Method of Guarding Against the Encroachments of Any One Department of

Government by Appealing to the People Through a Convention



From the New York Packet. Tuesday, February 5, 1788.



HAMILTON OR MADISON





To the People of the State of New York:



The author of the “Notes on the State of Virginia,” quoted in the last

paper, has subjoined to that valuable work the draught of a

constitution, which had been prepared in order to be laid before a

convention, expected to be called in 1783, by the legislature, for the

establishment of a constitution for that commonwealth. The plan, like

every thing from the same pen, marks a turn of thinking, original,

comprehensive, and accurate; and is the more worthy of attention as it

equally displays a fervent attachment to republican government and an

enlightened view of the dangerous propensities against which it ought

to be guarded.



One of the precautions which he proposes, and on which he appears

ultimately to rely as a palladium to the weaker departments of power

against the invasions of the stronger, is perhaps altogether his own,

and as it immediately relates to the subject of our present inquiry,

ought not to be overlooked. His proposition is, “that whenever any two

of the three branches of government shall concur in opinion, each by

the voices of two thirds of their whole number, that a convention is

necessary for altering the constitution, or CORRECTING BREACHES OF IT,

a convention shall be called for the purpose. “As the people are the

only legitimate fountain of power, and it is from them that the

constitutional charter, under which the several branches of government

hold their power, is derived, it seems strictly consonant to the

republican theory, to recur to the same original authority, not only

whenever it may be necessary to enlarge, diminish, or new-model the

powers of the government, but also whenever any one of the departments

may commit encroachments on the chartered authorities of the others.

The several departments being perfectly co-ordinate by the terms of

their common commission, none of them, it is evident, can pretend to an

exclusive or superior right of settling the boundaries between their

respective powers; and how are the encroachments of the stronger to be

prevented, or the wrongs of the weaker to be redressed, without an

appeal to the people themselves, who, as the grantors of the

commissions, can alone declare its true meaning, and enforce its

observance? There is certainly great force in this reasoning, and it

must be allowed to prove that a constitutional road to the decision of

the people ought to be marked out and kept open, for certain great and

extraordinary occasions. But there appear to be insuperable objections

against the proposed recurrence to the people, as a provision in all

cases for keeping the several departments of power within their

constitutional limits. In the first place, the provision does not reach

the case of a combination of two of the departments against the third.

If the legislative authority, which possesses so many means of

operating on the motives of the other departments, should be able to

gain to its interest either of the others, or even one third of its

members, the remaining department could derive no advantage from its

remedial provision. I do not dwell, however, on this objection, because

it may be thought to be rather against the modification of the

principle, than against the principle itself. In the next place, it may

be considered as an objection inherent in the principle, that as every

appeal to the people would carry an implication of some defect in the

government, frequent appeals would, in a great measure, deprive the

government of that veneration which time bestows on every thing, and

without which perhaps the wisest and freest governments would not

possess the requisite stability. If it be true that all governments

rest on opinion, it is no less true that the strength of opinion in

each individual, and its practical influence on his conduct, depend

much on the number which he supposes to have entertained the same

opinion. The reason of man, like man himself, is timid and cautious

when left alone, and acquires firmness and confidence in proportion to

the number with which it is associated. When the examples which fortify

opinion are ANCIENT as well as NUMEROUS, they are known to have a

double effect. In a nation of philosophers, this consideration ought to

be disregarded. A reverence for the laws would be sufficiently

inculcated by the voice of an enlightened reason. But a nation of

philosophers is as little to be expected as the philosophical race of

kings wished for by Plato. And in every other nation, the most rational

government will not find it a superfluous advantage to have the

prejudices of the community on its side. The danger of disturbing the

public tranquillity by interesting too strongly the public passions, is

a still more serious objection against a frequent reference of

constitutional questions to the decision of the whole society.

Notwithstanding the success which has attended the revisions of our

established forms of government, and which does so much honor to the

virtue and intelligence of the people of America, it must be confessed

that the experiments are of too ticklish a nature to be unnecessarily

multiplied. We are to recollect that all the existing constitutions

were formed in the midst of a danger which repressed the passions most

unfriendly to order and concord; of an enthusiastic confidence of the

people in their patriotic leaders, which stifled the ordinary diversity

of opinions on great national questions; of a universal ardor for new

and opposite forms, produced by a universal resentment and indignation

against the ancient government; and whilst no spirit of party connected

with the changes to be made, or the abuses to be reformed, could mingle

its leaven in the operation. The future situations in which we must

expect to be usually placed, do not present any equivalent security

against the danger which is apprehended. But the greatest objection of

all is, that the decisions which would probably result from such

appeals would not answer the purpose of maintaining the constitutional

equilibrium of the government. We have seen that the tendency of

republican governments is to an aggrandizement of the legislative at

the expense of the other departments. The appeals to the people,

therefore, would usually be made by the executive and judiciary

departments. But whether made by one side or the other, would each side

enjoy equal advantages on the trial? Let us view their different

situations. The members of the executive and judiciary departments are

few in number, and can be personally known to a small part only of the

people. The latter, by the mode of their appointment, as well as by the

nature and permanency of it, are too far removed from the people to

share much in their prepossessions. The former are generally the

objects of jealousy, and their administration is always liable to be

discolored and rendered unpopular. The members of the legislative

department, on the other hand, are numberous. They are distributed and

dwell among the people at large. Their connections of blood, of

friendship, and of acquaintance embrace a great proportion of the most

influential part of the society. The nature of their public trust

implies a personal influence among the people, and that they are more

immediately the confidential guardians of the rights and liberties of

the people. With these advantages, it can hardly be supposed that the

adverse party would have an equal chance for a favorable issue. But the

legislative party would not only be able to plead their cause most

successfully with the people. They would probably be constituted

themselves the judges.



The same influence which had gained them an election into the

legislature, would gain them a seat in the convention. If this should

not be the case with all, it would probably be the case with many, and

pretty certainly with those leading characters, on whom every thing

depends in such bodies. The convention, in short, would be composed

chiefly of men who had been, who actually were, or who expected to be,

members of the department whose conduct was arraigned. They would

consequently be parties to the very question to be decided by them. It

might, however, sometimes happen, that appeals would be made under

circumstances less adverse to the executive and judiciary departments.

The usurpations of the legislature might be so flagrant and so sudden,

as to admit of no specious coloring. A strong party among themselves

might take side with the other branches. The executive power might be

in the hands of a peculiar favorite of the people. In such a posture of

things, the public decision might be less swayed by prepossessions in

favor of the legislative party. But still it could never be expected to

turn on the true merits of the question. It would inevitably be

connected with the spirit of pre-existing parties, or of parties

springing out of the question itself. It would be connected with

persons of distinguished character and extensive influence in the

community. It would be pronounced by the very men who had been agents

in, or opponents of, the measures to which the decision would relate.

The PASSIONS, therefore, not the REASON, of the public would sit in

judgment. But it is the reason, alone, of the public, that ought to

control and regulate the government. The passions ought to be

controlled and regulated by the government.



We found in the last paper, that mere declarations in the written

constitution are not sufficient to restrain the several departments

within their legal rights. It appears in this, that occasional appeals

to the people would be neither a proper nor an effectual provision for

that purpose. How far the provisions of a different nature contained in

the plan above quoted might be adequate, I do not examine. Some of them

are unquestionably founded on sound political principles, and all of

them are framed with singular ingenuity and precision.



PUBLIUS.









THE FEDERALIST.