Federalist 50 – Madison

Federalist 50 is a relatively brief continuation of the topic James Madison explored in Federalist 49.  In the previous essay he had critiqued Thomas Jefferson’s proposal to resolve constitutional issues through frequent appeals to the populace.  In this essay, Madison addresses the idea of resolving these issues through periodical appeals to the population.  In other words, there would be fixed intervals at which the nation at large would get to address issues related to enforcing the Constitution (Madison acknowledges that this does not concern amending or altering the Constitution).  Madison rejects this idea, too, noting that there would be problems with either too short or too long periods.

 If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated.

Either the period would be too short, and therefore the issues too current to be settled reasonably, or the intervals would be too long to constrain bad actors.

Madison turns his attention to Pennsylvania, a state which actually developed a mechanism similar to the one under consideration here.  The Council of Censors was impaired by a number of circumstances that prevented it from doing its job fairly.  First of all, many of the individuals on the council “had also been active and leading characters in the parties which pre-existed in the State.”  More importantly, many of the individuals on the council had been members of the executive and legislative branches during the period under review, and therefore had a vested interest in the council’s deliberations.

On top of all this, the proceedings showed the fundamental shortcomings of this particular approach.

Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

The Council of Censors was thus dominated by the same partisan divisions that marked the proceedings of the legislature.  Instead of the council being a dispassionate reviewer of constitutional clashes, it was as beset by partisan wrangling as any other actor involved in the process.

Madison outlines two other problem with the council.  The council “misconstrue[d] the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.”  Finally, Madison doubted that the council’s decisi0ns “had any effect in varying the practice founded on legislative constructions.”  In one instance the legislature essentially ignored the council’s decision.  So not only was this council beset by partisan intrigues, it was ineffective in reigning in the political branches.

Madison has an argument ready for anyone wishing to assert that Pennsylvania is a special case in its partisan division.

Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.

Furthermore, it would be no solution to restrict council membership to people who had not been involved with the government’s decision during the period under consideration.

The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.

Having thus rejected popular appeals as methods of dealing with encroachments of the constitution, what solution does Madison propose.  He provides the answer in Federalist 51.