James Madison takes up his pen in order to write Federalist 37, thus commencing the second part of the series. From this point forward Publius is mainly concerned with analyzing the Constitution and defending it from anti-Federalist attacks. In this paper, Madison lays the groundwork by taking a look at the difficulties faced by those in attendance at the constitutional convention.
His preamble is a lament that sounds familiar to modern ears as he complains about the lack of civility surrounding the debate over the proposed Constitution.
It is a misfortune, inseparable from human affairs, 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; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question.
He almost sounds like a blogger.
Madison proceeds to examine some of the difficulties surrounding the Constitution’s creation, and he begins by making a strange confession.
Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected.
It is almost impossible to imagine a modern politician admitting that the legislation he supports is imperfect in any way. There are two reasons Madison made this statement. First, and most importantly, it is a reflection of his overall philosophy. Madison represented the Federalist, anti-Utopian strain of thought. Of course nothing compiled by mere mortals could possibly be faultless. Man is an imperfect animal, and anything he produces will be less than perfect. Such is the nature of the fallen world. But I believe that Madison is also softening the reader, and he does this throughout this essay. He is essentially lowering the bar. Of course this Constitution has faults, so the reader should be willing to excuse perceived deficiencies in the Constitution by recognizing that it couldn’t be a perfect document. Repeatedly Madison refers to the concessions and compromises that had to be made by the Framers, and in doing so it appears as though he is planting seeds within the readers mind that he, too, should be able to compromise as these great men had done. It was genius, really, and it shows that Alexander Hamilton wasn’t the only Federalist Paper writer willing to play some rhetorical games to butter up the audience.
Madison continues by noting that the job of the convention was to improve upon the Articles of Confederation.
The most that the convention could do in such a situation, 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 may unfold them.
Once again, in a sense Madison lowers expectations. Human experience and history had shown what didn’t work, so the Framers had a limited source of reference by which to model their constitution.
Now Madison explores the many compromises the Framers had to make. The key thing for them was striking an appropriate balance between liberty and stability.
Among the difficulties encountered by the convention, a very important one must have lain in 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, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject.
This is an ever-present concern of Madison’s, and variations on this theme will be repeated in all of his contributions. Madison is ever the pragmatist, and he is perpetually concerned with establishing just the right balance – see Federalist 10 and then later 51 for prime examples of this.
He then strikes a Hamiltonian note.
Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government.
This need for energy in government needs to be balanced against other concerns.
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. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations.
Another recurring theme of Madison is this fear over the mutability of laws, which in turn leads to societal instability. While both Hamilton and Madison were concerned about striking the right balance between energy and stability, it is apparent in reading both that Madison was much more worried about the latter and Hamilton the former. Almost every major theoretical point made by Madison refers to the striking appropriate balances and restraining impulses. This reflects a deeply conservative attitude that I think marks Madison as the most Burkean of all of the Framers, but that’s a topic for another time.
Again, Madison emphasizes this point about striking the appropriate balance.
The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.
Madison will come back to this topic in later essays. Again, the Framers were charged with providing for democratic accountability while at the same time making sure that these elected representatives didn’t simply cater to every majoritarian whim. It was a tightrope the involved the creation of various institutional mechanisms, of which we’ll explore when we get into the late 40s and 50s.
Another delicate area requiring compromise and fine-tuning was finding the appropriate balance of authority between the state and federal governments. Madison acknowledges that this must have been an arduous task (he should kn0w). He takes this opportunity to engage in some metaphysical ruminations about the difficulty of classifying objects, ultimately making a broader point about perfectly delineating the functions of each branch of government.
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 man, in which the obscurity arises as well 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 judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.
Long story short, there were a lot of complex issues being debated over by imperfect human beings. This seems like another plea for understanding from his audience. Indeed he refers to the heavens in order to hammer home his point.
And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
Madison then explores another conflict – that between the large and small states.
To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.
Madison is playing a bit of a game here. He doesn’t need to suppose – he knows that this is what happened. So in effect he is simply explaining why the Constitution developed as it did. By explaining that the end product was a result of various compromises, Madison subtly pushes his audience towards acceptance of an imperfect document.
And of course it wasn’t just a battle between small and large states that plagued the constitutional debates.
Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. 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, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it.
Echoes of Federalist 10. Here we see yet another recurring theme in Madison’s writing: the perils of factionalism. In a country as big and diverse as the United States of America, factions would emerge in all states and localities. The Constitution was designed to keep these factions at bay, or at least to prevent a majority faction from emerging to tyrannize over the minority.
At this point, Madison invokes the Almighty.
The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
This is almost certainly an honest expression of thanks from the former theology student. But I think there’s something else at work here, something that makes this one of the most fascinating psycho-political essays ever written. Here is how Madison concludes:
In revolving 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, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities the 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.
I think this final paragraph perfectly encapsulates the entire paper. Perhaps I am guilty of a bit of over-analysis, but it seems to me that Madison is sending a clear message here. His message appears to be something like this: Some of the greatest minds of our generation sat in a room for four months to hammer out this Constitution. These were men of high principle, all who held very firm convictions. These men all compromised and worked out solutions to very thorny problems. In the end, all of them (well, almost all) set aside any personal grievances they may have had about the end product and agreed to approve and sign this proposed constitution. If these men could look past the imperfections of this final document, and if these men compromised in order to advance the greater good, then so should you.
And to think this is just the warmup act.