FEDERALIST 37-40: The Brilliance of Constitutional Convention Federalist 37: The Considerations Moving the Constitutional Convention
AS THE ULTIMATE OBJECT OF THESE PAPERS is to determine clearly and fully the merits of the Constitution, the plan cannot be complete without taking a more critical and thorough survey of the work of the Constitutional Convention, in which I examine all its sides, compare all its parts, and calculate its probable effects. So that this remaining task is executed under impressions conducive to a just and fair result, some reflections must be indulged.
Public Measures Are Rarely Examined with Moderation
Inseparable from human affairs is the misfortune 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. This spirit is more apt to be diminished than promoted on those occasions which require an unusual exercise of it.
* * *
As evidenced in their own publications, some scanned the Constitution – not only with a predisposition to censure – but with a predetermination to condemn. Others betrayed the opposite predetermination or bias, which rendered their opinions also of little moment in the question.
* * *
The Constitution Was Not Excepted from Unjustified Criticism
To those who have experienced the tendency to abandon moderation with respect to public measures, it is unsurprising the Constitution excited dispositions unfriendly to a fair discussion and accurate judgment of its merits, both by its opponents and proponents. The Constitution recommended so many important changes and innovations – which could be viewed in many lights and relations – that it touched upon the springs of many passions and interests.
As evidenced in their own publications, some scanned the Constitution – not only with a predisposition to censure – but with a predetermination to condemn. Others betrayed the opposite predetermination or bias, which rendered their opinions also of little moment in the question.
In placing these different characters on a balance with respect to the weight of their opinions, I do not insinuate there was no material difference in the purity of their intentions. The predetermined patron of what has been actually done may have taken his bias from the weight of the considerations that our situation was universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief. Such a person also may have been motivated by considerations of a sinister nature. The predetermined adversary, however, cannot claim that blind opposition was justified as an innocent mistake.
These Papers Are Directed to Impartial Readers, not Partisans
The truth is these papers are not addressed to persons falling under either of these characters. My writings solicit the attention only of those having a sincere zeal for the happiness of our country, and a temper favorable to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the Constitution without having a predisposition to find or to magnify faults, but with the understanding that a faultless plan was not to be expected. These persons will not assign liability for errors stemming from the fallibility of a convention of individuals, of which the Convention was one. Rather, they will also keep in mind that they themselves are but individuals, and ought not to assume an infallibility in reexamining the fallible opinions of others.
The Convention Was Novel Historically
Aside from the difficulties just discussed, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the Convention.
I am immediately struck by the novelty of the undertaking. The then-existing Confederation of States was founded on principles proven to be fallacious. Consequently, it was necessary to rebuild this first foundation, and the superstructure resting upon it.
Other confederacies had been governed by or experienced the same erroneous principles. These historical precedents were but beacons – giving warning of the course to be shunned, but without pointing out the course to be pursued. In such a situation, the most the Convention could do 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 unfold them.
* * *
Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which are the very definition of good government.
* * *
Reconciling Energy versus Stability in Government
A very important difficulty encountered by the Convention was 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, the representatives would have very imperfectly fulfilled the object of their appointment, or the expectation of the public. That this was not easily accomplished is denied only by those willing to betray 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 are 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.
Irregular and mutable legislation is more odious than evil to the People. It may be pronounced with assurance that the People of this country – enlightened as they are with regard to the nature – and interested in the effects of good government (as the great body of them are) – will never be satisfied until a good remedy is applied to the vicissitudes and uncertainties which characterize the State administrations.
* * *
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.
* * *
Liberty Is Maintained by Comparatively Short Terms
Mingling the valuable ingredients of stability and regard for human nature in due proportion with the vital principles of republican liberty discloses two complementary views. A republican government – composed of representatives – demands that all power should be derived from the People. But liberty insists that those entrusted with the power should be kept in independence from the People. This can be done by limiting the duration of appointments to a relatively short period – and that even during this short period the trust should be placed in a number of hands, not a few.
Stability requires that the hands in which power is lodged should continue for the same length of time, while energy in government requires a certain duration of power, and the execution of it by a single hand. A frequent change of representatives results from frequent elections, and a frequent change of measures results from a frequent change of representatives.
The Convention Undertook an Arduous Endeavor
How far the Convention succeeded in this part of their work will better appear on a more accurate view of it. From the cursory one here taken, it clearly appears it was an arduous effort. Not less arduous was the task of marking the proper line of partition between the authority of the Federal government and that of the State governments. Every person will be aware of the difficulties in proportion to being accustomed to contemplate and discriminate objects extensive and complicated in their nature.
The Workings of the Human Mind Are Not Easily Classified
The faculties of the mind itself have not 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, and 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 termination of vegetable life 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 humans, in which the obscurity arises 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 judicial; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts at political science.
The Changing Limits of the Law Present their Own Difficulties
The experience of ages has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice, despite the continued and combined labors of the most enlightened legislatures and jurists. The precise extent of the common law, statutory law, maritime law, 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 general and local courts – whether of law, equity, admiralty, and others – is not less a source of frequent and intricate discussions, which denotes 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 is liquidated and ascertained by a series of particular discussions and adjudications.
Aside from 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 thus requires not only that the ideas be distinctly formed, but they 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 equivocal words 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 is greater or less according to the complexity and novelty of the objects defined.
When the Almighty Himself condescends to address mankind in their own languages, His meaning – luminous as it must be – is rendered dim and doubtful by the cloudy medium through which it is communicated.
* * *
Some features of the Constitution reflect these compromises, showing the Convention was compelled to sacrifice theoretical propriety to the force of extraneous considerations.
* * *
The Three Main Sources of Ambiguity in Conveying Meaning
Here, then, are three sources of vague and incorrect definitions: (1) indistinctness of the object, (2) imperfection of the organ of conception, and (3) inadequateness of the vehicle of ideas.
Any one of these must produce a certain degree of obscurity. The Convention experienced the full effect of them all in delineating the boundary between the Federal and State jurisdictions.
The Inherent Conflict Between Large and Small States
To the foregoing we may add the pretensions of the larger and smaller States. We cannot err in supposing the larger States contended for a participation in the government fully proportioned to their superior wealth and importance, while smaller States were not less tenacious of the equality they enjoyed. Neither side would entirely yield to the other, and consequently the struggle was terminated only by compromise.
And once the States agreed a ratio of representation, that very compromise produced a fresh struggle between the same parties concerning the organization of the Federal government and the distribution of its powers among the branches, with each State seeking to increase its importance and influence.
Some features of the Constitution reflect these compromises, showing the Convention was compelled to sacrifice theoretical propriety to the force of extraneous considerations.
Nor were disputes limited to the large and the small. Combinations of States marshaled themselves in opposition to each other on various points. Other combinations – resulting from a difference of local position and policy – created additional difficulties. Just 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 may have a salutary influence on the administration of a government once formed, they were disruptive in the task of forming it.
* * *
Here, then, are three sources of vague and incorrect definitions: (1) indistinctness of the object, (2) imperfection of the organ of conception, and (3) inadequateness of the vehicle of ideas.
* * *
Providence Rescued the Convention More than Once
Would it have been wonderful if – under the pressure of all of these difficulties – the Convention had been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead – towards an ingenious theorist bestowing on the Convention a constitution planned in his closet or imagination?
* * *
The real wonder is that so many difficulties were surmounted, and surmounted with a unanimity almost as unprecedented as it was unexpected. It is impossible for any individual of candor to reflect on this circumstance without astonishment. No person of pious reflection failed to perceive in it a finger of that Almighty Hand was so frequently and signally extended to our relief in the critical stages of the Revolution.
* * *
In Federalist 20, I took notice of the repeated trials unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. Indeed, the histories 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 an account of factions, contentions, and disappointments. They 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 luster to darken the gloom of the adverse prospect to which they are contrasted.
In resolving 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 the Convention enjoyed a singular exemption from the pestilential influence of party animosities, a 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.
The real wonder is that so many difficulties were surmounted, and surmounted with a unanimity almost as unprecedented as it was unexpected. It is impossible for any individual of candor to reflect on this circumstance without astonishment. No person of pious reflection failed to perceive in it a Finger of that Almighty Hand was so frequently and signally extended to our relief in the critical stages of the Revolution.
Madison original Federalist 37