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 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 coordinate 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 commission, 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 not 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
numerous. 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
preexisting 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 principals, and all of them are framed with singular
ingenuity and precision.
Signed "PUBLIUS"
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