Federalist No.40

On The Powers Of the Convention To Form A Mixed Government Examined And Sustained

Friday, January 18, 1788

James Madison


In this paper James Madison addresses the criticism that the Constitutional Convention did not have the authority to frame a new Constitution. He makes reference to the act from Annapolis of 1786, in which the remit and powers accorded to the convention were determined, as well as the recommendatory act of Congress in February 1787 which recognised the need for alterations in the Articles of Confederation to remedy promblems perceived in the Articles. The act from Annopolis stated that the convention was to:


The recommendation from Congress acknowledged that there were defects in the Articles of Confederation that needed amendment, and that a convention held in Philadelphia attended by delegates representing the States would:

and that:


Madison weighs the importance of State rights against the overall intention of the act established in Annapolis. He argues that ever part of the Convention’s remit should be accommodated if possible, but in instances where the several parts cannot be made to reconcile, the less important should give way to the more important. To illustrate the problem of this judgment he asks a series of questions concerning the objectives this reasoning intended:

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.

In other words, it was more important to fix the problems caused by the old Constitution rather than to preserve it. If the goal of preserving the Articles of Confederation conflicted with a need to provide a new Constitution to overcome the limitations of the former Constitution, then the goal of the former should “give way” to the need of the latter.


Madison points out that the Convention would not have been instituted had substantial reform not been needed. And the Convention’s remit allowed not only alterations in the articles of Confederation, but allowed new provisions. But putting this aside, Madison argues that the new proposed Constitution is an expansion of principles which are found in the articles of Confederation, and has been argued before, the powers of the national government are limited, leaving the States sovereignty intact in all areas not affected by the new national government.


Ironically, Madison points out, the one point where the Convention has strayed most from its remit is its proposal that all States ratify the Constitution – only nine States would be required – had been least criticised by the Convention’s detractors. This, he surmises, is because people can see the injustice of the failure to reform if only one or a minority of States, representing a minority of the population, were able to overturn everything. Nevertheless, Madison points out that the power of the new Constitution will come not from having written it, but through its ratification by a majority of States.


Madison next turns to a rhetorical argument that considers what the reaction might have been had the Convention failed to use the powers it had been given. Madison argues that this would have been a failure and would have demonstrated a lack of confidence in the people of the country who in general saw the need for change.


Madison finishes his paper with an ‘even if’ argument. Even if, he argues, the Convention had overstepped its powers, or even if it did not have the powers outlined in the act of Anapolis, it was not an argument to reject the Constitution. As such, the proposed Constitution would not be unlawful, merely good advice and, Madison argues, The prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice is good.

20 January 2019

Revised and updated 16 May 2022