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Federalist
No. 40
The Powers of the Convention
to Form a Mixed Government Examined and Sustained - From
the New York Packet. Friday, January 18, 1788. |
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Author: James Madison
To the People of the State of New York:
THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution. The
powers of the convention ought, in strictness, to be determined
by an inspection of the commissions given to the members by
their respective constituents. As all of these, however, had
reference, either to the recommendation from the meeting at
Annapolis, in September, 1786, or to that from Congress, in
February, 1787, it will be sufficient to recur to these
particular acts. The act from Annapolis recommends the
``appointment of commissioners to take into consideration the
situation of the United States; to devise SUCH FURTHER
PROVISIONS as shall appear to them necessary to render the
Constitution of the federal government ADEQUATE TO THE
EXIGENCIES OF THE UNION; and to report such an act for that
purpose, to the United States in Congress assembled, as when
agreed to by them, and afterwards confirmed by the legislature
of every State, will effectually provide for the same. ''The
recommendatory act of Congress is in the words
following:``WHEREAS, There is provision in the articles of
Confederation and perpetual Union, for making alterations
therein, by the assent of a Congress of the United States, and
of the legislatures of the several States; and whereas
experience hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States,
and PARTICULARLY THE STATE OF NEW YORK, by express instructions
to their delegates in Congress, have suggested a convention for
the purposes expressed in the following resolution; and such
convention appearing to be the most probable mean of
establishing in these States A FIRM NATIONAL
GOVERNMENT:``Resolved, That in the opinion of Congress it is
expedient, that on the second Monday of May next a convention of
delegates, who shall have been appointed by the several States,
be held at Philadelphia, for the sole and express purpose OF
REVISING THE ARTICLES OF CONFEDERATION, and reporting to
Congress and the several legislatures such ALTERATIONS AND
PROVISIONS THEREIN, as shall, when agreed to in Congress, and
confirmed by the States, render the federal Constitution
ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF
THE UNION. ''From these two acts, it appears, 1st, that the
object of the convention was to establish, in these States, A
FIRM NATIONAL GOVERNMENT; 2d, that this government was to be
such as would be ADEQUATE TO THE EXIGENCIES OF GOVERNMENT and
THE PRESERVATION OF THE UNION; 3d, that these purposes were to
be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
CONFEDERATION, as it is expressed in the act of Congress, or by
SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands
in the recommendatory act from Annapolis; 4th, that the
alterations and provisions were to be reported to Congress, and
to the States, in order to be agreed to by the former and
confirmed by the latter. From a comparison and fair construction
of these several modes of expression, is to be deduced the
authority under which the convention acted. They were to frame a
NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT,
and OF THE UNION; and to reduce the articles of Confederation
into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason,
as well as founded on legal axioms. The one is, that every part
of the expression ought, if possible, to be allowed some
meaning, and be made to conspire to some common end. The other
is, that where the several parts cannot be made to coincide, the
less important should give way to the more important part; the
means should be sacrificed to the end, rather than the end to
the means. Suppose, then, that the expressions defining the
authority of the convention were irreconcilably at variance with
each other; that a NATIONAL and ADEQUATE GOVERNMENT could not
possibly, in the judgment of the convention, be affected by
ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION;
which part of the definition ought to have been embraced, and
which rejected? Which was the more important, which the less
important part? Which the end; which the means? Let the most
scrupulous expositors of delegated powers; let the most
inveterate objectors against those exercised by the convention,
answer these questions. Let them declare, whether it was of most
importance to the happiness of the people of America, that the
articles of Confederation should be disregarded, and an adequate
government be provided, and the Union preserved; or that an
adequate government should be omitted, and the articles of
Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a
reform of the government was to be introduced as the means; or
whether the establishment of a government, adequate to the
national happiness, was the end at which these articles
themselves originally aimed, and to which they ought, as
insufficient means, to have been sacrificed. But is it necessary
to suppose that these expressions are absolutely irreconcilable
to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES
OF THE CONFEDERATION could possibly mould them into a national
and adequate government; into such a government as has been
proposed by the convention? No stress, it is presumed, will, in
this case, be laid on the TITLE; a change of that could never be
deemed an exercise of ungranted power. ALTERATIONS in the body
of the instrument are expressly authorized. NEW PROVISIONS
therein are also expressly authorized. Here then is a power to
change the title; to insert new articles; to alter old ones.
Must it of necessity be admitted that this power is infringed,
so long as a part of the old articles remain? Those who maintain
the affirmative ought at least to mark the boundary between
authorized and usurped innovations; between that degree of
change which lies within the compass of ALTERATIONS AND FURTHER
PROVISIONS, and that which amounts to a TRANSMUTATION of the
government. Will it be said that the alterations ought not to
have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity,
nor described its objects with so much latitude, if some
SUBSTANTIAL reform had not been in contemplation. Will it be
said that the FUNDAMENTAL PRINCIPLES of the Confederation were
not within the purview of the convention, and ought not to have
been varied? I ask, What are these principles? Do they require
that, in the establishment of the Constitution, the States
should be regarded as distinct and independent sovereigns? They
are so regarded by the Constitution proposed. Do they require
that the members of the government should derive their
appointment from the legislatures, not from the people of the
States? One branch of the new government is to be appointed by
these legislatures; and under the Confederation, the delegates
to Congress MAY ALL be appointed immediately by the people, and
in two States are actually so appointed. Do they require that
the powers of the government should act on the States, and not
immediately on individuals? In some instances, as has been
shown, the powers of the new government will act on the States
in their collective characters. In some instances, also, those
of the existing government act immediately on individuals. In
cases of capture; of piracy; of the post office; of coins,
weights, and measures; of trade with the Indians; of claims
under grants of land by different States; and, above all, in the
case of trials by courts-marshal in the army and navy, by which
death may be inflicted without the intervention of a jury, or
even of a civil magistrate; in all these cases the powers of the
Confederation operate immediately on the persons and interests
of individual citizens. Do these fundamental principles require,
particularly, that no tax should be levied without the
intermediate agency of the States? The Confederation itself
authorizes a direct tax, to a certain extent, on the post
office. The power of coinage has been so construed by Congress
as to levy a tribute immediately from that source also. But
pretermitting these instances, was it not an acknowledged object
of the convention and the universal expectation of the people,
that the regulation of trade should be submitted to the general
government in such a form as would render it an immediate source
of general revenue? Had not Congress repeatedly recommended this
measure as not inconsistent with the fundamental principles of
the Confederation? Had not every State but one; had not New York
herself, so far complied with the plan of Congress as to
recognize the PRINCIPLE of the innovation? Do these principles,
in fine, require that the powers of the general government
should be limited, and that, beyond this limit, the States
should be left in possession of their sovereignty and
independence? We have seen that in the new government, as in the
old, the general powers are limited; and that the States, in all
unenumerated cases, are left in the enjoyment of their sovereign
and independent jurisdiction. The truth is, that the great
principles of the Constitution proposed by the convention may be
considered less as absolutely new, than as the expansion of
principles which are found in the articles of Confederation. The
misfortune under the latter system has been, that these
principles are so feeble and confined as to justify all the
charges of inefficiency which have been urged against it, and to
require a degree of enlargement which gives to the new system
the aspect of an entire transformation of the old. In one
particular it is admitted that the convention have departed from
the tenor of their commission. Instead of reporting a plan
requiring the confirmation OF THE LEGISLATURES OF ALL THE
STATES, they have reported a plan which is to be confirmed by
the PEOPLE, and may be carried into effect by NINE STATES ONLY.
It is worthy of remark that this objection, though the most
plausible, has been the least urged in the publications which
have swarmed against the convention. The forbearance can only
have proceeded from an irresistible conviction of the absurdity
of subjecting the fate of twelve States to the perverseness or
corruption of a thirteenth; from the example of inflexible
opposition given by a MAJORITY of one sixtieth of the people of
America to a measure approved and called for by the voice of
twelve States, comprising fifty-nine sixtieths of the people an
example still fresh in the memory and indignation of every
citizen who has felt for the wounded honor and prosperity of his
country. As this objection, therefore, has been in a manner
waived by those who have criticised the powers of the
convention, I dismiss it without further observation. The THIRD
point to be inquired into is, how far considerations of duty
arising out of the case itself could have supplied any defect of
regular authority. In the preceding inquiries the powers of the
convention have been analyzed and tried with the same rigor, and
by the same rules, as if they had been real and final powers for
the establishment of a Constitution for the United States. We
have seen in what manner they have borne the trial even on that
supposition. It is time now to recollect that the powers were
merely advisory and recommendatory; that they were so meant by
the States, and so understood by the convention; and that the
latter have accordingly planned and proposed a Constitution
which is to be of no more consequence than the paper on which it
is written, unless it be stamped with the approbation of those
to whom it is addressed. This reflection places the subject in a
point of view altogether different, and will enable us to judge
with propriety of the course taken by the convention. Let us
view the ground on which the convention stood. It may be
collected from their proceedings, that they were deeply and
unanimously impressed with the crisis, which had led their
country almost with one voice to make so singular and solemn an
experiment for correcting the errors of a system by which this
crisis had been produced; that they were no less deeply and
unanimously convinced that such a reform as they have proposed
was absolutely necessary to effect the purposes of their
appointment. It could not be unknown to them that the hopes and
expectations of the great body of citizens, throughout this
great empire, were turned with the keenest anxiety to the event
of their deliberations. They had every reason to believe that
the contrary sentiments agitated the minds and bosoms of every
external and internal foe to the liberty and prosperity of the
United States. They had seen in the origin and progress of the
experiment, the alacrity with which the PROPOSITION, made by a
single State (Virginia), towards a partial amendment of the
Confederation, had been attended to and promoted. They had seen
the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and
critical object, wholly foreign to their commission, not only
justified by the public opinion, but actually carried into
effect by twelve out of the thirteen States. They had seen, in a
variety of instances, assumptions by Congress, not only of
recommendatory, but of operative, powers, warranted, in the
public estimation, by occasions and objects infinitely less
urgent than those by which their conduct was to be governed.
They must have reflected, that in all great changes of
established governments, forms ought to give way to substance;
that a rigid adherence in such cases to the former, would render
nominal and nugatory the transcendent and precious right of the
people to ``abolish or alter their governments as to them shall
seem most likely to effect their safety and happiness,'' since
it is impossible for the people spontaneously and universally to
move in concert towards their object; and it is therefore
essential that such changes be instituted by some INFORMAL AND
UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have
recollected that it was by this irregular and assumed privilege
of proposing to the people plans for their safety and happiness,
that the States were first united against the danger with which
they were threatened by their ancient government; that
committees and congresses were formed for concentrating their
efforts and defending their rights; and that CONVENTIONS were
ELECTED in THE SEVERAL STATES for establishing the constitutions
under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for
adhering to ordinary forms, were anywhere seen, except in those
who wished to indulge, under these masks, their secret enmity to
the substance contended for. They must have borne in mind, that
as the plan to be framed and proposed was to be submitted TO THE
PEOPLE THEMSELVES, the disapprobation of this supreme authority
would destroy it forever; its approbation blot out antecedent
errors and irregularities. It might even have occurred to them,
that where a disposition to cavil prevailed, their neglect to
execute the degree of power vested in them, and still more their
recommendation of any measure whatever, not warranted by their
commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the
national exigencies. Had the convention, under all these
impressions, and in the midst of all these considerations,
instead of exercising a manly confidence in their country, by
whose confidence they had been so peculiarly distinguished, and
of pointing out a system capable, in their judgment, of securing
its happiness, taken the cold and sullen resolution of
disappointing its ardent hopes, of sacrificing substance to
forms, of committing the dearest interests of their country to
the uncertainties of delay and the hazard of events, let me ask
the man who can raise his mind to one elevated conception, who
can awaken in his bosom one patriotic emotion, what judgment
ought to have been pronounced by the impartial world, by the
friends of mankind, by every virtuous citizen, on the conduct
and character of this assembly? Or if there be a man whose
propensity to condemn is susceptible of no control, let me then
ask what sentence he has in reserve for the twelve States who
USURPED THE POWER of sending deputies to the convention, a body
utterly unknown to their constitutions; for Congress, who
recommended the appointment of this body, equally unknown to the
Confederation; and for the State of New York, in particular,
which first urged and then complied with this unauthorized
interposition? But that the objectors may be disarmed of every
pretext, it shall be granted for a moment that the convention
were neither authorized by their commission, nor justified by
circumstances in proposing a Constitution for their country:
does it follow that the Constitution ought, for that reason
alone, to be rejected? If, according to the noble precept, it be
lawful to accept good advice even from an enemy, shall we set
the ignoble example of refusing such advice even when it is
offered by our friends? The prudent inquiry, in all cases, ought
surely to be, not so much FROM WHOM the advice comes, as whether
the advice be GOOD. The sum of what has been here advanced and
proved is, that the charge against the convention of exceeding
their powers, except in one instance little urged by the
objectors, has no foundation to support it; that if they had
exceeded their powers, they were not only warranted, but
required, as the confidential servants of their country, by the
circumstances in which they were placed, to exercise the liberty
which they assume; and that finally, if they had violated both
their powers and their obligations, in proposing a Constitution,
this ought nevertheless to be embraced, if it be calculated to
accomplish the views and happiness of the people of America. How
far this character is due to the Constitution, is the subject
under investigation.
PUBLIUS. |
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