Chapter: On the Powers of the Convention to Form a Mixed Government Examined and
Sustained For the New York Packet. Friday, January 18, 1788.

MADISON

To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution.

The powers of the convention ought, in strictness, to be determined
by an inspection of the commissions given to the members by their
respective constituents. As all of these, however, had reference, either
to the recommendation from the meeting at Annapolis, in September, 1786,
or to that from Congress, in February, 1787, it will be sufficient to
recur to these particular acts.

The act from Annapolis recommends the "appointment of commissioners to
take into consideration the situation of the United States; to devise
SUCH FURTHER PROVISIONS as shall appear to them necessary to render the
Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE
UNION; and to report such an act for that purpose, to the United
States in Congress assembled, as when agreed to by them, and afterwards
confirmed by the legislature of every State, will effectually provide
for the same."

The recommendatory act of Congress is in the words following: "WHEREAS,
There is provision in the articles of Confederation and perpetual Union,
for making alterations therein, by the assent of a Congress of the
United States, and of the legislatures of the several States; and
whereas experience hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States, and
PARTICULARLY THE STATE OF NEW YORK, by express instructions to their
delegates in Congress, have suggested a convention for the purposes
expressed in the following resolution; and such convention appearing
to be the most probable mean of establishing in these States A FIRM
NATIONAL GOVERNMENT:

"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."

From these two acts, it appears, 1st, that the object of the convention
was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that
this government was to be such as would be ADEQUATE TO THE EXIGENCIES
OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes
were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
CONFEDERATION, as it is expressed in the act of Congress, or by SUCH
FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the
recommendatory act from Annapolis; 4th, that the alterations and
provisions were to be reported to Congress, and to the States, in order
to be agreed to by the former and confirmed by the latter.

From a comparison and fair construction of these several modes of
expression, is to be deduced the authority under which the convention
acted. They were to frame a NATIONAL GOVERNMENT, adequate to the
EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles
of Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as
well as founded on legal axioms. The one is, that every part of the
expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several
parts cannot be made to coincide, the less important should give way
to the more important part; the means should be sacrificed to the end,
rather than the end to the means.

Suppose, then, that the expressions defining the authority of the
convention were irreconcilably at variance with each other; that a
NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment
of the convention, be affected by ALTERATIONS and PROVISIONS in the
ARTICLES OF CONFEDERATION; which part of the definition ought to have
been embraced, and which rejected? Which was the more important, which
the less important part? Which the end; which the means? Let the most
scrupulous expositors of delegated powers; let the most inveterate
objectors against those exercised by the convention, answer these
questions. Let them declare, whether it was of most importance to the
happiness of the people of America, that the articles of Confederation
should be disregarded, and an adequate government be provided, and the
Union preserved; or that an adequate government should be omitted, and
the articles of Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a reform
of the government was to be introduced as the means; or whether the
establishment of a government, adequate to the national happiness, was
the end at which these articles themselves originally aimed, and to
which they ought, as insufficient means, to have been sacrificed.

But is it necessary to suppose that these expressions are absolutely
irreconcilable to each other; that no ALTERATIONS or PROVISIONS in the
articles of the confederation could possibly mould them into a national
and adequate government; into such a government as has been proposed by
the convention?

No stress, it is presumed, will, in this case, be laid on the TITLE;
a change of that could never be deemed an exercise of ungranted power.
ALTERATIONS in the body of the instrument are expressly authorized. NEW
PROVISIONS therein are also expressly authorized. Here then is a power
to change the title; to insert new articles; to alter old ones. Must it
of necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
TRANSMUTATION of the government. Will it be said that the alterations
ought not to have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some SUBSTANTIAL reform
had not been in contemplation. Will it be said that the FUNDAMENTAL
PRINCIPLES of the Confederation were not within the purview of the
convention, and ought not to have been varied? I ask, What are
these principles? Do they require that, in the establishment of the
Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do
they require that the members of the government should derive their
appointment from the legislatures, not from the people of the
States? One branch of the new government is to be appointed by these
legislatures; and under the Confederation, the delegates to Congress
MAY ALL be appointed immediately by the people, and in two States(1) are
actually so appointed. Do they require that the powers of the government
should act on the States, and not immediately on individuals? In some
instances, as has been shown, the powers of the new government will act
on the States in their collective characters. In some instances, also,
those of the existing government act immediately on individuals. In
cases of capture; of piracy; of the post office; of coins, weights, and
measures; of trade with the Indians; of claims under grants of land
by different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be inflicted
without the intervention of a jury, or even of a civil magistrate; in
all these cases the powers of the Confederation operate immediately on
the persons and interests of individual citizens. Do these fundamental
principles require, particularly, that no tax should be levied without
the intermediate agency of the States? The Confederation itself
authorizes a direct tax, to a certain extent, on the post office. The
power of coinage has been so construed by Congress as to levy a tribute
immediately from that source also. But pretermitting these instances,
was it not an acknowledged object of the convention and the universal
expectation of the people, that the regulation of trade should be
submitted to the general government in such a form as would render it
an immediate source of general revenue? Had not Congress repeatedly
recommended this measure as not inconsistent with the fundamental
principles of the Confederation? Had not every State but one; had
not New York herself, so far complied with the plan of Congress as to
recognize the PRINCIPLE of the innovation? Do these principles, in fine,
require that the powers of the general government should be limited,
and that, beyond this limit, the States should be left in possession
of their sovereignty and independence? We have seen that in the new
government, as in the old, the general powers are limited; and that the
States, in all unenumerated cases, are left in the enjoyment of their
sovereign and independent jurisdiction.

The truth is, 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 one particular it is admitted that the convention have departed from
the tenor of their commission. Instead of reporting a plan requiring the
confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported
a plan which is to be confirmed by the PEOPLE, and may be carried into
effect by NINE STATES ONLY. It is worthy of remark that this objection,
though the most plausible, has been the least urged in the publications
which have swarmed against the convention. The forbearance can only have
proceeded from an irresistible conviction of the absurdity of subjecting
the fate of twelve States to the perverseness or corruption of a
thirteenth; from the example of inflexible opposition given by a
MAJORITY of one sixtieth of the people of America to a measure approved
and called for by the voice of twelve States, comprising fifty-nine
sixtieths of the people an example still fresh in the memory and
indignation of every citizen who has felt for the wounded honor and
prosperity of his country. As this objection, therefore, has been in a
manner waived by those who have criticised the powers of the convention,
I dismiss it without further observation.

The THIRD point to be inquired into is, how far considerations of duty
arising out of the case itself could have supplied any defect of regular
authority.

In the preceding inquiries the powers of the convention have been
analyzed and tried with the same rigor, and by the same rules, as
if they had been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner they
have borne the trial even on that supposition. It is time now to
recollect that the powers were merely advisory and recommendatory; that
they were so meant by the States, and so understood by the convention;
and that the latter have accordingly planned and proposed a Constitution
which is to be of no more consequence than the paper on which it is
written, unless it be stamped with the approbation of those to whom
it is addressed. This reflection places the subject in a point of view
altogether different, and will enable us to judge with propriety of the
course taken by the convention.

Let us view the ground on which the convention stood. It may be
collected from their proceedings, that they were deeply and unanimously
impressed with the crisis, which had led their country almost with one
voice to make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that they
were no less deeply and unanimously convinced that such a reform as they
have proposed was absolutely necessary to effect the purposes of
their appointment. It could not be unknown to them that the hopes
and expectations of the great body of citizens, throughout this great
empire, were turned with the keenest anxiety to the event of their
deliberations. They had every reason to believe that the contrary
sentiments agitated the minds and bosoms of every external and internal
foe to the liberty and prosperity of the United States. They had seen in
the origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a partial
amendment of the Confederation, had been attended to and promoted. They
had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and critical
object, wholly foreign to their commission, not only justified by the
public opinion, but actually carried into effect by twelve out of the
thirteen States. They had seen, in a variety of instances, assumptions
by Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects infinitely
less urgent than those by which their conduct was to be governed.
They must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid
adherence in such cases to the former, would render nominal and nugatory
the transcendent and precious right of the people to "abolish or alter
their governments as to them shall seem most likely to effect their
safety and happiness,"(2) since it is impossible for the people
spontaneously and universally to move in concert towards their object;
and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have recollected
that it was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their
ancient government; that committees and congresses were formed for
concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering
to ordinary forms, were anywhere seen, except in those who wished
to indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be
framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might
even have occurred to them, that where a disposition to cavil prevailed,
their neglect to execute the degree of power vested in them, and still
more their recommendation of any measure whatever, not warranted
by their commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the national
exigencies.

Had the convention, under all these impressions, and in the midst of all
these considerations, instead of exercising a manly confidence in their
country, by whose confidence they had been so peculiarly distinguished,
and of pointing out a system capable, in their judgment, of securing
its happiness, taken the cold and sullen resolution of disappointing
its ardent hopes, of sacrificing substance to forms, of committing the
dearest interests of their country to the uncertainties of delay and
the hazard of events, let me ask the man who can raise his mind to one
elevated conception, who can awaken in his bosom one patriotic emotion,
what judgment ought to have been pronounced by the impartial world, by
the friends of mankind, by every virtuous citizen, on the conduct and
character of this assembly? Or if there be a man whose propensity to
condemn is susceptible of no control, let me then ask what sentence he
has in reserve for the twelve States who USURPED THE POWER of
sending deputies to the convention, a body utterly unknown to their
constitutions; for Congress, who recommended the appointment of this
body, equally unknown to the Confederation; and for the State of New
York, in particular, which first urged and then complied with this
unauthorized interposition?

But that the objectors may be disarmed of every pretext, it shall be
granted for a moment that the convention were neither authorized
by their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution
ought, for that reason alone, to be rejected? If, according to the noble
precept, 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? The prudent inquiry, in all cases, ought surely to be,
not so much FROM WHOM the advice comes, as whether the advice be GOOD.

The sum of what has been here advanced and proved is, that the charge
against the convention of exceeding their powers, except in one instance
little urged by the objectors, has no foundation to support it; that
if they had exceeded their powers, they were not only warranted,
but required, as the confidential servants of their country, by the
circumstances in which they were placed, to exercise the liberty which
they assume; and that finally, if they had violated both their
powers and their obligations, in proposing a Constitution, this ought
nevertheless to be embraced, if it be calculated to accomplish the views
and happiness of the people of America. How far this character is due to
the Constitution, is the subject under investigation.

PUBLIUS

1. Connecticut and Rhode Island.

2. Declaration of Independence.

 Madison responds to the claim that the constitutional convention was authorized to frame and propose an entirely new form of government. Anti-Federalists charged that the convention had been formed to merely amend the Articles, not throw them out entirely in favor of the proposed constitution. Madison argues that Congress had clearly authorized the convention to form a "a national and adequate government." Although it had only been explicitly instructed to accomplish this through "alterations and provisions in the articles of confederation," Madison argues that "alterations and provisions" alone would not be sufficient to achieve a "national and adequate government." Therefore, the convention rightly decided that it was more important to create the proper form of government than to limit itself to merely amending the Articles. Madison argues further than the "great principles of the constitution proposed by the convention" are really just "the expansion of principles which are found in the articles of confederation." The problem with the Articles is that the principles were too "feeble and confined." All the Constitution does is empower the government to govern effectively on these principles. Finally, Madison points to the fact that the Articles themselves were formed by a convention that was not explicitly authorized to do so. What matters ultimately, according to Madison, is whether the plans offered are good advice. The proposed constitution ought to be judged on its merits, not on the mere technicality of whether the convention was authorized to propose it.

