The Easy Federalist

The Federalist 37:

Written by James Madison

In looking at the flaws of the existing confederation, it became clear that they couldn’t be fixed without a more powerful government than what was already in place. As the goal of these papers is to clearly and fully determine the merits of adopting this Constitution, we must take a holistic view in calculating its effects.

In order to have a fair result, we must reflect and speaking candidly.

Public measures often lack a balanced approach. The more impactful a subject is, the less likely people are to approach it with an open mind. The proposed Constitution, given its complexity and impact, is likely to stir strong emotions both for and against it. For some, it is obvious that they read it predisposed to condemn. Others read it with a predisposed opposite bias, also putting their opinions in question. I do not mean to depict these views as falsely equivalent, however, in the purity of their intentions. Those reading biased towards the Constitution might be driven by the urgency of the nation’s critical situation, which could be a more forgivable bias than that of the predetermined adversaries. These papers are not meant to address either of these types of people, but rather those who want their country to be happy and can make a fair judgement about it.

These types of people will examine the Constitution not attempting to exaggerate the flaws, and will be realistic in acknowledging that no plan can be entirely without faults given the complexities involved. The framers of the Constitution are only human, and one ought not assume their own opinions are infallible when critiquing the work of others; all are fallible.

Aside from having fair motives, many allowances should be made for the difficulties that come with the task given to the convention.

The task of creating the Constitution is startling. It has been shown in these papers that the existing Confederation is founded on faulty principles, and we must therefore change both the foundation and consequently the structure built upon it. Other possible example constitutions also were founded on poor principles. The best that the convention could do was to avoid the errors of the past and allow for a convenient system that is flexible to change over time as flaws become apparent.

The convention faced a difficult challenge in creating a government that would both protect liberty and maintain stability. An energetic government is crucial for national security and prompt execution of the laws. Stability is necessary for maintaining a national character and for the benefits that come with it. Laws that change regular are not evil in themselves so much as that they are frustrating to the people, and the people will never be satisfied until there is a cure for the unpredictability of the state governments. One may quickly see, however, the difficulty in mixing these valuable desires with the vital principles of liberty. Liberty requires that power comes from the people and that those in charge are changed often. But stability needs the same people in charge for a long time and power in one person’s hands.

• Discussion: How do you think the modern government toes the line between stability and liberty?

It is difficult to say how successful the convention was in this task. From the brief view here, it is clear to have been difficult.

Not less difficult must have been drawing the lines between the federal and state governments; the more one has dealt with intricate issues the more this will be apparent. We have not been able to draw boundaries in domains of the mind even by the smartest scientists. Sense, perception, desire, memory, imagination are found to be separated by so small a gradation that its hard to see where one could draw a line. The lines in nature provide similar truths, the wisest naturalists have not yet succeeded in drawing a line between plants and animals. Even with these broad categories, there are further complexities that defy easy categorization.

Transitioning from nature to government, the complexity in understanding human institutions arises both from the institutions themselves and from the limitations of human perception and understanding. Given these complexities and limitations, we should temper our expectations about what can be clearly understood or defined. Even the most basic elements of government—its three main branches—are not fully understood or easily delineated; within just the legislative branch there are complexities and ambiguities. Even the best experts in government have trouble understanding these matters and they often come up with questions that are hard to answer.

Despite centuries of effort, even the most skilled legal minds have not been able to create a perfectly clear legal system. In Great Britain, various types of law still have indeterminate boundaries despite rigorous attempts to define them. Even well-crafted new laws are subject to interpretation and may not be fully understood until tested in court. Language itself is a source of complexity and ambiguity, complicating the task of creating clear laws; language is inherently limited in its ability to convey complex ideas with clarity. Even when God speaks, it is hard to understand what He means.

Here are three sources of vague and incorrect definitions; (1) the complexity of the matter, (2) the limitations of human understanding, and (3) the limits of language itself as a medium of conveying understanding. The convention, in trying to draw lines between the federal and state jurisdictions, must have experienced the full effect of them all.

In addition to these problems, there is also the issue of large and small states interfering for their benefit larger states, with greater wealth and importance, would naturally push for more representation and influence in the federal government. Smaller states, on the other hand, would be keen on maintaining the level of equality they currently enjoy. We may guess that neither side would fully give in to the other’s demands, making compromise the only solution. Even after reaching a compromise on representation, a new struggle would likely emerge, revolving around how to organize the government and distribute its powers in a way that would favor the interests of whichever side had gained more influence in the compromise. Due to these conflicting interests and the need for compromise, the convention would have had to make concessions that might not align with theoretical or ideal governance models.

Geographical location and local policies would also have led to different alliances or oppositions among states, complicating the process further. Within each state, there are also various districts and classes of citizens with their own interests and concerns, which can lead to internal conflicts. Likewise at a national level various states themselves have different interested that could lead to disagreement and jealousy. While a diversity of interests can be beneficial for the governance of a formed state, it poses significant challenges during the formation phase.

Would it be surprising if, considering all the troubles, the convention had to deviate from what a perfect theoretical constitution? The real wonder is that the framers were able to create a functioning government at all, given the numerous challenges and conflicting interests they had to navigate. It is impossible for an honest man to view this without astonishment, and for a religious man to not see in this the hand of God.

In a previous paper, we discussed the multiple failed attempts to fix the well-known problems of the Dutch government. Most attempts to reconcile differing opinions and interests in deliberative bodies have ended in failure, marred by factionalism and discord. There are rare exceptions where deliberative bodies overcome these challenges, the convention being a singular instance of avoiding these destructive influences. Delegates were either content with the final Constitution or were willing to set aside their personal opinions and interests for the greater good.

The Federalist 38:

Written by James Madison

It is interesting that in every case reported by ancient history where government was established by deliberation and consent, the job of framing it was performed by a singularly wise man rather than a body of men.

Minos was the first to create the government of Crete, while Zaleucus did the same for the Locrians. Theseus, then Draco, then Solon, set up the government of Athens. Lycurgus was developed Spartan law. Rome was founded by Romulus and later developed by two other leaders, Numa and Tullus Hostilius. When the monarchy was abolished, Brutus led the way in making a new government by using a plan from Servius Tullius, which the senate and people agreed to. This idea is also relevant for confederate governments. Amphyction is the person credited with setting up the league with his name. The Achaean league was first started by Achaeus and later by Aratus.

It’s unclear how much power certain lawmakers had over their governments. In some cases, it was very regular. For example, the people of Athens gave Draco unlimited power to change the laws. Solon was chosen by everyone in Athens to reform their constitution. Lycurgus’ process was less formal, but people still wanted him to reform the government instead of having a group of citizens do it.

How could people as protective of their freedom as the Greeks entrust their fate to one person? How could the Athenians, who would not let an army be run by fewer than ten generals and would be concerned for their liberties even just by one citizen gaining fame, think it would be better to have one respected person in charge of their future than a group of citizens? It is hard to explain why this was the case without believing that they were more worried about disagreements between people than they were of one person’s deceit or incompetence. History shows us the struggles the various famous reformers faced, as well as the expedients they had to use, in order to put their plans into effect. Solon admitted that he had not given his people the perfect government, but the one that was most acceptable to them. Lycurgus, more principled to his aim, had to use a combination of violence and religious power, and eventually had to renounce his country and then his life for the cause.

These lessons teach us on one hand to admire the improvement made by America over the ancients in drafting constitutions, on the other hand they warn us of the difficulties related to such experiments and of the rashness of unnecessarily multiplying those problems.

Any errors in the plan proposed by the convention are more likely due to the lack of prior experience in dealing with such a complex subject, rather than a lack of diligence or accuracy in its formulation. The framers did the best they could given the unprecedented nature of their task and the complexities involved; the true test of the plan’s efficacy and the revelation of its potential flaws can only come through its actual implementation. This is rendered more likely by the particular case of the Articles of Confederation.

When the Articles of Confederation were submitted to the states for ratification, none of the objections or amendments suggested by the states pointed to what later turned out to be the Articles’ greatest flaws. New Jersey had specific objections, but these were based on its unique geographical situation rather than any deep insight into the Articles’ shortcomings; any state’s suggestions were not significant enough to warrant revising the Articles. Even though the states’ objections were not particularly significant, some states would have stubbornly stuck to their positions if they hadn’t been motivated by a stronger desire for self-preservation. One state, we may remember, held out on ratifying the Articles for several years, even while facing immediate threats, showing the extent to which local interests could override broader concerns. It eventually agreed to ratify the Articles, not because it changed its mind about them, but because it feared being blamed for prolonging the nation’s difficulties.

A patient with a disorder that is getting worse each day needs an effective remedy quickly or it could be dangerous. After thinking it over and considering the different doctors, he chooses one he thinks is best and calls them in. They look at his case and all agree that it is critical, but if treated in time it can improve. They also all agree on the best remedy. Then, just as the remedy is prescribed, some people intervene and say that in fact it will be bad for him and could even kill him. Is it not reasonable for the patient to ask the dissenters to agree on an alternate remedy before following their advice? If these new advisers can’t agree among themselves on an alternative, the patient would be wise to go ahead with the original treatment that his chosen physicians had unanimously recommended.

America is this patient. She is aware of her illness and has obtained a regular and unanimous advice from men of her own deliberate choice. And some others war against this advice, fearing death. Do these dissenting voices deny that America is in a dangerous situation? No. Do they deny the need for a quick and powerful solution? No. Can they agree on why they oppose the current solution, or what new constitution should be used instead? Let them speak for themselves.

One tell us that the constitution creates a government over individuals rather than a confederation of states. Another person agrees that the government should have power over individuals but thinks the proposed extent is too much. A third person is fine with the government’s scope but wants a bill of rights included. A fourth person also wants a bill of rights but thinks it should focus on states’ rights, not individual rights. A fifth person thinks a bill of rights is unnecessary but objects to the government’s power to regulate elections. An objector from a large state dislikes the equal representation in the Senate. An objector from a small state is concerned about unequal representation in the House. Some object due to the perceived high cost of running the new government. Others argue that the government is too small and should be expanded, even at greater cost. Someone from a non-trading state objects to the federal government’s power to levy direct taxes. Someone from a trading state is concerned that taxes will be levied on goods. Some see the constitution as leading to monarchy or aristocracy. Another group objects to the blending of the branches of government, seeing it as a threat to liberty. There’s no consensus among critics on what specifically is wrong with the proposed constitution or how to fix it.

Let us suggest a hypothetical scenario where the critics of the federal constitution are assumed to be the most capable of creating a better plan. Let us further suppose that the country agrees with these critics and lets them form a second Constitutional Convention to revise the first. One can hardly take such a fiction seriously, but having seen all the disagreements just presented, they would have just as much discord in their deliberations. If the existing Constitution was adopted immediately and in force until a new constitution was drafted, it might be immortal!

It is both surprising and sad that critics focus solely on the new constitution’s flaws without comparing it to the existing, flawed system. It is not necessary that the former should be perfect: it is sufficient that the latter is more imperfect. No man would refuse to trade their brass for more valuable gold, just because the gold was slightly alloyed with other metals. No man would refuse to move from a shack to a mansion just because the mansion lacked a porch or otherwise wasn’t perfect to his desires. Most major criticisms of the new constitution apply even more strongly to the existing Articles of Confederation. Is an indefinite power to raise money dangerous in the hands of a federal government?Currently the states are constitutionally bound to furnish any requests for money by the federal government. Is an indefinite power to raise troops dangerous? The current congress has that power and has already begun to use it. Is it unsafe to mix different powers of government with the same men? The current Congress, a single body of men, already have centralized power. Is it particularly dangerous to give the keys of the treasury and the command of the military into the same hands? Again, the current confederation places both in the hands of Congress. Is a bill of rights essential to liberty? The current confederation has no such bill. Does the new Constitution gives too much treaty-making power to the Senate and the executive? The existing system already allows Congress to make treaties without checks or balances. Is the importation of slaves permitted by the new constitution for twenty years? The existing system permits it forever.

Some may further object that however dangerous this mixture of powers may be in theory, it is actually harmless by the dependence of Congress on the states for implementation. I respond that the confederation has an even greater problem—that of declaring certain powers of the federal government to be absolutely necessary and at the same time rendering them absolutely ineffective. If the union is to survive under the existing system, Congress will need to either be granted or assume effective powers, making the current criticisms still applicable. Even under the existing system, Congress has already begun to assume powers that could be dangerous. The western territories offer a significant source of future revenue, which Congress has begun to manage. Many states have already ceded land to the federal government and expects others to do the same. Congress has taken control of these lands and started to generate revenue from them. It has gone beyond its constitutional authority to manage these territories and form new states. A great, independent supply of money is passing into the hands of a single body of men who can raise an indefinite number of troops, and yet there are men who have not only been silent to this possibility but who advocate for the system, and at the same time urge against the new system with the objections that we have heard. Wouldn’t the critics be more consistent if they supported the new constitution as a safeguard against the potential dangers posed by the existing Congress?

I do not mean to criticize what Congress has done. I understand that they had to act in the best interest of the public and had to go beyond their constitutional powers. But doesn’t this show how dangerous it is to have a government that does not have the power to do what it needs to do? It is always threatened by either being dissolved or taken over.

• Discussion: To what extent does a perceived need to act in the public interest justify extending powers past their legal limits?

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