In Federalist 49, James Madison tackles the problem of encroachments of one department of the government on the others. In this essay he directly confronts a proposal put forward by Thomas Jefferson in the Notes on the State of Virginia. In critiquing Jefferson’s proposal, Madison employs rhetoric that sounds like it could have been issued from the pen of Edmund Burke. In fact this essay predates Thoughts on the Revolution in France by three years, so perhaps it was Burke who would later imitate Madison. I mainly jest, but here is the document which demonstrates better than any other the philosophical differences between Jefferson and Madison.
Madison lays outs Jefferson’s proposal.
His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose.”
Madison offers some words of praise for Jefferson’s originality, but he proceeds to dismantle this idea on both a practical and philosophical level. First, Madison notes that “the provision does not reach the case of a combination of two of the departments against the third.” He adds that “If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision.” Madison acknowledges that this argument is against the modification of the principle than the principle itself, so he moves on to his weightier objections.
In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well asnumerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.
As I alluded to above, this could just as easily have been written by Edmund Burke as James Madison. It’s true that under our republican form of government, the people are the ultimate repository of power. But if we continually attempt to alter the content of the Constitution, it will sow seeds of doubt about its legitimacy. More importantly, there is something to be said about the import of tradition and ancient custom. Here there are echoes of what Burke would write later in his writings about the French Revolution.
Neither Burke nor Madison would suggest that constitutions are to remain perpetually unalterable. Madison concedes that occasional revisions are an absolute necessity, and Burke of course postulated that a “society without the means of change is without the means of its own self-preservation.” Yet continual revisions to the constitution would leave society in a state of constant flux. Moreover, such frequent change undermines the concept of tradition and veneration for our past that is a necessary part of our survival.
Madison offers another crucial argument against Jefferson’s proposal:
The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.
This is a double blow against the core of Jefferson’s democratic philosophy. Madison implies that such frequent appeals to the populace would involve stoking popular passions. Jefferson placed much faith in the people at large to judge wisely and appropriately, but Madison here signals his misgivings about relying too much on the citizenry. Once again the implication is that rocking the apple cart too often would lead to undesirable outcomes, and as such we should only resort to constitutional revisions as an absolute last resort. An “unnecessary” multiplication of popular appeals would undermine the sort of order that Madison believed that this new constitution created.
Madison offers another practical objection to Jefferson’s proposal, stating that the legislative branch would be able to control any ensuing convention anyway, thus defeating the very purpose of this appeal. Even if this were not the case, the outcome would be determined by the passions and not the reason of the people at large.
In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. Thepassions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.
This is an incredibly stark rebuke to Jefferson’s optimistic view of democratic society. This is as clear a statement of Madison’s distrust of populism – indeed the final sentence is an almost chilling indictment of the concept of the popular will. It is completely antithetical to Jefferson’s worldview, and it makes Richard K. Mathews’s description of Madison’s “heartless empire of reason” seem rather apt. In fact Mathews is one of the few scholars who understands that Madison and Jefferson are on completely opposite poles, only he is more kindly disposed to Jefferson, whereas I am much more of a Madison man.