FEDERALIST No. 49



Method of Guarding Against the Encroachments of Any One Department of 

Government by Appealing to the People Through a Convention

For the Independent Journal. 

Saturday, February 2, 1788. 



MADISON



To the People of the State of New York:



THE author of the "Notes on the State of Virginia," quoted in the last

paper, has subjoined to that valuable work the draught of a

constitution, which had been prepared in order to be laid before a

convention, expected to be called in 1783, by the legislature, for the

establishment of a constitution for that commonwealth. The plan, like

every thing from the same pen, marks a turn of thinking, original,

comprehensive, and accurate; and is the more worthy of attention as it

equally displays a fervent attachment to republican government and an

enlightened view of the dangerous propensities against which it ought to

be guarded. One of the precautions which he proposes, and on which he

appears ultimately to rely as a palladium to the weaker departments of

power against the invasions of the stronger, is perhaps altogether his

own, and as it immediately relates to the subject of our present

inquiry, ought not to be overlooked.



His proposition is, "that whenever any two of the three branches of

government shall concur in opinion, each by the voices of two thirds of

their whole number, that a convention is necessary for altering the

constitution, or CORRECTING BREACHES OF IT, a convention shall be called

for the purpose."



As the people are the only legitimate fountain of power, and it is from

them that the constitutional charter, under which the several branches

of government hold their power, is derived, it seems strictly consonant

to the republican theory, to recur to the same original authority, not

only whenever it may be necessary to enlarge, diminish, or new-model the

powers of the government, but also whenever any one of the departments

may commit encroachments on the chartered authorities of the others. The

several departments being perfectly co-ordinate by the terms of their

common commission, none of them, it is evident, can pretend to an

exclusive or superior right of settling the boundaries between their

respective powers; and how are the encroachments of the stronger to be

prevented, or the wrongs of the weaker to be redressed, without an

appeal to the people themselves, who, as the grantors of the

commissions, can alone declare its true meaning, and enforce its

observance?



There is certainly great force in this reasoning, and it must be allowed

to prove that a constitutional road to the decision of the people ought

to be marked out and kept open, for certain great and extraordinary

occasions. But there appear to be insuperable objections against the

proposed recurrence to the people, as a provision in all cases for

keeping the several departments of power within their constitutional

limits.



In the first place, the provision does not reach the case of a

combination of two of the departments against the third. If the

legislative authority, which possesses so many means of operating on the

motives of the other departments, should be able to gain to its interest

either of the others, or even one third of its members, the remaining

department could derive no advantage from its remedial provision. I do

not dwell, however, on this objection, because it may be thought to be

rather against the modification of the principle, than against the

principle itself.



In the next place, it may be considered as an objection inherent in the

principle, that as every appeal to the people would carry an implication

of some defect in the government, frequent appeals would, in a great

measure, deprive the government of that veneration which time bestows on

every thing, and without which perhaps the wisest and freest governments

would not possess the requisite stability. If it be true that all

governments rest on opinion, it is no less true that the strength of

opinion in each individual, and its practical influence on his conduct,

depend much on the number which he supposes to have entertained the same

opinion. The reason of man, like man himself, is timid and cautious when

left alone, and acquires firmness and confidence in proportion to the

number with which it is associated. When the examples which fortify

opinion are ANCIENT as well as NUMEROUS, they are known to have a double

effect. In a nation of philosophers, this consideration ought to be

disregarded. A reverence for the laws would be sufficiently inculcated

by the voice of an enlightened reason. But a nation of philosophers is

as little to be expected as the philosophical race of kings wished for

by Plato. And in every other nation, the most rational government will

not find it a superfluous advantage to have the prejudices of the

community on its side.



The danger of disturbing the public tranquillity by interesting too

strongly the public passions, is a still more serious objection against

a frequent reference of constitutional questions to the decision of the

whole society. Notwithstanding the success which has attended the

revisions of our established forms of government, and which does so much

honor to the virtue and intelligence of the people of America, it must

be confessed that the experiments are of too ticklish a nature to be

unnecessarily multiplied. We are to recollect that all the existing

constitutions were formed in the midst of a danger which repressed the

passions most unfriendly to order and concord; of an enthusiastic

confidence of the people in their patriotic leaders, which stifled the

ordinary diversity of opinions on great national questions; of a

universal ardor for new and opposite forms, produced by a universal

resentment and indignation against the ancient government; and whilst no

spirit of party connected with the changes to be made, or the abuses to

be reformed, could mingle its leaven in the operation. The future

situations in which we must expect to be usually placed, do not present

any equivalent security against the danger which is apprehended.



But the greatest objection of all is, that the decisions which would

probably result from such appeals would not answer the purpose of

maintaining the constitutional equilibrium of the government. We have

seen that the tendency of republican governments is to an aggrandizement

of the legislative at the expense of the other departments. The appeals

to the people, therefore, would usually be made by the executive and

judiciary departments. But whether made by one side or the other, would

each side enjoy equal advantages on the trial? Let us view their

different situations. The members of the executive and judiciary

departments are few in number, and can be personally known to a small

part only of the people. The latter, by the mode of their appointment,

as well as by the nature and permanency of it, are too far removed from

the people to share much in their prepossessions. The former are

generally the objects of jealousy, and their administration is always

liable to be discolored and rendered unpopular. The members of the

legislative department, on the other hand, are numberous. They are

distributed and dwell among the people at large. Their connections of

blood, of friendship, and of acquaintance embrace a great proportion of

the most influential part of the society. The nature of their public

trust implies a personal influence among the people, and that they are

more immediately the confidential guardians of the rights and liberties

of the people. With these advantages, it can hardly be supposed that the

adverse party would have an equal chance for a favorable issue.



But the legislative party would not only be able to plead their cause

most successfully with the people. They would probably be constituted

themselves the judges. The same influence which had gained them an

election into the legislature, would gain them a seat in the convention.

If this should not be the case with all, it would probably be the case

with many, and pretty certainly with those leading characters, on whom

every thing depends in such bodies. The convention, in short, would be

composed chiefly of men who had been, who actually were, or who expected

to be, members of the department whose conduct was arraigned. They would

consequently be parties to the very question to be decided by them.



It might, however, sometimes happen, that appeals would be made under

circumstances less adverse to the executive and judiciary departments.

The usurpations of the legislature might be so flagrant and so sudden,

as to admit of no specious coloring. A strong party among themselves

might take side with the other branches. The executive power might be in

the hands of a peculiar favorite of the people. In such a posture of

things, the public decision might be less swayed by prepossessions in

favor of the legislative party. But still it could never be expected to

turn on the true merits of the question. It would inevitably be

connected with the spirit of pre-existing parties, or of parties

springing out of the question itself. It would be connected with persons

of distinguished character and extensive influence in the community. It

would be pronounced by the very men who had been agents in, or opponents

of, the measures to which the decision would relate. The PASSIONS,

therefore, not the REASON, of the public would sit in judgment. But it

is the reason, alone, of the public, that ought to control and regulate

the government. The passions ought to be controlled and regulated by the

government.



We found in the last paper, that mere declarations in the written

constitution are not sufficient to restrain the several departments

within their legal rights. It appears in this, that occasional appeals

to the people would be neither a proper nor an effectual provision for

that purpose. How far the provisions of a different nature contained in

the plan above quoted might be adequate, I do not examine. Some of them

are unquestionably founded on sound political principles, and all of

them are framed with singular ingenuity and precision.



PUBLIUS