June 22, 2010 – Federalist No. 40 – The Powers of the Convention to Form a Mixed Government Examined and Sustained, from the New York Packet (Madison) – Guest Blogger: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation

Tuesday, June 22nd, 2010

One can only imagine the difficulty James Madison had writing Federalist 40.  The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?

Consider that when the Convention assembled in the summer of 1787, a government already existed in America.  Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles.  Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.

Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!

Indeed, there were difficult legal questions regarding what the Constitutional Convention did.

Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”

In answering the first question, Madison defends the legality of the Convention’s recommendations.  In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles.  But if these two objectives were incompatible, “Which was the more important, which the less important part?”  The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.

Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it?  Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”?  At what point does altering the government become destroying it?

Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them.  Under the Constitution “the states are regarded as distinct and independent sovereigns.”  Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.”  Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”

Madison admits that the Convention departed from the Articles in one respect: the amendment process.  However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”

Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.

In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject.  Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”

The Constitution was ratified by the people, not by the Convention.  How could the people lack the legal authority to change their Constitution?  The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence” to forms “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.’”

The lessons of Federalist 40 are important even today.  Madison explains that in a free society the people are the masters of the government, rather than vice versa.  In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.

The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change.  Such a government would deny the people the basic right to govern themselves.  Instead, the Founders left us an amendment process because they foresaw the need for future changes.

However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government.  Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.

 

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