Federalist No. 51, Part II: Pragmatism

The collection of courts, executive offices, and legislative bodies outlined by the proposed federal constitution of 1787 was to possess powers and responsibilities far in excess of those allocated to the existing government of the United States of America. The Articles of Confederation had created a relatively simply administrative framework, centered on Congress and focused mainly on foreign relations. Within this arrangement the states were mostly left to their own devices, and only rarely were they made to feel the presence of a federal government to whom they owed consideration or allegiance. In many ways, this was entirely in keeping with what many contemporary American understood to be the core narrative of their recent Revolution. Though the states had reacted to an overbearing British Parliament by choosing to band together and cooperate in the pursuit of political independence, at no point had any of them deigned to give up their sovereignty. The “United States” was less an entity in its own right than a rather loose alliance of semi-autonomous republics. Though Congress had the power to negotiate with foreign governments on behalf of that alliance, its ability to compel the various states to do much of anything was virtually non-existent.

The draft constitution produced by the Philadelphia Convention of 1787, which proposed to create a government with a sizeable domestic profile and the necessary power to compel state acquiescence in any number of policy areas, accordingly met with widespread shock, dismay, and anxiety.  Even those American citizens who by the late 1780s had developed an appreciation for the inadequacies of government under the Articles of Confederation were given pause by the magnitude and complexity of the proposed constitution. Not only were the states to be effectively superseded in a number of capacities by a centralized federal power structure, but the various branches of that structure appeared to possess few, if any, of the organizational restrictions that state governments had long labored under. The bicameral federal Congress was to enjoy significant and far-reaching taxation and trade regulation authority, and its upper house was intended to cooperate with the executive branch in the appointment of advisers and federal judges, and the ratification of international treaties. These latter provisions appeared to blend elements of legislative and executive authority – Senators helping make executive appointments, the executive effectively writing law by making treaties – in a way that appeared to scores of Americans in the 1780s as ripe for abuse.

As if that weren’t bad enough, the President of the United States that the draft constitution described was to be popularly-elected and possess far greater power than just about any state governor or executive council. They were also to enjoy an unlimited right to re-election, and could make use of a veto on any act of legislation passed by Congress. Absent was any semblance of the oversight that many state legislatures exercised over their chief executive (by appointing the governor/president themselves), limitations on how many terms a person could serve, or provisions for annual elections (in order to stave off corruption). In certain circles it doubtless appeared, and not without cause, that the framers of the new federal charter were determined to replace the distant, unresponsive monarchy Americans had so recently cast off with an equally-powerful domestic equivalent. Left unchecked, as the federal President appeared to be, what was there to prevent a sufficiently popular of manipulative individual from seizing the reins of power? If the upper house of Congress was required by the constitution to cooperate with the President in certain key areas, why wouldn’t the two parties ally with each other in furthering their own interests and sidelining the prerogatives of the American people? If the new federal government was to be so powerful, why did it look so unsafe?

As a proponent of the draft constitution, and indeed one of its principle architects, it fell to James Madison to answer questions like these as the ratification process began in the autumn of 1787. Many Americans had concerns with what they read, as discussed above, and some manner of intervention on the part of the document’s supporters was called for. The Federalist Papers, eighty-five in all, were one of the more prominent examples of the resulting barrage of pro-constitutional literature that appeared in newspapers and pamphlets across the United States, and No. 51 in particular sought to address the proposed federal government’s evident lack of structural safeguards. In it, Madison brought to bear in favor of the document he had helped compose a distinctly rational and insightful understanding of the purpose of government, the nature of humanity, and the limitations of any enterprise in which they two were mixed. Far from applying only in an 18^th century context, however, the lessons No. 51 attempted to communicate possess a quality of transcendent, philosophical truth that has enabled generation of American statesmen, jurists, and everyday citizens to draw inspiration from their example and develop a nuanced understanding of why their government functions the way it does.

Pragmatism in particular seemed to underpin much of what Madison wrote in No. 51. While critics of the constitution seemed inclined to impute an ideological motive to the division of federal power mandated by the proposed federal charter, Madison explained to the contrary that the basic shape of the new government had been determined largely by a series of practical limitations. Chief among them was the overarching need to balance autonomy and safety. If the new federal government was to be truly sovereign, as the British Parliament had long insisted of itself and which any administration that hopes to enjoy the confidence of those it governs must be, there could exist no higher authority by which it might be constrained. The decisions of Parliament were incapable of being appealed to the judgement of another body, and if the government of the United States was to possess the same quality of domestic trust and foreign respect as the British legislature the same needed to be true of its own pronouncements.

A government that cannot be restrained by a higher authority, however, might also become the plaything of individuals or groups intent on abusing the unchecked power therein. If the decisions of Congress or the President, which were meant to be binding, could not be appealed or constrained, that effectively gave licence for either party to pursue whatever measures they desired. Madison accordingly reasoned in the first paragraph of No. 51 that the only way to make a truly sovereign government safe was, “By so contriving the interior structure […] as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” In short, this meant that a properly structured government could conceivably restrain itself. This basic formula – an intersection of the needs and limitations of effective government – lay at the core of the arrangement of power and responsibility the federal constitution described and represented a political innovation unlike anything the 18^th century world had seen.

As the examples of Ancient Rome and more recent conflicts between American colonists and their British governors had made clear, however, people could not be depended upon to keep each other “in their proper places” out of a sense of altruism or self-sacrifice. If the different departments or branches of a complex, powerful government were to act as a check on one another’s authority, some dependable form of incentive would need to be put in place. Creating some kind of deliberate jurisdictional overlap was a viable means of promoting and sustaining conflict between various sections of government – giving the executive a veto on the legislature, letting the upper house vote on appointments and treaties, giving the lower house power to declare war and the executive power to command the military, etc. – though such an arrangement would require each competing section to possess roughly equal power and autonomy. A president with the power to help restrict a legislature could not be at once beholden to it, and a legislature required to stave off executive tyranny could not in turn be weaker by comparison.

Americans accustomed to the form and function of their various state constitutions as of the late 1780s had every reason to balk at this idea. Far from encouraging conflict between different branches of government, most states had settled on an administrative framework within which the legislative branch was strong, the executive branch was weak, and the powers and responsibilities of each rarely overlapped. The legacy of British monarchical abuses in the 1760s and 1770s and the philosophical weight of the English Bill of Rights (1689) were largely behind this widespread (though not unqualified) consensus. A chief executive still had a role to play in most state governments – judicial, military, and civil appointments were almost always their sole responsibility – but state governors in the 1770s and 1780s rarely enjoyed a veto on legislation, were often elected by the legislature rather than the people at large, and were frequently saddled with short terms in office and limits on re-election. As Madison attempted to explain in No. 51, however, the needs of a national government that was intended to represent and fulfil the needs of millions of people – as with the government proposed by the federal constitution – rendered the division of authority practised by many state governments both inadequate and impractical.

A government that was to be effective needed to be powerful, and a government that was to be powerful needed to be contained. Replicating the unequal distribution of authority found in most state governments, Madison evidently believed, would not have achieved the degree of equilibrium required to stave off an undue abuse of power by one branch or another. “Each department should have a will of its own,” he claimed accordingly in the second paragraph of No. 51, “And consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Ideally, this meant that the officers of every branch of government would be drawn, “From the same fountain of authority, the People, through channels having no communication whatever with one another.” As desirable as this idea might have seemed on paper, however, Madison perceived certain difficulties that stood to inhibit its operation in practice. Electing at frequent intervals every member of a bicameral federal legislature, and every federal judge, and a chief executive and their deputy, and whatever councillors that executive might require, would have presented a tremendous logistical challenge and incurred far from insignificant costs. While successfully pursuing this course of action might not have been impossible, it would neither have been terribly efficient. Madison accordingly speculated that a more streamlined approach, whereby certain offices were filled via appointments and the authority of different branches of government began to overlap, might have been acceptable. Principle, he seemed inclined to believe, could at times give way to pragmatism.

Also of practical concern was the need Madison perceived for certain offices in the government proposed by the draft constitution to be filled by individuals with particular qualifications. While – by the standards of the 18^th century – a chief executive or legislator could be reasonably required to have done nothing more to be eligible for office than attain a certain number of years and own of a certain amount of property, members of the judiciary required specialized knowledge in order to fulfill their proper function. Because the voting public, though at base the source of all legitimate authority in a duly organized government, was neither inclined nor equipped to discern whether candidates for judicial office possessed the required bona fides, Madison reasoned in the aforementioned second paragraph of No. 51 that, “Some deviations […] from the principle must be admitted.” A well-informed executive or a legislative committee could conceivably make judicial appointments with greater attention to the necessary requirements of office than the great mass of the population, though such an arrangement might appear to unduly impair the desired independence of the judiciary. This, Madison reasoned, was regrettable, but was also attenuated by provisions in the proposed constitution that permitted federal justices to serve a life term during good behavior. Thus free from any requirement to pay heed to either the vicissitudes of the public or the desires of those that appointed them, judges could maintain the required degree of autonomy so long as they refrained from any unpardonable indiscretions. Such measures, while far from ideal, were functional, and seemed to Madison adequately compensated by what was gained in return: a national government that was stable, effective, and safe.

This kind of calmly pragmatic approach largely defined James Madison’s defence of the United States Constitution in his contributions to the Federalist Papers. His ability to see compromise as an advantage and turn imperfections into virtues was one of his great strengths as a legislator and a statesman, and Federalist No. 51 in particular stands as an especially instructive example of the clarity and consistency of his constitutional thought. The new federal government put before the American people in the late months of 1787 was imperfect, he admitted, but that was because there were real, practical, and unavoidable limitations against creating any government as complex and as effective as was necessary to successfully oversee the United States of America. Power needed to be balanced with restraint, and elections were not always capable of producing qualified candidates for office. Surmounting these obstacles required more than a straightforward dedication to the principles of the American Revolution. Indeed, what they demanded of Americans, Madison argued in No. 51, was a willingness to see that although not everything that was desirable was possible, not everything that was merely possible was undesirable. Particularly intractable problems often required creative solutions, and ideological purity could easily become an obstruction to much-needed reform. Coming from one of the Founders of the United States of America, and one of the principle architects of that nation’s much-hallowed constitution, such an admission ought to give an observer of 21^st century America’s intensely partisan and compromise-adverse political climate cause for reflection.