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Federalist No. 37

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Concerning the Difficulties of the Convention in Devising a Proper Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.

Author: James Madison

To the People of the State of New York:

IN REVIEWING the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitution, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough survey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculating its probable effects.

That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests.

It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it.

Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.

With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention.

The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.

Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part.

Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the ermination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.

To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.

Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it.

Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.

We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments.

PUBLIUS.

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Federalist No. 37 – Janine Turner

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Howdy from Washington, D.C. Cathy, Juliette and I visited the Supreme Court today and Senator Scott Brown at the Capitol. I wanted to talk with him about laying a wreath at President John Adams grave since Senator Brown is from Boston and John Adams is from Quincy, just outside of Boston. As it so happened he already had that on his books! Yea! Be sure to watch our behind the scene video tonight! It is fun. Juliette worked really hard on it.

Be sure to show it to your kids as it may give them ideas for our contest!

Tonight’s Federalist Paper No. 37 by James Madison was just brilliant. I am going to simply transcribe some of my favorite statements because they are so thought provoking and wise and well, what more do I need to add, except that every member in Congress today should be required to read them.

“It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation, which is essential to a just estimate of their real tendency to advance, to obstruct, the public good.”

“Nor, will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, we liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.”

“The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands.”

“But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.”

“.. delineating the boundary between the federal and state jurisdictions…”

“The real wonder is, that so many difficulties should have been surmounted; and surmounted with an unanimity almost as unprecedented, as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance, without partaking of the astonishment. It is impossible for the man of pious reflection, not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.”

“.. we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed in a very singular degree, an exemption from the pestilential influence of party animosities; the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention, were either satisfactorily accommodated by the final act; or were induced to accede to it, by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good and by a despair of seeing this necessity diminished by delays or new experiments.”

THIS IS THE WISDOM WE NEED IN THE LEGISLATIVE AND EXECUTIVE BODIES TODAY. (AND NOTICE HE WAS NOT AFRAID TO MENTION “THE ALMIGHTY.”)

God bless,

Janine Turner

June 17, 2010

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Federalist No. 37 – Cathy Gillespie

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Wow! What a day!  We wrapped up the last day of Janine and Juliettte’s Constituting America’s East Coast Tour with a wonderful morning at the Supreme Court.  We learned about Chief Justice John Marshall (considered one of the greatest Chief Justices of all time), Marbury vs. Madison (which established the principle of judicial review), and some interesting trivia about who can qualify to be appointed as a Supreme Court Justice!  We saw the beautiful chambers, and some other parts of the building not often seen. We even saw the bust of John Jay, one of the authors of the Federalist Papers! It is interesting this third branch of the government did not have a permanent home until the Supreme Court building was opened in 1935.

On a personal note, I had a bit of a challenging day, as we found a leak in my closet (and mold!), I got stopped by the Capitol Police because I didn’t put on my turn signal before turning (and had left my purse at home with my driver’s license in it!) and my health insurance was accidentally cancelled (it has since been reinstated), but in between all those events, Janine and I kept reading today’s Federalist Paper, No. 37, and discussing it, so we could get ready to write our essays tonight!

I found Federalist No. 37 a breath of fresh air, after wallowing in the weeds of taxes for the last seven papers.  It was nice to take a break, and zoom out to the big picture of the Constitution once again.  Madison, the father of the Constitution, is the perfect voice to remind us of the challenges that had to be overcome to produce this majestic document, a perfect balance of energy, stability, and liberty!

In this current environment of political polarization and bickering, I was especially interested in Madison’s observation that, “In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question.”

Today’s frenzied pace of life, which is so dependent on sound bites, and video clips, leads even more to  elected officials and citizens who are tempted to pre-judge proposed policies without trying to understand them.  Simply because a proposal comes from one political party or the other leads to snap judgments, and subjective analysis.  To solve the tough problems our Nation faces, we need to find more of those who have “a sincere zeal for the happiness of their country,” and “a temper favorable to a just estimate of the means of promoting it.”  We need more people in our country today – citizens and leaders – who are willing to objectively consider proposed policies, and find common ground to work for solutions.

Of course, it is hard to find common ground if we aren’t starting from the same foundation.  That is why it is so important that we understand the founding principles of our country.

As we think about our own government and citizens, bitterly divided by factions, we can see that it was truly a miracle that the Constitution was produced!  Madison’s quote:

“The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution,”

reminds us of the hand of God in the proceedings of the Constitutional Convention and the miracle that took place there.

May the miracle of the Constitution serve to inspire us and our leaders to work towards common goals and solutions, grounded in the founding principles of limited government, free enterprise and individual freedom.

What a gift it is to read the words of our founding fathers, and let them light our way!

Good night and God Bless,

Cathy Gillespie
Friday, June 18th, 2010

 

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Federalist No. 37 – Concerning the Difficulties of the Convention in Devising a Proper Form of Government, From the Daily Advertiser (Madison)

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist Nos. 37 and 38 depart from Publius’s usual fare of panoramic examination of the weaknesses of historic confederations or dissection of particular objections to the Constitution. Instead, Madison takes up the cause of the project as a whole and of those who remained in Philadelphia to see it through. The thematic thread running through Federalist 37 is “fallibility,” with repeated reminders of human limitations that call for humility and compromise.

His style varies, moving from the evocative tone of the raconteur to the righteous indignation of the remonstrator to the mild defensiveness of the weary apologist. His annoyance with the quantity and variety of criticisms is palpable. He impugns the motives of opponents whom he accuses of a “predetermination to condemn.” Unlike the uncritical enthusiasts who support the project and whose motives may be good or ill, these opponents have no good or even excusably misbegotten motives. To Madison, they act from personal gain or the unwavering arrogance of their  righteous certitude.

Madison fears that the project might, like Gulliver, become tied down by the carping of Lilliputian critics. He knows that delay works against success of any significant and controversial political innovation. He declares, therefore, that he will appeal not to minds already made up, but to the honestly persuadable reader. He pleads with readers to consider the difficulties inherent in an undertaking as momentous as the crafting of a constitution, difficulties that necessarily result in imperfect compromises that expose points for easy attack. It has been said, “A camel is a horse designed by committee.” The Constitution is a camel, a durable and adaptable animal to be sure, but not a sleek and pampered horse planned by “an ingenious theorist…in his closet, or in his imagination.”

Benjamin Franklin, in a speech near the close of the Philadelphia Convention, revealed his doubts about parts of the Constitution. Ever the committed skeptic, he then declared his support “because I expect no better, and because I am not sure, that it is not the best.” Franklin expressed hope “that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility” and sign the Constitution. As Madison writes in the next essay, no government is perfect, so that form which is least imperfect is best.

Madison describes the difficulties faced by the Convention in balancing energy in government, stability of laws, and republican liberty, that is, those fundamental characteristics of good government that can be at odds with each. All constitutions share minimum common ground in that they reflect by whom and how governing authority will be exercised. He lays out the delicate balance the Convention had to strike in ordering that authority:

The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time the same. A frequent change of men will result from a frequent return of electors; and a frequent change of measures, from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

Republicanism. Liberty. Stability. Energy. Ideas that animated the Framers, as reflected in numerous essays by Publius, those were also the objects of the Convention’s plan. That plan had to be practical, driven by experience, not by unbending fidelity to some abstract theory. The vastness of the project and the limitations of human ability complicated the task. It was not merely determining the republican operation of government through elections and representation. It was also the daunting work of designing a new federal structure by balancing the state and national political domains, and of properly calibrating the separation and interaction of the three branches of the national government, all while damping the jealousies among states and regions.

This endeavor is made difficult by the “indistinctness of the object [the absence of fixed rules of nature to show how these institutions should be designed to accomplish the objects of the plan]; imperfection of the organ of perception [the fallibility of the human mind that prevents us from recognizing the perfect path], inadequateness of the vehicle of ideas [the limitations of language in the expression of ideas].” Madison regrets that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.” Interpretation of written text must start with the words. But every writing suffers from the inherent vagueness and imprecision of language. For contracts, laws, and constitutions, which affect groups of persons, the reader’s mere subjective impression will not do, and recourse must be had to various extraneous sources of meaning. Those imperfections may mar the Constitution; but they will also mar any alternative.

Madison is moved to wonder “that so many difficulties should have been surmounted….It is impossible for any man of candour to reflect on this circumstance, without partaking of the astonishment. It is impossible, for the man of pious reflection, not to perceive in it the finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Due recognition of the fallibility of all involved requires of them humility about their own wisdom and at least a spirit of sensible compromise (though not, by that, a lack of firm principles). Those are the marks of statesmen in contrast to mere politicians, and Madison calls on both sides to be statesmen.

Good advice through the ages.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

Thursday, June 17th, 2010

 

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Federalist No. 38 – The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed, From the New York Packet (Madison)

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

While Federalist 37 defends the Philadelphia Convention and the Constitution by recalling the difficulties involved in completing such a complex and novel undertaking, Federalist 38 is a full-throated attack on the Antifederalists. To counter the accusations—at least formally defensible—that the Convention was a revolutionary body that threatened liberty, Madison first reminds his readers that the Convention differed from historical procedures for constitutional innovation. Traditionally, such change was put in the hands of (or seized by) a single law-giver. The danger to liberty posed by such a charismatic leader was avoided by the use of a multitudinous assembly. On the other hand, such an assembly has all the characteristics of faction that he described in the previous essay as making the Convention’s work so difficult.

After this rather mild prologue, Madison sets to work. He likens the United States to an imperiled patient and the Convention to a panel of physicians. The latter agree that the situation is critical, but not so desperate that it cannot, “with proper and timely relief…be made to issue in an improvement of his constitution.” [Here the reader pauses briefly to acknowledge the clever pun.] Then a prescription for relief is made, only to trigger an invasion of nay-sayers who, though they admit the danger, alarm the patient against the cure and prohibit its use. This reminds one of risk-averse bureaucracies that prohibit or stall the use of new drugs for grave conditions because the potential side-effects are not entirely ascertained.

Worse, the objectors cannot agree exactly why the cure is bad. Nor can they agree on an alternative. Madison obviously relishes the opportunity to list various objections, all arranged for maximum ridicule. Though he avoids names, Madison’s examples likely would have brought to readers’ minds various specific opponents, particularly in the New York and Virginia ratifying conventions. Mocking the opponents’ portrayed disunity in order to blunt the dangerous calls for a new convention that were resonating with the public, Madison uses the variety of the objections to declare that the Constitution would likely be immortal if it were put in effect “not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. [Emphasis in original.]”

His role as a champion of the Constitution prevents him from giving rhetorical quarter to his opponents, but they were not the intemperate and intellectually vapid lot Madison portrays through his caricatured compilation. Opposing specifics of the Convention’s product hardly makes one deserving of ridicule. Madison should know. Of 71 proposals he made or strongly and openly supported at the Convention, he lost 40 votes. His desired constitution would have looked remarkably different and more nationalized than what emerged.

Both sides were composed of patriots who ardently desired the success of the republican experiment and the United States. Both sides also had partisans who pursued the more parochial interests of their respective states, as well as their own personal objectives. Usually these conflicting interests operated in the same individuals to varying degrees. The strategic disadvantage the opponents suffered was that they were not a tight-knit cadre, as the writers of The Federalist were. And, of course, they lost. The victor writes the history. But many of them were leading intellectuals, lawyers, politicians, and other educated members of the country’s elite. As Publius infrequently identifies the writers to which he is responding in a particular paper, I should like to take a few lines to mention some of the opposition leaders.

The many effective and famous Antifederalists included Patrick Henry and George Mason of Virginia, Samuel Chase and Luther Martin of Maryland, and Samuel Adams and Elbridge Gerry of Massachusetts. Some opposed the whole project; Henry declared he did not attend the Convention because he “smelt a rat.” Others just wanted a bill of rights. George Mason was one of the most important contributors at the Convention, but, along with Gerry, declined to sign when the Convention refused consideration of a bill of rights. Still others eventually supported the Constitution with varying degrees of enthusiasm.

Many Antifederalists used pseudonyms, in the custom of the day. There was Robert Yates, writing sixteen papers as “Brutus.” Judge Yates was a New York delegate who attended the Philadelphia Convention with Hamilton but left when the delegates moved beyond their charge only to consider revisions to the Articles. A moderate opponent, he was later recruited as a Federalist Party candidate for governor. His influential writings were widely circulated and known for their constructive and analytical criticisms, many of which, unfortunately, have manifested themselves over the years in the federal government that has evolved. Contrary to Madison’s claim, Yates often made suggestions for alternatives. It is curious that Publius never mentions Brutus by name (as he does a few others), although reading the former’s writings, it is clear from the language and the order of argument that he is often responding to the latter’s critiques.

George Clinton, likely author of seven “Letters of Cato,” was the longest-serving governor in American history at 21 years and a two-term U.S. Vice President. He presided over the New York convention and was a moderate opponent of the Constitution who favored adoption conditioned on amendments. His “letters” were widely read, and some historians believe that the effectiveness of his letters impelled the Constitution’s supporters to write The Federalist in response. Cato is specifically mentioned by Publius.

“A Federal Farmer” is traditionally associated with Richard Henry Lee of Virginia, a career politician who was, among many other things, a member of the Confederation Congress. More recent scholars believe that the writer is attorney Melancton Smith, a member of the Confederation Congress and the New York ratifying convention. Hamilton considered the Federal Farmer the most persuasive of the Antifederalists, and refers to him in Federalist 68. The tone in the two pamphlets containing eighteen letters is generally analytical, readable, and moderate. That makes it less likely that Lee, an emotional and powerful orator, is the author. Smith eventually voted for the Constitution, with amendments.

Towards the end of the paper, Madison engages in a dubious tactic of defending the Constitution by declaring the ways that the Confederation has exercised broad powers. That may seem good in theory, but it is unlikely strategically to convince those who are weighing arguments for and against the Constitution. Though the point is to make the Constitution sound tame, one can just as easily draw a different conclusion: If the Confederation Congress is so dynamic, why is there need for change? That said, inducing most of the states to cede their western territorial claims to the United States, taking control of the territory, and passing the Northwest Ordinance as a model of colonial administration for the territory was probably the Confederation’s finest domestic policy success and showed the—ultimately unrealized—potential of the Articles.

Friday, June 18th, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

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Federalist No. 41 – General View of the Powers Conferred by the Constitution, For the Independent Journal (Madison)

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In a lengthy essay, Madison embarks on a series of defenses of Congressional powers that he pursues in more detail through Federalist 46. In Federalist 41, he proposes to divide that task over the course of the following several essays by examining whether any particular power is unnecessary and improper and also whether the entire mass of powers is dangerous to the continued vitality of the states.

He opens with a reminder that, in the end, the Constitution is a practical undertaking, not a theoretical blueprint for an ideal state. He derides the opponents as having “chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power of trust, of which a beneficial use can be made.” He proceeds with a powerful and very relevant indictment. “[This tactic] may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good; and that in every political institution, a power to advance the public happiness, involves a discretion which may be misapplied and abused.”

This passage richly describes a basic phenomenon in politics. Human institutions are designed by imperfect beings to control imperfect beings and administered by imperfect beings. “A government of laws, not of men,” matters, but only to a point. In the end, government is still administered by humans. Perfect systems are imaginary. “Utopia,” which we treat as if derived from the Greek “Eutopia” (a good place), actually is Greek for “not a place.” Utopias do not exist. Rhetorical appeals over potential, yet unrealized, abuses of power are a staple of political discourse. When considering the merits of politicians and political choices, there are always ideological purists who accentuate slight differences rather than bountiful similarities. For them, a political figure who does not perfectly reflect their own vision of the perfect system is suspect, and a political choice that deviates even in minor particulars from their utopian views must be condemned. The perfect, as the saying goes, becomes the enemy of the good.  As he did in earlier efforts, such as in Federalist 37 and 38, Madison urges more temperate and balanced reflection.

After some general observations, he returns to a favorite topic of contention, the keeping of a peacetime army. He proclaims that the matter “has been too far anticipated, in another place, to admit an extensive discussion of them in this place.” Yet, he proceeds to declaim about the topic for half the paper, evidence once again of the frequency and relentlessness of the opponents’ attacks. Those attacks resonated with the public and with many delegates because of the troubling history of standing armies and the tension they reflect with republican ideas.

Two passages stand out. The first is, “Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” There are those who will happily give to the government powers to intrude into the most everyday matters, but act aghast when miliary funding is sought or when a state (reacting to the failure of the federal government to carry out its responsibility in such matters) seeks to protect its people from threats to security coming across the border. This kind of attitude inverts the purpose of government, to provide for personal security for people and allow them to pursue happiness as befits them, not to reduce people to a state of dependency on the government for personal needs.

The second passage is, “It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” As Publius has written before, necessity knows no bounds in the law. The first rule of nature, for individuals and societies, is self-preservation. There always exists, as countless writers on political theory have declared, a natural right of self-defense. For the proper exercise of that right, there must be a right to arm oneself with reasonable means, a right that applies to individuals as much as nations. Any attempt to restrict that right will fail, as the impulse to self-preservation will prevail at least in those individuals or societies who have not become personally or civilizationally enervated. Indeed, restricting that right will undermine the legitimacy of the constitution itself, as respect for the whole is undermined by repeated violations of an unsustainable provision.

The last portion of the essay discusses a power that has become a conspicuous symbol of the expansion of government, the power to spend. Madison objects that opponents of the Constitution have mislead the people in arguing that the power to “lay taxes…to pay the debts, and provide for the common defence and general welfare of the United States,” gives the Congress the power to legislate for the general welfare. First, he declares correctly that this is a nonsensical reading. “A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents…must be very singularly expressed by the terms ‘to raise money for the general welfare.’” The general welfare language, then, is not a broad grant of power that would make the following enumeration of powers superfluous and contradictory, but a limitation on the power to spend the revenue raised under the taxing power.

As an interesting historical side note, during the Convention, the clause, derived from language in the Articles, was intended to prevent spending of money for “internal improvements” that promoted the welfare of particular states or localities, rather than the general welfare of the United States. But Pennsylvania’s Gouverneur Morris, a strong nationalist who was also the principal draftsman on the Committee of Style that was responsible for the final wording of the text, surreptitiously inserted a semicolon between the power “to lay and collect…excises,” and the limitation of “to pay the debts….” That made the latter seem like an independent power, just as the other powers were separated by semi-colons. Connecticut’s Roger Sherman discovered Morris’s sleight of hand, and the Convention voted to replace the semicolon with a comma.

Second, Madison defines the general welfare as defined by the following specific clauses. He maintained that position in later debates. Hamilton, in contrast, during the debates in the Washington cabinet over the Bank of the United States, claimed that the other enumerated powers of Congress already include within them an implied power to spend for those objectives. Thus, a power to establish post offices includes the power to pay for them. According to Hamilton, the power to spend for the general welfare goes beyond the objectives listed in the Constitution. That is the long-established view of the Supreme Court, as well.

However, that raises the question of what limits exist on the power of Congress to spend. After all, if Congress can spend for objects not within its enumerated powers, it might be able to do indirectly what it cannot do directly. Spend money to control education, for example. Hamilton insisted that the limit was that the spending had to be for the “general” welfare. Yet, unlike the Convention, he also supported spending on subsidies for manufactures and, after some initial misgivings, on internal improvements. He had a much laxer view of “general” welfare.

Today, that leaves Congress in charge of defining “general” welfare. Since many expenditures are earmarked for projects that benefit particular individuals, companies, or communities, the Congress is adept at cloaking rather everything as somehow affecting the general welfare. The spending power has gone far beyond the understanding of the Framers. Bloated spending may prove to be much more of a threat to the national well-being of the country than the standing armies that prompted such concern.

Wednesday, June 23rd, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

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