FReeper Book Club: The Debate over the Constitution, Federalist #49

In a purely generic sense, Madison looks at the principles behind performing major surgery to a constitution, examining the interplay between the three departments of government and the people.

² The author of the Notes on the State of Virginia, quoted in the last paper, has subjoined to that valuable work the draft 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.

³ 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.

⁴ 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.

⁵ 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.”

⁶ 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.

⁷ The several departments being perfectly coordinate 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?

⁸ 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.

⁹ 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.

¹⁰ In the first place, the provision does not reach the case of a combination of two of the departments against the third.

¹¹ 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.

¹² 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.

¹³ 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.

¹⁴ 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.

¹⁵ 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.

¹⁶ When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect.

¹⁸ A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason.

¹⁹ But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato.

²⁰ 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.

²¹ 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.

²² 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.

²³ 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 [while] no spirit of party connected with the changes to be made or the abuses to be reformed could mingle its leaven in the operation.

²⁴ The future situations in which we must expect to be usually placed do not present any equivalent security against the danger which is apprehended.

²⁵ 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.

²⁶ We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments.

²⁷ The appeals to the people, therefore, would usually be made by the executive and judiciary departments.

²⁸ But whether made by one side or the other, would each side enjoy equal advantages on the trial?

³⁰ 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.

³¹ 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.

³² The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular.

³³ The members of the legislative department, on the other hand, are numerous.

³⁵ Their connections of blood, of friendship and of acquaintance embrace a great proportion of the most influential part of the society.

³⁶ 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.

³⁷ With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.

³⁸ But the legislative party would not only be able to plead their cause most successfully with the people.

⁴⁰ The same influence which had gained them an election into the legislature would gain them a seat in the convention.

⁴¹ 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.

⁴² 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.

⁴³ They would consequently be parties to the very question to be decided by them.

⁴⁴ It might, however, sometimes happen that appeals would be made under circumstances less adverse to the executive and judiciary departments.

⁴⁵ The usurpations of the legislature might be so flagrant and so sudden as to admit of no specious coloring.

⁴⁷ The executive power might be in the hands of a peculiar favorite of the people.

⁴⁸ In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party.

⁴⁹ But still it could never be expected to turn on the true merits of the question.

⁵⁰ It would inevitably be connected with the spirit of pre-existing parties or of parties springing out of the question itself.

⁵¹ It would be connected with persons of distinguished character and extensive influence in the community.

⁵² It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate.

⁵³ The passions, therefore, not the reason, of the public would sit in judgment.

⁵⁴ But it is the reason alone of the public that ought to control and regulate the government.

⁵⁶ 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.

⁵⁷ It appears in this that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose.

⁵⁸ How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine.

⁵⁹ Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

At this point the student of American history could be forgiven a certain impatience at a lacuna within this series of essays. Where is Jefferson? Where is the author of the Declaration of Independence, the Renaissance Man, the leading theorist in everything in American science to which Dr. Franklin had not already laid claim? Where is the co-author, alongside Madison himself and no less a figure than George Mason, of the constitution of the state of Virginia?

He has arrived at last, and it is through the only full-length book that Thomas Jefferson ever penned that the reader gets a glimpse of the ringing that must have echoed off the walls in Pennsylvania when the Constitution was hammered into shape like red-hot iron on an anvil.

² The author of the Notes on the State of Virginia, quoted in the last paper, has subjoined to that valuable work the draft 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.

It was not, in fact. The next major revision of the Virginia Constitution would have to wait until 1830, some four years after Jefferson’s death. But the Notes on the State of Virginia offer Jefferson’s proposed solution to the problem described by Madison in his previous essays: in a government whose major powers are separated, but whose functions are intermingled in a manner sufficient to provide for checks and balances, how could that government, within its structure, prevent one of those branches from accruing power outside the intended scope of the foundational documents?

The answer is, for modern readers, rather more startling than it must have been for the readers of the Federalist Papers. Jefferson recommends, in this case, nothing less than another constitutional convention. There are attendant problems with this particular approach, however, and the bulk of this essay is Madison’s exploration of what they might be. With respect to the government of the state of Virginia:

⁵ His [Jefferson's] 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.”

It is a measure of how far the federal Constitution has come in terms of legitimacy that the modern reader regards this proposition as radical, and it will become apparent shortly (13) that Madison even hoped for that sort of legitimacy. Certainly that recourse is sound in theory.

⁶ As the people are the only legitimate fountain of power...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.

So the question Madison is posing in this essay is why this approach cannot be the primary means of ensuring that one of the three branches of government does not expand its powers at the expense of the others. He finds three objections.

The first is that the provision that two-thirds of the branches of government must reach the decision by a two-thirds majority is itself too stringent (12); that in fact one branch of government might find that one-third plus one of any other branch might serve to prevent remediation through this mechanism. Prior to the advent of party politics, yet to develop in the United States at the time of this writing, the critic might wonder why the latter might ever wish to do such a thing. In the presence of party politics it becomes obvious.

Madison’s second objection is that frequent resorts to this measure might diminish the government’s legitimacy, depriving it of “that veneration which time bestows” and threatening that government’s “requisite stability” (13). Part of this difficulty lies in the very notion that a republican form of government is overlaid on a democratic – popular – form of consent, and that the former risks the advantages of representative government by resorting too often to the latter. There are severe limitations to the ability of the people to govern directly without the structure of a representative government, foremost among these being a government swayed constantly by the passions of the mob.

⁵³ The passions, therefore, not the reason, of the public would sit in judgment.

The third objection to frequent callings of constitutional conventions is that the appeal to the people cannot be direct even through such conventions, that in practice the legislative, being the closest to the people and the more numerous (26, 33, 34), might find in the system no real barrier to the aggrandizement of power. The reason is that such a convention must consist of members, and that those of the legislative branch would constitute the most likely membership, either personally or through the action of allies or agents (39, 42). As well, this might offer a means for a persuasive individual in the executive to inflame popular opinion in favor of the “legislative party” (48). A classicist might think of Pericles in this regard, but Madison was likely thinking of Cromwell.

Madison feels that he has established, as subsequent history has shown, that “mere declarations...are not sufficient to restrain the several departments within their legal rights” (56). And, “It appears in this that occasional appeals to the people would be neither a proper nor an effectual provision...” toward that purpose either (57). What would, then? The current essay leaves that question open.

But in fact, the proposed Constitution did contain a provision quite similar to Jefferson’s system, and it empowers not any of the branches of the federal government to call a Convention for Proposing Amendments, but only the Legislative, a mechanism that seems at odds with Madison’s clear expression of suspicion toward that body’s propensity toward the aggrandizement of power. Or it may be its source, because Article V empowers not only the Federal Legislature to call such a convention, but a two-thirds majority of the state legislatures as well. Article V reads:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments...

That is not, of course, a call for an entire new constitution, but a limitation of any such convention to amending that document. That may comfort the modern reader more than it did Madison, for that restriction was, after all, what the Confederation Congress considered the premise behind the Constitutional Convention in the first place. The states, who under the Articles had the right to call the Convention and define its purview, gave it carte-blanche, and in fact that Convention did result in an entirely new plan of government. Madison felt that such a thing was dangerous, and he was right, for he had helped make it that way.

Madison believed that power would accrete primarily to the Legislative branch. While congressional supremacy was the rule after the Civil War, presidents, courts and regulatory bureaucrats have taken most of the power in modern times. Madison even doubts the ability of a convention to correct the problems within a constitution if the people’s passions are raised to fever pitch. Is he right or wrong on this issue, and why?

Madison even doubts the ability of a convention to correct the problems within a constitution if the people’s passions are raised to fever pitch. Is he right or wrong on this issue, and why?

Before I answer the question posed above let me say that I think the legislature still has all the powers it ever had. All that is lacking is a legislature with enough members who actually understand the Constitution, their oaths of office, and who have the intestinal fortitude to simply exercise those powers.

Now to the question.

I think Madison is wrong here but must admit that I GREATLY fear a convention that is not strictly limited as to the issues it may address. I must also admit that I do not know just how the limits imposed on any such convention could be EFFECTIVELY enforced in practice.

Madison believed that power would accrete primarily to the Legislative branch. While congressional supremacy was the rule after the Civil War, presidents, courts and regulatory bureaucrats have taken most of the power in modern times. Madison even doubts the ability of a convention to correct the problems within a constitution if the people’s passions are raised to fever pitch. Is he right or wrong on this issue, and why?

Well, no one knows of course. I think people’s problem today with the idea of another convention is that the original convention was made up of a small group of mostly well intentioned people. Today, our leaders conspire against the common person, using their influence to take our money and distribute it as they see fit. Originally political power was misused for personal enrichment, export import companies, local banks, etc. Now the government's reach is much further into the details of our lives.

Leaders able to make a constitutional convention work, have the ability to make a legislature, presidency and court system work. We wouldn't be talking about this though if we had complete faith in our leaders. If our leaders today prove themselves chronically incapable of acting in a correct manner then how do we reconstitute a group of people able to re-write the constitution? Our state legislators simply don't have the ability of the founders. We would have to turn to people outside any government but they would only have theoretical ideas and today, we don't have the example of thirteen different countries to draw our experience from. Moreover no small group would have the consent of the governed.

Can we fix it? I don’t know but a quote from Reagan helps put it in perspective,

If we lose freedom here, there is no place to escape to. This is the last stand on Earth. And this idea that government is beholden to the people, that it has no other source of power except to sovereign people, is still the newest and most unique idea in all the long history of man's relation to man. This is the issue of this election. Whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves.

The thought about what is happening to us today is disheartening. Other than sensible people having their say, the only path I can think of is for the Federal government to spend itself into bankruptcy and then for individual states to bribe themselves out of the union in return for taking more than their fair share of the debt with them.

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