James Madison
American President
1751-1836 A selection from the
FEDERALIST PAPER NUMBER 38
Narrated by Dick Hill
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Saturday, January 12, 1788
IT IS not a little remarkable that in every case reported by ancient
history, in which government has been established with deliberation and
consent, the task of framing it has not been committed to an assembly of
men, but has been performed by some individual citizen of preeminent
wisdom and approved integrity.
What degree of agency these reputed lawgivers might have in their
respective establishments, or how far they might be clothed with the
legitimate authority of the people, cannot in every instance be
ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with
indefinite powers to reform its government and laws.
And Solon,
according to Plutarch, was in a manner compelled, by the universal
suffrage of his fellow-citizens, to take upon him the sole and absolute
power of new-modeling the constitution. The proceedings under Lycurgus
were less regular; but as far as the advocates for a regular reform
could prevail, they all turned their eyes towards the single efforts of
that celebrated patriot and sage, instead of seeking to bring about a
revolution by the intervention of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the Greeks
were of their liberty, should so far abandon the rules of caution as to
place their destiny in the hands of a single citizen? Whence could it
have proceeded, that the Athenians, a people who would not suffer an
army to be commanded by fewer than ten generals, and who required no
other proof of danger to their liberties than the illustrious merit of a
fellow-citizen, should consider one illustrious citizen as a more
eligible depositary of the fortunes of themselves and their posterity,
than a select body of citizens, from whose common deliberations more
wisdom, as well as more safety, might have been expected? These
questions cannot be fully answered, without supposing that the fears of
discord and disunion among a number of counsellors exceeded the
apprehension of treachery or incapacity in a single individual. History
informs us, likewise, of the difficulties with which these celebrated
reformers had to contend, as well as the expedients which they were
obliged to employ in order to carry their reforms into effect.
Solon,
who seems to have indulged a more temporizing policy, confessed that he
had not given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus, more
true to his object, was under the necessity of mixing a portion of
violence with the authority of superstition, and of securing his final
success by a voluntary renunciation, first of his country, and then of
his life. If these lessons teach us, on one hand, to admire the
improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on the
other, to admonish us of the hazards and difficulties incident to such
experiments, and of the great imprudence of unnecessarily multiplying
them.
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.
It is a matter both of wonder and regret, that those who raise so many
objections against the new Constitution should never call to mind the
defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold,
because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building,
because the latter had not a porch to it, or because some of the rooms
might be a little larger or smaller, or the ceilings a little higher or
lower than his fancy would have planned them.
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.
I mean not, by any thing here said, to throw censure on the measures
which have been pursued by Congress. I am sensible they could not have
done otherwise. The public interest, the necessity of the case, imposed
upon them the task of overleaping their constitutional limits. But is
not the fact an alarming proof of the danger resulting from a government
which does not possess regular powers commensurate to its objects? A
dissolution or usurpation is the dreadful dilemma to which it is
continually exposed. More information about James Madison from Wikipedia
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