Expert: Mary E Webster - 9/28/2007

Question
Can you translate article 30 and article 78 of the Federalist Papers for me? They are hard to understand.

Answer
Excerpt from:
The Federalist Papers: Modern English Edition Two

Copyright 2006

Mary E Webster, translator/editor


Number 30: Taxation: Revenue for National Government

The federal government should have the ability to support the national army.  This includes the expenses of recruiting troops, building and equipping fleets, and all other military expenses.  The Union must raise revenue for other reasons as well.  It must pay the national government’s employees, current and future national debts, and other appropriate expenses.  Therefore, the government must have the power of taxation.

Inability to Tax Leads to Pillaging/Decay
2          Government needs money to fulfill its duties.  Therefore, the power to raise money, as far as community resources will permit, is an essential part of every constitution.

Two evils result if a government doesn’t have enough money.  Either the people will be plundered, as a substitute for legitimate taxation, or the government will sink into a fatal atrophy and perish.

3          The emperor of Turkey [Ottoman Empire] has no right to impose a new tax.  Consequently, the local governors [bashaws] pillage the people without mercy, squeezing from them the money the emperor needs to satisfy his needs and those of the state.

The American Union has gradually decayed for the same reason.  In both countries, if they could legally tax, it would promote the people’s happiness.

State Requisitions => Bad Situation
4    Under the Articles of Confederation, the United States was supposed to have unlimited power to provide for the financial needs of the Union.  But the system of requisitions hasn’t worked.  Congress asks the States the money [requisitions the States] to administer the United States.  The States have no right to question whether the demand is appropriate.  The States’ only discretion is how to furnish the money demanded.

Different parts of these papers have explained the consequences of the requisition system.  Because of this system, we have embarrassed ourselves and helped our enemies feel triumphant.

Remedy: Directly Raise Revenues
5   The illogical system of quotas and requisitions must be changed.  The national government must be able to raise revenues by taxation, as authorized in every well-ordered constitution.  It will rescue us from the inconveniences and embarrassments resulting from limited money in the public treasury.

Opponents: Tax Only Imports
6   Opponents of the new Constitution agree.  But they say that internal taxation should be used exclusively by the State governments.  They are willing to give the federal government external taxation—duties on imported articles.

Power Proportionate to Objective
Prohibiting the federal government from using internal taxation violates the maxim of good sense and sound policy.  Every power ought to be in proportion to its objective.  Commercial imports will never provide enough revenue for the Union’s present and future needs.  It is important to public justice and public credit that we pay the current foreign and domestic debt.  And everyone agrees that some federal agencies are necessary.  Import duties alone would never even meet the federal government’s current needs.  We cannot know its future needs.  Therefore, they can’t be limited. It must have the unlimited power to provide for them.

I believe history proves that, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources.

Banning Internal Tax Leads to Weak Union
7   Some people say that State requisitions will make up the money the federal government will need.  This shows why federal revenue can’t be raised through import taxes alone.  It acknowledges that deficiencies will occur.  And whenever requisitions are used, it will make the Union weak, create conflict between the federal government and the States, and between the States.

In the future, will the States fulfill their requisitions any better than they do now?  If less is required from the States, they will be proportionately less able to answer the demand.  At some point, the States would say: this is the limit of where public happiness will be promoted by supplying the government money and everything beyond this point is unworthy of our care or anxiety.

How can a government, half supplied and always in need, provide for the security, advance the prosperity, or support the reputation of the nation?  How can it possess energy or stability, dignity or credit, confidence at home or respect from other nations?  How will it avoid sacrificing commitments to immediate necessity?  How can it undertake large plans for pubic good?

War Funding Nearly Impossible
8   Let’s look at what will happen during our next war.  Let’s assume, for argument’s sake, that import duties will be enough to pay our debt and fund the peacetime federal government.  Then a war breaks out.  We can’t depend on State requisitions.  The federal government would have to take appropriated funds from their proper objects to defend the States.

During a modern war, even the wealthiest nations need large loans.  For a country as poor as ours, loans are necessities.  But who would lend to a government that has no reliable method of raising repayment funds?  The loans it could get would be the same that loan sharks commonly lend to bankrupt and fraudulent debtors—very small with an enormous interest rate.

Internal Taxes: Emergencies Met
9   Because the country has few resources, some people might fear that allocated funds will be diverted during such a crisis, even if the national government has the unrestrained power of taxation.  But two considerations will quiet these fears: (1) during a crisis the full resources of the community will be used for the benefit of the Union and (2) deficiencies can be supplied by loans.

Internal Taxes Protect Union’s Credit
10  If the national government had the authority to raise money through new taxes, it could borrow as much as it might require.  Both Americans and foreigners could confidently lend to it.  

But to depend on a government that must, itself, depend on thirteen other governments to fulfill its contracts would require a credulity rarely seen in the monetary transactions of mankind and unreconcilable with the usual sharp-sightedness of avarice.

Taxation Issue Needs Attention
11  This discussion may seem unimportant to men who envision a poetic, utopian America.  But to those who believe we will experience our share of the changes and calamities that have fallen to other nations, they are entitled to serious attention.  Such men see the actual situation.  They understand that ambition or revenge too easily inflicts evils upon a country.
                                                           Publius
from:
The Federalist Papers: In Modern Language
Indexed for Today's Political Issues
copyright 1999 by Mary E Webster


Number 78:  Federal Judiciary: Hold Office during Good Behavior


We will now examine the judiciary branch of the proposed government.

Federal Judiciary Necessary
2  After studying the defects in the existing Confederation, the utility and necessity of a federal judicature is clear.  Those considerations don’t need to be repeated because the propriety of the institution in the abstract is not disputed.

  The only questions that have been raised relate to its structure and its extent.  Our observations, therefore, will be confined to these points.

Structure of Federal Judiciary
3  The structure of the federal judiciary seems to include:
1) the mode of appointing judges,  
2) their tenure in office, and
3) the partition of judiciary authority between different courts and their relationship to each other.

1. Appointing Judges
4  The mode of appointing judges is the same as that of appointing other officers of the Union.  This has been so fully discussed in the last two papers that nothing can be said here that wouldn’t be useless repetition.  

2. Tenure
5   The tenure of judges, the conditions by which they hold their offices, chiefly concern their duration in office, provisions for their support, and precautions for their responsibility.

Duration in Office: Good Behavior
6   According to the Constitution, all judges appointed by the United States will hold their offices during good behavior.  This conforms to the most approved State constitutions, including New York’s.

 Adversaries of the Constitution have questioned whether this is proper.  This criticism is a symptom of the rage for objections that disorders their imaginations and judgments.  The standard of good behavior for judges continuing in office is one of the most valuable modern improvements in government.

In a monarchy, it is an excellent barrier to the despotism of the prince.  In a republic, it is no less an excellent barrier to the encroachments and oppressions of the representative body.  And it is the best expedient devised, in any government, to secure a steady, upright, and impartial administration of the laws.

Least Threat to Constitutional Rights
7    Anyone who studies the different departments of governmental power must see that, when they are constitutionally separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will have the least capacity to annoy and injure them.

  The executive not only dispenses honors but holds the community’s sword.

 The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated.

 The judiciary, however, has no influence over either the sword or the purse.  It directs neither the strength nor wealth of society.  It can take no active resolution whatever.

  The judiciary may be said to have neither force nor will, merely judgment.  It even depends on the aid of the executive arm for the efficacy of its judgments.

Permanency in Office: Independence
8  This simple view suggests several important consequences.  The judiciary is incontestably the weakest of the three branches of power.[1]  It can never successfully attack the other two.  And all possible care is required to enable it to defend itself against their attacks.

 It also proves that although the courts of justice may be, now and then, responsible for individual oppression, as long as the judiciary remains truly distinct from both the legislature and the executive, they can never endanger the general liberty of the people.  I agree that “there is no liberty, if the power of judging is not separated from the legislative and executive powers.”[2]

  Liberty has nothing to fear from the judiciary alone, but everything to fear from its union with either of the other branches.  This union, with its negative effects, would happen if the judiciary were dependent on the other branches, despite a nominal and apparent separation.

Because of its natural feebleness, the judiciary is continually in jeopardy of being overpowered, awed, or influenced by the legislative and executive branches. Nothing contributes so much to its firmness and independence as permanency in office.  Therefore, it lastly proves that permanency in office can be regarded as indispensable and, to a great measure, as the citadel of public justice and public security.

Enforce Limited Legislative Authority
9  The complete independence of the courts of justice is particularly essential in a limited Constitution.  By a limited Constitution, I mean one that contains certain specific exceptions to the legislative authority.

For example, that it shall pass no bills of attainder, no ex post facto laws, etc.  Limitations like these can only be preserved in practice through courts of justice with the duty to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of specific rights or privileges would amount to nothing.

Power to Void Unconstitutional Laws
10  The courts will have the right to pronounce legislative acts void because they are contrary to the Constitution.  Because of this, some people have imagined that this implies that the judiciary power will be superior to the legislative power.  It has been argued that the authority to declare the acts of another void must be superior to the one whose acts may be declared void.

Since this is an important doctrine in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

Congress: Actions Limited
11 Every act of a delegated authority that is contrary to the meaning of its commission is void.  This concept couldn’t be based on clearer principles.  Therefore, no legislative act contrary to the Constitution can be valid.

Denying this would affirm that the deputy is greater than his principal, the servant is above his masters, the representatives of the people are superior to the people themselves, that man acting by virtue of powers may do, not only what their powers do not authorize, but what they forbid.

Authority: Constitution vs. Legislature
12  It may be argued that the legislative body is the constitutional judge of its own powers and that the other branches must accept the interpretation it puts on the powers.  But this is not a logical conclusion from any provision in the Constitution.

It can’t be supposed that the Constitution intends to enable the people’s representatives to substitute their will for that of their constituents.  It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature.  Among other things, the courts keep the legislature within the limits assigned to their authority.

 Interpretation of the laws is the proper and specific province of the courts.  A constitution is, in fact and must be regarded by the judges as, a fundamental law.  Therefore, the courts ascertain its meaning, as well as the meaning of specific legislative acts.  If the two should happen to have an irreconcilable variance, the one with the superior obligation and validity should, of course, be preferred.

Or, in other words, the Constitution should be preferred over the statute, the intention of the people to the intention of their agents.

People’s Constitution Superior to Both
13  This conclusion, in no way, means the judicial is superior to the legislative power.  It only supposes that the power of the people is superior to both.

Where the will of the legislature, declared in its statutes, is in opposition to that of the people, as declared in the Constitution, judges should be governed by the latter rather than the former.  They should regulate their decision by the fundamental laws rather than those that are not fundamental.

Decide Validity of Contradictory Laws
14 The judicial discretion of determining between two contradictory laws is exemplified by a familiar circumstance.  Sometimes two existing statutes clash in whole or in part with each other, and neither contains any repealing clause or expression.  When this happens, the courts have the authority and duty to liquidate and fix their meaning and operation.

 So far as they can be reconciled with each other, by any fair construction, reason and law conspire to dictate that this should be done.  When this is impractical, it becomes necessary to give effect to one and exclude the other.

 The prevailing rule in the courts to determine their relative validity is that the more recent shall be preferred to the first.  But this rule is not derived form any positive law.  It is only a rule of construction from the nature and reason of the thing.  It is not enjoined on the courts by legislative provision, but adopted because it is consistent with truth and propriety, to direct their conduct as interpreters of the law.  They thought it reasonable that between conflicting acts of an equal authority, the last indication of its will should have preference.

Constitution Superior to Laws
15   But when a superior, original authority and a subordinate, derivative authority produce conflicting acts, by their very nature, reason indicates that the converse of that rule as proper to be followed.  The prior act of a superior authority should be preferred to the subsequent act of an inferior and subordinate authority.

 Accordingly, whenever a particular statute contravenes the Constitution, judicial tribunals will have the duty to adhere to the latter and disregard the former.

Courts Negating Legislative Will
16  The argument that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature carries no weight.  This could happen in the case of two contradictory statutes.  Or it could during the adjudication of any single statute.  

 The courts must declare the meaning of the law.  And if they were inclined to exercise their will instead of judgment, their pleasure would be substituted for the pleasure of the legislative body.  If this observation proves anything, it proves that there should be no judges distinct from the legislature.

Permanent Tenure of Constitutional Guardians
17  If the courts of justice are to be considered the bulwarks of a limited Constitution against encroachments by the legislature, this duty is a strong argument for the permanent tenure of judicial offices.  Nothing will contribute to the independent spirit in judges, which is essential to the faithful performance of so arduous a duty, as permanent tenure.

Independent Judges Protect Liberty
18 This independence of the judges is equally required to guard the Constitution and the rights of individuals from the effects of ill humors caused by designing men or the influence of particular conjunctures that sometimes disseminate among the people themselves.  Even though they speedily give place to better information and more deliberate reflection, they have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

I trust the friends of the proposed Constitution will never agree with its enemies[3] in questioning that fundamental principle of republican government—that the people have the right to alter or abolish the established Constitution whenever they find it inconsistent with their happiness.  But it is not to be inferred from this principle that the representatives of the people whenever a momentary inclination, which is incompatible with the provisions in the existing constitution, happens to lay hold of a majority of their constituents would, because of this, be justifiable in a violation of those provisions.  And the courts would not be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body.  Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding on them collectively, as well as individually.   And no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

It is easy to see that judges need an uncommon amount of fortitude to do their duty as faithful guardians of the Constitution after legislative invasions of it had been instigated by the majority voice of the community.

Restraint on Bad Legislation
19 But it is not only with a view to infraction of the Constitution that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.  These sometimes extend no farther than to the injury of the private rights of specific classes of citizens by unjust and partial laws.

Here, also, the permanency of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.  It both moderates the immediate mischiefs of laws that have been passed and it operates as a check on the legislative body in passing them.  The legislature, realizing that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

This restraint on bad legislation is meant to have more influence on the character of our governments than many people know.  The benefits of the integrity and moderation of the judiciary have already been felt in more States than one.  And though they may have displeased people whose sinister expectations they have disappointed, they must have commanded the esteem and applause of all virtuous and disinterested people.

Thoughtful men of every description should prize whatever will tend to create or fortify that temper in the courts.  No man can be sure that he may not be tomorrow the victim of a spirit of injustice by which he gains today.  And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence and replace it with universal distrust and distress.

Owe Allegiance Only to Constitution
20   Inflexible and uniform adherence to the rights of the Constitution and of individuals, which is indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

Appointments made for a certain period, however regulated or by whomsoever made, would be fatal to their necessary independence in some way or other.  If the power of making them was committed either to the Executive or legislature, there would be danger of an improper acquiesce to the branch making the appointment.  

If it were a joint appointment by both, there would be an unwillingness to hazard the displeasure of either.  If the people appointed judges, or if they were appointed by persons chosen by the people for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

Limited Number of Qualified People
21  There is yet another, more important reason for the permanency of the judicial offices that arises from the nature of the qualifications they require.

It’s frequently said, properly, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.  To avoid arbitrary decisions, the courts should be bound by strict rules and precedents that define and point out their duty in every case that comes before them.  Because of the variety of controversies that grow out of the folly and wickedness of mankind, those precedents will swell to a very considerable bulk.  Long and laborious study will be needed to acquire a competent knowledge of them.  Hence, only a few men in the society will have sufficient skill in the laws to qualify them for the stations of judges.

After people are disqualified for the ordinary depravity of human nature, the number of people who unite the requisite integrity with the requisite knowledge to become judges is still smaller.

These considerations show us that the government has limited choices between people of fit character.  A temporary duration in office would naturally discourage such people from quitting a lucrative line of practice to accept a seat on the bench.  Temporary tenure would tend to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity.

In our present circumstances, and in those in which it is likely to be for a long time to come, the disadvantages of temporary tenure would be greater than they may at first appear.  However, it must be confessed that they are far inferior to those that present themselves under the other aspects of the subject.

Good Behavior Important Inclusion
22  On the whole, there is no doubt that the convention acted wisely in copying from the models of those constitutions that have established good behavior as the tenure for judges.

Rather than being blamed for including this, their plan would have been inexcusably defective if it didn’t include this important feature of good government.  The experience of Great Britain illustrates the excellence of the institution.
                                                                                               Publius


[1] The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” Spirit of Laws, Vol. I, page 186.—Publius

[2] Idem, page 181.

[3] Vide “Protest of the Minority of the Convention of Pennsylvania,” Martin’s Speech, etc.—Publius