Federalist 38 is one of the more interesting essays written by James Madison. It is somewhat more polemical than any of the other essays he penned in this series. Also, depending on how deeply between the lines one is willing to read, it is a strikingly Hamiltonian.
Madison spends a great deal of time at the outset discussing the history of constitutional development. He notes that for most of human history constitutions were handed down by individuals. The constitutional convention was truly a groundbreaking achievement, none the least of which because it produced a constitution created by a group of men rather than a single lawgiver.
There are several possible ways to interpret this mini history lesson. One is to simply accept it at face value for what it is: a history lesson. Of course it might be more than this. Perhaps Madison wants to highlight the achievement of the Framers by placing it in historical context. Also, he is quite possibly building upon the previous essay by showing that the Framers had an incredibly difficult job, and any perceived imperfections in the final document had to be understood in light of the fact that it was the product of a committee that had to compromise along the way, as opposed to men like Solon who handed down constitutions according to their own whims.
The fact that Madison proceeds to spend much of the rest of the paper running down the anti-Federalists and their inability to offer up any meaningful counter-proposals suggests an even more sinister possibility. Maybe Madison is suggesting that the only alternative to the Constitution is chaos or tyranny (or both). That might be taking interpretation too far, but it’s not unreasonable to suggest that Madison is once again engaging in a little bit of rhetorical trickery. “If you guys are so smart, let’s see what you can do” seems to be the overriding theme of this paper.
At any rate, we should read Madison’s own words to understand what he’s trying to accomplish.
