Revision of the Constitution at Fixed Periods Is Unwise
I DEMONSTRATED in Federalist 49 that a constitutional convention would not likely rectify a faction’s current transgression of the Constitution.
Now I consider whether periodical appeals to the People are the proper and adequate means of preventing and correcting constitutional infractions.
I will confine myself to the utility of a convention assembled to enforce the Constitution by keeping the several departments of power within their due bounds.
I also observed in Federalist 49 that the unique circumstances culminating with the issuance of the Constitution for the United States would not present themselves again.
I described the pervasive and inclusive spirit of equanimity which permeated the Constitutional Convention.
The spirit and leaven of faction were absent from those proceedings, thus permitting construction of the thoughtful and detailed plan of self-government for ourselves and our posterity.
Appeals to the People at fixed periods will be nearly as ineffectual as occasional appeals for preventing and correcting constitutional infractions.
If the periods are separated by short intervals, the measures under review will be of recent date.
All the circumstances tending to vitiate and pervert the results of occasional revisions will apply with equal force.
If the periods of fixed review be distant from each other, the measures to be reviewed and rectified will range from the most recent to the most distant.
Review of the most recent measures will suffer from the same infirmities afflicting appeals to the People as the occasion may demand.
Review of older measures will be more dispassionate, but this advantage is counterbalanced by disadvantages.
A Faction Will Not Be Dissuaded from Its Goal by Fear of Future Punishment
In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives.
Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?
In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied.
And in the last place, abuses which were not complete would still be of long standing, have taken deep root, and not easily be extirpated.
The Pennsylvania Example Proves that an Oppressive Faction or Party Likely Will Dominate Any Convention
As I observed in Federalist 48, the scheme of revising a constitution in order to correct recent breaches was actually tried in Pennsylvania, where its Council of Censors met in 1783 and 1784 to inquire “whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other.”
This important and novel experiment in politics merits very particular attention as applied to the case under consideration, since it involves some facts which completely illustrate our reasoning.
First, some of its most active members had also been active and leading characters in the State’s pre-existing parties.
Second, the same active and leading members of the council had been active and influential members of the legislative and executive branches within the period to be reviewed, and some patrons or opponents of the very measures to be tested against their constitution.
In the seven years preceding the convention, two of its members had been vice-presidents of the State, and several others members of the executive council.
Within the same period, one had been speaker of the legislative assembly, and a number of others distinguished members of that body.
In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives. Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?
Third, every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations.
The council was split into two fixed and violent parties for its duration, a fact they themselves acknowledged and lamented.
The face of their proceedings exhibits an equally satisfactory proof. In all questions – however unimportant in themselves or unconnected with each other – the same names stand invariably contrasted in opposite columns.
Without impugning either party or its individual members, every unbiased observer unfortunately must infer that passion – not reason – presided over their decisions.
When individuals exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them.
When they are governed by a common passion, their opinions – if they can be so called – will be the same.
Fourth, the decisions of this body in several instances appeared to misconstrue the limits prescribed for the legislative and executive departments, rather than reducing and limiting them within their constitutional boundaries.
Fifth, whether rightly or erroneously formed, the decisions of the council on constitutional questions had little effect on changing legislative practices, and in one instance the dominant faction in the legislature simply rejected the constructions of the council, thereby solidifying its control.
In summary, by its researches, this censorial body proved the existence of the disease, and by its example, the inefficacy of its remedy.
Despite Their Flaws, Opposing Parties Are Preferable to Conformity
These conclusions are not weakened by the assertion that Pennsylvania had long been violently heated and distracted by the rage of party.
Is it to be presumed the same or some other State will be free from parties at some future interval?
Such an event ought not to be presumed or desired. An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.
An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.
Excluding Interested Individuals from a Constitutional Convention Would Lead to the Selection of Their Agents, Who Would Know Less than Their Principals
Nor would difficulties encountered by assemblies elected by the People to revise the preceding administration of the government be obviated by the precaution of excluding all persons who should have been concerned with the government within the given period.
The important task would then devolve to persons with inferior capacities who were no more qualified.
While they might not have been personally concerned in the administration – and therefore not immediately agents in the measures to be examined – they would have been involved in the parties connected with these measures, and been elected under their auspices.
Madison or Hamilton