June 22, 2010 – Federalist No. 40 – Cathy Gillespie
Wednesday, June 23rd, 2010
Federalist No. 40 brings up a subject I have been curious about since embarking upon this journey through the Federalist Papers in April. How did the delegates, charged with revising the Articles of Confederation, justify constructing an entirely new government?
Madison lays out the case brilliantly. First quoting the recommendation of the Annapolis Meeting in September of 1786, and then the Congressional Recommendation of February 1787, Madison carefully analyzes the language used. He emphasizes the words, “such further provisions adequate to the exigencies of the union,” from Annapolis, and the words from the Congressional recommendation “establishing in these states a firm national government,” and “such further provisions…adequate to the exigencies of government and the preservation of the union.”
He then questions, if the goals in the mission statement are “irreconcilably at variance with each other,” i.e.:
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?”
Madison points out that one phrase deals with means, “alterations and provisions in the articles,” and the other with the ends, “national and adequate government adequate to the exigencies of government and the preservation of the union.” Madison argues the ends are more important than the means. While this view gave us our Constitution, it is an arguably dangerous view for our elected officials to take, and one that has been employed from time to time throughout our history and other civilizations to justify various acts.
Possibly realizing the danger of this mindset, Madison goes on to argue that, in fact, the it may not be impossible to reconcile the two charges of “alterations and provisions in the articles” with a “national and adequate government.”
He proceeds to walk through each step, stating:
1. an alteration of the TITLE, could “never be deemed an exercise of ungranted power.”
2. “ALTERATIONS in the body of the instrument are expressly authorized.”
3. “NEW PROVISIONS therein are also expressly authorized.”
4. Is “power is infringed, so long as a part of the old articles remain?”
Madison identifies the major departure from the charge of Annapolis and the Congressional recommendation as the change in the ratification process, from the requirement of the confirmation of all states, to the requirement of the approval of nine states. The founders altered the ratification process because they did not want to put the fate of the union in the hands of the 13th state.
While Madison lays out the case for the scope of governmental reform undertaken by the delegates, in the end he reminds us that whatever the delegates proposed, “it 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.”
In the end, the judgment rested with the people, as it does with us today.