FReeper Book Club: The Debate over the Constitution, Federalist #50

The professor of history shines a light on the problems of constitutional revision within Pennsylvania and extends his findings to how to control passions within such an event.

² It may be contended perhaps that instead of occasional appeals to the people, which are liable to the objections urged against them, [periodic] appeals are the proper and adequate means of preventing and correcting infractions of the Constitution.

³ 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.

⁴ 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.

⁵ 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.

⁶ 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.

⁷ 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.

⁸ 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?

⁹ In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied.

¹⁰ 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.

¹¹ 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.

¹² 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.”

¹³ This important and novel experiment in politics merits in several points of view very particular attention.

¹⁴ In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive.

¹⁵ 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.

¹⁶ 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.

¹⁷ Secondly: 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.

¹⁸ Two of the members had been vice presidents of the state and several other members of the executive council within the seven preceding years.

¹⁹ One of them had been speaker, and a number of others distinguished members of the legislative assembly within the same period.

²⁰ Thirdly: Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations.

²¹ Throughout the continuance of the council, it was split into two fixed and violent parties.

²³ Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory.

²⁴ In all questions, however unimportant in themselves or unconnected with each other, the same names stand invariably contrasted on the opposite columns.

²⁵ 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.

²⁶ When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them.

²⁷ When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

²⁸ Fourthly: 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.

²⁹ Fifthly: 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.

³⁰ 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.

³¹ 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.

³² 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.

³³ Is it to be presumed that at any future septennial epoch the same state will be free from parties?

³⁴ Is it to be presumed that any other state, at the same or any other given period, will be exempt from them?

³⁵ 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.

³⁶ 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.

³⁷ The important task would probably devolve on men who, with inferior capacities, would in other respects be little better qualified.

³⁸ 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.

The topic, as before, is how best to ensure that the three branches of government and their subsidiaries do not expand their powers outside those bounds described by the Constitution. Madison has dealt with the mechanism within the Virginia Constitution for a review of such activities, in which an agreement of two-thirds of the members of two of the three branches may force a constitutional convention in that regard. Those must, by the stringency of the requirements, be “occasional” appeals (2). What, then, of a mechanism set up for regular or periodic reviews? First, Madison provides boundaries for the subject.

³ ...I confine myself to their [the periodic reviews'] 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.

These may either be enacted at short intervals or longer ones, each of which carries inherent disadvantages: too short, and the reviews will be corrupted by the same passions that serve to create circumstances necessary to vitiate (5), and too long offers no immediate deterrent for punitive actions (7, 8), as well as allowing the abuses to take on the dignity of status quo (9, 10).

Such a scheme had, in fact, already been attempted in the state of Pennsylvania in the form of a Council of Censors that met in 1783 and 1784 to review “whether the constitution had been violated and whether the legislative and executive departments had encroached upon each other.” (12) The term “censor” in this usage dates back to royal and republican Rome, being the individuals charged with the formal census that granted or revoked the status of Roman citizen, as well as the maintenance of public morals, a definition that will seem familiar to modern ears. However, one aspect of the maintenance of public morality resided in the judgment of the offenses of magistrates and public officials, both in terms of corruption and execution of office.

This Council of Censors has already been cited in Federalist #48, and its findings were that “the constitution had been flagrantly violated by the legislature in a variety of important instances” (#48: 35). One might think that this constituted a brake on such abuse and, as such, offered a model for the federal Constitution. Madison disabuses the reader of any such notion. First, the membership of the Censors included those identified with the parties under consideration (16); second, certain of them were the very participants in the conduct under question. This evidenced itself in the deliberations, which were polarized along the same lines as the disputants (21), which the members of the Council themselves admitted (22).

Madison also points out that it was “problematical” whether the members of the Council actually comprehended the constitutional limitations of the branches under question (28). Lastly, and worst of all, the decisions of the Council of Censors carried with them no effect on behavior (29).

³¹ 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.

What was it that served to make this body ineffectual, to make it serve passion over reason (25)? It was something that was yet to take shape on the federal level but was already rampant within the states.

Was that altogether a bad thing? With respect to Rome, Gibbon thought so, but Machiavelli considered it the very foundation of the Republic. Madison appears to favor the latter position.

³⁴ Is it to be presumed that any other state, at the same or any other given period, will be exempt from them?

³⁵ 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.

An emergency, in other words, under which the parties must necessarily stand together; a war, perhaps, whose positive effects on political solidarity would pale before its disastrous effects on the citizenry; or a one-party government that must necessarily result in the “extinction of liberty.” The succeeding centuries have provided examples of each.

But that would imply that such a thing as party must come to pass on a federal level, as it did well before Madison himself rode it to the Presidency. Even so strong a proponent of federal government as George Washington detested the idea, but clearly Madison appreciates that it brings to government a dynamic all its own, unfortunately one outside the careful balance written into the Constitution. It is one that would matter in the event of a federal Council of Censors, because even if the formal disputants were disqualified from participating in such a body, the matter would devolve onto men “with inferior capacities” (37), who “would probably have been involved in the parties connected with these measures and elected under their auspices.” (38)

So much, says Madison, for the notion of a formal board of periodic review of conduct of the branches of government. He has already expressed his anxiety at the role being cast straight to the people (Federalist #48) or to a constitutional convention of the people’s representatives (Federalist #49). What, then, is the solution for the appropriate control on the expansion of the powers of the branches of the federal government? Is one even possible? Madison will finally address that in the next essay.

Does Madison’s argument hold water? Should there be regular conventions for revising the Constitution, or should such an event be held only when it appears to be necessary? Why or why not?

The Council of Censors was removed from the PA Constitution of 1790. One problem was its political character. It was a political body making judicial decisions. It was a noble idea but found wanting and quickly remedied.

This Federalist is a reminder that our Framers considered every possible avenue to achieve limited government in accordance with our Declaration of Independence. They were knowledgeable of Greek, Roman, medieval, and English institutions and had 180 years of colonial experience before meeting in Philadelphia. This should be remembered when the usual posts regarding Article III occur.

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.

Interesting. The "existence of the disease and the inefficacy of the remedy" is well written. I’m left wondering how these discussions on FR would be different if the Federalists were written in paragraph form. My copies have it in paragraph form and I’m struck by how well the writers wrote and how they composed the forms of their arguments.

Discussion Topic

Does Madison’s argument hold water? Should there be regular conventions for revising the Constitution, or should such an event be held only when it appears to be necessary? Why or why not?

Yeah, I think it holds water. I think by "Madison’s argument" you mean the argument against periodic review. Madison’s argument seems to be that a council of angels isn’t going to come along and revise the constitution at least because the people would never admit to its divinity being greater than the "best and brightest" they’ve already sent to Congress.

In this essay I read this sentence, "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." The popular representatives prevailed over a council of wise men. This practical case probably stuck with him as he was arguing the theory of representative government in this Federalist and at the Constitutional Convention. Over and over Madison argued against the idea of "wise men." He was against the idea of a "House of Lords" every time someone tried to suggest it as a remedy for representative democracy.

In modifying the constitution, "held only when it appears to be necessary" the question has to be, "necessary by whom and modified by who else"? I guess he will get into it in a later Federalist but it’s difficult to find an entity more legitimate than the House of Representatives. He mentions the problem with the House by writing, "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."

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