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FEDERALIST No. 37

Concerning the Difficulties of the Convention in Devising a Proper
 Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.

MADISON

To the People of the State of New York:
IN REVIEWING the defects of the existing Confederation, and
 showing that they cannot be supplied by a government of less energy
 than that before the public, several of the most important
 principles of the latter fell of course under consideration. But as
 the ultimate object of these papers is to determine clearly and
 fully the merits of this Constitution, and the expediency of
 adopting it, our plan cannot be complete without taking a more
 critical and thorough survey of the work of the convention, without
 examining it on all its sides, comparing it in all its parts, and
 calculating its probable effects.
That this remaining task may be executed under impressions
 conducive to a just and fair result, some reflections must in this
 place be indulged, which candor previously suggests.
It is a misfortune, inseparable from human affairs, that public
 measures are rarely investigated with that spirit of moderation
 which is essential to a just estimate of their real tendency to
 advance or obstruct the public good; and that this spirit is more
 apt to be diminished than promoted, by those occasions which require
 an unusual exercise of it. To those who have been led by experience
 to attend to this consideration, it could not appear surprising,
 that the act of the convention, which recommends so many important
 changes and innovations, which may be viewed in so many lights and
 relations, and which touches the springs of so many passions and
 interests, should find or excite dispositions unfriendly, both on
 one side and on the other, to a fair discussion and accurate
 judgment of its merits. In some, it has been too evident from their
 own publications, that they have scanned the proposed Constitution,
 not only with a predisposition to censure, but with a
 predetermination to condemn; as the language held by others betrays
 an opposite predetermination or bias, which must render their
 opinions also of little moment in the question. In placing,
 however, these different characters on a level, with respect to the
 weight of their opinions, I wish not to insinuate that there may not
 be a material difference in the purity of their intentions. It is
 but just to remark in favor of the latter description, that as our
 situation is universally admitted to be peculiarly critical, and to
 require indispensably that something should be done for our relief,
 the predetermined patron of what has been actually done may have
 taken his bias from the weight of these considerations, as well as
 from considerations of a sinister nature. The predetermined
 adversary, on the other hand, can have been governed by no venial
 motive whatever. The intentions of the first may be upright, as
 they may on the contrary be culpable. The views of the last cannot
 be upright, and must be culpable. But the truth is, that these
 papers are not addressed to persons falling under either of these
 characters. They solicit the attention of those only, who add to a
 sincere zeal for the happiness of their country, a temper favorable
 to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the
 plan submitted by the convention, not only without a disposition to
 find or to magnify faults; but will see the propriety of
 reflecting, that a faultless plan was not to be expected. Nor will
 they barely make allowances for the errors which may be chargeable
 on the fallibility to which the convention, as a body of men, were
 liable; but will keep in mind, that they themselves also are but
 men, and ought not to assume an infallibility in rejudging the
 fallible opinions of others.
With equal readiness will it be perceived, that besides these
 inducements to candor, many allowances ought to be made for the
 difficulties inherent in the very nature of the undertaking referred
 to the convention.
The novelty of the undertaking immediately strikes us. It has
 been shown in the course of these papers, that the existing
 Confederation is founded on principles which are fallacious; that
 we must consequently change this first foundation, and with it the
 superstructure resting upon it. It has been shown, that the other
 confederacies which could be consulted as precedents have been
 vitiated by the same erroneous principles, and can therefore furnish
 no other light than that of beacons, which give warning of the
 course to be shunned, without pointing out that which ought to be
 pursued. The most that the convention could do in such a situation,
 was to avoid the errors suggested by the past experience of other
 countries, as well as of our own; and to provide a convenient mode
 of rectifying their own errors, as future experiences may unfold
 them.
Among the difficulties encountered by the convention, a very
 important one must have lain in combining the requisite stability
 and energy in government, with the inviolable attention due to
 liberty and to the republican form. Without substantially
 accomplishing this part of their undertaking, they would have very
 imperfectly fulfilled the object of their appointment, or the
 expectation of the public; yet that it could not be easily
 accomplished, will be denied by no one who is unwilling to betray
 his ignorance of the subject. Energy in government is essential to
 that security against external and internal danger, and to that
 prompt and salutary execution of the laws which enter into the very
 definition of good government. Stability in government is essential
 to national character and to the advantages annexed to it, as well
 as to that repose and confidence in the minds of the people, which
 are among the chief blessings of civil society. An irregular and
 mutable legislation is not more an evil in itself than it is odious
 to the people; and it may be pronounced with assurance that the
 people of this country, enlightened as they are with regard to the
 nature, and interested, as the great body of them are, in the
 effects of good government, will never be satisfied till some remedy
 be applied to the vicissitudes and uncertainties which characterize
 the State administrations. On comparing, however, these valuable
 ingredients with the vital principles of liberty, we must perceive
 at once the difficulty of mingling them together in their due
 proportions. The genius of republican liberty seems to demand on
 one side, not only that all power should be derived from the people,
 but that those intrusted with it should be kept in independence on
 the people, by a short duration of their appointments; and that
 even during this short period the trust should be placed not in a
 few, but a number of hands. Stability, on the contrary, requires
 that the hands in which power is lodged should continue for a length
 of time the same. A frequent change of men will result from a
 frequent return of elections; and a frequent change of measures
 from a frequent change of men: whilst energy in government requires
 not only a certain duration of power, but the execution of it by a
 single hand.
How far the convention may have succeeded in this part of their
 work, will better appear on a more accurate view of it. From the
 cursory view here taken, it must clearly appear to have been an
 arduous part.
Not less arduous must have been the task of marking the proper
 line of partition between the authority of the general and that of
 the State governments. Every man will be sensible of this
 difficulty, in proportion as he has been accustomed to contemplate
 and discriminate objects extensive and complicated in their nature.
 The faculties of the mind itself have never yet been distinguished
 and defined, with satisfactory precision, by all the efforts of the
 most acute and metaphysical philosophers. Sense, perception,
 judgment, desire, volition, memory, imagination, are found to be
 separated by such delicate shades and minute gradations that their
 boundaries have eluded the most subtle investigations, and remain a
 pregnant source of ingenious disquisition and controversy. The
 boundaries between the great kingdom of nature, and, still more,
 between the various provinces, and lesser portions, into which they
 are subdivided, afford another illustration of the same important
 truth. The most sagacious and laborious naturalists have never yet
 succeeded in tracing with certainty the line which separates the
 district of vegetable life from the neighboring region of
 unorganized matter, or which marks the ermination of the former and
 the commencement of the animal empire. A still greater obscurity
 lies in the distinctive characters by which the objects in each of
 these great departments of nature have been arranged and assorted.
When we pass from the works of nature, in which all the
 delineations are perfectly accurate, and appear to be otherwise only
 from the imperfection of the eye which surveys them, to the
 institutions of man, in which the obscurity arises as well from the
 object itself as from the organ by which it is contemplated, we must
 perceive the necessity of moderating still further our expectations
 and hopes from the efforts of human sagacity. Experience has
 instructed us that no skill in the science of government has yet
 been able to discriminate and define, with sufficient certainty, its
 three great provincesτthe legislative, executive, and judiciary; or
 even the privileges and powers of the different legislative branches.
 Questions daily occur in the course of practice, which prove the
 obscurity which reins in these subjects, and which puzzle the
 greatest adepts in political science.
The experience of ages, with the continued and combined labors
 of the most enlightened legislatures and jurists, has been equally
 unsuccessful in delineating the several objects and limits of
 different codes of laws and different tribunals of justice. The
 precise extent of the common law, and the statute law, the maritime
 law, the ecclesiastical law, the law of corporations, and other
 local laws and customs, remains 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.
 The jurisdiction of her several courts, general and local, of law,
 of equity, of admiralty, etc., is not less a source of frequent and
 intricate discussions, sufficiently denoting the indeterminate
 limits by which they are respectively circumscribed. All new laws,
 though penned with the greatest technical skill, and passed on the
 fullest and most mature deliberation, are considered as more or less
 obscure and equivocal, until their meaning be liquidated and
 ascertained by a series of particular discussions and adjudications.
 Besides the obscurity arising from the complexity of objects, and
 the imperfection of the human faculties, the medium through which
 the conceptions of men are conveyed to each other adds a fresh
 embarrassment. The use of words is to express ideas. Perspicuity,
 therefore, requires not only that the ideas should be distinctly
 formed, but that they should be expressed by words distinctly and
 exclusively appropriate to them. But no language is so copious as
 to supply words and phrases for every complex idea, or so correct as
 not to include many equivocally denoting different ideas. Hence it
 must happen that however accurately objects may be discriminated in
 themselves, and however accurately the discrimination may be
 considered, the definition of them may be rendered inaccurate by the
 inaccuracy of the terms in which it is delivered. And this
 unavoidable inaccuracy must be greater or less, according to the
 complexity and novelty of the objects defined. When the Almighty
 himself condescends to address mankind in their own language, his
 meaning, luminous as it must be, is rendered dim and doubtful by the
 cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect
 definitions: indistinctness of the object, imperfection of the
 organ of conception, inadequateness of the vehicle of ideas. Any
 one of these must produce a certain degree of obscurity. The
 convention, in delineating the boundary between the federal and
 State jurisdictions, must have experienced the full effect of them
 all.
To the difficulties already mentioned may be added the
 interfering pretensions of the larger and smaller States. We cannot
 err in supposing that the former would contend for a participation
 in the government, fully proportioned to their superior wealth and
 importance; and that the latter would not be less tenacious of the
 equality at present enjoyed by them. We may well suppose that
 neither side would entirely yield to the other, and consequently
 that the struggle could be terminated only by compromise. It is
 extremely probable, also, that after the ratio of representation had
 been adjusted, this very compromise must have produced a fresh
 struggle between the same parties, to give such a turn to the
 organization of the government, and to the distribution of its
 powers, as would increase the importance of the branches, in forming
 which they had respectively obtained the greatest share of influence.
 There are features in the Constitution which warrant each of these
 suppositions; and as far as either of them is well founded, it
 shows that the convention must have been compelled to sacrifice
 theoretical propriety to the force of extraneous considerations.
Nor could it have been the large and small States only, which
 would marshal themselves in opposition to each other on various
 points. Other combinations, resulting from a difference of local
 position and policy, must have created additional difficulties. As
 every State may be divided into different districts, and its
 citizens into different classes, which give birth to contending
 interests and local jealousies, so the different parts of the United
 States are distinguished from each other by a variety of
 circumstances, which produce a like effect on a larger scale. And
 although this variety of interests, for reasons sufficiently
 explained in a former paper, may have a salutary influence on the
 administration of the government when formed, yet every one must be
 sensible of the contrary influence, which must have been experienced
 in the task of forming it.
Would it be wonderful if, under the pressure of all these
 difficulties, the convention should have been forced into some
 deviations from that artificial structure and regular symmetry which
 an abstract view of the subject might lead an ingenious theorist to
 bestow on a Constitution planned in his closet or in his
 imagination? The real wonder is that so many difficulties should
 have been surmounted, and surmounted with a unanimity almost as
 unprecedented as it must have been unexpected. It is impossible for
 any man of candor to reflect on this circumstance without partaking
 of the astonishment. It is impossible for the man of pious
 reflection not to perceive in it a finger of that Almighty hand
 which has been so frequently and signally extended to our relief in
 the critical stages of the revolution.
We had occasion, in a former paper, to take notice of the
 repeated trials which have been unsuccessfully made in the United
 Netherlands for reforming the baneful and notorious vices of their
 constitution. The history of almost all the great councils and
 consultations held among mankind for reconciling their discordant
 opinions, assuaging their mutual jealousies, and adjusting their
 respective interests, is a history of factions, contentions, and
 disappointments, and may be classed among the most dark and degraded
 pictures which display the infirmities and depravities of the human
 character. If, in a few scattered instances, a brighter aspect is
 presented, they serve only as exceptions to admonish us of the
 general truth; and by their lustre to darken the gloom of the
 adverse prospect to which they are contrasted. In revolving the
 causes from which these exceptions result, and applying them to the
 particular instances before us, we are necessarily led to two
 important conclusions. The first is, that the convention must have
 enjoyed, in a very singular degree, an exemption from the
 pestilential influence of party animositiesτthe disease most
 incident to deliberative bodies, and most apt to contaminate their
 proceedings. The second conclusion is that all the deputations
 composing the convention were satisfactorily accommodated by the
 final act, or were induced to accede to it by a deep conviction of
 the necessity of sacrificing private opinions and partial interests
 to the public good, and by a despair of seeing this necessity
 diminished by delays or by new experiments.