1787 Federalist 49 · Founding Made Plain

11787 Federalist No. 49

2Method of Guarding Against

3the Encroachments of Any One

4Department of Government

5by Appealing to the People

6Through a Convention

7From the New York Packet.

8Tuesday, February 5, 1788.

9HAMILTON OR MADISON

10To the People of the State of New York:

11THE author of the "Notes on the State of Virginia,"

12 quoted in the last paper,

13 has subjoined to that valuable work

14 the draught of a constitution,

15 which had been prepared

16 in order to be laid before a convention,

17 expected to be called in 1783, by the legislature,

18 for the establishment of a constitution

19 for that commonwealth.

20The plan, like every thing from the same pen,

21 marks a turn of thinking,

22 original, comprehensive, and accurate;

23 and is the more worthy of attention

24 as it equally displays

25 a fervent attachment to republican government

26 and an enlightened view

27 of the dangerous propensities

28 against which it ought to be guarded.

29One of the precautions which he proposes,

30 and on which he appears ultimately to rely

31 as a palladium to the weaker departments of power

32 against the invasions of the stronger,

33 is perhaps altogether his own,

34 and as it immediately relates

35 to the subject of our present inquiry,

36 ought not to be overlooked.

37His proposition is,

38 "that whenever any two of the three branches

39 of government shall concur in opinion,

40 each by the voices of two thirds

41 of their whole number,

42 that a convention is necessary

43 for altering the constitution,

44 or CORRECTING BREACHES OF IT,

45 a convention shall be called for the purpose."

46As the people are the only legitimate fountain of power,

47 and it is from them that the constitutional charter,

48 under which the several branches of government

49 hold their power, is derived,

50 it seems strictly consonant to the republican theory,

51 to recur to the same original authority,

52 not only whenever it may be necessary

53 to enlarge, diminish, or new-model

54 the powers of the government,

55 but also whenever any one of the departments

56 may commit encroachments

57 on the chartered authorities of the others.

58The several departments being perfectly co-ordinate

59 by the terms of their common commission,

60 none of them, it is evident,

61 can pretend to an exclusive or superior right

62 of settling the boundaries

63 between their respective powers;

64 and how are the encroachments of the stronger

65 to be prevented,

66 or the wrongs of the weaker to be redressed,

67 without an appeal to the people themselves,

68 who, as the grantors of the commissions,

69 can alone declare its true meaning,

70 and enforce its observance?

71There is certainly great force in this reasoning,

72 and it must be allowed to prove

73 that a constitutional road

74 to the decision of the people

75 ought to be marked out and kept open,

76 for certain great and extraordinary occasions.

77But there appear to be insuperable objections

78 against the proposed recurrence to the people,

79 as a provision in all cases

80 for keeping the several departments of power

81 within their constitutional limits.

82In the first place, the provision does not reach

83 the case of a combination of two of the departments

84 against the third.

85If the legislative authority,

86 which possesses so many means

87 of operating on the motives

88 of the other departments,

89 should be able to gain to its interest

90 either of the others,

91 or even one third of its members,

92 the remaining department could derive no advantage

93 from its remedial provision.

94I do not dwell, however, on this objection,

95 because it may be thought to be rather

96 against the modification of the principle,

97 than against the principle itself.

98In the next place,

99 it may be considered as an objection

100 inherent in the principle,

101 that as every appeal to the people

102 would carry an implication

103 of some defect in the government,

104 frequent appeals would, in a great measure,

105 deprive the government of that veneration

106 which time bestows on every thing,

107 and without which perhaps

108 the wisest and freest governments

109 would not possess the requisite stability.

110If it be true that all governments rest on opinion,

111 it is no less true

112 that the strength of opinion in each individual,

113 and its practical influence on his conduct,

114 depend much on the number

115 which he supposes to have entertained

116 the same opinion.

117The reason of man, like man himself,

118 is timid and cautious when left alone,

119 and acquires firmness and confidence

120 in proportion to the number

121 with which it is associated.

122When the examples which fortify opinion

123 are ANCIENT as well as NUMEROUS,

124 they are known to have a double effect.

125In a nation of philosophers,

126 this consideration ought to be disregarded.

127A reverence for the laws

128 would be sufficiently inculcated

129 by the voice of an enlightened reason.

130But a nation of philosophers is as little to be expected

131 as the philosophical race of kings wished for by Plato.

132And in every other nation,

133 the most rational government

134 will not find it a superfluous advantage

135 to have the prejudices

136 of the community on its side.

137The danger of disturbing the public tranquillity

138 by interesting too strongly the public passions,

139 is a still more serious objection

140 against a frequent reference

141 of constitutional questions

142 to the decision of the whole society.

143Notwithstanding the success

144 which has attended the revisions

145 of our established forms of government,

146 and which does so much honor

147 to the virtue and intelligence

148 of the people of America,

149 it must be confessed

150 that the experiments are of too ticklish a nature

151 to be unnecessarily multiplied.

152We are to recollect

153 that all the existing constitutions

154 were formed in the midst of a danger

155 which repressed the passions

156 most unfriendly to order and concord;

157 of an enthusiastic confidence of the people

158 in their patriotic leaders,

159 which stifled the ordinary diversity of opinions

160 on great national questions;

161 of a universal ardor for new and opposite forms,

162 produced by a universal resentment and indignation

163 against the ancient government;

164 and whilst no spirit of party

165 connected with the changes to be made,

166 or the abuses to be reformed,

167 could mingle its leaven in the operation.

168The future situations

169 in which we must expect to be usually placed,

170 do not present any equivalent security

171 against the danger which is apprehended.

172But the greatest objection of all is,

173 that the decisions which would probably result

174 from such appeals

175 would not answer the purpose

176 of maintaining the constitutional equilibrium

177 of the government.

178We have seen

179 that the tendency of republican governments

180 is to an aggrandizement of the legislative

181 at the expense of the other departments.

182The appeals to the people, therefore,

183 would usually be made

184 by the executive and judiciary departments.

185But whether made by one side or the other,

186 would each side enjoy equal advantages on the trial?

187Let us view their different situations.

188The members of the executive and judiciary departments

189 are few in number,

190 and can be personally known

191 to a small part only of the people.

192The latter, by the mode of their appointment,

193 as well as by the nature and permanency of it,

194 are too far removed from the people

195 to share much in their prepossessions.

196The former are generally the objects of jealousy,

197 and their administration is always liable

198 to be discolored and rendered unpopular.

199The members of the legislative department,

200 on the other hand, are numerous.

201They are distributed and dwell

202 among the people at large.

203Their connections of blood, of friendship,

204 and of acquaintance

205 embrace a great proportion

206 of the most influential part of the society.

207The nature of their public trust

208 implies a personal influence among the people,

209 and that they are more immediately

210 the confidential guardians

211 of the rights and liberties of the people.

212With these advantages,

213 it can hardly be supposed

214 that the adverse party would have an equal chance

215 for a favorable issue.

216But the legislative party would not only be able

217 to plead their cause most successfully with the people.

218They would probably be constituted themselves the judges.

219The same influence

220 which had gained them an election into the legislature,

221 would gain them a seat in the convention.

222If this should not be the case with all,

223 it would probably be the case with many,

224 and pretty certainly with those leading characters,

225 on whom every thing depends in such bodies.

226The convention, in short, would be composed chiefly

227 of men who had been, who actually were,

228 or who expected to be,

229 members of the department

230 whose conduct was arraigned.

231They would consequently be parties

232 to the very question to be decided by them.

233It might, however, sometimes happen,

234 that appeals would be made

235 under circumstances less adverse

236 to the executive and judiciary departments.

237The usurpations of the legislature

238 might be so flagrant and so sudden,

239 as to admit of no specious coloring.

240A strong party among themselves

241 might take side with the other branches.

242The executive power might be in the hands

243 of a peculiar favorite of the people.

244In such a posture of things,

245 the public decision might be less swayed

246 by prepossessions in favor

247 of the legislative party.

248But still it could never be expected

249 to turn on the true merits of the question.

250It would inevitably be connected

251 with the spirit of pre-existing parties,

252 or of parties springing out of the question itself.

253It would be connected with persons

254 of distinguished character

255 and extensive influence in the community.

256It would be pronounced by the very men

257 who had been agents in, or opponents of,

258 the measures to which the decision would relate.

259The PASSIONS, therefore, not the REASON,

260 of the public would sit in judgment.

261But it is the reason, alone, of the public,

262 that ought to control and regulate the government.

263The passions ought to be controlled and regulated

264 by the government.

265We found in the last paper,

266 that mere declarations in the written constitution

267 are not sufficient to restrain

268 the several departments within their legal rights.

269It appears in this,

270 that occasional appeals to the people

271 would be neither a proper

272 nor an effectual provision

273 for that purpose.

274How far the provisions of a different nature

275 contained in the plan above quoted

276 might be adequate,

277 I do not examine.

278Some of them are unquestionably founded

279 on sound political principles,

280 and all of them are framed

281 with singular ingenuity and precision.

282PUBLIUS.