Unpacking Federalist 39: Madison's Blueprint for American Power

Dr. Beienberg explores Federalist 39, Madison's comprehensive explanation of how the Constitution blends federal and national elements to create an effective yet balanced government structure.

• Federalist 39 first defends the Constitution as establishing a republican government where all offices are filled directly or indirectly by the people
• Madison distinguishes between federal systems (power flows up from states) and national systems (power flows down from central authority)
• The Constitution creates a hybrid system taking the best elements from both approaches
• The scope of federal powers is limited (federal principle) while the execution of those powers is direct (national principle)
• The legislative branch embodies this mixture - Senate (federal) and House (national)
• The Electoral College, amendment process, and constitutional ratification also blend federal and national characteristics
• This mixed approach prevents the federal government from overreaching while enabling it to execute its enumerated powers effectively

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Episode Transcript

Speaker 1 (00:00):
Welcome back to our essentially.
We have this now whole thing onthe Federalist Papers, and I'm
excited to have Dr Beinberg backwith us, and I'm actually
really excited to talk aboutFederalist 39.
Because, again, if you've beenlistening, I was an AP Gov
teacher for a while and so wedid, you know, 10, 51, 70, 78.

(00:20):
And 39 is not one that I amfamiliar with, and 39 is not one
that I am familiar with.
So, dr Beinberg, can you kindof help us understand what was
the main idea of Federalist?

Speaker 2 (00:31):
No 39?
Federalist 39,.
I'm excited to do this becauseFederalist 39 might be my
favorite of the Federalistpapers.
There's a little sort of with apiece of something from
Federalist 45 that are oftenpaired together.
So Federalist 39 does has, Iwould say, sort of two main
ideas the one that I think isthe more important that I'll
spend the most time on, but Iwould be negligent if I didn't
at least nod to the first one.

(00:52):
So the first third or so ofthat paper is a defense that the
Constitution is a Republicangovernment.
And Madison, you can see, is alittle prickly about this
argument because he thinks it'skind of a.
He seemingly thinks this iskind of a dumb argument that he
even has to answer this.
But he effectively says yes,it's a Republican form of
government which we all agree iswhat we want.

(01:13):
We're not a monarchy, we're notan aristocracy, we are a
republic.
And he goes through andbasically says and what do we
all pretty much agree means arepublic?
Well, that, if you know, it'snot a direct democracy, we're
not taking a massive poll onevery issue.
But he says basically, the coreof a republic is that all of

(01:33):
the offices are filled eitherdirectly or indirectly by the
people and from the people,right?
So, yes, he says you know thejudges, no one's voting for the
judges, but you're at leastvoting for somebody who votes
for somebody who votes for thejudges, right?
So he says, at the end of theday, look, look at this entire
institution.
There's nothing in here that'shereditary.

(01:53):
Everything except for thejudges, which, he says, and you
probably want these, is life.
Tenure, but everybody exceptfor them is on fixed terms.
They can be removed.
Tenure, but everybody exceptfor them is on fixed terms, they
can be removed.
Everybody can either beimpeached or voted out of office
or kicked out of office, sothat the people ultimately
maintain, if not the sort ofmicro level of managing every

(02:14):
particular policy, they are ableto choose the broad contours of
their political society.
So he goes into that a littlebit more, but that's basically
the core of his case.
It's like, yes, this isobviously a Republican form of
government.
All of these positions somebodyvoted for, either the person in
office or the person who votedfor the person in office.
We are not, you know, absoluteFrance.

(02:37):
Knock it off.
Then the core of the Federalist39 is a discussion about the
institutional arrangements ofthe division of power between
the central government and thestate governments, and this is
part of why the term Federalist,federalist Papers, federalism

(02:57):
there's some overlap among theseterms and I know students get
very easily confused on this andthen the party as well.
But a little bit of, and I'lltry not to be too political
science-y about this.
But the fundamental divisionbetween two kinds of governments
are what would be called afederal government, which
doesn't just mean central.

(03:18):
Federal means that it isbasically power is decentralized
and divided, with primaryauthority lying with the lower
levels of power, so in this casethe states In Canada it would
be the provinces, in Mexico it'sgoing to be states.
But federal means thatbasically presumptive power lies

(03:40):
with the lower ranking units.
By contrast, politicalscientists would call it unitary
, madison uses the term national.
But this is a government inwhich power starts at the top,
with whatever the centralgovernment is, and they hand
power down to the lower units.

(04:00):
So fundamentally federal sortof bottom up, the bottom builds
the top.
In national or unitary, the topbuilds the bottom and basically
everybody recognizes that theywant a federal government.
In the United States this iswhat the Articles of
Confederation was.

(04:21):
There is very little appetitefor switching to a unitary
government because from theirperspective that was one of the
problems with the British Empire.
We don't want that, but werecognize that we've tilted too
far toward federal.
So we need to push in a coupleof places toward more national,
not because national isinherently better, but

(04:41):
Federalist.
39 is a sort of piece-by-pieceargument where Madison says
these are the advantages offederal, these are the
advantages of national.
Let's combine them in ways thatmight look weird but will
actually give us the best ofboth worlds.
And so he says is this afederal government?
Is this a national government?
He says it's fundamentallyparts of both and let's get the

(05:03):
best parts of both.
And so he says, for example, interms of the scope of the
powers of this federalgovernment, he says it is
fundamentally federal.
Why?
Because the only powers thatcan be exercised by the United
States government are thosewhich are specifically

(05:24):
enumerated to it by the USConstitution.
All the other powers remainwith the state government.

Speaker 1 (05:28):
And enumerated specifically means they are
listed.

Speaker 2 (05:31):
Yes, they're spelled out, congress shall have the
power to do X.
Article 1, section 8 is most ofthe list, but basically
Congress has the power to do X.
You don't have to say the statehas the power to do X.
The state can do it unlessyou've told them no under a
federal system.
So the scope of the powers arefederal.
Feds can only do what thestates have given them authority

(05:51):
to do.
Beds can only do what thestates have given them authority
to do.
Conversely, though, madisonsays the execution of the powers
is national, because no longerand this is arguably the most
important shift from theArticles of Confederation to the
US Constitution it's stillfederal, but its execution is

(06:12):
now national.
The federal law is nowimplemented by a federal
executive and adjudicated in afederal court system, rather
than before or in a pure federalsystem where the central
government says states, pleaseexecute our law for us.

(06:33):
You can see it's not quite theright analogy, but you can see
an analogy of this with, say,the United Nations.
Right, the United Nations can'tjust straight up say this is
happening.
They make a sort of request ordemand of the nations in this
case.
So in this case, with theexecution of federal law, the US

(06:54):
government can now execute itsown law.
That's national.
So Madison says this gives youthe best of both worlds because
you don't have to fear thisfederal government is going to
be micromanaging your life ordoing all sorts of things.
But when we have decided thatwe want the federal government
to have a power, by giving itthat constitutional authority we
can cut out the middleman ofhaving the states then execute
the law and have their own sortof incentives.

(07:16):
Oh well, you know we've got to.
We'd love to spend money onthat, but we got potholes right
Like no.
It's executes itself.
So the scope is federal, theexecution is national.
And then he goes on and worksthrough the various institutions
of the United States governmentto make sort of a similar
analysis.
So he says okay, thelegislative branch is the most

(07:37):
important part of any Republicangovernment.
How is it allocated?
And he says well, we have onehouse, the Senate, that is
selected by the states.
That's how it would be in afederal government.
Suriname and the United Statesand Canada and Libya all have

(07:58):
the exact same numbers of votesin the United Nations.
It's a treaty, so it's notquite the same, but it's
functionally.
As an illustration of this, itdoesn't matter how big or
important you are.
In a federal system, everybodygets sort of the same influence
because you're treated as therelevant unit.
Is that sovereignty?
So he says that looks federal.
On the other hand, the way thatwe're allocating the House of

(08:21):
Representatives is divided bythe entire population of the
United States, broadly speaking,and that, he says, looks
national.
So the British would look atthis and say this is crazy.
You can't have this mixed,theoretical, this theoretically
messy system.
And Madison says, why not?
We get the advantages of both.
So there are legislativechambers, one house is federal,

(08:44):
one house is, he says, national,and we would say unitary.
Then says let's look at thepresident, it's the same thing.
The electoral college isallocated by a mix of the number
of the house plus the number ofthe Senate.
So it is literally divided interms of how it's allocated by
this same sort of mixed system.

(09:05):
The constitutional amendmentprocess, generally stuff will be
proposed by Congress but thenit has to be approved by the
state.
That's how it would be federal.
So that system is mixed,although he notes that there is
also the way just to go straightthrough state to state, where
the state proposes and then thestates ratify.
But he doesn't say that's thething there, but that's part of

(09:26):
the process.
But the amendment process ismixed.
And then he says how do weratify this constitution?
It's federal.
No state can be forced toparticipate.
Rhode Island can go be its ownlittle independent country even
though all the states around ithave ratified it.
So no one is forced toparticipate in this.
So Federalist 39, I would say,forced to participate in this.

(09:48):
So Federalist 39, I would saythere's a couple little punchier
quotes in, like Federalist 45that we'll talk about with the
Federalism podcast later.
But Federalist 39, I would say,is the clearest and most
thorough and most systematicexplanation of the ways in which
the United States government isnot a purely federal system,
it's not a purely nationalsystem, it's a mixture and I

(10:09):
would say from the perspectiveof today's politics, and it
shows the importance of theUnited States being at least a
partly federal system ratherthan a purely unitary or
national one.

Speaker 1 (10:23):
All of that is in Federalist 39.
I mean that's quite an argumentby Madison.
And can I ask we know for surethat Madison wrote this, because
I know that some of theFederalist papers we're not
really sure, but some of them weknow for a fact that they wrote
them.
Dr Weinberg, again thank you somuch for the explanation.
I know you said a little bitmore political science, but
again it describes why we arewho we are.

(10:43):
Thank you so much for thatexplanation.
I know you said a little bitmore political science, but
again it describes why we arewho we are.
Thank you.