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.