Bench Memos

The Perennial Publius, part 37

Having written just two solo essays previous to this (and three others on which Hamilton assisted), James Madison returns to write 24 of the next 27 Federalist essays (amounting to the entire remainder of his contribution), 22 of them in a continuous series. In No. 37, he makes what amounts to a new beginning of the Federalist as a whole, taking a capacious view of the entire debate over the Constitution–the problems it is designed to correct and the objects it aims to achieve, and the difficulties encountered by the convention that drafted it.

Unafraid not to be the conservative in the debate (in the narrow sense of conservative as defender of tradition), Madison urges the reader to see the “novelty of the undertaking.” The proposed Constitution aims at a radical reform of both republicanism and federalism. Concerning the former, the framers sought to combine “stability and energy in government, with the inviolable attention due to liberty, and to the republican form.” It could not have been easy “mingling them together in their due proportions.” Nor, as to federalism (a word, by the way, that never appears in the Federalist), could it have been easy “marking the proper line of partition” between the national and state governments.

The sources of these difficulties are both practical and theoretical. On the practical side are the “interfering pretensions of the larger and smaller states,” and the “variety of interests” to be accommodated. The convention’s overcoming of such obstacles, Madison writes, should be taken by “the man of pious reflection” as a sign that the proceedings were touched by “a finger of that Almighty hand” that aided our Revolution.

On the theoretical side, the convention faced basic problems of the limits of human understanding and human language. “[N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.” Undertaking a political project so novel, the framers were bound to stumble in a kind of darkness in this corner or that, limited by their inability to “discriminate and define” with perfect accuracy and forethought the shapes and powers of the institutions they called into being. And some of the ambiguities and uncertainties of the Constitution cannot be ironed out otherwise than in practice:

“All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”

Is there a contradiction between the Madison we see here and the Hamilton who proclaims in No. 31 that there are “maxims in ethics and politics” of a self-evident character? I don’t think so. Knowing fundamental political principles, and knowing how best to fulfill those principles institutionally, are matters of different orders of complexity.

But notice Madison’s mention that “particular discussions and adjudications” will settle questions of constitutional meaning in future. It won’t be all adjudications. This will not be the exclusive province of the judiciary.

(For explanation of this recurring feature, see here.)

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Most Popular


The Inquisitor Has No Clothes

This is a column about impeachment, but first, a confession: I think I might be guilty of insider trading. At this point, I would like to assure my dear friends at the SEC that I do not mean this in any actionable legal sense, but only in principle. Some time ago, I was considering making an investment in a ... Read More