Federalist 38 – Madison

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.

The following a fairly long quotation taken from the essay, and I’m probably violating all sorts of fair use rules by pasting it in its entirety.  But it sums up the essence of the entire paper, so it is worth citing in full.

A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. “We concur fully,” reply others, “in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department.” Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself.

That’s one long paragraph (over a thousand words).  Long story short, the anti-Federalists, just like the Federalists, by and large agree that the government under the Articles of Confederation is imperfect.  Both sides agree that things must change.  The anti-Federalists oppose the Constitution, but offer up no clear alternative solution.  Moreover, the anti-Federalists are divided.  They are not of a single-mind on the Constitution.  Some find certain elements more troublesome than others, and in some regards offer completely contrary takes.

The message that Madison is trying to get across is this: if we try to organize another constitutional convention, we’re no more likely to achieve a more meaningful consensus than what we’ve done with the proposed Constitution.  We’re going to be stuck with this pitiful existence under the Articles of Confederation so long as we continue to haggle over every little detail.  Considering the fact that the opponents of the plan aren’t even unified, we’re likely to never get a constitution that will be approved of the requisite majority.  This could be our one last chance at anything approaching political consensus, and unless the opponents offer up a meaningful counter-proposal, this is what we should go with.

It’s an argument that has been used throughout all of American history, and we see it even today.  Our idea my not be so hot, but what have you got?  Is this really a good argument, though?  Perhaps the patient is putting his life in even graver danger by refusing to take the medication, but if a reasoned analysis persuades the patient that the cure is worse than the illness, then the patient would be wise to reject the proposed cure.  If the illness is not fatal, then better to bare with the malady rather than inject something which will bring about the patient’s death.  Better to linger with the illness until a better cure comes along than to ingest what will immediately kill you.

The next point that Madison makes is that not only are the Articles of Confederation worse than the proposed Constitution, but that they are loaded with many of the problems that the anti-Federalists are so concerned about.

But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.

It is a curious stratagem being employed by Madison.  Publius has spent the better part of 37 papers complaining of the weaknesses of the AoC government, and now here’s Madison explaining that it is theoretically too strong a government.  His point is that this government is theoretically  just as powerful – and much more so – than the government under the Constitution, but with none of the proscribed limits and internal mechanisms designed to curtail the government’s powers.  It is thus too weak in practice but too strong in theory.

He concludes with another long paragraph, further describing the tyrannical aspects of the Articles of Confederation.

I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly?

Madison wants a little more consistency from the Constitution’s opponents.  Once again, Madison shows that he can be just as rhetorically cutting as Alexander Hamilton, if not more so.

Published in: on August 23, 2010 at 10:10 am  Comments Off on Federalist 38 – Madison  
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