FEDERALIST No. 37



Concerning the Difficulties of the Convention in Devising a Proper

Form of Government

From the Daily Advertiser.

Friday, January 11, 1788.



MADISON



To the People of the State of New York:



IN REVIEWING the defects of the existing Confederation, and showing that

they cannot be supplied by a government of less energy than that before

the public, several of the most important principles of the latter fell

of course under consideration. But as the ultimate object of these

papers is to determine clearly and fully the merits of this

Constitution, and the expediency of adopting it, our plan cannot be

complete without taking a more critical and thorough survey of the work

of the convention, without examining it on all its sides, comparing it

in all its parts, and calculating its probable effects. That this

remaining task may be executed under impressions conducive to a just and

fair result, some reflections must in this place be indulged, which

candor previously suggests.



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. In placing, however, these different

characters on a level, with respect to the weight of their opinions, I

wish not to insinuate that there may not be a material difference in the

purity of their intentions. It is but just to remark in favor of the

latter description, that as our situation is universally admitted to be

peculiarly critical, and to require indispensably that something should

be done for our relief, the predetermined patron of what has been

actually done may have taken his bias from the weight of these

considerations, as well as from considerations of a sinister nature. The

predetermined adversary, on the other hand, can have been governed by no

venial motive whatever. The intentions of the first may be upright, as

they may on the contrary be culpable. The views of the last cannot be

upright, and must be culpable. But the truth is, that these papers are

not addressed to persons falling under either of these characters. They

solicit the attention of those only, who add to a sincere zeal for the

happiness of their country, a temper favorable to a just estimate of the

means of promoting it.



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. Nor will they barely make

allowances for the errors which may be chargeable on the fallibility to

which the convention, as a body of men, were liable; but will keep in

mind, that they themselves also are but men, and ought not to assume an

infallibility in rejudging the fallible opinions of others.



With equal readiness will it be perceived, that besides these

inducements to candor, many allowances ought to be made for the

difficulties inherent in the very nature of the undertaking referred to

the convention.



The novelty of the undertaking immediately strikes us. It has been shown

in the course of these papers, that the existing Confederation is

founded on principles which are fallacious; that we must consequently

change this first foundation, and with it the superstructure resting

upon it. It has been shown, that the other confederacies which could be

consulted as precedents have been vitiated by the same erroneous

principles, and can therefore furnish no other light than that of

beacons, which give warning of the course to be shunned, without

pointing out that which ought to be pursued. 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.



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. 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. 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. On comparing, however, these valuable ingredients with

the vital principles of liberty, we must perceive at once the difficulty

of mingling them together in their due proportions. 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 independence 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.



How far the convention may have succeeded in this part of their work,

will better appear on a more accurate view of it. From the cursory view

here taken, it must clearly appear to have been an arduous part.



Not less arduous must have been the task of marking the proper line of

partition between the authority of the general and that of the State

governments. Every man will be sensible of this difficulty, in

proportion as he has been accustomed to contemplate and discriminate

objects extensive and complicated in their nature. The faculties of the

mind itself have never yet been distinguished and defined, with

satisfactory precision, by all the efforts of the most acute and

metaphysical philosophers. Sense, perception, judgment, desire,

volition, memory, imagination, are found to be separated by such

delicate shades and minute gradations that their boundaries have eluded

the most subtle investigations, and remain a pregnant source of

ingenious disquisition and controversy. The boundaries between the great

kingdom of nature, and, still more, between the various provinces, and

lesser portions, into which they are subdivided, afford another

illustration of the same important truth. The most sagacious and

laborious naturalists have never yet succeeded in tracing with certainty

the line which separates the district of vegetable life from the

neighboring region of unorganized matter, or which marks the ermination

of the former and the commencement of the animal empire. A still greater

obscurity lies in the distinctive characters by which the objects in

each of these great departments of nature have been arranged and

assorted.



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.



The experience of ages, with the continued and combined labors of the

most enlightened legislatures and jurists, has been equally unsuccessful

in delineating the several objects and limits of different codes of laws

and different tribunals of justice. The precise extent of the common

law, and the statute law, the maritime law, the ecclesiastical law, the

law of corporations, and other local laws and customs, remains still to

be clearly and finally established in Great Britain, where accuracy in

such subjects has been more industriously pursued than in any other part

of the world. The jurisdiction of her several courts, general and local,

of law, of equity, of admiralty, etc., is not less a source of frequent

and intricate discussions, sufficiently denoting the indeterminate

limits by which they are respectively circumscribed. All new laws,

though penned with the greatest technical skill, and passed on the

fullest and most mature deliberation, are considered as more or less

obscure and equivocal, until their meaning be liquidated and ascertained

by a series of particular discussions and adjudications. Besides the

obscurity arising from the complexity of objects, and the imperfection

of the human faculties, the medium through which the conceptions of men

are conveyed to each other adds a fresh embarrassment. The use of words

is to express ideas. Perspicuity, therefore, requires not only that the

ideas should be distinctly formed, but that they should be expressed by

words distinctly and exclusively appropriate to them. But no language is

so copious as to supply words and phrases for every complex idea, or so

correct as not to include many equivocally denoting different ideas.

Hence it must happen that however accurately objects may be

discriminated in themselves, and however accurately the discrimination

may be considered, the definition of them may be rendered inaccurate by

the inaccuracy of the terms in which it is delivered. 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.



Here, then, are three sources of vague and incorrect definitions:

indistinctness of the object, imperfection of the organ of conception,

inadequateness of the vehicle of ideas. Any one of these must produce a

certain degree of obscurity. The convention, in delineating the boundary

between the federal and State jurisdictions, must have experienced the

full effect of them all.



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.



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.



Would it be wonderful if, under the pressure of all these difficulties,

the convention should have been forced into some deviations from that

artificial structure and regular symmetry which an abstract view of the

subject might lead an ingenious theorist to bestow on a Constitution

planned in his closet or in his imagination? 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.



We had occasion, in a former paper, to take notice of the repeated

trials which have been unsuccessfully made in the United Netherlands for

reforming the baneful and notorious vices of their constitution. The

history of almost all the great councils and consultations held among

mankind for reconciling their discordant opinions, assuaging their

mutual jealousies, and adjusting their respective interests, is a

history of factions, contentions, and disappointments, and may be

classed among the most dark and degraded pictures which display the

infirmities and depravities of the human character. If, in a few

scattered instances, a brighter aspect is presented, they serve only as

exceptions to admonish us of the general truth; and by their lustre to

darken the gloom of the adverse prospect to which they are contrasted.

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.