Federalist #37

Concerning the Difficulties of the Convention in Devising a Proper Form of Government  (Madison)

Federalist No. 37 offers some insight from James Madison as to the immense difficulties faced by the Founders in crafting the Constitution.  Madison tells the reader that these difficulties are inseparable from the process of creating the new Constitution, both because of the nature of the undertaking and because of human nature.  Madison therefore lists these difficulties in accordance with these two categories and observes, “Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected.  Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.”

Madison sites the novelty of the undertaking itself as the first difficulty, observing that earlier confederations could offer no guidance accept as “beacons” to light the dangers ahead in that form of government.  Madison observes that the foundation of the confederal government that reigned at the time the convention was convened was flawed as well as the structure built upon it.  Madison rightly argues that the Founders therefore are creating something entirely new, not just for America but for the world as well.

Among the difficulties listed by Madison encountered by the Founders is the need to find a balance between civic virtue or republicanism and liberty.  Linked to this problem is the need to find a balance between stability and liberty, the former demanding that few have power for longer durations of time and the latter requiring that many have power for shorter durations of time.  Also listed by Madison is the need to strike a difficult federal balance between state power and national power.  Madison laments that “indistinctness of the object, imperfection of the organ of conception, [and] inadequateness of the vehicle of ideas” make work in this area even more arduous.  After discussing these difficulties, Madison notes that the real wonder of the convention is that the Founders were able to produce a document which addressed and surmounted, to the best ability of human nature, “with a unanimity almost as unprecedented as it must have been unexpected.”