets added):

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude— [from the 15th amendment]
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. [from the 19th amendment]
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax. [from the 24th amendment]
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. [from the 26th amendment]

In addition, Section 2 of the 14th amendment imposes a penalty for limiting the franchise in other ways, such as by wealth:

… when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. [from the 14th amendment]

I think a constitutional amendment modernizing this idea would be very interesting. Suppose that instead of the number of representatives a state gets being determined by a population count, it was determined by the number of people who voted in the last few federal elections. Then every state has an incentive to increase voter participation. As a good complementary idea that might make this idea more appealing to Republicans, this could be coupled with regular audits of the people who voted to make sure that ineligible voters were not counted. Even if such an amendment couldn’t pass, I think those opposing it would look bad.

The second thing the Federalist Papers #52 tries to accomplish is to argue that every 2 years is often enough for elections to the US House of Representatives. The argument boils down to citing examples of many other governments in which the corresponding legislative body is subject to elections less often or equally often, and claiming that, by and large, these showed real concern for the opinions of the people. That brief summary captures the essence of this part of the Federalist Papers #52. The full text is below.

FEDERALIST NO. 52

The House of Representatives

From the New York Packet
Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

FROM the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures.

The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option.

It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to SIT only every year; not that they were to be ELECTED every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II. , that the intermissions should not be protracted beyond a period of three years. On the accession of William III. , when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people that parliaments ought to be held FREQUENTLY. By another statute, which passed a few years later in the same reign, the term "frequently," which had alluded to the triennial period settled in the time of Charles II. , is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under on alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies by the election of new members, and in the chance of some event which might produce a general new election.

The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence.

In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in SEPTENNIAL elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from BIENNIAL elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Jordan Peterson on Jung, Human Potential and the Imitation of Christ

April 10, 2022 by Miles Kimball

The Federalist Papers #51 B: The Federal Government Can Restrain Injustices States by Themselves Would Perpetrate

April 03, 2022 by Miles Kimball

*Great Seal of the United States.* *Link to the Wikipedia article “E pluribus unum”*
*Link to the full text of the Federalist Papers #51*

States can be, as Louis Brandeis said, “laboratories of democracy,” allowing valuable experimentation. On the other side of the ledger, states can perpetrate injustices against groups that don’t have much political power. In the the second half of the Federalist Papers #51, the author (who might be either Alexander Hamilton or James Madison), argues that a coalition to support such an injustice is easier to assemble in a single state that in the entirety of the United States:

… the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

He makes a direct contrast between the danger in a state versus the danger in the United States as a whole of oppression of a group with little political power:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good …

The struggle for Civil Rights in the mid-20th century provides some evidence for the view that the federal government has an important role to play to restrain injustice against those who are disempowered politically.

I love this statement that without justice, a government leaves the situation similar to what would prevail under anarchy or a Hobbesian state of nature:

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Below is the full text of the second half of the Federalist Papers #51:

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Jordan Peterson on Religion

March 27, 2022 by Miles Kimball

The Federalist Papers #51 A: Checks and Balance, or ‘Who Guards the Guardians?'

March 20, 2022 by Miles Kimball

*image source*
*Link to the full text of the Federalist Papers #51*

Juvenal’s question of “Who guards the guardians” is a very difficult design question that appears in many social domains and at many levels.

In the economic realm, supervisors and bosses and CEOs are guardians an important piece of the social structure. The free market only works well at all because of a set of rules that block the most obvious ways to get rich: stealing, lying, and extortion by threats of violence. And the free market in the 21st century will only work really well if we go through the design process of figuring out all the other ways that people—especially those with a great deal of economic reach—can only get rich by doing something commensurately valuable for other people, after netting out any harm done. (An adequate design process would probably come to a different set of rules for different sectors of the economy; possible ways to get rich without doing something commensurately valuable for other people differ by sector.)

In the political economy realm, the difficult design problem, essential for economic growth, is to create a government that can and will stop people from stealing, lying, extorting by threats of violence—or getting rich by some other means that does not serve other people—without that government itself being so strong and wanton that it steals, lies, intimidates and actively perpetrates injustice itself.

Democracy with reasonably free and fair elections (and reasonably peaceful transfers of power) cuts off the worst bad governments in the tail. But even genuine democracy is not enough to prevent moderately serious governmental malfeasance. The framers of the US Constitution had these problems in mind.

The checks and balances between different components of government was the best solution they could come up with. The first half of the Federalist Papers #51, written by either Alexander Hamilton or James Madison, details some of the checks and balances they hoped would help ward off bad outcomes. That the author of the Federalist Papers #51 had the difficulty of the design problem in view is clear from these passage:

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.

Here are some of the key ideas in the first half of the Federalist Papers #51 (bullets added to separate passages):

… each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.
Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
… the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
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 to govern men, neither external nor internal controls on government would be necessary.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.
… the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
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 weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?
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 subdivided 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.

There is genius in the design the US Constitution. And the problem of “Who guards the guardians?” still causes trouble. As always, things are bad, but they could be much, much worse. That they are not worse owes partly to the structure of the US Constitution, but even more importantly to the virtue of many in a wide variety of positions who uphold it.

Below is the full text of the first half of the Federalist Papers #51.

FEDERALIST NO. 51

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

From the New York Packet
Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so 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. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But 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 encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. 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 to govern 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. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. 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. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. 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 subdivided 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.

Links to my other posts on The Federalist Papers so far:

Don't Let Planning Take Over Your Life Experience

March 13, 2022 by Miles Kimball

Jesus said,

Therefore do not worry about tomorrow, for tomorrow will worry about itself. Each day has enough trouble of its own. (Matthew 6:34, NIV)

Interpreted naively, this is a bad idea. Thinking ahead can help us avoid bad outcomes. So what did Jesus mean? In context, one of the things Jesus meant is that you should have a higher goal than the type of goals many everyday worries are about:

Ye cannot serve God and mammon. (Matthew 6:24, KJV)

“Mammon” literally means “riches,” but let me extend the meaning to include social rank, so that anything we do primarily to advance our social rank (including our professional standing), counts as “serving mammon.” In the context of academia, the choice between “God” and “mammon” can be reinterpreted for nonsupernaturalists as something like what I wrote of in “Breaking the Chains”:

For most who go into academia, the salary they will get in academia is lower than they could get outside. So most who go into academia make that choice in part out of the joy of ideas, a burning desire for self-expression, a genuine fascination with learning how the world works, or out of idealism—the hope of making the world a better place through their efforts. But by the time those who are successful make it through the long grind of graduate school, getting a job and getting tenure, many have had that joy of ideas, desire for self-expression, thirst for understanding and idealism snuffed out. For many their work life has become a checklist of duties plus the narrow quest for publications in top journals. This fading away of higher, brighter goals betrays the reasons they chose academia in the first place.

I see one other meaning in:

Therefore do not worry about tomorrow, for tomorrow will worry about itself. Each day has enough trouble of its own.

It really is possible to run or greatly worsen our inner experience by constantly thinking about what we need to do in the future. In my own life, I think of this as a “hypertrophy of the planning function.” My goal is to activate my internal Planner enough to genuinely optimize what to do next, as best I am able, and to determine how long to spend on that before I need to do the thing after that, but then to forget about what I am going to do in the future while I do the thing that appropriately comes next. When I can manage this, my experience is much better! And now at 61 years old, it is pretty optimistic to think I have even 39 years of flesh-and-blood life left, so I want to make every moment as good an experience as possible given my other goals. And other goals only have to come into optimizing what to do next and how long to do it for. Any other intrusion of the Planner into the scarce space I have for consciousness at any moment just makes my life worse.

Posts on Positive Mental Health and Maintaining One’s Moral Compass:

The Federalist Papers #50: Periodic Commissions to Judge Constitutionality Won't Work

March 06, 2022 by Miles Kimball

*Link to the Wikipedia article “Pennsylvania Constitution of 1776”*
*Link to full text of The Federalist Papers #50*

The Federalist Papers clearly recognize that the words on paper of a written constitution are not enough to keep each branch of government within its constitutional bounds. Nowadays, judicial review of constitutionality is a key part of our constitutional structure, though it is nowhere in the original written US Constitution or in any formal Amendment to the US Constitution. The authors of the Federalist Papers would have worried that this would give too much power to the judicial branch of the government. But judicial review seems to have worked pretty well.

Alternatives to judicial review are hard to find. The Federalist Papers #50 (author not clear: Alexander Hamilton or James Madison) argues in particular that a period commission to review the constitutionality of government actions won’t work, based on the experience Pennsylvania had with just such a system, which stipulated constitutional review every seven years by a “Council of Censors.”

There are two big problems with a periodic commission to review constitutionality: it is likely to be partisan because it will be composed of the usual suspects, who were involved in the original decisions, and it is likely to be toothless. This passage from the Federalist Papers #50 makes both points:

The Pennsylvania Council of Censors had met once, in 1783-1784 since the Pennsylvania Constitution of 1776 was adopted. It provided a lot of evidence for these views.

Partisanship of the Pennsylvania Council of Censors. On the Council of Censors being partisan, and the inevitability of partisanship, the Federalist Papers #50 has this to say (distinct passages separated by added bullets):

… the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution.
Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.
Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns.
It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.
Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.

Toothlessness of the Pennsylvania Council of Censors. The Federalist Papers #50 has less to say on toothlessness of the Council of Censors, but does have this:

I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest.

How has Judicial Review Faired Better? The courts are, of course, quite partisan, but are mostly limited to being reactive to actions of other branches of government. For whatever reason, the courts have been reasonably good at sticking to the rule of only dealing with actual cases and controversies. That is, tough requirements for “standing” for bringing a case have been crucial in keeping the judicial branch from becoming too powerful.

Because the courts deal with one case at a time, it is easier to arrange recusal in the judgment of a decision a judge was previously involved in than in the case of membership or not on something like the Council of Censors that is looking at many different issues. Moreover, the judicial career track now covers much of a judge’s life cycle, so that many judges have not been directly involved in that many legislative branch or executive branch decisions. (Even experience as an executive branch lawyer was often about prejudging the legality of a decision or adjusting a policy toward legal means rather than about making the decision in the first place.) Finally, it takes time for a judge to rise to one of the highest courts and so gain great influence in the judicial branch. And they can serve a long time on one of the highest courts. This puts more time between them and earlier things they were involved in that are related to a case but don’t rise to the level of recusal. That is, one can hope that a high judge’s partisanship is the partisanship of yesterday and not the partisanship of today. Yet the decisions of the legislative or executive branches, or of lower courts, can get reasonably prompt review.

Why hasn’t judicial review been toothless? Here, the fact that it deals with cases piecemeal helps. The typical case is likely to seem individually small in political terms. So the legislative and executive branches won’t be that tempted to interfere with the outcome of a typical case.

Another factor in acquiescence by members of the legislative and executive branches to many judicial decisions is that sometimes the courts agree with a politicians true views, as distinct from the views the politician claims to have in order to get elected.

Finally, for some reason, the voters seem to have accepted the courts as referees of the constitutional system. Complaints about Supreme Court decisions, for example, have often been channeled into the idea of winning elections to control future appointments to the Supreme Court—or in the extreme, packing the court—rather than into the idea of the legislative or executive branch simply ignoring the court.

Below is the full text of the Federalist Papers #50:

FEDERALIST NO. 50

Periodic Appeals to the People Considered

From the New York Packet
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge.

If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other. " This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State.

Secondly. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.

Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.

Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Sometimes the Devil You Don't Know is Better than the Devil You Do

February 27, 2022 by Miles Kimball

The one thing I’d most like my students to realize is that failure—including looking stupid—is the pathway to success. Anyone who doesn’t understand that will give up too easily. It is most important to be in motion, racking up the failures you can learn from.

The video above (an excerpt from Jordan Peterson’s lecture on the biblical story of Joseph and the Coat of Many Colors) makes this point eloquently. Below, I’ve transcribed some quotations that I’ll comment on. Here is the first one:

… so there’s some utility in pursuing the things you are interested in. That’s the call to adventure … Now the problem with the call to adventure is … what the hell do you know? You might be interested in things that are kind of warped and bent. And often it’s the case that when new parts of people manifest themselves, and grip their interest … they do it very badly and shoddily. And so, you stumble around like an idiot when you try to do something new. That’s why the Fool is the precursor to the Savior, from the symbolic perspective. You have to be a fool before you can be a master. And if you’re not willing to be a fool, then you can’t be a master. So, it’s an error-ridden process.

I’m currently listening to Joseph Campbell’s classic, The Hero with a Thousand Faces. In the myths and fairy tales that encapsulate some of the deep wisdom of our species, it is clear that refusing the call to adventure is a bad idea. In some sense, you have to be a fool to go on an adventure, but that is the route to becoming more than what you are now.

So, they’re fools…. But, the thing that’s so interesting is that, despite the fact that they’re fools, they’re still supposed to go on the adventure. And that they’re capable of learning enough as a consequence of moving forward on the adventure that they straighten themselves out over time.

Fortunately, there is an error-correction process that makes foolish mistakes redemptive, if you learn from them.

And so you can take these tentative steps on your pathway to destiny, and you can assume that you’re going to do it badly. And that’s really useful, because you don’t have to beat yourself up. It’s pretty easy to do it badly. But the thing is, it’s way better to do it badly that not to do it at all.

If you get that messing up is normal, then you know you don’t have to be hard on yourself for messing up. And one’s own self-flagellation is often the scariest thing of all. So if you are determined not to be too hard on yourself when you mess up, you are much more likely to have enough courage to take the risk of putting yourself out there.

… it doesn’t matter that you overshoot continually. Because as you overshoot, even if you don’t learn what you should have done, you’re going to continually learn what you shouldn’t keep doing. And if you learn enough about what you shouldn’t keep doing … that’s tantamount at some point to learning at the same time what you should be doing.

Many of us have wished for oracular knowledge so that we don’t ever have to make mistakes. But oracles don’t come free. For example, at the Oracle of Delphi, you had to sacrifice a goat. In many, many cases the cost of learning on your own from experience is reasonable—less than the cost of a goat.

It’s OK to wander around stupidly before you fix your destination. Now you see that echoed in Exodus…. Because what happens is that the … Hebrews escape a tyranny. Which is kind of whatever you do, personally and psychologically when you escape from your previously of stupidly-held and ignorant and stubborn axioms…. Now you’re in the desert.

Psychological toughness is needed when you do something new. It may get a lot easier; you may even come to love it. But the beginning may be rough.

You can also be deluded into the idea … that’s just a linear pathway uphill … from one success to another. No it’s not.

It’s good to read and listen to life stories from people who are honest about the struggles in their lives. There are differences in degree, but life is hard in some way for everyone.

… you go ahead on your movement forward, and you collapse, and you think “Well that didn’t work. I collapsed.” … No, that’s par for the course. It’s not indication that you failed, it’s just indication that it’s really hard. And that when you learn something, you also unlearn something.

In addition to the fear of looking stupid, or getting hurt, one reason you may shy away from daring to learn is that learning can cause your identity to shift. You might discover that what you thought you knew before, isn’t so. And in so doing, you may realize how badly suboptimal your previous choices were. But it’s better to know and keep progressing.

The fact that you’re full of faults doesn’t mean you have to stop…. And the fact that you’re full of faults doesn’t mean that you can’t learn.

Finally, despite all the attempts that have been made by others to bolster your self-esteem, if you haven’t stretched yourself yet, you are likely see yourself as too small to tackle big projects. It’s time to start with whatever size of life project you can handle right now—something that is at the limit of your current abilities—and work your way up from there. Who knows what you might be capable of if you keep building your capabilities?

Posts on Positive Mental Health and Maintaining One’s Moral Compass:

The Federalist Papers #49: Constitutional Conventions Should Be Few and Far Between

February 20, 2022 by Miles Kimball

*The Virginia Constitutional Convention of 1829-1830.* *Link to the Wikipedia article “Virginia Conventions.”*
*Link to full text of The Federalist Papers #49*

It is unclear which of Alexander Hamilton and James Madison wrote the Federalist Papers #49, which raises doubts about constitutional conventions as a way to modify a government except in times of great patriotic unity. In mark against constitutional conventions is that in relation to the separation of powers, some branches of government are likely to have more influence over a constitutional convention than others.

But the most interesting argument against frequent constitutional conventions is that long, unbroken traditions get an aura of the sacred to them, that adds to the stability of a government. And stability is precious. Here is how the author of the Federalist Papers #49 say that:

… as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

I agree that, assuming a system of government is decent, the aura of sacredness from a system of government having been long established is worth a lot. In his book Sapiens Yuval Noah Harari pursues the them that, since the dawn of history, collectively held imaginings have been the key to holding societies together and helping them function well (and have sometimes been the key to making them tyrannical). The intersubjective imaginings that people are brought up with since they were children end up seeming solid. These should not be disturbed lightly.

*Link to the Amazon page for* Sapiens *by Yuval Noah Harari*

Below is the full text of the Federalist Papers #49:

FEDERALIST NO. 49

Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention

From the New York Packet
Tuesday, February 5, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

THE author of the "Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded.

One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked. His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose. "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numberous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges.

The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.

We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

PUBLIUS.

Links to my other posts on The Federalist Papers so far:

Overcoming Emotional Miscommunication

February 14, 2022 by Miles Kimball

It is very easy to misread what a spouse or significant other is saying. The older I get, the more insightful I think the song above is. Here is the the refrain:

She said "I'm mad"
He heard "I'm leaving"
She said "I need your attention"
He heard "I want you to crawl"
She said "I'm sad"
He heard "It's all your fault"
There is no translation
Emotions don't fit into words
There's so much between what she
And what he heard

Let me write from the perspective of someone who often misunderstands their partner in such a way.

Sometimes, what is going on is this: you don’t want to face a medium-sized unpleasant truth about yourself, so you pretend your partner is saying something much worse, which allows you to be indignant that you would be accused of something so obviously not true. The downside: in addition to keeping you from letting in the genuine feedback, part of you might really get snookered by this pretense and feel awful at what you are supposedly being accused of.

Other times, your partner genuinely has difficulty articulating what bothers them accurately. For example, they may use totalizing words such as “always” or “never.” Unfortunately, it is always necessary to translate from any infelicity in how your partner says things. You can ask them to say things in a way that is more accurate, but most people don’t manage to change such things very fast. So you might need to be patient.

Other Valentine’s Day Posts:

The World Isn't Fair. Any Fairness You Stumble Across Is There Because Someone Put It There.

February 13, 2022 by Miles Kimball

At every moment in history, all human groups and institutions have been messed up to some degree. One of the marvelous things about human beings is that, despite having no supernatural essence or powers, they have a moral compass within them that allows them to judge groups and institutions as deficient in justice.

There is a fork in the road when confronting injustice. One path is the path of anger. Occasionally this works: after seeing how deeply you feel about an unfairness, the perpetrator of that unfairness might back down and rethink. And sometimes it may be that an institution needs to be torn down because its injustice is great and irredeemable.

The path of anger is not one to be undertaken lightly. Many will react to your anger with anger of their own rather than with the reaction you want. And when you succeed at intimidation that leads to an immediate result you consider fairer, it can lead to long-term resentment that can cause trouble in the future.

The other path is the path of reconstruction and fixing. The path of reconstruction and fixing and works best when you emphasize justice for others as much as or more than justice for you. Often, only justice for others is at issue; you are called on to put in great effort to make it possible for an institution to deliver justice in a particular instance. In other cases, you are trying to improve rules, processes and execution to achieve more justice for everyone, including yourself.

The turn toward the path of reconstruction and fixing comes with saying “How can I make things better?” rather than focusing on “How could they do this?”

Justice is water in a glass that is both half-full and half-empty. The half-emptiness hits us like a brick. Seeing the half-fullness requires a shift in perspective toward gratitude that due to those who have gone before us, and those around us now, there is occasionally some justice in the world. When we feel gratitude for the portion of justice that is there, it provides inspiration for us to do our part to contribute to the justice in the world and improve things—without too quickly deciding to tear down the structures that may stand between us and a situation of even greater injustice.

Posts on Positive Mental Health and Maintaining One’s Moral Compass:

The Federalist Papers #48: Legislatures, Too, Can Become Tyrannical—James Madison

February 06, 2022 by Miles Kimball

*Link to the Wikipedia article “Oliver Cromwell.”* *Oliver Cromwell led the armies of the Parliament of England and later effectively became a dictator under the title “Lord Protector.”*
*Link to full text of The Federalist Papers #4*8

In the Federalist Papers #48, James Madison argues that there need to be checks and balances against legislatures as well as against executives. In English history, Oliver Cromwell provides a good example of a dictator created by the legislature (Parliament). For a US example, James Madison refers to a report of the Council of Censors in Pennsylvania, who reported both legislative encroachments on the constitutional powers of the executive and the judiciary and executive encroachments on the constitutional power of the legislature. He explains the frequency of executive encroachments on the constitution power of the legislature partly by the exigencies of the Revolutionary War, actions the executive knew the legislature would approve of (even though it hadn’t authorized those actions) and as a result of diffusion of responsibility:

THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.

For Virginia, James Madison refers to Thomas Jefferson’s “Notes on the State of Virginia,” using this quotation:

All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.

James Madison seems to assume quite a bit of familiarity with these other documents by his readers.

The Federalist Papers #48 is not that impressive all by itself, but it provide an additional brick in the wall of argument for checks and balances.

Below is the full text of the Federalist Papers #48.

FEDERALIST NO. 48

These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other

From the New York Packet
Friday, February 1, 1788.

Author: James Madison

To the People of the State of New York:

IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting "Notes on the State of Virginia," p. 195. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.

For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. "The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution. " In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances. A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.

Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: FIRST, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; SECONDLY, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRDLY, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.

The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

PUBLIUS.

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The Curse of Meritocratic Hubris

January 30, 2022 by Miles Kimball

*Link to the Amazon page for* The Tyranny of Merit *by Michael Sandel*

In his book The Tyranny of Merit, Michael Sandel documents in excruciating detail the rise of meritocracy as a cultural ideal and the concomitant vice of the educated and successful looking down on the uneducated. I am aghast at this bad behavior. It is incredibly destructive socially for anyone to look down on anyone else, let alone a large fraction of our society looking down on another large fraction.

To me, this suggests a serious failure of moral education in our society. Everyone should be brought up and taught to appreciate the virtue of appropriate personal humility and gratitude and appropriate respect for other human beings. Let me be specific about what I have in mind, limited as I am by the perspective offered by my own experience.

After 45 years, I still remember my Dad taking me aside after a high school awards ceremony in which I won a large number of awards to remind me that it is more important to be good than to be smart. In the Mormon Church I grew up in, there were regular sermons about how “No success can compensate for failure in the home” and about how riches and success could make people proud and thereby lead them to go off-track in their lives.

In my Economics PhD program, we read Frank Knight arguing that despite the virtues of the free market, it was not fair—sentiments later cited approvingly by Friedrich Hayek. To put my own gloss on the argument, first, there is a moral arbitrariness to the genetic lottery that assigns raw talent. Second, there is a moral arbitrariness to which raw talents are scarce or in high demand and which are abundant or in low demand at a given moment in history. Third, market imperfections and poor regulatory design can make prices diverge from social value. And fourth, internal conflicts can give high prices to things such as drugs, gambling and other addictive or quasi-addictive things that part of an individual dearly wants and part of the individual wants to abjure. The social value of these things depends on which parts of people’s divided selves we want to foster.

Here is what I think a good society would look like. Everyone considers themself “just folks” without putting themself above anyone else—except insofar as hierarchy is needed to accomplish a necessary task, and then with as little differentiation as can do the job. Incentives involving one person being richer than another are only used to raises Utilitarian social welfare. (Despite John Rawls’s critique of Utilitarianism, this is much closer in practice to John Rawls’s Difference Principle than many realize.) Freedom and being treated with dignity are themselves brought into the Utilitarian social welfare function as valued goods in themselves.

One thing that need not be there at all in a good society is any notion of what someone “deserves” beyond what everyone deserves as a human being. Reward and punishment, honor and blame are there in an instrumental role as incentives, but they are not seen as having any ultimate significance outside of their role as cogs in the design of a society that works well.

Our higher education system is dysfunctional in many ways. Prestigious colleges universities becoming more and more selective instead of expanding their number of students seems to be contributing to the rise of an ugly meritocratic hubris. Once a student has added to whatever advantages they had to start with a huge amount of effort in order to get into a selective college or university, the temptation of thinking they “deserve” their high station is strong. What would be a better attitude? “To one to whom much is given, much is expected.” Having a high station in society increases one’s responsibility to do good. It doesn’t justify lording it over or looking down on others.

Posts on Positive Mental Health and Maintaining One’s Moral Compass:

The Federalist Papers #47: Separating Legislative, Executive and Judicial Powers is a Good Principle, But Perfection in this Regard is Impossible—James Madison

January 23, 2022 by Miles Kimball

*image source*
*link to full text of The Federalist Papers #47*

In the Federalist Papers, Alexander Hamilton and James Madison have severe words for many of the opponents of the proposed Constitution. But in the Federalist Papers #47, there is one objection to the proposed Constitution that James Madison treats as a legitimate objection if true—though factually inaccurate:

One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. …

James Madison then goes on to say that Montesquieu was one of the foremost advocates of the separation of powers, yet saw the British Constitution as a model of this:

The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.… The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty …

James Madison points out that in the British political system of the time, the separation of powers was not complete:

On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other.

He then goes through many details to demonstrate this incomplete separation in the British political system and then the constitutions of many states in order to show that none managed a perfect separation of powers—and indeed the details suggest that in all of these the separation of powers is less perfect than in the proposed Constitution of the United States.

At all points in the Federalist Papers #47, James Madison evinces a strong belief in the principle of the separation of powers, while showing that even the many states that explicitly state in their constitutions that there should be separation of powers are not able to separate them perfectly. Indeed, no political system in view had a perfect separation of powers.

The full text of the Federalist Papers #47 is copied out below so you can see the detailed examples James Madison gives.

FEDERALIST NO. 47

The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts

From the New York Packet
Friday, February 1, 1788.

Author: James Madison

To the People of the State of New York:

HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts. One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.

Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY. " Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. " This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches.

Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention. The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive counoil are made EX-OFFICIO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly. " Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.

It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State.

In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.

PUBLIUS.

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