Federalist 40
It’s late 1787 and you’re deliberating whether to affirm the plan for the new government. You recall that the government to which you are most attached has been in existence for 150 years and the confederation your state has with other, similarly situated sovereign entities has maintained peace during a turbulent period. You have witnessed many of the states over the past decade create new constitutions for themselves. You’re not unaware of some of the challenges faced by the national government, but neither do you regard it as wholly inadequate to the task.
Concerned about how commerce occurs between the states, you belong to one of the five states that sends delegates to Annapolis, MD in the fall of 1786 for the purpose of figuring out how better to coordinate interactions among the various states while making the country as a whole more economically stable. General Washington, whom you admire greatly, has expressed his worry concerning the nation’s “half-starved, limping government” that results from the “disinclination of the individual States to yield competent powers to Congress for the Federal Government.” Delegates, including James Madison and Alexander Hamilton, convene in Annapolis in September for the purpose of discovering “how far an uniform system in [states’] commercial regulations may be necessary to their common interest.” Delegates, however, soon speculated that trade issues were connected to much larger issues, all of which implicated the weakness of the extant government to get the nation to the "next level." Rather than a handful of states meeting for a limited purpose, all the states needed to convene for a much larger one. In his concluding Annapolis report, Hamilton called for a convention to take place in Philadelphia in the summer of 1787 that would “render the constitution of the federal government adequate to the exigencies of the union.”
The Annapolis petition makes its way to the Continental Congress which affirms the recommendation and calls for a convening of delegates in Philadelphia for the following purpose:
"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.”
You’re not thrilled about the fact that the convention will take place in the summer. After all, farmers (who make up roughly 90% of economic activity) and small-scale craftsmen and business owners will not be able to give up those prime spots on their calendars. Only independently wealthy persons, merchants, land and securities speculators, and lawyers will be able to afford the luxury of attending. You tend to agree with Richard Henry Lee who wrote to George Mason that the Constitution resulted from a coalition of “Monarchy men, Military Men, Aristocrats, and Drones whose noise, imprudence & zeal exceeds all belief.” This would hardly be a “representative” gathering, although Madison reminded readers that “The prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the advice comes, as whether the advice be GOOD.”
Your focus, however, is on that phrase “for the sole and express purpose of,” which reassures you that only slight and salutary changes will be made to the nearly ten-year old government that steered you successfully through the revolutionary war.
When you received the document resulting from the work of the Philadelphia convention you discover, much to your surprise and dismay, that the delegates did not stick to the “sole and express purpose of” revising the Articles of Confederation, but came up with a whole new plan for government, one that included expanded Congressional powers, a diminution of the sovereignty of the states, the creation of a “President” who looked suspiciously like a king, a federal court system, and a system of representation that would surely work to the advantage of some states over others.
This was the context for early Anti-federalist criticisms of the Constitution. Many of them may have agreed that the Articles needed some tweaking, but they did not expect a plan for a wholly new system of government. To these critics the Philadelphia Convention was a non-military coup, and now they were stuck with an “all or nothing” choice, the idea of “revision” having been effectively taken off the table. Granted, you could reject the new plan in toto, but then it was back to the drawing board with regard to any changes you might want to make. Nor did it generate confidence in you that 16 of the original 55 delegates left, with three of the remaining 39 refusing to sign. You and your fellow essayists take pen in hand and suggest that maybe we ought to take our time to think through this new document rather than rush to adopt it, a position for which you are frequently slandered.
In Federalist 40 Madison takes up the complaint raised by critics that the Convention had exceeded its legitimate authority and the concomitant worry that any government produced by illegitimate means (usurpation) could never achieve legitimacy. Madison, I’ve argued, was a remarkably subtle thinker, sometimes suspiciously so, and nowhere is his gift for nuance more on display than in this essay. Nowhere was it more required.
Madison argued that the Philadelphia Convention had conflicting purposes: on the one hand it was obligated to produce a system of government “adequate to the exigencies of the nation,” and on the other hand it had to “revise” the Articles of Confederation. In an ideal world, the convention would have accomplished both these tasks, but given the tension in the demands the convention was forced to choose one over the other. As he put it, when the meaning of sentences conflict “the less important should give way to the more important,” the means yielding to the ends sought. The end was a government sufficiently energetic to attend to the nation’s needs while the means was a revision of the Articles. Means always subordinate to ends, the ends might require the selection of alternative means best suited to the accomplishment of the proper ends, and since means themselves have little moral pull there is no compelling reason not to choose alternate ones if "exigencies" justify doing so.
Madison believed that so long as part of the old system remained then the Convention had fulfilled its charge. “The truth is,” he suggested in words largely unconvincing to critics, “that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.” In other words, the idea that the new government was different than the old one was an optical illusion created by the fact that it was bigger. The Articles, in this telling, were not replaced but "transformed." By focusing on “principles” rather than “structures,” Madison believed he bypassed criticisms that the Convention had superseded its authority. Madison conceded that the Convention had gone beyond its charge in one instance, but noted sardonically that the critics never raised it as an issue: the fact that ratification did not require unanimity.
Madison’s response to the critics largely amounted to “If you don’t like it, you don’t have to vote for it,” thus highlighting a conundrum implicit in any democratic system of governance. This dismissal eliminated any chance of a halfway house, of some sort of compromise between the significant portion of the population who had worries about the new Constitution and those who thought it didn’t go far enough. Granted, the Constitution itself was largely a series of compromises, but compromises within a fairly narrow sphere of interests. “Either swallow the pill whole or not at all” is not likely to win over skeptics.
Madison’s final maneuver involved suggesting that the difference between between “revising” and “replacing” was a slight one at best, one with fuzzy enough boundaries that the onus was on the critics to draw very bright lines between the two, which he believed they had failed to do. Critics may not have drawn bright lines, but neither did they believe in the endless blurring of them. In any case, the bright line surrounding liberty could resist erasure only through diligent attendance to it. It must be remembered that the preservation of liberty was the sine qua non of the age, and government, while essential to its maintenance, also posed its biggest threat.
John Tyler, Sr. a patriot of the revolutionary era, may have articulated the dilemma well when he wrote: “My conduct throughout the revolution will justify me. I have invariably wished to oppose oppressions. It is true that I have now a paltry office. I am willing to give it up--away with it! It has no influence on my present conduct. I wish Congress to have the regulation of trade. I was of opinion that a partial regulation alone would not suffice. I was among those members who, a few years ago, proposed that regulation. I have lamented that I have put my hand to it, since this measure may have grown out of it. It was the hopes of our people to have their trade on a respectable footing. But it never entered into my head that we should quit liberty, and throw ourselves into the hands of an energetic government. Do you want men to be more free, or less free, than they are? Gentlemen have been called upon to show the causes of this measure. None have been shown. Gentlemen say we shall be ruined unless we adopt it. We must give up our opinions. We cannot judge for ourselves. I hope gentlemen, before this, have been satisfied that such language is improper. All states which have heretofore been lavish in the concession of power and relinquishment of privileges have lost their liberty. It has been often observed (and it cannot be too often observed) that liberty ought not to be given up without knowing the terms. The gentlemen themselves cannot agree in the construction of various clauses of it; and so long as this is the case, so long shall liberty be in danger.”
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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