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The common defense against England nonetheless required collaboration between the new sovereign States.

At first, the union they formed was a confederation. Each state sent two representatives to a Congress which decided solely matters that were common to the different States, without any executive authority over them. In the spring of a convention was held in Philadelphia to reform the Congress and make it more effective.

That convention elaborated a new Constitution, which according to some transformed the confederate structure into a federal structure, and with it a central authority empowered to have recourse if required to the army to impose its decisions on the different States. To take force, the constitutional project had to be ratified by a majority of the States. But as many antifederalists were to note, it was they who were the true federalists, their adversaries being rather partisans of a consolidation, in other words a unification of the different States in a new entity, with considerable if not total loss of their sovereignty and the mode of republican government which that sovereignty made possible.

The draft Constitution elaborated in Philadelphia was finally adopted in the summer of , and the United States of America were born. The problem of the respective competences of the sundry States and the authority of the central government remained to be resolved.

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Moreover, to establish republican forms of government in North America, the large existing States ought to dissolve into a multitude of small republics. North America would thus become a cluster of small republics permanently at odds with each other, and thus easily fall prey to the large European powers. Now the Americans desire neither domestic despotism nor a foreign yoke.

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While the federalists stress the necessity of defending themselves against the designs of the great powers, the antifederalists for their part insist on the necessity of protecting against monarchy and despotism — the two often being considered as identical. And where the federalists think their fears can be assuaged only by a union based on firmer bonds that those contained in the Articles of Confederation, the antifederalists prove more than reticent faced with any suggestion of increasing the powers of the central authority.

In order for a federative republic to assume the defensive task for which it was created, the States constituting it must be of the same nature, republics being much better suited to form such durable federative republics than monarchies or a mixture of republics and monarchies. In the American case, this first condition is met: the American colonies were governed in a republican mode — or one which could pass for one if exception were made of the slaves. If he takes the trouble of citing at length the first chapter of book IX, Hamilton abstains from mentioning this sentence, and for cause: one of the principal reproaches made by the antifederalists to the constitutional project was that its consequence was entirely to absorb the federated States into the federal entity.

For the antifederalists, the new constitution was federal only in appearance, its true substance being national. For them, a republic which has joined in a political confederation has not given itself over entirely, and if it has nothing more to give, that is not because it has given all, but because there are certain things it does not want to give and has perfectly the right to retain. The tenth stipulates that the powers not delegated to the federal government by the Constitution, the exercise of which also is not forbidden to the States, are reserved to them or to the people.

Among the former English colonies there were significant differences, both from the purely geographical and from a demographic, as well as economic point of view — often tied to the first two. Did the States with few inhabitants and thus sending few representatives to Congress, not risk being sacrificed on the altar of the interests of the States with a large population? Did a quarter of the States not risk imposing their law on the other three-quarters?

Herman Belz: A living constitution or fundamental law?

Moreover, the president has a right of veto. For a law to take effect, a collaboration between these three authorities was thus required.


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The fundamental idea was this: a single authority must not hold the fullness of power, that is, of a power which it could exercise in all domains and at its pleasure. The opponents of the constitutional project reproached him for not taking into account the principle of liberty which requires that the three principal political powers be separate and distinct Federalist XLVII, p.

In the discussion of this crucial subject, Madison tried to show that the constitutional project was not affected by that reproach and that his adversaries held a blunted interpretation of the principle of the separation of powers.


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The oracle had nevertheless not invented out of whole cloth the system which he praises in book XI of The Spirit of Law , but found it in the English constitution. So to it Madison turns to point out that it does not recognize a strict separation of the three powers. Basing himself on a reading of the English constitution and the reading that Montesquieu gave of it, Madison reaches the conclusion that this constitution — which, though that of the tyrannical nation from which the Americans have just emancipated themselves, nevertheless remains a paradigm of political liberty — nevertheless does not recognize strict compartmentalization of the three powers but aims solely to prevent one of the powers from having all the attributions that belong to another.

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