Madison continues his argument against the possibility that special councils or conventions formed as a check against the illegal appropriation of the power of one branch of government by another would be effective. In Federalist 49 he outlined the problem of special conventions being convened too regularly, as well as the issue of their objectivity. Federalist 50 really just addresses variants of the same issue. In this case, he considers whether periodical appeals would be more effective than occasional appeals. In short, the answer according to Madison is that they would not.
The time frame he envisages for periodical appeals is inexact, but he does mention time frames of
ten, fifteen or twenty years. The problem with this should be evident. Recourse to such an appeal for acts of the legislature or executive alleged to be illegal would be wholly ineffective. As Madison points out, an act committed earlier in the cycle of appeals would not be judged for years, by which time the outcomes of the act
would be of long standing, would have taken deep root, and would not be easily extirpated. The public would care less about long ago transgressions and the council overseeing the transgressions would have little to threaten would-be transgressors, especially for those whose careers had run their course, and therefore the process would have little preventative impact.
Madison also allows that the illegal application of powers might be deliberate in the case where members were
bent on some favourite object. He does not make explicit, however, a case which I think is a logical conclusion to be drawn here: that by knowing the fixed periods in which future appeals will be made, the temptation to overstep the powers granted by the constitution would be greater the further away that date of appeal.
Of more recent transgressions, Madison suggests that many of those called upon to judge the case will have connections with those involved, or may have been involved themselves.
To illustrate his point, Madison once again turns to the Council of Censors, Pennsylvania, 1783 and 1784. This council attempted to investigate purported violations of the state constitution. But the council had several problems. Most of the members of the council had some role in government that should have been deemed a conflict of interest, and the evidence garnered from voting showed that the council was a partisan affair, with members voting along party lines. Madison again returns to the problem of
passion being allowed to outweigh
reason. Apart from this, it was doubtful whether the council could apply its decisions to the legislature, since in one instance the legislature denied the council’s findings and won the case.
Madison draws the conclusion that councils convened occasionally or periodically to consider the constitutionality of acts by the branches of government would be a flawed process. Since there will always be political parties it would be difficult to convene an impartial council, even if members of the government involved were banned from presiding, since party affiliations would extend to those not directly sitting in government, also.
26 April 2019