Federalist 38
In the past two Reflection essays I’ve pondered the question as to whether American had a founding and, if so, what difference it makes to think so. I’ve argued the creators of our Constitutional system had precious little awareness that they engaged in something like a founding, although Publius does frequently admit to the “novelty” of the undertaking and the “innovations” contained in the plan. Federalist #38 is the key document for understanding in what sense the creation of the Constitution might be thought of as “founding” a new system of government, setting aside the distinction between founding a nation and creating a government.
Among the many ancient texts referred to by writers during the Constitutional period perhaps none carried more authority than Plutarch’s Lives, a work Madison refers to repeatedly in Federalist #38. Plutarch focused on the actions of the great leaders of Greece and Rome, placing a special emphasis on exemplary character. Often these leaders had to create or stabilize the regime, which would have obviously resonated with Publius’ interests.
Notice, however, that Plutarch focused exclusively on the deeds of great men who imposed order on the chaos of political life. Was there any such “great man” in the American context? Washington may have been the closest thing America could offer to one of the ancient greats, but he was more notable for avoiding power than seizing it. He presided over the Constitutional Convention but barely interjected himself into the proceedings. The formation of the American system resulted not from the actions of a single man but from the deliberations of a committee of them, a difference that Madison believed gave the American effort greater legitimacy. “IT IS not a little remarkable,” he observed, “that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.” That may have often been the case but it was rarely accomplished without violence. These great leaders of antiquity, Machiavelli had argued, were not afraid to get blood on their hands.
Madison seemed to share Burke’s view that the individual is foolish while the species is wise. Allowing one person to frame a system of government requires a great deal of confidence in that person’s ability and Madison wondered at the fact that the Greeks, who were so jealous of their liberty, would “so far abandon the rules of caution as to place their destiny in the hands of a single citizen.” In all incidents of serious governing they required assemblies, but in establishing government itself they seemed content to give free rein to one person. Why they “should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected” was a mystery to Madison.
The Americans, “having improved on the ancient mode of preparing and establishing regular plans of government,” made no such wager. The result was a plan for government “established with deliberation and consent” that was “clothed with the legitimate authority of the people.” Except, of course, for those nettlesome naysayers attempting to block ratification. Madison, clearly piqued by their obstructionism, reminded the readers of what he considered to be the serious defects of The Articles of Confederation, making the unexpected argument that the Articles actually placed fewer restraints on government than were proposed under the Constitution. Rather than simply repeating the nostrum that government under the Articles was too weak, Madison instead suggested that, there being no executive or judiciary, Congress under the Articles experienced a kind of unlimited power. He offered as evidence the fact that the federal government under the Articles engaged in unconstitutional westward expansion and state admission and that a single body of men exercised an unlimited power of raising troops and revenues. Granted, he didn’t object to the policies themselves, arguing “they could not have done otherwise” because “the public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits.” This argument proved a two-edged sword, for if Madison were to concede that the Confederation government could legitimately transgress legal limits if “the public interest” and “necessity” required it, why wouldn’t the government under the new Constitution regard it as their prerogative also, especially if its advocates were giving that government a green light?
Madison acknowledged that the Anti-federalists had plenty of arguments against the Constitution. By my count he recited in this essay seventeen of them. No one could accuse him of creating a straw man, even if he couldn’t resist some sarcasm at their expense. Suppose, he asked, the critics possessed complete wisdom and pure motives and that they held another convention to offer a better plan for governance than the one proposed. Could they come up with a system that would avoid all “discord” and disagreement? Even if they could, wouldn’t it be better to adopt the Constitution proposed until they came up with something that, if not a better plan, would at least be a different one?
Madison was skeptical that critics could come up with something better. Even if they could, he believed, the onus was on them to prove that they could, and Madison thought they failed on this score. He had little patience for criticizing a plan in the absence of a better one. In one question-begging moment he observed that “It is not necessary that the [Constitution] should be perfect; it is sufficient that the [Articles] is more imperfect.”
Since Plato, political thinkers often compared unstable polities to diseased patients. Madison took up the metaphor. Imagine that you are feeling sick and you go to a doctor and he diagnoses you with a serious disease that needs immediate treatment in order to avoid death. You might well want a second opinion, or even a third one. Then imagine that all these doctors get together and agree on a course of action. You would be foolish not to follow their advice. But now suppose that some well-meaning but inexpert friends suggest to you that the doctors don’t really know what they’re talking about and that the proposed therapy is more likely to kill you than the disease is (an argument we witnessed concerning COVID vaccines). Furthermore, these “friends” do everything in their power to keep the remedy from being administered. “Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted?” If his friends all disagree on the treatment of the disease, wouldn’t the patient be better off following the unanimous advice of the doctors?
Madison’s argument hinged on two unexamined claims: the first that the body politic was in critical condition that would result in its demise unless a dramatic intervention occurred; and second that the authors of the Constitution alone were sufficiently expert in the “science” of politics to provide the proper remedy. Madison and Hamilton may have on occasion made sport of their opponents or attributed bad motives to them, but they knew the critics were not morons, which is why Madison carefully laid out the many reasons the Anti-federalists criticized the proposed Constitution. The asserted unanimity of the federalists juxtaposed to the great variety of (17) opinions among the Anti-federalists was treated by Madison as evidence of the superiority of the federalist vision. Granted, a focused plan will typically triumph over a confused alternative (plan beats no-plan), but it will also have greater negative consequences if it’s wrong. Madison elided this problem by suggesting that the critics would always have at their disposal the opportunity to create a new plan, even given the “great imprudence of unnecessarily multiplying” such experiments.
I’ve argued that Federalist 37-39 are probably the three most important essays in the whole collection. At stake was the central question of legitimacy and what to make of the supposed human capacity for self-government. What stable ground could be found upon which to build the edifice of government? Would the passions and interests of “the people” prove a reliable foundation, or did their views have to be either augmented or replaced by some person possessed of a divine inspiration, as in Rousseau?
The key is to understand the American “founding” in the context of continuity with the past. The proposed system of government could only get traction if it fit the habits and dispositions of the people as already constituted in their particular places. Hannah Arendt recognized this when she wrote that the genius of the American founding resulted from within the practice of republican politics already extant “rather than the belief in an Immortal legislator, or the promises of reward and the threats of punishment in a ‘future state,’ or even the doubtful self-evidence of the truths enumerated in the preamble to the Declaration of Independence” and these practices alone “assured stability for the new republic.” The American experiment in self-government, already 160 years old by the time of the convention, could only be justified on the ground that Americans had already proven themselves capable of it, and it was the reality of these already-existing practices that made any plan for self-government legitimate. For that reason, the Constitution could only be considered legitimate if it built upon the practices and institutions that Americans had already created. Madison’s conviction that the Constitution expanded upon those practices and institutions was opposed to the Anti-federalist fear that it replaced them.
The importance of the American experience in Constitution-building is that it resulted from the realization that no historically created political body can begin without a beginning that is already there. Americans demonstrated little patience for the Rousseauistic program of revolution and radical recasting of the system. Burke had rightly understood that, unlike the French Revolution, the Glorious Revolution (as well as the American) was a revolution not made but prevented. "The Revolution was made to preserve our ancient indisputable laws and liberties, and that ancient constitution of government which is our only security for law and liberty,” he wrote. Americans, already engaged in democratic interaction, had established the principles of sovereignty and legitimacy. The Constitution, like the Declaration, could establish neither. A system of government could build upon those practices or tear them down, and experience had proved that the best way to tear down democratic legitimacy and popular sovereignty was to replace the reciprocal interactions of citizens with the plans and schemes of “experts.”
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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