Federalist No.38

The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed

Saturday, January 12, 1788

James Madison


This paper continues to address the objections raised against the Constitutional Convention. Madison refers back to lawmakers of ancient history to consider how unusual the American experiment is, and how different to periods in the past. On the whole, ancient constitutions like Athens, Sparta and Rome had working constitutions imposed by lawmakers: Theseus, Draco, Solon, Lycurgus and Romulus, for example. In the case of Athens, Madison finds it remarkable that citizens so wary of threats to their liberty would not have demanded more say in the process, except that they may have realised the potential for discord and disunion.


Madison’s line of argument in this paper tends towards an assertion that the current Confederation of States poses more of a threat and is far more unregulated than would be possible under the proposed new constitution. In the case of the War of Independence, he argues that it was difficult to get agreement from some states for years, and agreement was only achieved with the imminent threat of the British army. Madison uses the metaphor of a patient who is prescribed a treatment which is readily agreed upon by several eminent physicians, only to be warned against the course of treatment by several people, none of whom can agree on a better treatment. This represents the critics of the constitution. Madison reasons of his patient, would he not act prudently in trying the experiment unanimously recommended by the latter [doctors], rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?


To illustrate the problem Madison chronicles a long list of objections made against the recommendations of the Constitutional Convention, often disagreeing with one another and offering contradictory solutions, if any. Having outlined the many issues that critics cannot agree upon, he then asks whether a better plan could be expected from these groups if a second Constitutional Convention were held.


Madison finishes by outlining some of the problems with the current Articles of Confederation and states, No man would refuse to give brass for silver of gold, because the latter had some alloy in it.


Among the problems of the current Articles of Confederation, Madison suggests that the current Congress has too much power. It can requisition any amount of money it pleases, form armies of any size and without limits to the length of time the army would be deployed. Besides, having the power to both fund and raise troops in the one body is dangerous. And some of the criticisms of the new proposed constitution find their equivalent in the current congress anyway: it has no Bill of Rights; it can make treaties that apply to all states. And a negative: it does not make any long-term limitations on the importation of slaves.


Finally, Madison speculates about the problems of the future, with the Western Frontier, a source of great wealth, opening up. The current congress has the power to create new states, temporary governments and proscribe the conditions under which those states are to enter the confederacy. This is a huge amount of power without federal oversight. Madison ends by asking whether it would not be more reasonable for those critics of the Constitutional Convention to be turning their criticisms against the current congress and Articles of Confederation, rather than the new constitution which would go some way to ameliorate the dangers of the current system.

8 January 2019