Summary and Analysis Section VI: Difficulties in Framing Constitution: Federalists No. 37-40 (Madison)



This section of four chapters deals with a wide miscellany of subjects, some of which are touched on only briefly.

In Chapter 37, it was a sad commentary on human affairs that public measures can rarely be investigated with a spirit of moderation, said Madison, who then proceeded to take critics of the Constitution sharply to task. Some critics were well-intentioned; others were not; still others were stubborn or ignorant, or both.

Delegates who had just recently met at Philadelphia in the Constitutional Convention had set themselves the goal of designing an institutional framework that would allow a strong central government ample power to perform its tasks while still paying due attention to "liberty, and to the republican form," two elements, as Madison noted, always difficult to mix in the right proportions.

The convention had had to start from scratch, having no good example to follow. Many different views had been represented at the convention. In the debates there had been many spirited contentions between the large states and the small, between the several geographical sections of the country, between rural interests and urban interests, between creditors and debtors, etc. It had been necessary to adjust and accommodate all major interests and views.

Of course, said Madison, the Constitution was not perfect. But instead of being criticized, it should be praised and supported for being as good as it was under the circumstances. Besides, provision had been made for amending it to make it better, once it was adopted — which should be at once.

In Chapter 38, America was like a man who finds his illness growing steadily worse and calls in doctors. After examinations and consultations, the doctors agree on what should be done in an increasingly dangerous situation. As soon as some of the patient's friends hear of this, they come in and, without any knowledge of medicine, warn the sick man that the doctors' prescription will poison his constitution and probably cause his death.

America was "sensible of her malady" and had called for advice from knowledgeable men of its choice. Yet this advice was being challenged and rejected by some.

Madison then briefly considered the main objections to the proposed constitution. Some did not want it because it was not a confederation of states but a government of individuals. Others agreed that it should be a government over individuals, but not to the extent proposed. There were those disturbed because the constitution did not contain a Bill of Rights. This was a chief objection of the Anti-Federalists, a legitimate objection soon removed by passage of the first ten amendments, since known as our national Bill of Rights. It was based on Virginia's celebrated Declaration of Rights (1776) drafted almost wholly by the great George Mason, a determined Anti-Federalist.

Having listed other objections raised against the proposed constitution, Madison asked critics to consider what kind of a government they had had before. It was not necessary that the proposed constitution be perfect: It would provide better government than under the Articles of Confederation. If the proposed constitution was not perfect, "no man would refuse to give brass for silver or gold, because the latter had some alloy in it."

An energetic government under the new constitution could help greatly in speeding the development of the Western frontier country, "a mine of vast wealth to the United States. . . . a rich and fertile country, of an area equal to the inhabited extent of the United States," out of which could be cut a number of new states.

In Chapter 39, the first question Madison offers here is whether the new national government would be "strictly republican" in form. No other form would be compatible "with the genius of the people of America; with the fundamental principles of the revolution."

Madison defined a republic as a government deriving all its powers from the great body of the people and administered by persons holding office during the people's pleasure for a limited period, or during good behavior. The government under the proposed constitution answered that description. The House of Representatives was to be elected immediately by the people; the Senate and the president, indirectly by the people. Even the judges along with all other important national officers were to be the choice, "though a remote choice," of the people themselves.

Many objected that the new government would not be federal in form, based on the sovereignty of the states, but rather a national government based on a "consolidation" of the states. Madison analyzed this objection at length, arguing that the new government would be at once a federal and national government — federal in most respects, but necessarily national in others.

In Chapter 40, had the Constitutional Convention at Philadelphia been "authorised to frame and propose this mixed Constitution"? Anti-Federalists said No. As expressed in a resolution by the Continental Congress, the convention had been called for the "sole and express purpose of revising the articles of confederation," and the Articles of Confederation, instead of being revised, had been entirely scrapped.

After arguing around this point at considerable length, Madison finally admitted that the delegates at the Constitutional Convention had exceeded their instructions, but were justified in doing so. Seeking to establish a more adequate central government, they had found that no mere revision of the Articles of Confederation would do. The foundation of the American government had to be changed.

Even if the drafting of a whole new constitution was unauthorized, said Madison, did it "follow that the Constitution ought, for that reason alone to be rejected? If . . . it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends" in the form of a new constitution "calculated to accomplish the views and happiness of the people of America"?


Very little need be said here. Madison shared Washington and Hamilton's view that the proposed constitution, though not perfect, was the best that could be hoped for under the circumstances, and that provision had been made for means of amending it as faults appeared and necessity required.

It was a concession on Madison's part that he finally admitted that the delegates to the Constitutional Convention had violated their instructions: that they were merely to revise the Articles of Confederation. Instead, they had entirely scrapped them. Madison justified this in the name of the "higher good."