The authorship of Federalist No. 50 is disputed. Whether it was James Madison or Alexander Hamilton, the author’s arguments have ramifications for our current political problems and, in many ways, exemplify the nature of the federal government under the Constitution. Federalist No. 50 opens with the following premise: “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.” The key to the opening is the last capitalized phrase. The author then proceeds to discuss how conventions called for the purpose of “correcting infractions of the constitution” would be neither productive nor “adequate” to remedy unconstitutional abuse of power by any branch of government.
The author used the State of Pennsylvania as an example to prove his premise. Pennsylvania had a Council of Censors in the 1780s that was charged with the task of determining if the State constitution had been violated and if the executive or legislative body was at fault. But most of the men who held a seat on the Council also served in either the executive or legislative branch and they often split into “two fixed and violent parties.” Their conclusions were often clouded by passion and their decisions ignored by the State government. The author concludes, “This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.” States would always divide into groups, and even if the State tried to remedy the problem by appointing men who had not been connected with the constitutional issue at hand, the author argues that, “The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.”
The author, of course, implied that an outside “referee” would be no better to check unconstitutional abuses of government than the “checks and balances” contained within the Constitution itself. The Senate is a check on the executive; the executive is a check on the congress, and the Supreme Court a check on both. But the author failed to consider one of the principle arguments against the Constitution and the checks and balances system: what or who will check federal power if they have a monopoly on the “checks and balances” system? That was the heart of the anti-federalist critique of the federal judiciary, for example. Certainly, Federalist No. 50 was cogent and persuasive, and the amendment process was always showcased as a fail-proof method of altering the Constitution, but the anti-federalists had much to say on the subject.
One of the best arguments against Federalist No. 50 appeared almost four months earlier in the Philadelphia Independent Gazetteer. The author, An Old Whig, contended that the amendment process as written would never produce beneficial changes to the Constitution. He called the procedures for amending the Constitution a “labyrinth,” and thought that before the process was over, “ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loathe to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with….” Perhaps the Old Whig was correct. Only seventeen amendments have been added to the Constitution since the Bill of Rights were ratified in 1791, and in reality only two, the 11th and the 22nd, limited the power of the central government. Others such as the 14th, 16th, and 17th, increased it exponentially.
Interestingly, if Madison was the author of Federalist No. 50, he reversed his position on the issue of an external “referee” less than ten years after the Constitution was ratified. Both he and Thomas Jefferson argued in the Virginia and Kentucky Resolutions of 1798 and 1799 that the States could interpose their sovereignty or “nullify” an unconstitutional federal law. The question was not which branch of government was a fault—both the executive and legislative branch would be culpable under this scenario because congress passed the law and the president signed it—but whether the “checks and balances” system actually worked. The people of the States, the very people Federalist No. 50 impugned as inferior, would thus rule on federal authority. If the president and the congress in concert can ignore the Constitution—national healthcare, the federal stimulus, the nationalization of the auto industry—and if the federal judiciary is, as it often has been, a rubber stamp for federal legislation, how can it be reasonably argued today that checks and balances work? The anti-federalists warned against such logic, and Jefferson and Madison provided the tonic, Federalist No. 50 notwithstanding.
Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He currently teaches History at Chattahoochee Valley Community College in Phenix City, AL.
Tuesday, July 6th, 2010