The Federalist Papers: No. 49
On this day in 1788, Federalist Paper No. 49 is published. I know that many readers of this page are working toward an Article V convention for proposing constitutional amendments. This essay is for you!
Publius addressed the need for checks and balances in the last paper: The legislative branch can “check” the executive (e.g., its power to impeach), just as the President can “check” the legislature (e.g., his veto power).
Some Americans, however, preferred a more complete separation among the branches of government. In this paper, Publius addresses one alternative to a system of checks and balances: Why not simply go to the people themselves to correct the situation if one branch is encroaching upon the powers of another?
Publius agrees that in certain circumstances, a recourse to the people is the only solution that will do: “[H]ow are the encroachments of the stronger [branch of government] to be prevented, or the wrongs of the weaker to be redressed,” he notes, “without an appeal to the people themselves”? The people are the “grantors of the commissions” and they alone can enforce their Constitution. Thus, a “constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.”
He seems to be referencing the Article V power that allows states to call for a convention for proposing amendments. Today, some people are objecting to the use of such a convention, but please note that Publius thought it appropriate for “certain great and extraordinary occasions.”
Are we there yet, in your opinion?
While Publius agrees that such recourse to the people is sometimes needed, he does not think that it should be standard operating procedure.
For one thing, too-common appeals can create a dangerous situation: He notes that such “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.” Moreover, a “frequent reference of constitutional questions to the decision of the whole society” would “disturb[ ] the public tranquillity by interesting too strongly the public passions.”
In short? Americans would be mad at each other all the time and the stability of our government would be undermined.
Finally, Publius believes that the legislature will be the strongest branch. Thus, any “appeals to the people . . . would usually be made by the executive and judiciary departments.” However, the legislature is also the branch with the closest ties to the people. Thus, the people will be less likely to correct the legislature. They might even appoint their trusted representatives to a convention intended to correct the constitutional breaches! Publius notes: “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.”
Publius is issuing a warning that should be heeded! Today, if we call a convention for proposing amendments, such a convention will be useless if we simply appoint our legislators as delegates. Why would our existing legislators create useful amendments designed to reign *themselves* in? We need to appoint new people to a convention, as opposed to professional politicians.
In short, Publius is looking for a way to ensure that the “REASON” of the public, not its “PASSIONS,” will rule. He does not think that constant recourse to the people for every constitutional question will create such a dynamic. He prefers the system of checks and balances that he defended in the previous paper.
Logistical note for those who care:
You will see various publication dates for this paper. I am going with the date in the Madison Papers. Also, please note that the authorship of this essay is sometimes disputed. I have followed the lead of the editors of the Hamilton Papers: They declined to publish this essay with Hamilton’s works, noting that Hamilton personally credited Madison with the paper.