Federalist Paper No. 49
Method of Guarding Against the
Encroachments of
Any One Department of Government by Appealing
to the People Through a Convention
From the New York Packet.
Tuesday, February 5, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
THE author of the "Notes on the State of Virginia," quoted in the
last paper, has subjoined to that valuable work the draught of a constitution, which had
been prepared in order to be laid before a convention, expected to be called in 1783, by
the legislature, for the establishment of a constitution for that commonwealth. The plan,
like every thing from the same pen, marks a turn of thinking, original, comprehensive, and
accurate; and is the more worthy of attention as it equally displays a fervent attachment
to republican government and an enlightened view of the dangerous propensities against
which it ought to be guarded.
One of the precautions which he proposes, and on which he appears ultimately to
rely as a palladium to the weaker departments of power against the invasions of the
stronger, is perhaps altogether his own, and as it immediately relates to the subject of
our present inquiry, ought not to be overlooked. His proposition is, "that whenever
any two of the three branches of government shall concur in opinion, each by the voices of
two thirds of their whole number, that a convention is necessary for altering the
constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose.
"As the people are the only legitimate fountain of power, and it is from them that
the constitutional charter, under which the several branches of government hold their
power, is derived, it seems strictly consonant to the republican theory, to recur to the
same original authority, not only whenever it may be necessary to enlarge, diminish, or
new-model the powers of the government, but also whenever any one of the departments may
commit encroachments on the chartered authorities of the others. The several departments
being perfectly co-ordinate by the terms of their common commission, none of them, it is
evident, can pretend to an exclusive or superior right of settling the boundaries between
their respective powers; and how are the encroachments of the stronger to be prevented, or
the wrongs of the weaker to be redressed, without an appeal to the people themselves, who,
as the grantors of the commissions, can alone declare its true meaning, and enforce its
observance? There is certainly great force in this reasoning, and it must be allowed to
prove that a constitutional road to the decision of the people ought to be marked out and
kept open, for certain great and extraordinary occasions. But there appear to be
insuperable objections against the proposed recurrence to the people, as a provision in
all cases for keeping the several departments of power within their constitutional limits.
In the first place, the provision does not reach the case of a combination of two of the
departments against the third. If the legislative authority, which possesses so many means
of operating on the motives of the other departments, should be able to gain to its
interest either of the others, or even one third of its members, the remaining department
could derive no advantage from its remedial provision. I do not dwell, however, on this
objection, because it may be thought to be rather against the modification of the
principle, than against the principle itself. In the next place, it may be considered as
an objection inherent in the principle, that as every appeal to the people would carry an
implication of some defect in the government, frequent appeals would, in a great measure,
deprive the government of that veneration which time bestows on every thing, and without
which perhaps the wisest and freest governments would not possess the requisite stability.
If it be true that all governments rest on opinion, it is no less true that the strength
of opinion in each individual, and its practical influence on his conduct, depend much on
the number which he supposes to have entertained the same opinion. The reason of man, like
man himself, is timid and cautious when left alone, and acquires firmness and confidence
in proportion to the number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a
nation of philosophers, this consideration ought to be disregarded. A reverence for the
laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation
of philosophers is as little to be expected as the philosophical race of kings wished for
by Plato. And in every other nation, the most rational government will not find it a
superfluous advantage to have the prejudices of the community on its side. The danger of
disturbing the public tranquillity by interesting too strongly the public passions, is a
still more serious objection against a frequent reference of constitutional questions to
the decision of the whole society. Notwithstanding the success which has attended the
revisions of our established forms of government, and which does so much honor to the
virtue and intelligence of the people of America, it must be confessed that the
experiments are of too ticklish a nature to be unnecessarily multiplied. We are to
recollect that all the existing constitutions were formed in the midst of a danger which
repressed the passions most unfriendly to order and concord; of an enthusiastic confidence
of the people in their patriotic leaders, which stifled the ordinary diversity of opinions
on great national questions; of a universal ardor for new and opposite forms, produced by
a universal resentment and indignation against the ancient government; and whilst no
spirit of party connected with the changes to be made, or the abuses to be reformed, could
mingle its leaven in the operation. The future situations in which we must expect to be
usually placed, do not present any equivalent security against the danger which is
apprehended. But the greatest objection of all is, that the decisions which would probably
result from such appeals would not answer the purpose of maintaining the constitutional
equilibrium of the government. We have seen that the tendency of republican governments is
to an aggrandizement of the legislative at the expense of the other departments. The
appeals to the people, therefore, would usually be made by the executive and judiciary
departments. But whether made by one side or the other, would each side enjoy equal
advantages on the trial? Let us view their different situations. The members of the
executive and judiciary departments are few in number, and can be personally known to a
small part only of the people. The latter, by the mode of their appointment, as well as by
the nature and permanency of it, are too far removed from the people to share much in
their prepossessions. The former are generally the objects of jealousy, and their
administration is always liable to be discolored and rendered unpopular. The members of
the legislative department, on the other hand, are numberous. They are distributed and
dwell among the people at large. Their connections of blood, of friendship, and of
acquaintance embrace a great proportion of the most influential part of the society. The
nature of their public trust implies a personal influence among the people, and that they
are more immediately the confidential guardians of the rights and liberties of the people.
With these advantages, it can hardly be supposed that the adverse party would have an
equal chance for a favorable issue. But the legislative party would not only be able to
plead their cause most successfully with the people. They would probably be constituted
themselves the judges.
The same influence which had gained them an election into the legislature,
would gain them a seat in the convention. If this should not be the case with all, it
would probably be the case with many, and pretty certainly with those leading characters,
on whom every thing depends in such bodies. The convention, in short, would be composed
chiefly of men who had been, who actually were, or who expected to be, members of the
department whose conduct was arraigned. They would consequently be parties to the very
question to be decided by them. It might, however, sometimes happen, that appeals would be
made under circumstances less adverse to the executive and judiciary departments. The
usurpations of the legislature might be so flagrant and so sudden, as to admit of no
specious coloring. A strong party among themselves might take side with the other
branches. The executive power might be in the hands of a peculiar favorite of the people.
In such a posture of things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected to turn on the true
merits of the question. It would inevitably be connected with the spirit of pre-existing
parties, or of parties springing out of the question itself. It would be connected with
persons of distinguished character and extensive influence in the community. It would be
pronounced by the very men who had been agents in, or opponents of, the measures to which
the decision would relate. The PASSIONS, therefore, not the REASON, of the public would
sit in judgment. But it is the reason, alone, of the public, that ought to control and
regulate the government. The passions ought to be controlled and regulated by the
government.
We found in the last paper, that mere declarations in the written constitution
are not sufficient to restrain the several departments within their legal rights. It
appears in this, that occasional appeals to the people would be neither a proper nor an
effectual provision for that purpose. How far the provisions of a different nature
contained in the plan above quoted might be adequate, I do not examine. Some of them are
unquestionably founded on sound political principles, and all of them are framed with
singular ingenuity and precision.
PUBLIUS.
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