If you haven’t read Federalist 37, go read it now, even before you read my post. It is brilliant, enlightening and sobering. It details the reality of the difficulties our founders faced when establishing our great nation. Something so few people seem to appreciate now.
So, buckle up and get your reading cap on, this is going to be a longer read with a lot of Madisonian language—-I prefer his language to mine, so I feed you plenty of it.
One: The Task Before the Founders Was Novel and Difficult
Madison begins this Federalist paper by informing his readers that the task at hand, the task he and the other men at the Constitutional Convention were facing, was something few had ever faced before. It’s difficulties were endless and novel. How many times is mankind given the privilege of being able to freely and peacibly come together and figure out how to establish a nation based on the principle of liberty?
Rarely, if ever.
He says: “The novelty of the undertaking immediately strikes us.”
It strikes us, he says. It truly was miraculous event. Yet, he cautions naysayers, pointing out that the men at the convention were fallible, and therefore it would be foolish to expect a flawless document.
“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.
He finishes this introduction by impressing the difficulties inherent in their task.
“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.”
Indeed, the men at the Constitutional Convention were endeavoring to do something that had never really be done before and has never really been done since: through reason, not emotion, create a free and stable nation.
Two: The Struggle to Balance Liberty with Stability
I’m going to let Madison do most of the talking here. He explains carefully the inherent difficulty in creating a country where liberty thrives and lives, while also making sure the same liberty does not result in pure chaos, instability and eventually failure and tyranny.
He starts off by saying: “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.”
He explains that “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.”
In other words, government must be equipped to be government, otherwise it is not a good government. If it is created to make and execute laws that protect us and our private property from each other, it must do just that. However, it cannot do so at the expense of liberty.
“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 entrusted 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.”
Here he details the inherent difficulty that he and his fellow founders grappled with. If they gave government too much power, it would surely dominate and abuse but if they gave the people too much power, the people would surely dominate and abuse. The common denominator?
People. Fallible people.
Three: The Difficulty of Delineating The Lines Between Federal and State Power
As if the above issue wasn’t enough in and of itself, the men at the convention were also tasked with figuring out the lines of power between all the branches of government and then between the states and federal government.
Madison says: “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…”
He goes, and in his muted flare of dramatic passion, compares this difficult task to the most difficult tasks in the biological world. He says, “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 termination of the former and the commencement of the animal empire.” He then emphasizes that if you think that’s hard, that’s nothing compared to what the men at the convention were doing. Here’re his words:
“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.
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 provinces the 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.
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. [In other words, on top of everything, the process is even more difficult because one man’s meaning of ‘law’ or any other political word, may be different and distinct from that of another man.]
Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, in-adequateness 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.”
And if that’s not enough: “To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States.”
And yet, our founders faced these challenges head on and with fervor, passion and wisdom.
Four: The Wonder That All of These Difficulties Were Surmounted
Madison concludes with this:
“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.”
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 animosities the 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.”
Ah what our politicians and Americans today could learn from this. The task was greater than them and the realized this with sobering clarity. It was because of this humility that they were able to come together in a way unprecedented to mankind and write the Constitution that has held up the fabric of this nation for almost three centuries.
Sometimes in the middle of “discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments”, it’s good to step back and remember what our country has been through to get here. The Constitution was not the result of men who all agreed on everything. If anything, it was fraught with contention and disagreement. And yet, out of such disagreement (which only exists where men are free to express it), the Constitution and the nation were birthed.
We must always contend for the Constitution, always contend for liberty and always contend for America.
For, as Madison says: “The happy Union of these States is a wonder; their Constitution a miracle; their example the hope of Liberty throughout the world.”
The Liberty Belle