Federalist 38: The States Deputized Their Wisest Citizens to Form the Constitution
ANCIENT HISTORY REPORTS that in every case where a government was formed with deliberation and consent, the task was undertaken by some individual citizen of preeminent wisdom and approved integrity, rather than an assembly of individuals.
Minos founded the government of Crete, as Zaleucus did for the Locrians. Theseus first – and after him Draco and Solon – instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. Upon the death of Julius Caesar, Brutus had the senate and people ratify a civil administration allegedly designed by Tullius Hostilius.
The same is true for confederate governments. Amphictyon was the author of that which bore his name, and the Achaean league received its first birth from Achaeus, and its second from Aratus.
Throughout History, the Individuals Asked to Draft Plans for a Government often Represented the People
It is less certain whether all of these reputed lawgivers were clothed with the legitimate authority of the people, but in some cases there is no doubt. Draco was entrusted by the people of Athens with indefinite powers to reform its government and laws. The historian Plutarch reports the citizens of that city gave Solon the sole and absolute power to remodel their constitution. The advocates for a regular reform in Sparta all turned toward the singular efforts of the celebrated patriot and sage Lycurgus, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.
How could a people as jealous of their liberty as the Greeks abandon the rules of caution as to place their destiny in the hands of a single citizen? How could the Athenians – a people who required at least ten generals to command its army – consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, rather than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?
These questions cannot be fully answered without supposing that the fears of discord and disunion among a number of counselors exceeded the apprehension of treachery or incapacity in a single individual.
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These lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government. On the other hand, these lessons admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
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History also informs us of the difficulties encountered by these celebrated reformers, and the expedients employed in order to carry their reforms into effect. Solon, who indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition. He secured a final success by a voluntary renunciation, first of his country, and then of his life.
These lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government. On the other hand, these lessons admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
Almost All of the Proposed Amendments to the Former Articles of Confederation Overlooked Its Foundational Problem
It is reasonable to assume any arguable error in the new Constitution resulted from a defect of antecedent experience on this complicated and difficult subject, rather than a want of accuracy or care in the investigation of it, and that we must await an actual trial before any error appears.
This assumption is rendered probable by the particular case of the Articles of Confederation, as well as by many considerations of a general nature. Among the numerous objections and amendments suggested by the several States when the Articles were submitted for their ratification, not one alluded to the great and radical error that became apparent on actual trial.
As immaterial as the objections were, there is abundant reason to suppose they would have been adhered to with a very dangerous inflexibility in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. Maryland persisted for several years in refusing her concurrence, although for the whole period the enemy remained in the very bowels of our country. In the end, Maryland’s pliancy was effected by the fear of being chargeable with protracting the public calamities, and endangering the Revolution.
Under the Articles of Confederation, the United States Faced a Grave Disorder
Imagine the situation where a patient finds his disorder is daily growing worse and that an efficacious remedy can no longer be delayed without extreme danger. After coolly reviewing his situation with different physicians, he selects and calls in those he judges most capable of administering relief, and best entitled to his confidence. The physicians attend, the patient is carefully examined, a consultation is held, and they unanimously agree that the symptoms are critical, but that a proper and timely remedy may improve his constitution.
But the prescription is no sooner made known, than a number of persons (who do not deny the danger of the disorder) interpose and assure the patient that the prescription will be poison to his constitution, and forbid him to make use of it.
Might not the patient reasonably demand that the authors of this advice at least agree among themselves on some other remedy? If they differed from one another as much as from his first physicians, he would act prudently in rejecting their advice.
The United States was the patient in such a situation before the Constitution was adopted. She was sensible of her malady, and obtained a regular and unanimous advice from persons of her own deliberate choice. She was warned by others against following this advice under pain of the most fatal consequences.
The Objections to the New Constitution Were Numerous and Contradictory
The objectors did not deny the reality of her danger or the necessity of some speedy and powerful remedy, but they could not agree on a substitute remedy. One told us the Constitution ought to be rejected because it is not a confederation of the States, but a government over individuals. Another admitted that there ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third did not object to government over individuals, or to the extent proposed, but that a bill of rights was needed. A fourth concurred in the absolute necessity of a bill of rights, but argued it ought not be declaratory of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth argued a bill of rights of any sort would be superfluous and misplaced, but that a fatal flaw was allowing States to regulate the times and places of election.
An objector in a large State exclaimed loudly that equal representation in the Senate was unreasonable, while an objector in a small State complained equally loudly against a dangerous inequality in the House of Representatives. From one quarter, we were alarmed with the amazing expense of the number of persons to administer the new government. From another quarter – and sometimes from the same quarter – we heard cries that Congress would be but a shadow of a proper representation, and that the government would be far less objectionable if the number and the expense were doubled.
A patriot from a State that does not import or export discerned insuperable objections against the power of direct taxation. A patriotic adversary in a State of great exports and imports was equally dissatisfied that the whole burden of taxes could be thrown on consumption.
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As each delegate came forward with particular explanations, scarcely any two exactly agreed on the same subject.
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One politician discovered in the Constitution a direct and irresistible tendency to monarchy, with a second convinced it surely will end in aristocracy, and a third was puzzled to say which of these shapes it will ultimately assume, but that clearly it must be one or other of them, while a fourth with no less confidence affirmed that the Constitution is so far from having a bias towards either of these dangers that it will be insufficient to keep it upright and firm against its opposite propensities. Another class of adversaries asserted that the intermixing of the legislative, executive, and judicial departments contradicted all ideas of regular government and the requisite precautions in favor of liberty.
As each delegate came forward with particular explanations, scarcely any two exactly agreed on the same subject. In the eyes of one, the junction of the Senate with the President in appointing offices was erroneous, and should be vested in the executive alone. To another, the exclusion of the House of Representatives was equally obnoxious, as its numbers would be a due security against corruption and partiality in the exercise of such a power. With another, the admission of the President into any share of the appointment power would be a dangerous engine in the hands of an executive magistrate, and an unpardonable violation of the maxims of republican jealousy. According to some, no part of the arrangement was more improper than the trial of impeachments by the Senate, for this power clearly belonged to the judicial department. Others purported to “fully concur,” but disagreed that a reference of impeachments to the judiciary would cure the error, due to the extensive powers already lodged in that department.
Even among the zealous patrons of a council of state, the most irreconcilable variances were discovered concerning the mode in which it ought to be constituted. One person demanded that the council should consist of a small number to be appointed by the most numerous branch of Congress, while another would prefer a larger number, with a fundamental condition that the appointment should be made by the President alone.
Would a New Convention Draft a Better Constitution?
Let us suppose the most zealous (and impliedly the most sagacious) adversaries of the Constitution think the delegates to Constitutional Convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose the States concurred in their unfavorable opinion of the Constitutional Convention, and proceeded to form a second convention, with full powers, and for the express purpose of revising and remolding the work of the first. Were the experiment to be seriously made – in light of the discord and ferment of the deliberations described above – would the new delegates depart so widely from the old?
I submit the Constitution as actually drafted by the Convention stands as fair a chance for immortality as the laws Lycurgus gave to Sparta before his departure.
The Adversaries of the Constitution Have Overlooked What Preceded It
It causes both wonder and regret that those opposed to the Constitution never call to mind the defects of that which it replaced. The Constitution need not be perfect. It is sufficient that the Articles of Confederation were more imperfect.
No person refuses to trade brass for silver or gold just because the latter has some alloy in it. No person would refuse to quit a shattered and tottering habitation for a firm and commodious building, on the ground that the stronger structure had no porch, or because some of the rooms might be a little larger or smaller, or ceilings a little higher or lower than the person would have planned them. Putting these illustrations aside, it is clear the main objections urged against the Constitution lie with tenfold weight against the Articles of Confederation.
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I submit the Constitution as actually drafted by the Convention stands as fair a chance for immortality as the laws Lycurgus gave to Sparta before his departure.
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Is an indefinite power to raise money dangerous in the hands of a Federal government? Under the Articles, Congress could make requisitions of any amount it pleased, and the States were bound to furnish them. Congress also could emit bills of credit and borrow both at home and abroad, as long as a shilling would be lent.
Is an indefinite power to raise troops dangerous? The Confederation gave to Congress that power also, which made use of it.
Is it improper and unsafe to intermix the different powers of government in the same body of individuals? Congress under the Confederation was the sole depositary of all Federal powers.
Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation placed them both in the hands of Congress.
Is a bill of rights essential to liberty? The Articles of Confederation had no bill of rights.
Is it a valid objection against the new Constitution, that it empowers the Senate, with the concurrence of the executive, to make treaties which are to be the laws of the land? Under the Articles, Congress could make treaties which they declared to be the supreme law of the land, and which most of the States recognized.
Is the importation of slaves by the Constitution limited to twenty years? By the old it was permitted forever.
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Is the importation of slaves by the Constitution limited to twenty years? By the old it was permitted forever.
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I am told that however dangerous in theory the mixture of powers was under the Articles of Confederation, it was rendered harmless by the dependence of Congress on the States for the means of carrying them into practice.
I respond in the first place that the Articles were chargeable with the still greater folly of declaring certain powers in Congress to be absolutely necessary, while at the same time rendering them absolutely nugatory. In the next place, if no better government had been substituted, effective powers must either have been granted to (or assumed by) the Congress under the Articles.
But this is not all. Out of the lifeless mass of the former Congress had already grown a power tending toward all the dangers that could arise from a defective national government.
It is now no longer a point of speculation or hope that our Western territory is a mine of vast wealth to the United States. Although it is not of such a nature as to extricate us from our present distresses, or to yield any regular supplies for the public expenses for some time to come, under proper management it will effect a gradual discharge of the domestic debt and furnish liberal tributes to the Federal treasury. A very large proportion of this fund has been already surrendered by individual States, and it reasonably may be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. Therefore, we may calculate a rich and fertile country of an area equal to the inhabited extent of the United States will soon become a national stock. From before adoption of the Constitution, Congress had assumed the administration of this stock and begun to render it productive. Congress also proceeded to form new States, to erect temporary governments, appoint officers for them, and prescribe the conditions on which such States shall be admitted into the United States.
All this was done without the least color of constitutional authority. Yet no blame has been whispered, nor alarm sounded. A great and independent fund of revenue was passing into the hands of a single body of men, who could raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time.
And yet there were men who were not only silent spectators of this prospect, but who were advocates for the system which caused it; while at the same time urging objections against the Constitution as proposed. They would have acted with more consistency in advocating for the proposed Constitution as a necessary guard against the future powers and resources of the former Congress, than to save it from the dangers threatened by the impotency of that Assembly.
I mean not to throw censure on the measures which have been pursued by the former Congress by any thing here said. I am sensible they could not have done otherwise. The public interest and the necessity of the case imposed upon them the task of overleaping their constitutional limits. But are not these facts an alarming proof of the dangers resulting when a government does not possess regular powers commensurate to its objects? A dissolution or usurpation was the dreadful dilemma to which it was continually exposed.
Madisonoriginal Federalist 38