Federalist No.37

Concerning The Difficulties Of The Convention In Devising A Proper Form Of Government

Friday, January 11, 1788

James Madison


37.1

James Madison returns to the writing of the Federalist Papers with this instalment. This paper follows a series of papers by Hamilton that support the new constitution on various philosophical, political, theoretical and historical grounds. Madison adopts a new strategy here. He turns to the difficulties faced by the Constitutional Convention, and by describing these difficulties in broad terms suggests that not only did the convention achieve remarkable agreement, but that its achievement instinctively suggests its moral weight; that a finger of that Almighty hand had a part in the framing of the constitution.

37.2

Madison begins by defining his intended reading audience. He writes not for the predetermined adversary who may or may not have good intentions, but to those who add to a sincere zeal for the happiness of their country. Implicitly, he writes for those who are able to reflect fairly on the merits of the constitution and accept compromise, as did its writers.

37.3

Next, he outlines key problems in framing the constitution. He discusses the problem of balancing the needs of stability and energy in government, and the need for liberty. For the government to be stable and wield power effectively it must have sufficient independence and time to achieve its goals. However, this must be balanced by the power of the people to change a government at a regular enough interval that the power of a government does not become onerous or tyrannical:

The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but those intrusted with it should be kept in independence of the people, by a short duration of their appointments … Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same.
37.4

The balancing act extends to the problem of State and Federal powers, along with the problems of the different wealth and populations of each state and their various different resources with different needs from government. For this reason, the creation of a constitution is not a purely theoretical undertaking, but requires the consideration of outside interests, and compromise.

37.5

Madison also points to the problems of defining laws and balancing the power of law making through the different branches of government: legislative, executive and judiciary. Added to this is the problem of the inexactness of language. Writing a constitution, along with the laws that will support it, is fraught with the problems of interpretation. Madison points out that Great Britain, whose institutions are much older, still struggles with the balancing of its various legislative bodies and the interpretation of its own laws. I think Madison’s point is that the new constitution will be a work in progress, and it will continue to be defined and further understood through test cases, as well as laws yet to be written.

37.6

Madison concludes with the example of the United Netherlands and other unnamed countries which have been wracked by problems caused by discordant opinions, assuaging their mutual jealousies … a history of factions, contentions, and disappointments. Madison argues that the Constitutional Convention enjoyed discussions free of party-political animosity, and that even though many deep convictions were held by the delegates, there was a willingness to compromise for the public good. In representing the efforts of the convention in this way, Madison is arguing that the constitution reflects broad American interests – that there is an inherent moral rightness to the document – and it will continue to serve the public as it is further refined in the years to come.

6 January 2019