Chapter: Periodical Appeals to the People Considered

From the New York Packet. Tuesday, February 5, 1788.

MADISON

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to
the people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION.

It will be attended to, that in the examination of these expedients,
I confine myself to their aptitude for ENFORCING the Constitution,
by keeping the several departments of power within their due bounds,
without particularly considering them as provisions for ALTERING the
Constitution itself. In the first view, appeals to the people at fixed
periods appear to be nearly as ineligible as appeals on particular
occasions as they emerge. If the periods be separated by short
intervals, the measures to be reviewed and rectified will have been of
recent date, and will be connected with all the circumstances which
tend to vitiate and pervert the result of occasional revisions. If the
periods be distant from each other, the same remark will be applicable
to all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage is
inseparable from inconveniences which seem to counterbalance it. In the
first place, a distant prospect of public censure would be a very feeble
restraint on power from those excesses to which it might be urged by
the force of present motives. Is it to be imagined that a legislative
assembly, consisting of a hundred or two hundred members, eagerly bent
on some favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at the
future distance of ten, fifteen, or twenty years? In the next place, the
abuses would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where this
might not be the case, they would be of long standing, would have taken
deep root, and would not easily be extirpated.

The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually tried
in one of the States. One of the objects of the Council of Censors which
met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire,
"whether the constitution had been violated, and whether the legislative
and executive departments had encroached upon each other." This
important and novel experiment in politics merits, in several points of
view, very particular attention. In some of them it may, perhaps, as
a single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the case
under consideration, it involves some facts, which I venture to remark,
as a complete and satisfactory illustration of the reasoning which I
have employed.

First. It appears, from the names of the gentlemen who composed the
council, that some, at least, of its most active members had also been
active and leading characters in the parties which pre-existed in the
State.

Second. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.

Third. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had
this not been the case, the face of their proceedings exhibits a
proof equally satisfactory. In all questions, however unimportant
in themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a variety
of distinct questions, they inevitably fall into different opinions
on some of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.

Fourth. It is at least problematical, whether the decisions of this body
do not, in several instances, misconstrue the limits prescribed for the
legislative and executive departments, instead of reducing and limiting
them within their constitutional places.

Fifth. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed,
have had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest.

This censorial body, therefore, proves at the same time, by its
researches, the existence of the disease, and by its example, the
inefficacy of the remedy.

This conclusion cannot be invalidated by alleging that the State in
which the experiment was made was at that crisis, and had been for a
long time before, violently heated and distracted by the rage of party.
Is it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State,
at the same or any other given period, will be exempt from them? Such an
event ought to be neither presumed nor desired; because an extinction
of parties necessarily implies either a universal alarm for the public
safety, or an absolute extinction of liberty.

Were the precaution taken of excluding from the assemblies elected by
the people, to revise the preceding administration of the government,
all persons who should have been concerned with the government within
the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would
in other respects be little better qualified. Although they might not
have been personally concerned in the administration, and therefore not
immediately agents in the measures to be examined, they would probably
have been involved in the parties connected with these measures, and
have been elected under their auspices.

PUBLIUS

 Madison rejects the proposal to allow for periodical, or regular, appeals to the people as a means of "preventing and correcting infractions of the constitution." At the time, some had proposed adding to the constitution certain provisions allowing for the government to be subjected to some sort of public examination on a regular basis to ensure that it is not violating the constitution. However, Madison doubts that this will be successful. He suggests that if the intervals between the examinations are too short, it will be difficult for the people to be impartial since "the measures to be reviewed and rectified...will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions." If the intervals are too long, however, the distant possibility of public censure will not be an adequate check on the behavior of government officials. Madison supports his position with the example of a council of censors that met in Pennsylvania in 1783 and 1784 for the purpose of revising the state constitution "in order to correct recent breaches of it." This failed in part because the members of the council were not impartial, were motivated by passion rather than reason, and were themselves been members of government within the period to be reviewed.

