The Powers of the Convention to Form a Mixed Government Examined and Sustained
From the New York Packet.
Friday, January 18, 1788.

Author: James Madison

To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were authorized to frame and propose this mixed Constitution. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the “appointment of commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same. “The recommendatory act of Congress is in the words following:”WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:”Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION. “From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that could never be deemed an exercise of ungranted power. ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress MAY ALL be appointed immediately by the people, and in two States [1] are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the PRINCIPLE of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The THIRD point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” [2] since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who USURPED THE POWER of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition? But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation.

PUBLIUS.

Wednesday, June 23rd, 2010

Federalist No. 40 brings up a subject I have been curious about since embarking upon this journey through the Federalist Papers in April.  How did the delegates, charged with revising the Articles of Confederation, justify constructing an entirely new government?

Madison lays out the case brilliantly.  First quoting the recommendation of the  Annapolis Meeting in September of 1786,  and then the Congressional Recommendation of February 1787, Madison carefully analyzes the language used.  He emphasizes the words, “such further provisions adequate to the exigencies of the union,” from Annapolis, and the words from the Congressional recommendation “establishing in these states a firm national government,” and “such further provisions…adequate to the exigencies of government and the preservation of the union.”

He then questions, if the goals in the mission statement are “irreconcilably at variance with each other,” i.e.:

a “NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected?”

Madison points out that one phrase deals with means, “alterations and provisions in the articles,” and the other with the ends, “national and adequate government adequate to the exigencies of government and the preservation of the union.” Madison argues the ends are more important than the means.  While this view gave us our Constitution, it is an arguably dangerous view for our elected officials to take, and one that has been employed from time to time throughout our history and other civilizations to justify various acts.

Possibly realizing the danger of this mindset, Madison goes on to argue that, in fact, the it may not be impossible to reconcile the two charges of “alterations and provisions in the articles” with a “national and adequate government.”

He proceeds to walk through each step, stating:

1.  an alteration of the TITLE, could “never be deemed an exercise of ungranted power.”

2. “ALTERATIONS in the body of the instrument are expressly authorized.”

3. “NEW PROVISIONS therein are also expressly authorized.”

4. Is “power is infringed, so long as a part of the old articles remain?”

Madison identifies the major departure from the charge  of Annapolis and the Congressional recommendation as the change in the ratification process, from the requirement of the confirmation of all states, to the requirement of the approval of nine states.  The founders altered the ratification process because they did not want to put the fate of the union in the hands of the 13th state.

While Madison lays out the case for the scope of governmental reform undertaken by the delegates, in the end he reminds us that whatever the delegates proposed, “it is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”

In the end, the judgment rested with the people, as it does with us today.

God Bless,

Cathy Gillespie

 

Wednesday, June 23rd, 2010

Howdy from Texas! What a glorious day for the Constitution! My daughter and I marveled as we heard that a Federal judge had struck down President Obama’s six month moratorium on the drilling of oil in ocean waters. Whether one agrees or disagrees with President Obama’s decision, it is just awesome to see our Constitution’s checks and balances at work. Truly. My daughter and I discussed how the checks and balances keep tyranny from rearing its ugly head. It will be interesting to see what the Judge’s decisions will be through the appeals court process.

This is, of course, an example of why it is tremendously important that we, as citizens and guardians of our country, and our children, our future, know that we have a government of checks and balances. We, America’s citizens, are a delicate, yet vital, part of that balance. Within our voice and our vote is the weight of reason.

I thank you for joining us today and I thank Joseph Postell for his insightful essay! James Madison’s Federalist Paper No. 40 encompasses many pearls of wisdom. I found the following passage to be particularly intriguing:

“..the latter (the convention) have accordingly planned and proposed a constitution which is to be of no more consequence than the paper on which it is written unless it be stamped with the approbation of those to whom it is addressed.” By this he means, the people, through representation. One of the Federalist Paper’s phrases that repeats and repeats in my ear is, one they use quite frequently, (and I do too!) “the genius of the people.”

Awareness, Acceptance. Action. “We the People,” through people like you, are going to spread the word about the United States Constitution and Federalist Papers. We will accept our calling and then “We the People,” will take action, making educated decisions based on a foundation of knowledge. Based upon the principles of our founding fathers we, the modern day, “genius of the people” will persevere and transcend the wills of those who chose to bring America down. Knowledge is power. History is the key to the future. Our Constitutional founding father’s believed this then and we believe it now. They based our Constitution on the trials and errors of history, not ideology or rhetoric. Our Constitution has withstood the test of time. We must preserve, protect and defend the Constitution. It starts with you. It starts with your children. It starts with you family, friends and acquaintances. Spread the word!

God Bless,

Janine Turner

 

Tuesday, June 22nd, 2010

One can only imagine the difficulty James Madison had writing Federalist 40.  The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?

Consider that when the Convention assembled in the summer of 1787, a government already existed in America.  Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles.  Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.

Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!

Indeed, there were difficult legal questions regarding what the Constitutional Convention did.

Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”

In answering the first question, Madison defends the legality of the Convention’s recommendations.  In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles.  But if these two objectives were incompatible, “Which was the more important, which the less important part?”  The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.

Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it?  Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”?  At what point does altering the government become destroying it?

Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them.  Under the Constitution “the states are regarded as distinct and independent sovereigns.”  Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.”  Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”

Madison admits that the Convention departed from the Articles in one respect: the amendment process.  However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”

Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.

In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject.  Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”

The Constitution was ratified by the people, not by the Convention.  How could the people lack the legal authority to change their Constitution?  The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence” to forms “would render nominal and nugatory, the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”

The lessons of Federalist 40 are important even today.  Madison explains that in a free society the people are the masters of the government, rather than vice versa.  In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.

The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change.  Such a government would deny the people the basic right to govern themselves.  Instead, the Founders left us an amendment process because they foresaw the need for future changes.

However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government.  Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.