Federalist 37
A story, perhaps apocryphal, has an audience member ask Albert Einstein why so many advances had been made in physics and so few in our understanding of politics. Great scientific discoveries had unlocked the power of the atom but we had little idea of how to use or contain that power. Why was that? Einstein reportedly answered: “That is simple, my friend. It is because politics is more difficult than physics.”
As a professor of political science I was, on occasion, asked to defend the idea that the study of politics constituted a science in any meaningful way. Much hinges on assumptions we make about science and its operations, but I would typically reply that just because a scientific activity is extraordinarily difficult and yields uncertain results doesn’t make it any less of a science. In the 19th century many political thinkers believed they could make political science a “real” science if they modeled its methods on those used in the natural sciences. Often referred to as “hard” sciences, as opposed to the “soft” sciences that studied man and society, the natural sciences produced certainty, reliability, predictability and, most importantly, an ability to control its subject-matter. That dream thrilled many of the social scientists at the turn of the last century, but the behavior of human beings differs from that of molecules.
This theme of delineating knowledge of the natural world from that of the social world animated Madison’s reflection in Federalist 37. Coming on the heels of Hamilton’s long digressions into both war and taxation powers, Madison takes a step back from arguments over specific provisions of the Constitution and asks us to reconsider it as a whole, especially the challenges facing those at the Constitutional Convention. I’ll confess that Federalist 37 is probably my favorite of all of Publius’ essays, remarkable in its deftness but also the range of topics upon which it touches. Federalist 37-39 , all written by Madison, are the hinge on which all the essays turn and are essential, I believe, to a full understanding of our Constitutional system.
As mentioned, Madison acknowledged the difficulty of the task before the convention. When engaged in scientific study of the natural world the objects under investigation are clear and distinct and their behavior regular. I know if I apply heat to water I can make it boil. I intuitively know the difference between a dog and a cat. I’m confident if I hold a rock in my hand and let go of it that it will fall to the ground. These clear and distinct and regular features of the natural world don’t necessarily make scientific investigation easy but they do circumscribe the practices of the investigator, who must attend to objects as they are without allowing her own interests or preconceived notions interfere. Such, at least, was the general understanding in Madison’s time.
The science of politics offered nettlesome difficulties. The “scientist” was not only an observer of but also a participant in the reality under investigation, and for that reason his “passions and prejudices,” his interests, would come very much into play as regards conclusions drawn. Furthermore, the objects being investigated had blurred boundaries. The difference between a plant and an animal could be clearly discerned but that between state and national sovereignty not so much. Publius was also interested in a question that Hume had written a whole treatise on but which philosophers would soon regard as irrelevant: what is this thing called human nature and what are its operations in the world?
A further difficulty: the natural scientist was under no obligation to explain to the plant the operations of chlorophyll, but a political scientist did have to explain to citizens the operations of politics, particularly in a republican system requiring citizen consent for its very existence. How could the scientist persuade the citizens while navigating the thicket of interest and passion and uncertainty that defined the study of politics?
Many political thinkers attempted to bypass these problems by engaging in highly theoretical studies of politics by which they divined “first principles” and from which they could deductively establish the forms of government. Hobbes’ Leviathan was one such effort, even if he thought it might prove a futile exercise.1 Such was not our fate. The American Constitution, Madison reminded us, did not result from “an abstract view of the subject” dreamed up “by an ingenious theorist” as if “planned in his closet or in his imagination.” Rather, it resulted from the back and forth struggle of historically-informed and competing ideas by fallible persons committed to producing a compromise document. Given the pressure of circumstances, "a faultless plan was not to be expected,” and some members of the convention, not fully satisfied with the final product, nonetheless acceded as a result of a “deep conviction of the necessity of sacrificing private opinions and partial interests to the public good” and realizing that this was the best they were going to get at the time.
Madison believed that these sacrifices were minimized by what he regarded as the Convention’s defining trait: “an exemption from the pestilential influence of party animosities,” resulting in a document that evidenced the movement of “a finger of that Almighty Hand” that had been “so frequently and signally extended to our relief” as Americans. I suppose one could see the absence of party divisions at the Convention as a sign of divine intervention, or one could see that absence as a result of human design that made it unlikely that critics of an energetic centralized government could or would attend the convention or, once there, stay rather than leave in protest. The remaining 39 of the original 55 delegates may have produced 36 approving votes, but “party animosities” made themselves felt at the state ratifying conventions, else there would have been no need for Publius’ essays.
Surely “party” allegiances would “contaminate” the proceedings of any convention dealing with the most momentous questions of political life such as creating a new government that could combine an energetic centralized government with the republican form. This was no minor undertaking. Nor would the ratification process prove easy, for persons on both sides of the Constitutional question were corrupted by interest. Those opposed had “a predisposition to censure” and a “predetermination to condemn” anything that the Convention produced, while those on the affirmative side betrayed “an opposite predetermination or bias” that “render[ed] their opinions also of little moment in the question.” Granted, opponents had views that “cannot be upright” while the supporters had views “that may be upright” because only they were “governed by no venial motive whatever,” but neither the extreme proponents or opponents were Madison’s intended audience for this essay. Madison was soliciting “the attention only” of those with a “temper favorable to a just estimate of the means” for promoting good government. Madison recognized that argumentation would have little effect on people who occupied the extreme positions on any political question; reason and reflection existed in the middle, and it was those capable of sober consideration of the question on the merits he regarded not simply as his audience but as the necessary feature of any system of popular government. This identification of “the middle” with reasonableness is thus baked into our Constitutional system.
Still, the great swath of citizens constituting the middle, by definition open to arguments for and against, had to be persuaded. Here, the fuzzy nature of the science of politics proved most compromising for the simple reason that truth claims could not be easily demonstrated. Furthermore, the “scientists” required sufficient rhetorical skills to sway the voters; but language as a way of conveying meaning proved as unreliable an instrument as did the organ of observation. In one of his more trenchant observations, Madison noted:
“Here then are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of perfection, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention … must have experienced the full effect of them all.”
Madison carefully delineated the challenges the members of the Convention faced. In order:
The Constitution was created by human beings, and human beings are fallible. Were the creation of a political Constitution a divine act, as some thinkers have argued, there would be little difficulty in accepting it. To add to the problem, the work of fallible men was being judged by fallible men, resulting in a vortex of confusion and indecision.
Discerning “first principles” and their application to political life. These principles can range from “do the good and avoid the evil” to the idea of popular sovereignty. Some first principles may seem fairly obvious and others contestable. If the principles are wrong, and clearly Madison believed the ones extant under the Articles were, then that built on them must collapse.
The general problem of balancing the demands of order against the demands of liberty, an issue that had bedeviled political thinkers going all the way back to ancient Greece and a fact that resulted in Madison’s conviction that, although one could never get the balance right, the Convention nonetheless got awfully close.
How to create a stable government that is grounded in the will of the people and thus subject to the vicissitudes of their momentary and unstable passions, which problem Madison thought defined the state governments of that period.
The problem of representation. Hamilton had earlier noted that “great advancements” had been made in the science of representation, but Madison noted here the problem of stabilizing the government through maintaining experienced and skilled people in office against the need for the frequent elections that alone would hold those people accountable. Regular rotating of office-holders, an Anti-federalist imperative, would result in frequent changes in the laws and policy (an especial problem in foreign affairs) while “energy in government requires not only a certain duration of power, but the execution of it by a single hand.”
As is the case in so many of the essays, Publius had to address the central logical problem embedded in the Constitution: that of dual sovereignty. In a rather remarkable admission, Madison conceded that the mind itself was not well-structured to tackle such a knotty problem, meaning that “we must moderat[e] still further our expectations and hopes from human sagacity.” Punting on the question of dual sovereignty proved unlikely to satisfy Anti-federalist worries.
Despite all efforts, no thinker had been “able to discriminate and define, with sufficient clarity” the division of power between the three branches of government. The Convention’s effort to delineate authority had to be considered in the context of a question that had “puzzle[d] the greatest adepts in political science.”
Just as trying to figure out which branch should exercise what power and the degree to which different branches should share powers admitted of no easy discernment, so too did delineating different kinds of law. “The precise extent of the common law, the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remain still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world.”
Nor had experience completely determined the relative authority of different courts, an especial problem since the courts would play a central role in interpreting the law and the Constitution itself. Here too the problem of human fallibility made itself known, for no matter how skilled the lawmaker or how deliberate and well-constructed the process of passing laws, all laws would still be vague and obscure “until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” One might well see this as the first articulation of the idea of a “living constitution,” by which its meanings and precepts fluidly adapt to historical circumstances.
The fact that small states and large states had competing interests and thus different ideas of how representation in the federal government should work. Furthermore, not only the states opposed each other, but states also faced opposing factions and governments within their own borders that would give rise to “contending interests and local jealousies” that would adversely infect and affect the operations of any national government.
For all those reasons, Madison admonished his readers that even if “the novelty of the undertaking immediately [struck]” them and caused them to worry about the “innovations” that critics thought put both their institutions and liberties at risk, they should nonetheless marvel at the fact that the Convention produced a document as good as the one they did.
Federalist and Anti-federalist alike understood that knowledge yielded by political science resulted from trial-and-error, by the hard-won lessons of experience. The problem was the laboratory: the scientist was a rat in the maze and was pursuing the cheese in a race against all the other rats. There was no point outside society from which the political scientist could clearly determine the form and the content of the good society — a point made even clearer to the thinkers of the age when the French conducted their own Revolution on an entirely different set of principles based on the thinking of the greatest political thinker of the 18th century, but also one largely reviled by many Americans: Jean-Jacques Rousseau. Could there be someone capable of reconstituting social life via an act that was not itself part of that society? Rousseau believed so, also believing that such an act would reconstitute human nature itself. Madison dug his heels in against such a view.
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1”And thus far concerning the constitution, nature, and right of sovereigns, and concerning the duty of subjects, derived from the principles of natural reason. And now, considering how different this doctrine is from the practice of the greatest part of the world, especially of these western parts that have received their moral learning from Rome and Athens, and how much depth of moral philosophy is required in them that have the administration of the sovereign power, I am at the point of believing this my labour as useless as the Commonwealth of Plato: for he also is of opinion that it is impossible for the disorders of state, and change of governments by civil war, ever to be taken away till sovereigns be philosophers. But when I consider again that the science of natural justice is the only science necessary for sovereigns and their principal ministers, and that they need not be charged with the sciences mathematical, as by Plato they are, further than by good laws to encourage men to the study of them; and that neither Plato nor any other philosopher hitherto hath put into order, and sufficiently or probably proved all the theorems of moral doctrine, that men may learn thereby both how to govern and how to obey, I recover some hope that one time or other this writing of mine may fall into the hands of a sovereign who will consider it himself (for it is short, and I think clear) without the help of any interested or envious interpreter; and by the exercise of entire sovereignty, in protecting the public teaching of it, convert this truth of speculation into the utility of practice.”
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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