Original Argument: The Lost Chapters. Translated by Joshua Charles

The Federalist No. 53

The House of Representatives (continued)

James Madison

Independent Journal

Saturday, February 9, 1788

At this point, I am reminded of a saying that seems to be popular these days, “that where annual elections end, tyranny begins.”  If it is true (as it if often said) that sayings that have become proverbial are generally based in reason, then it is just as true that once such sayings are established, they are often applied and used in ways which are not justified by the reasoning which originally led to them!

We need not look any further for proof of this than the case before us.  What is the reasoning upon which this proverbial saying is founded?  Surely no one wishes to subject themselves to the ridicule they would endure if they pretended that there was, in reality, some sort of natural connection between the sun or the seasons, and the time period during which human virtue can resist the temptations of power.  Fortunately for mankind, liberty is not confined to a single point in time in this respect, but rather exists within extremes which leave plenty of room for the changes which may be required by the various situations and circumstances of civil society.

If it was found to be convenient, the election of judges might be, and actually have been conducted daily, weekly, monthly, as well as annually.  So if circumstances may require a deviation from the rule on one side, why not also on the other side?  Turning our attention to the frequency of elections which have been established amongst ourselves, we find that the elections of the most numerous branches of the state legislatures by no means coincide with each other anymore than do the elections of other civil officers.  In Connecticut and Rhode Island, elections are held every six months, while in all of the other states (except South Carolina), they are held annually.  As for South Carolina, the elections are biennial (every two years), as has been proposed for the Federal government (for the House of Representatives).[1] The difference between the longest and shortest election cycles throughout the states represents a ratio of 4:1, and yet it would not be easy to show that Connecticut or Rhode Island are either better governed or enjoy a greater share of rational liberty than South Carolina, or that any of these three states are different in these respects and for these reasons from the states whose elections may be more or less frequent.

In my search for the basis of this political doctrine, I have only been able to discover one, and it doesn’t apply to us at all.  The important distinction, which is so well understood in America and seems to have been little understood (and even less observed) in any other country, is the difference that exists between a Constitution established by the People and therefore unable to be changed by the government,[2] and a law established by the government and therefore able to be changed by the government.  Wherever the supreme power of legislation has been placed, it has been assumed that in that place there was also complete power to change the form of government.  Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we frequently hear about the rights of its constitution, it is maintained that the authority of Parliament is transcendent and uncontrollable with regard to both the British constitution, as well as the normal, everyday objects of legislative authority.  In several examples, they have lived up to this claim by actually changing, via legislative acts, some of the most fundamental articles of the government.  Specifically, they have on several occasions changed the length of the terms of elected offices, and most recently they not only introduced septennial (every seven years) in place of triennial (every three years) elections, but also (by the same act) extended their own terms in office four years beyond the term which they were elected to by the People in the first place.  These dangerous practices have naturally alarmed the devoted followers of free government (whose foundation is frequency of elections), and has forced them to search for something which can secure liberty against the dangers which these actions have exposed it to.  Where no constitution either existed or might possibly be formed, and which was completely superior to the government, no one tried to establish any constitutional security similar to that which exists in the United States.  Therefore, they had to search for some other source of security, and what better source could they utilize then simply selecting and relying on some simple and familiar period of time as a standard by which to measure the actions which had been taken by the government, by which to measure the feelings of the nation, and during which patriotic efforts could be made to bring about the desired changes?  The simplest and most familiar period of time which could be used for the sake of such security was one year, so the admirable desire to erect some sort of barrier against the gradual intrusions of an unlimited government gave rise to the idea that amount, or degree of tyranny that exists could be calculated by how far the government had strayed from the fixed point of annual elections.  But how necessary would such a security be for a government which will be as limited as the proposed Federal government, and which will be established by the superior authority of the Constitution?  Who will try and pretend that the liberties of the People of America will not be more secure under biennial elections (which are permanently fixed by the Constitution) than the People of any other nation where elections are annual or even more frequent, but which are also at the mercy of being changed simply by the ordinary power of the government (as occurred in Great Britain)?

The second question is whether biennial elections are necessary or useful (referenced in No. 52)?  Several obvious considerations will show just how appropriate it is to answer “yes” to this question.  No one can be a competent legislator unless, in addition to good intentions and sound judgment, they also possess a certain degree of knowledge of the subjects on which they will legislate.

A portion of this knowledge can be acquired via information which is accessible to individuals in private, as well as public positions.  Another portion of this knowledge can only be attainted (at least thoroughly) by actual experience in the position which requires the use of it.  Therefore, the period of service should in all cases be somewhat proportional to the extent of practical knowledge which is required to adequately perform the service.  As we have seen, the period of legislative service which is established in most of the states for the more numerous branch of the legislature is one year.  The question may now be asked in this simple way: does the period of two years bear no greater proportion to the knowledge which will be required for Federal legislation, than one year does to the knowledge required for state legislation?  The very way in which the question is worded suggests the answer which should be given to it.

In a single state, the knowledge required for a legislator relates to the existing laws, which are both uniform throughout the state and are all more or less familiar to all of the citizens, as well as the general affairs of the state, which are confined to a small area, not very diverse, and also 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 are in fact different in every state, while the actual public affairs of the Union are spread throughout a very large area and are extremely diversified by the local affairs which are connected with them.  Indeed, the affairs of the Union would be difficult to learn in any place other than Congress, which is where the knowledge of each state will be brought by the representatives of every part of the empire.  Even so, some knowledge of the affairs, and even of the laws of all the states, should be possessed by the Representatives from each of the states.  How can foreign trade be properly regulated by uniform laws without some familiarity with the commerce, the ports, the customs, and the regulations of the different states?  How can trade between the states themselves be properly regulated without some knowledge of their particular situation with regards to commerce and other things?[3] How could taxes be fairly imposed, and effectively collected if they were not adapted to the different laws and local circumstances of the states with regard to both commerce and these other things?[4] How could uniform regulations for the militia be properly provided without a similar knowledge of the internal circumstances that distinguish the states from each other?[5] These things are the primary objects of Federal legislation, and as such, they very clearly hint at the extensive information that the Representatives ought to acquire.  The less important objects of Federal legislation will require a proportional degree of information with regard to them as well.

It’s true that all of these difficulties will be gradually, but significantly diminished.  The most difficult task will be the initial establishment of the government, and the formation of an appropriate, primitive Federal Code.  Improvements on the very first set of laws will become easier and fewer with every passing year, since the past transactions of government will be a readily available and accurate source of information for new Representatives to work from.  The affairs of the Union will become more and more a subject of curiosity and conversation among the citizens at large, and the increased interaction between the citizens of different states will greatly contribute to the diffusion of a mutual knowledge of their affairs, which will also contribute to a nationwide assimilation of their cultures and laws.  But, even with all of this spreading and sharing of knowledge, the business of Federal legislation will continue to exceed the legislative business of a single state both in originality and difficulty, which in and of itself justifies the longer period of service that has been assigned to those who will actually carry out the work of legislation (the Federal Representatives in Congress).

An area of knowledge which has not yet been mentioned, but which a Federal Representative should be familiar with nonetheless, is foreign affairs.  If they are to play a part in regulating our own commerce, then Representatives ought to be acquainted with not only the treaties between the United States and other nations, but also with the commercial policy and laws of other nations.  They should not be completely ignorant of international law, for insofar as it is an appropriate object of municipal legislation, it also falls under the jurisdiction of the Federal government.  And even though the House of Representatives will not directly participate in foreign negotiations and arrangements, the many connections which will exist between the many areas of public affairs will sometimes require that ordinary legislation be passed in order to provide both legal sanction and/or cooperation between any particular areas of policy.  Some of this knowledge may, no doubt, be acquired in any man’s closet, but some of it can only be acquired from public sources of information, and all of it will be most effectively[6] acquired by a Representative putting forth a real, and practical effort towards understanding the subject during the time of their actual service in Congress.

In considering the periods of service for Federal Representatives, there are other perhaps less important considerations, but ones which we should think about nonetheless.  The distance which many of the Representatives will be required to travel (along with the travel arrangements they’ll have to make) could’ve been a much more serious objection among those who would be fit for this service if the period of service was limited to a single year, rather than extended to two years.  The situation of the current representatives in the present congress will not provide any arguments related to this subject.  While it is true that they are elected annually, their respective legislative assemblies consider their re-election as almost inevitable.  The election of the Representatives by the People will not be governed by the same principle.

As happens in all such assemblies, a few Representatives will possess superior talent, will become long standing members of Congress after frequent re-elections, and will likely become very thorough masters of the public business, and thus perhaps not unwilling to avail themselves of these advantages.  The greater the number of new Representatives, and the less information which is available to the bulk of them, then the more likely they will be to fall into the traps which have been laid for them.  This remark is just as applicable to the relationship which will exist between the House of Representatives and the Senate.

The advantages of our frequent elections (annual), even in single states which are large and hold only one legislative session during the year, does not take into account the difficulty of both investigating and annulling illegitimate elections in a quick enough manner for the decision to make any difference in the first place, a significant disadvantage indeed.  If votes can be obtained, even unlawfully, and then the illegally elected Representative ends up taking his seat in Congress as a result of such illegal voting practices, he can be sure that he will be able to hold that seat for an adequate amount of time in order to fulfill his purposes.  Thus, a very deadly encouragement is given to using unlawful means to obtain votes.  Therefore, if Congressional elections were to be held annually, then they might end up being very seriously abused, especially in the more distant states.  Each House of Congress is, as it necessarily must be, the judge of the elections, qualifications, and votes of its own members.[7] Either way, whatever improvements experience may suggest to us for simplifying and accelerating the process of dealing with disputed elections, it is likely that such a large portion of the year would unavoidably elapse before an illegitimate member could be removed from his seat, and that the low probability that he actually would[8] be removed from his seat would hardly act as a barrier to unfair and illegal methods of obtaining a seat in Congress being used by those who wished to gain political power.  All of these considerations as a whole justify us in believing that biennial elections will be just as useful to public affairs as they will be safe to the liberties of the People.

Publius


[1]United States Constitution: Article I, Section 2, clause 1

[2]United States Constitution: Preamble

[3]United States Constitution: Article I, Section 8, clause 3

[4]United States Constitution: Article I, Section 8, clause 1

[5]United States Constitution: Article I, Section 8, clause 16

[6]Emphasis added.

[7]United States Constitution: Article I, Section 5, clauses 1-4

[8]Emphasis added.

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