I’m perplexed that Article V opponents have not, from time to time, embraced Federalist Numbers 49 & 50. Taken together in isolation from 48 and 51, a superficial read of 49 and 50 might lead one to conclude that James Madison actually opposed, for most situations, Article V state amendment conventions.
Number 49. Occasional Conventions. Beginning once again with Jefferson’s Notes on the State of Virginia, Madison gives due credit to Jefferson’s brilliance; he then politely disagrees with Jefferson on the proper remedy to a stronger branch’s encroachment of a weaker branch. Encroachment, or the assumption of a power of one branch by another branch constitutes usurpation. Jefferson posited that whenever two-thirds of two branches concur in opinion, a convention be called to correct breaches and usurpations of the VA constitution.
Notwithstanding rightful popular sovereignty to enlarge, diminish, or remodel their constitution, and the need for a defined constitutional road for extraordinary occasions, Madison opposed Jefferson’s proposal to turn to the people in all cases when one branch oversteps its bounds into another branch for the following reasons.
- Frequent appeals to the people would imply a defective government and affect its stability.
- No nation is composed of philosophers; politicians will appeal to passions and resort to special interest partisanship.
- Most importantly, frequent conventions would not fulfill the purpose of maintaining constitutional equilibrium in the government. In other words, conventions to rebalance the branches through various “thou shalt not,” sorts of clauses are pointless. Worse, they lead the people to believe they have solved the problem. Parchment barriers are soon ineffective against usurpations.
- Legislators, the very men responsible for encroaching on the executive or judiciary, will likely dominate the convention. They will be judges in their own issue.
In closing, Madison reminds the reader that, per Number 48, “mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights.”
Number 50. Periodic Conventions. Instead of occasional conventions to keep the branches within their realms, could regular conventions scheduled far in advance provide the proper remedy?
Madison didn’t think so. If the interval between conventions was short, the same men and circumstances that brought about the problem will exist during the convention.
If the interval extends much longer, say to ten years or more, legislators will breathe a sigh of relief in the certainty that their unconstitutional acts will go unexamined for so long. Another downside is that the deleterious effects of their abuses would often be completed before a remedy could be applied. Finally, their abuses would have time to take root and become more or less acceptable to the public despite the danger they pose.
The Pennsylvania Council of Censors was an important and necessary experiment in political science that partially illustrated Madison’s points. While this body was certainly not the equivalent of state delegates meeting in convention, its noble purpose was to gather respected men of the community to inquire “whether the constitution had been violated, and whether the legislative and executive branches had encroached on each other.” The first defect of the council was that its leading members had been active and influential in the legislative and executive branches during the period under review! They were judges in their own cause, and delivered the expected results.
Madison downplayed the first cure that naturally comes to mind: exclude members of the PA Assembly from the council. In their stead, the important task of the council would fall to unqualified men. As an experienced state legislator himself, Madison was confident these inferior sorts would serve as placeholders, as mere tools under the direction of sitting legislators.
Despite the outwardly dismal picture that Madison paints of incurable legislative usurpations so far, his remedy comes next.
Number 51. Separation of Powers: Structural Checks and Balances.
Madison opens this number with the question, “What method should we use, then, to maintain the necessary partition of power between the different branches as laid down in the Constitution?” As shown in Federalists 48-50, outside provisions in the form of constitutional amendments that admonish the branches to remain within their bounds had proved to be inadequate. The answer is seen in the structural design of the Framers’ 1787 Constitution, in which independent branches and institutions are naturally disposed, and armed with checks, to resist encroachments from the other branches.
First, divide the legislature into two institutions, one each to represent the component members of the republic, the people and the states. While both are ultimately derived from the same source, Madison writes that the remedy is to make their “their different modes of election and different principles of action (to be) as little connected with each other as the nature of their common functions and their common dependence on the society will allow.” The states themselves were to secure federalism, that broad swath of powers not granted to the new government.
Second, fortify the executive branch. Grant it a qualified veto over legislation. Assign to it certain duties involving treaties, ministerial nominations, and the conduct of wars, subject to various checks from congress in general, and the senate in particular.
Number 85. Ratify Now, Amend Later. Alexander Hamilton cited David Hume: “To balance a large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; EXPERIENCE must guide their labor; TIME must bring it to perfection, and the FEELING of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments.”
In other words, don’t sit on your constitution and hope for the best when you are eyeball-to-eyeball with tyranny.
The structure of our government was to be the people’s first security. History has shown that admonishment from various amendatory bodies alone were inadequate and incapable of restoring free government when the structure of government is deficient. This is the common ground of Article V opponents and supporters. Opponents are correct when they scoff at amendments that merely emphasize the duty of public officials to follow the Constitution as written.
No, the only worthwhile amendments are of a structural nature that no congress, no president, no scotus can ignore or corrupt. This is where Mark Levin’s Liberty amendments enter the scene in my next post.
We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States.