1787 Federalist 38 · Founding Made Plain

11787 Federalist No. 38

2The Same Subject Continued,

3and the Incoherence of the Objections

4to the New Plan Exposed

5From the New York Packet.

6Tuesday, January 15, 1788.

7MADISON

8To the People of the State of New York:

9IT IS not a little remarkable

10 that in every case reported by ancient history,

11 in which government has been established

12 with deliberation and consent,

13 the task of framing it

14 has not been committed to an assembly of men,

15 but has been performed

16 by some individual citizen

17 of preeminent wisdom and approved integrity.

18Minos, we learn,

19 was the primitive founder of the government of Crete,

20 as Zaleucus was of that of the Locrians.

21Theseus first, and after him Draco and Solon,

22 instituted the government of Athens.

23Lycurgus was the lawgiver of Sparta.

24The foundation of the original government of Rome

25 was laid by Romulus,

26 and the work completed

27 by two of his elective successors,

28 Numa and Tullius Hostilius.

29On the abolition of royalty

30 the consular administration was substituted by Brutus,

31 who stepped forward with a project

32 for such a reform,

33 which, he alleged,

34 had been prepared by Tullius Hostilius,

35 and to which his address obtained

36 the assent and ratification

37 of the senate and people.

38This remark is applicable

39 to confederate governments also.

40Amphictyon, we are told,

41 was the author of that which bore his name.

42The Achaean league received its first birth

43 from Achaeus, and its second from Aratus.

44What degree of agency these reputed lawgivers

45 might have in their respective establishments,

46 or how far they might be clothed

47 with the legitimate authority of the people,

48 cannot in every instance be ascertained.

49In some, however, the proceeding was strictly regular.

50Draco appears to have been intrusted

51 by the people of Athens

52 with indefinite powers

53 to reform its government and laws.

54And Solon, according to Plutarch,

55 was in a manner compelled,

56 by the universal suffrage of his fellow-citizens,

57 to take upon him the sole and absolute power

58 of new-modeling the constitution.

59The proceedings under Lycurgus were less regular;

60 but as far as the advocates for a regular reform

61 could prevail,

62 they all turned their eyes

63 towards the single efforts

64 of that celebrated patriot and sage,

65 instead of seeking to bring about a revolution

66 by the intervention

67 of a deliberative body of citizens.

68Whence could it have proceeded,

69 that a people, jealous as the Greeks were

70 of their liberty,

71 should so far abandon the rules of caution

72 as to place their destiny

73 in the hands of a single citizen?

74Whence could it have proceeded,

75 that the Athenians,

76 a people who would not suffer an army

77 to be commanded by fewer than ten generals,

78 and who required no other proof

79 of danger to their liberties

80 than the illustrious merit of a fellow-citizen,

81 should consider one illustrious citizen

82 as a more eligible depositary

83 of the fortunes of themselves and their posterity,

84 than a select body of citizens,

85 from whose common deliberations

86 more wisdom, as well as more safety,

87 might have been expected?

88These questions cannot be fully answered,

89 without supposing that the fears

90 of discord and disunion

91 among a number of counsellors

92 exceeded the apprehension of treachery

93 or incapacity in a single individual.

94History informs us, likewise,

95 of the difficulties

96 with which these celebrated reformers

97 had to contend,

98 as well as the expedients

99 which they were obliged to employ

100 in order to carry their reforms into effect.

101Solon, who seems to have indulged

102 a more temporizing policy,

103 confessed that he had not given to his countrymen

104 the government best suited to their happiness,

105 but most tolerable to their prejudices.

106And Lycurgus, more true to his object,

107 was under the necessity of mixing a portion

108 of violence with the authority of superstition,

109 and of securing his final success

110 by a voluntary renunciation,

111 first of his country, and then of his life.

112If these lessons teach us, on one hand,

113 to admire the improvement made by America

114 on the ancient mode

115 of preparing and establishing

116 regular plans of government,

117 they serve not less, on the other,

118 to admonish us of the hazards and difficulties

119 incident to such experiments,

120 and of the great imprudence

121 of unnecessarily multiplying them.

122Is it an unreasonable conjecture,

123 that the errors which may be contained

124 in the plan of the convention

125 are such as have resulted rather

126 from the defect of antecedent experience

127 on this complicated and difficult subject,

128 than from a want of accuracy or care

129 in the investigation of it;

130 and, consequently such as will not be ascertained

131 until an actual trial shall have pointed them out?

132This conjecture is rendered probable,

133 not only by many considerations

134 of a general nature,

135 but by the particular case

136 of the Articles of Confederation.

137It is observable

138 that among the numerous objections and amendments

139 suggested by the several States,

140 when these articles were submitted

141 for their ratification,

142 not one is found which alludes

143 to the great and radical error

144 which on actual trial has discovered itself.

145And if we except the observations

146 which New Jersey was led to make,

147 rather by her local situation,

148 than by her peculiar foresight,

149 it may be questioned whether a single suggestion

150 was of sufficient moment

151 to justify a revision of the system.

152There is abundant reason, nevertheless,

153 to suppose that immaterial as these objections were,

154 they would have been adhered to

155 with a very dangerous inflexibility,

156 in some States,

157 had not a zeal for their opinions

158 and supposed interests

159 been stifled by the more powerful sentiment

160 of selfpreservation.

161One State, we may remember,

162 persisted for several years

163 in refusing her concurrence,

164 although the enemy remained the whole period

165 at our gates,

166 or rather in the very bowels of our country.

167Nor was her pliancy in the end effected

168 by a less motive,

169 than the fear of being chargeable

170 with protracting the public calamities,

171 and endangering the event of the contest.

172Every candid reader will make the proper reflections

173 on these important facts.

174A patient who finds his disorder daily growing worse,

175 and that an efficacious remedy

176 can no longer be delayed without extreme danger,

177 after coolly revolving his situation,

178 and the characters of different physicians,

179 selects and calls in such of them

180 as he judges most capable of administering relief,

181 and best entitled to his confidence.

182The physicians attend;

183 the case of the patient is carefully examined;

184 a consultation is held;

185 they are unanimously agreed

186 that the symptoms are critical,

187 but that the case,

188 with proper and timely relief,

189 is so far from being desperate,

190 that it may be made to issue

191 in an improvement of his constitution.

192They are equally unanimous in prescribing the remedy,

193 by which this happy effect is to be produced.

194The prescription is no sooner made known, however,

195 than a number of persons interpose,

196 and, without denying the reality or danger

197 of the disorder,

198 assure the patient

199 that the prescription will be poison

200 to his constitution,

201 and forbid him, under pain of certain death,

202 to make use of it.

203Might not the patient reasonably demand,

204 before he ventured to follow this advice,

205 that the authors of it should at least agree

206 among themselves

207 on some other remedy to be substituted?

208And if he found them differing as much

209 from one another as from his first counsellors,

210 would he not act prudently

211 in trying the experiment

212 unanimously recommended by the latter,

213 rather than be hearkening to those

214 who could neither deny the necessity

215 of a speedy remedy,

216 nor agree in proposing one?

217Such a patient and in such a situation

218 is America at this moment.

219She has been sensible of her malady.

220She has obtained a regular and unanimous advice

221 from men of her own deliberate choice.

222And she is warned by others against following

223 this advice under pain

224 of the most fatal consequences.

225Do the monitors deny the reality of her danger?

226No.

227Do they deny the necessity

228 of some speedy and powerful remedy?

229No.

230Are they agreed, are any two of them agreed,

231 in their objections to the remedy proposed,

232 or in the proper one to be substituted?

233Let them speak for themselves.

234This one tells us

235 that the proposed Constitution ought to be rejected,

236 because it is not a confederation of the States,

237 but a government over individuals.

238Another admits that it ought to be

239 a government over individuals to a certain extent,

240 but by no means to the extent proposed.

241A third does not object

242 to the government over individuals,

243 or to the extent proposed,

244 but to the want of a bill of rights.

245A fourth concurs in the absolute necessity

246 of a bill of rights,

247 but contends that it ought to be declaratory,

248 not of the personal rights of individuals,

249 but of the rights reserved to the States

250 in their political capacity.

251A fifth is of opinion

252 that a bill of rights of any sort

253 would be superfluous and misplaced,

254 and that the plan would be unexceptionable

255 but for the fatal power

256 of regulating the times and places of election.

257An objector in a large State

258 exclaims loudly against the unreasonable equality

259 of representation in the Senate.

260An objector in a small State

261 is equally loud against the dangerous inequality

262 in the House of Representatives.

263From this quarter,

264 we are alarmed with the amazing expense,

265 from the number of persons

266 who are to administer the new government.

267From another quarter,

268 and sometimes from the same quarter,

269 on another occasion,

270 the cry is that the Congress

271 will be but a shadow of a representation,

272 and that the government would be far less

273 objectionable

274 if the number and the expense were doubled.

275A patriot in a State that does not import or export,

276 discerns insuperable objections

277 against the power of direct taxation.

278The patriotic adversary

279 in a State of great exports and imports,

280 is not less dissatisfied

281 that the whole burden of taxes

282 may be thrown on consumption.

283This politician discovers in the Constitution

284 a direct and irresistible tendency to monarchy;

285 that is equally sure it will end in aristocracy.

286Another is puzzled to say

287 which of these shapes it will ultimately assume,

288 but sees clearly it must be one or other of them;

289 whilst a fourth is not wanting,

290 who with no less confidence affirms

291 that the Constitution is so far

292 from having a bias towards either

293 of these dangers,

294 that the weight on that side

295 will not be sufficient

296 to keep it upright and firm

297 against its opposite propensities.

298With another class of adversaries to the Constitution

299 the language is

300 that the legislative, executive,

301 and judiciary departments

302 are intermixed in such a manner

303 as to contradict all the ideas

304 of regular government

305 and all the requisite precautions

306 in favor of liberty.

307Whilst this objection circulates

308 in vague and general expressions,

309 there are but a few who lend their sanction to it.

310Let each one come forward

311 with his particular explanation,

312 and scarce any two are exactly agreed

313 upon the subject.

314In the eyes of one

315 the junction of the Senate with the President

316 in the responsible function

317 of appointing to offices,

318 instead of vesting this executive power

319 in the Executive alone,

320 is the vicious part of the organization.

321To another, the exclusion

322 of the House of Representatives,

323 whose numbers alone

324 could be a due security

325 against corruption and partiality

326 in the exercise of such a power,

327 is equally obnoxious.

328With another, the admission of the President

329 into any share of a power

330 which ever must be a dangerous engine

331 in the hands of the executive magistrate,

332 is an unpardonable violation

333 of the maxims of republican jealousy.

334No part of the arrangement, according to some,

335 is more inadmissible

336 than the trial of impeachments by the Senate,

337 which is alternately a member

338 both of the legislative and executive departments,

339 when this power so evidently belonged

340 to the judiciary department.

341"We concur fully," reply others,

342 "in the objection to this part of the plan,

343 but we can never agree

344 that a reference of impeachments

345 to the judiciary authority

346 would be an amendment of the error.

347Our principal dislike to the organization

348 arises from the extensive powers

349 already lodged in that department."

350Even among the zealous patrons of a council of state

351 the most irreconcilable variance is discovered

352 concerning the mode

353 in which it ought to be constituted.

354The demand of one gentleman is,

355 that the council should consist of a small number

356 to be appointed by the most numerous branch

357 of the legislature.

358Another would prefer a larger number,

359 and considers it as a fundamental condition

360 that the appointment should be made

361 by the President himself.

362As it can give no umbrage

363 to the writers against the plan

364 of the federal Constitution,

365 let us suppose,

366 that as they are the most zealous,

367 so they are also the most sagacious,

368 of those who think the late convention

369 were unequal to the task assigned them,

370 and that a wiser and better plan

371 might and ought to be substituted.

372Let us further suppose

373 that their country should concur,

374 both in this favorable opinion of their merits,

375 and in their unfavorable opinion

376 of the convention;

377 and should accordingly proceed

378 to form them into a second convention,

379 with full powers,

380 and for the express purpose

381 of revising and remoulding

382 the work of the first.

383Were the experiment to be seriously made,

384 though it required some effort

385 to view it seriously even in fiction,

386 I leave it to be decided

387 by the sample of opinions just exhibited,

388 whether, with all their enmity

389 to their predecessors,

390 they would, in any one point,

391 depart so widely from their example,

392 as in the discord and ferment

393 that would mark their own deliberations;

394 and whether the Constitution,

395 now before the public,

396 would not stand as fair a chance

397 for immortality,

398 as Lycurgus gave to that of Sparta,

399 by making its change to depend

400 on his own return from exile and death,

401 if it were to be immediately adopted,

402 and were to continue in force,

403 not until a BETTER,

404 but until ANOTHER should be agreed upon

405 by this new assembly of lawgivers.

406It is a matter both of wonder and regret,

407 that those who raise so many objections

408 against the new Constitution

409 should never call to mind the defects

410 of that which is to be exchanged for it.

411It is not necessary that the former should be perfect;

412 it is sufficient that the latter is more imperfect.

413No man would refuse to give brass for silver or gold,

414 because the latter had some alloy in it.

415No man would refuse to quit

416 a shattered and tottering habitation

417 for a firm and commodious building,

418 because the latter had not a porch to it,

419 or because some of the rooms

420 might be a little larger or smaller,

421 or the ceilings a little higher or lower

422 than his fancy would have planned them.

423But waiving illustrations of this sort,

424 is it not manifest

425 that most of the capital objections

426 urged against the new system

427 lie with tenfold weight

428 against the existing Confederation?

429Is an indefinite power to raise money

430 dangerous in the hands of the federal government?

431The present Congress can make requisitions

432 to any amount they please,

433 and the States are constitutionally bound

434 to furnish them;

435 they can emit bills of credit

436 as long as they will pay for the paper;

437 they can borrow, both abroad and at home,

438 as long as a shilling will be lent.

439Is an indefinite power to raise troops dangerous?

440The Confederation gives to Congress that power also;

441 and they have already begun to make use of it.

442Is it improper and unsafe

443 to intermix the different powers of government

444 in the same body of men?

445Congress, a single body of men,

446 are the sole depositary of all the federal powers.

447Is it particularly dangerous

448 to give the keys of the treasury,

449 and the command of the army,

450 into the same hands?

451The Confederation places them both

452 in the hands of Congress.

453Is a bill of rights essential to liberty?

454The Confederation has no bill of rights.

455Is it an objection against the new Constitution,

456 that it empowers the Senate,

457 with the concurrence of the Executive,

458 to make treaties

459 which are to be the laws of the land?

460The existing Congress, without any such control,

461 can make treaties which they themselves have declared,

462 and most of the States have recognized,

463 to be the supreme law of the land.

464Is the importation of slaves permitted

465 by the new Constitution for twenty years?

466By the old it is permitted forever.

467I shall be told,

468 that however dangerous this mixture of powers

469 may be in theory,

470 it is rendered harmless

471 by the dependence of Congress on the State

472 for the means of carrying them into practice;

473 that however large the mass of powers may be,

474 it is in fact a lifeless mass.

475Then, say I, in the first place,

476 that the Confederation is chargeable

477 with the still greater folly

478 of declaring certain powers

479 in the federal government

480 to be absolutely necessary,

481 and at the same time rendering them

482 absolutely nugatory;

483 and, in the next place,

484 that if the Union is to continue,

485 and no better government be substituted,

486 effective powers must either be granted to,

487 or assumed by, the existing Congress;

488 in either of which events,

489 the contrast just stated will hold good.

490But this is not all.

491Out of this lifeless mass

492 has already grown an excrescent power,

493 which tends to realize all the dangers

494 that can be apprehended

495 from a defective construction

496 of the supreme government of the Union.

497It is now no longer a point of speculation and hope,

498 that the Western territory

499 is a mine of vast wealth

500 to the United States;

501 and although it is not of such a nature

502 as to extricate them

503 from their present distresses,

504 or for some time to come,

505 to yield any regular supplies

506 for the public expenses,

507 yet must it hereafter be able,

508 under proper management,

509 both to effect a gradual discharge

510 of the domestic debt,

511 and to furnish, for a certain period,

512 liberal tributes to the federal treasury.

513A very large proportion of this fund

514 has been already surrendered by individual States;

515 and it may with reason be expected

516 that the remaining States

517 will not persist in withholding

518 similar proofs of their equity and generosity.

519We may calculate, therefore,

520 that a rich and fertile country,

521 of an area equal to the inhabited extent

522 of the United States,

523 will soon become a national stock.

524Congress have assumed the administration of this stock.

525They have begun to render it productive.

526Congress have undertaken to do more:

527 they have proceeded to form new States,

528 to erect temporary governments,

529 to appoint officers for them,

530 and to prescribe the conditions

531 on which such States shall be admitted

532 into the Confederacy.

533All this has been done;

534 and done without the least color

535 of constitutional authority.

536Yet no blame has been whispered;

537 no alarm has been sounded.

538A GREAT and INDEPENDENT fund of revenue

539 is passing into the hands

540 of a SINGLE BODY of men,

541 who can RAISE TROOPS

542 to an INDEFINITE NUMBER,

543 and appropriate money to their support

544 for an INDEFINITE PERIOD OF TIME.

545And yet there are men,

546 who have not only been silent spectators

547 of this prospect,

548 but who are advocates

549 for the system which exhibits it;

550 and, at the same time,

551 urge against the new system

552 the objections which we have heard.

553Would they not act with more consistency,

554 in urging the establishment of the latter,

555 as no less necessary

556 to guard the Union

557 against the future powers and resources

558 of a body constructed like the existing Congress,

559 than to save it from the dangers

560 threatened by the present impotency

561 of that Assembly?

562I mean not, by any thing here said,

563 to throw censure on the measures

564 which have been pursued by Congress.

565I am sensible they could not have done otherwise.

566The public interest, the necessity of the case,

567 imposed upon them the task

568 of overleaping their constitutional limits.

569But is not the fact an alarming proof

570 of the danger resulting from a government

571 which does not possess regular powers

572 commensurate to its objects?

573A dissolution or usurpation

574 is the dreadful dilemma

575 to which it is continually exposed.

576PUBLIUS.