Chapter: 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 termination
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 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.

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 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.

 In order to convince the readers that a government must be at least as energetic and strong as the one proposed, they must carefully examine the defects of the existing government. Madison does not expect people to accept the merits of the Constitution on faith alone. By examining the provisions of the constitution and comparing each provision, Madison will attempt to calculate the effects of the new government on the nation and its citizens. For Madison, it is one of the ironies of human affairs that important public matters are seldom examined objectively. A new plan of government excites passion and prejudices, not surprisingly. The founding fathers believed those who opposed the Constitution only briefly looked at its contents. But some who write in favor of the Constitution are guilty of the same and much of their supportive writing lacks substance and critical analysis. There is, however, one critical difference between the supporters and critics of the Constitution: those who support the Constitution superficially usually do so because they know the existing government is weak and the country is in a serious situation: a forgivable fault. The critics, however, cannot be forgiven. But Madison is not writing to either of the two biased groups. Instead, this paper is written for those who sincerely are in favor of and want to promote the welfare of the country and who will listen to reasonable arguments and explanations. In order to appreciate the proposed government, you have to realize that no plan is faultless. The Convention, like all groups, was composed of fallible men. Fallible men drafted the Constitution and fallible men in the end will judge it. Madison argues that the readers must not only accept the fallibility of men, but also try to understand the difficult task the framers faced. What was done in Philadelphia had no precedent. The framers began their deliberations knowing that the structure of government was weak because the underlying principles that governed it were unsound. They realized that they could not erect a strong structure upon a weak foundation. Unfortunately, the principles to build the Constitution were hard to find because the framers could not look to other confederacies because they, too, were founded on unsound principles. Studying both ancient and modern confederacies served only to warn them of what should be avoided in the establishment of the new government. As a result, the framers took as their "textbook" the experience of this and other countries, not political theories. One of the most important and difficult problems was how to establish an energetic and stable government without threatening the liberties of the people. Had the framers not solved this problem, they would have failed. Stability in government promotes confidence and is essential to national character. Stability is threatened if too many people hold power, and energetic government requires that the execution of the laws should be the responsibility of one man, the president. But in a free society power is derived from the people and those who hold office are responsible to them. The proposed government reconciles and balances these two important values. Stability is achieved through the principle of representation; liberty is protected because the government rests upon the consent of the people. In addition, a part of this balance was achieved by establishing relatively short terms of office for representatives, senators, and the president. Another problem the framers faced was how best to divide authority and power between the state and national governments, something that was extremely difficult. The framers also had to wrestle with the problem of describing in specific detail the purpose and limits of different codes of laws and types of courts. The English studied this problem for years, but never came up with specific solutions. No language supplies words and phrases for every complex idea or is so precise that every word has only one meaning. The Convention also faced other problems. The delegates had to reconcile the conflict and competition between the large and small states, as well as the fact that competing sectional interests had to be reconciled, as did various economic and social conflicts within every state. These competing interests will undoubtedly have a beneficial effect on the proposed government, but to reconcile them during the Convention was a difficult task. Madison concludes that it is remarkable given all of the pressures and difficulties that an agreement was reached at all. While it is easy for a theorist to plan a perfect document in the privacy of his den or imagination, for men to hammer out their differences together is another matter. Madison attributes two factors to the success of the Constitutional Convention: first, the framers were free of party animosities and second, the delegates were so pleased with the final product that they were willing to put aside certain personal objections in order to avoid further delay or the necessity of drafting an entirely new document.

