Federalist Papers
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NO. 13    Advantage of the Union in Respect to Economy in Government.
NO. 84    Certain General and Miscellaneous Objections to the Constitution Considered and Answered.
NO. 6    Concerning Dangers from Dissensions Between the States
NO. 2    Concerning Dangers from Foreign Force and Influence
NO. 37    Concerning the Difficulties of the Convention in Devising a Proper Form of Government
NO. 30    Concerning the General Power of Taxation
NO. 59    Concerning the Power of Congress to Regulate the Election of Members
NO. 85    Concluding Remarks
NO. 1    General Inroduction
NO. 41    General View of the Powers Conferred by the Constitution
NO. 49    Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
NO. 58    Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered
NO. 66    Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
NO. 14    Objections to the Proposed Constitution From Extent of Territory Answered.
NO. 21    Other Defects of the Present Confederation
NO. 50    Periodic Appeals to the People Considered
NO. 44    Restrictions on the Authority of the Several States
NO. 45    The Alleged Danger From the Powers of the Union to the State Governments Considered
NO. 57    The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation
NO. 77    The Appointing Power Continued and Other Powers of the Executive Considered
NO. 76    The Appointing Power of the Executive
NO. 54    The Apportionment of Members Among the States
NO. 74    The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
NO. 39    The Conformity of the Plan to Republican Principles
NO. 8    The Consequences of Hostilities Between the States
NO. 71    The Duration in Office of the Executive.
NO. 67    The Executive Department
NO. 70    The Executive Department Further Considered
NO. 52    The House of Representatives
NO. 26    The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
NO. 46    The Influence of the State and Federal Governments Compared
NO. 15    The Insufficiency of the Present Confederation to Preserve the Union.
NO. 82    The Judiciary Continued
NO. 83    The Judiciary Continued in Relation to Trial by Jury
NO. 81    The Judiciary Continued, and the Distribution of the Judicial Authority
NO. 78    The Judiciary Department
NO. 79    The Judiciary Department Continued
NO. 68    The Mode of Electing the President
NO. 23    The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union
NO. 47    The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
NO. 29    THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy
NO. 42    The Powers Conferred by the Constitution Further Considered
NO. 24    The Powers Necessary to the Common Defense Further Considered
NO. 40    The Powers of the Convention to Form a Mixed Government Examined and Sustained
NO. 80    The Powers of the Judiciary
NO. 64    The Powers of the Senate
NO. 65    The Powers of the Senate Continued
NO. 73    The Provision For The Support of the Executive, and the Veto Power
NO. 69    The Real Character of the Executive
NO. 61    The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)
NO. 34    The Same Subject Continued Concerning the General Power of Taxation
NO. 72    The Same Subject Continued, and Re-Eligibility of the Executive Considered
NO. 38    The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed
Close
End of Federalist Paper No. 38
FEDERALIST NO. 38
The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed
From the New York Packet     Tuesday January 15, 1788
Author: James Madison
To the People of New York


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DeB 131 -1-IT IS not a little remarkable 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.

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DeB 131 -1-Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. DeB 131 -2-Theseus first, and after him Draco and Solon, instituted the government of Athens. DeB 131 -3-Lycurgus was the lawgiver of Sparta. DeB 131 -4-The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. DeB 131 -5-On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. DeB 131 -6-This remark is applicable to confederate governments also. DeB 131 -7-Amphictyon, we are told, was the author of that which bore his name. DeB 131 -8-The Achaean league received its first birth from Achaeus, and its second from Aratus.

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DeB 131 -1-What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. DeB 131 -2-In some, however, the proceeding was strictly regular. DeB 131 -3-Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. DeB 131 -4-And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. DeB 131 -5-The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.

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DeB 131 -1-Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? DeB 131 -2-Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, 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? DeB 131 -3-These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. DeB 131 -4-History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. DeB 131 -5-Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. DeB 131 -6-And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. DeB 131 -7-If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.

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DeB 131 -1-Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? DeB 131 -2-It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. DeB 131 -3-And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. DeB 131 -4-There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. DeB 131 -5-One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. DeB 131 -6-Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. DeB 131 -7-Every candid reader will make the proper reflections on these important facts.

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DeB 131 -1-A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. DeB 131 -2-The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. DeB 131 -3-They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. DeB 131 -4-The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. DeB 131 -5-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? DeB 131 -6-And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?

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DeB 131 -1-Such a patient and in such a situation is America at this moment. DeB 131 -2-She has been sensible of her malady. DeB 131 -3-She has obtained a regular and unanimous advice from men of her own deliberate choice. DeB 131 -4-And she is warned by others against following this advice under pain of the most fatal consequences. DeB 131 -5-Do the monitors deny the reality of her danger? DeB 131 -6-No. DeB 131 -7-Do they deny the necessity of some speedy and powerful remedy? DeB 131 -8-No. DeB 131 -9-Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? DeB 131 -10-Let them speak for themselves. DeB 131 -11-This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. DeB 131 -12-Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. DeB 131 -13-A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. DeB 131 -14-A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. DeB 131 -15-A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. DeB 131 -16-An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. DeB 131 -17-An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. DeB 131 -18-From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. DeB 131 -19-From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. DeB 131 -20-A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. DeB 131 -21-The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. DeB 131 -22-This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. DeB 131 -23-Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. DeB 131 -24-With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. DeB 131 -25-Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. DeB 131 -26-Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. DeB 131 -27-In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. DeB 131 -28-To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. DeB 131 -29-With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. DeB 131 -30-No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. DeB 131 -31-"We concur fully," reply others, "in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error." DeB 131 -32-Our principal dislike to the organization arises from the extensive powers already lodged in that department. DeB 131 -33-Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. DeB 131 -34-The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. DeB 131 -35-Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself.

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DeB 131 -1-As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. DeB 131 -2-Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. DeB 131 -3-Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.

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DeB 131 -1-It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. DeB 131 -2-It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. DeB 131 -3-No man would refuse to give brass for silver or gold, because the latter had some alloy in it. DeB 131 -4-No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. DeB 131 -5-But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? DeB 131 -6-Is an indefinite power to raise money dangerous in the hands of the federal government? DeB 131 -7-The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. DeB 131 -8-Is an indefinite power to raise troops dangerous? DeB 131 -9-The Confederation gives to Congress that power also; and they have already begun to make use of it. DeB 131 -10-Is it improper and unsafe to intermix the different powers of government in the same body of men? DeB 131 -11-Congress, a single body of men, are the sole depositary of all the federal powers. DeB 131 -12-Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? DeB 131 -13-The Confederation places them both in the hands of Congress. DeB 131 -14-Is a bill of rights essential to liberty? DeB 131 -15-The Confederation has no bill of rights. DeB 131 -16-Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? DeB 131 -17-The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. DeB 131 -18-Is the importation of slaves permitted by the new Constitution for twenty years? DeB 131 -19-By the old it is permitted forever.

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DeB 131 -1-I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. DeB 131 -2-Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. DeB 131 -3-But this is not all. DeB 131 -4-Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. DeB 131 -5-It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. DeB 131 -6-A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. DeB 131 -7-We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. DeB 131 -8-Congress have assumed the administration of this stock. DeB 131 -9-They have begun to render it productive. DeB 131 -10-Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. DeB 131 -11-All this has been done; and done without the least color of constitutional authority. DeB 131 -12-Yet no blame has been whispered; no alarm has been sounded. DeB 131 -13-A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. DeB 131 -14-And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. DeB 131 -15-Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly?

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DeB 131 -1-I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. DeB 131 -2-I am sensible they could not have done otherwise. DeB 131 -3-The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. DeB 131 -4-But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? DeB 131 -5-A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.

Beginning of Federalist Paper No. 38

Close

NO. 7    The Same Subject Continued: Concerning Dangers from Dissensions Between the States.
NO. 4    The Same Subject Continued: Concerning Dangers From Foreign Force and Influence
NO. 3    The Same Subject Continued: Concerning Dangers From Foreign Force and Influence
NO. 5    The Same Subject Continued: Concerning Dangers from Foreign Force and Influence.
NO. 32    The Same Subject Continued: Concerning the General Power of Taxation
NO. 33    The Same Subject Continued: Concerning the General Power of Taxation
NO. 35    The Same Subject Continued: Concerning the General Power of Taxation
NO. 36    The Same Subject Continued: Concerning the General Power of Taxation
NO. 31    The Same Subject Continued: Concerning the General Power of Taxation
NO. 60    The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
NO. 22    The Same Subject Continued: Other Defects of the Present Confederation
NO. 53    The Same Subject Continued: The House of Representatives
NO. 27    The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
NO. 28    The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
NO. 16    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 17    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 18    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 19    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 20    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union.
NO. 43    The Same Subject Continued: The Powers Conferred by the Constitution Further Considered
NO. 25    The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered
NO. 10    The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection.
NO. 62    The Senate
NO. 63    The Senate Continued
NO. 51    The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
NO. 55    The Total Number of the House of Representatives
NO. 56    The Total Number of the House of Representatives
NO. 75    The Treaty Making Power of the Executive
NO. 9    The Union as a Safeguard Against Domestic Faction and Insurrection.
NO. 11    The Utility of the Union in Respect to Commercial Relations and a Navy
NO. 12    The Utility of the Union In Respect to Revenue.
NO. 48    These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other
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