FEDERALIST No. 38



The Same Subject Continued, and the Incoherence of the Objections

to the New Plan Exposed

From the Independent Journal.

Saturday, January 12, 1788.



MADISON



To the People of the State of New York:



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.



Minos, we learn, was the primitive founder of the government of Crete,

as Zaleucus was of that of the Locrians. Theseus first, and after him

Draco and Solon, instituted the government of Athens. Lycurgus was the

lawgiver of Sparta. The foundation of the original government of Rome

was laid by Romulus, and the work completed by two of his elective

successors, Numa and Tullius Hostilius. On the abolition of royalty the

consular administration was substituted by Brutus, who stepped forward

with a project for such a reform, which, he alleged, had been prepared

by Tullius Hostilius, and to which his address obtained the assent and

ratification of the senate and people. This remark is applicable to

confederate governments also. Amphictyon, we are told, was the author of

that which bore his name. The Achaean league received its first birth

from Achaeus, and its second from Aratus.



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.



Is it an unreasonable conjecture, that the errors which may be contained

in the plan of the convention are such as have resulted rather from the

defect of antecedent experience on this complicated and difficult

subject, than from a want of accuracy or care in the investigation of

it; and, consequently such as will not be ascertained until an actual

trial shall have pointed them out? This conjecture is rendered probable,

not only by many considerations of a general nature, but by the

particular case of the Articles of Confederation. It is observable that

among the numerous objections and amendments suggested by the several

States, when these articles were submitted for their ratification, not

one is found which alludes to the great and radical error which on

actual trial has discovered itself. And if we except the observations

which New Jersey was led to make, rather by her local situation, than by

her peculiar foresight, it may be questioned whether a single suggestion

was of sufficient moment to justify a revision of the system. There is

abundant reason, nevertheless, to suppose that immaterial as these

objections were, they would have been adhered to with a very dangerous

inflexibility, in some States, had not a zeal for their opinions and

supposed interests been stifled by the more powerful sentiment of

selfpreservation. One State, we may remember, persisted for several

years in refusing her concurrence, although the enemy remained the whole

period at our gates, or rather in the very bowels of our country. Nor

was her pliancy in the end effected by a less motive, than the fear of

being chargeable with protracting the public calamities, and endangering

the event of the contest. Every candid reader will make the proper

reflections on these important facts.



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.



As it can give no umbrage to the writers against the plan of the federal

Constitution, let us suppose, that as they are the most zealous, so they

are also the most sagacious, of those who think the late convention were

unequal to the task assigned them, and that a wiser and better plan

might and ought to be substituted. Let us further suppose that their

country should concur, both in this favorable opinion of their merits,

and in their unfavorable opinion of the convention; and should

accordingly proceed to form them into a second convention, with full

powers, and for the express purpose of revising and remoulding the work

of the first. Were the experiment to be seriously made, though it

required some effort to view it seriously even in fiction, I leave it to

be decided by the sample of opinions just exhibited, whether, with all

their enmity to their predecessors, they would, in any one point, depart

so widely from their example, as in the discord and ferment that would

mark their own deliberations; and whether the Constitution, now before

the public, would not stand as fair a chance for immortality, as

Lycurgus gave to that of Sparta, by making its change to depend on his

own return from exile and death, if it were to be immediately adopted,

and were to continue in force, not until a BETTER, but until ANOTHER

should be agreed upon by this new assembly of lawgivers.



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 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?



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.



PUBLIUS