IT MAY be contended, perhaps, that instead of occasional appeals to
the people, which are liable to the objections urged against them,
periodical appeals are the proper and adequate means of preventing
and correcting infractions of the Constitution.
It will be attended to, that in the examination of these expedients,
I confine myself to their aptitude for enforcing the Constitution,
by keeping the several departments of power within their due bounds,
without particularly considering them as provisions for altering the
Constitution itself. In the first view, appeals to the people at
fixed periods appear to be nearly as ineligible as appeals on
particular occasions as they emerge. If the periods be separated by
short intervals, the measures to be reviewed and rectified will have
been of recent date, and will be connected with all the
circumstances which tend to vitiate and pervert the result of
occasional revisions. If the periods be distant from each other, the
same remark will be applicable to all recent measures; and in
proportion as the remoteness of the others may favor a dispassionate
review of them, this advantage is inseparable from inconveniences
which seem to counterbalance it. In the first place, a distant
prospect of public censure would be a very feeble restraint on power
from those excesses to which it might be urged by the force of
present motives. Is it to be imagined that a legislative assembly,
consisting of a hundred or two hundred members, eagerly bent on some
favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at
the future distance of ten, fifteen, or twenty years? In the next
place, the abuses would often have completed their mischievous
effects before the remedial provision would be applied. And in the
last place, where this might not be the case, they would be of long
standing, would have taken deep root, and would not easily be
extirpated.
The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually
tried in one of the States. One of the objects of the Council of
Censors which met in Pennsylvania in 1783 and 1784, was, as we have
seen, to inquire, "whether the constitution had been violated, and
whether the legislative and executive departments had encroached on
each other." This important and novel experiment in politics merits,
in several points of view, very particular attention. In some of
them it may, perhaps, as a single experiment, made under
circumstances somewhat peculiar, be thought to be not absolutely
conclusive. But as applied to the case under consideration, it
involves some facts, which I venture to remark, as a complete and
satisfactory illustration of the reasoning which I have employed.
First. It appears, from the names of the gentlemen who composed the
council, that some, at least, of its most active and leading members
had also been active and leading characters in the parties which
preexisted in the State.
Secondly. It appears that the same active and influential members of
the council had been active and influential members of the
legislative and executive branches, within the period to be
reviewed; and even patrons or opponents of the very measures to be
thus brought to the test of the constitution. Two of the members had
been vice-presidents of the State, and several others members of the
executive council, within the seven preceding years. One of them had
been speaker, and a number of others distinguished members, of the
legislative assembly within the same period.
Thirdly. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and
violent parties. The fact is acknowledged and lamented by
themselves. Had this not been the case, the face of their
proceedings exhibits a proof equally satisfactory. In all questions,
however unimportant in themselves, or unconnected with each other,
the same names stand invariably contrasted on the opposite columns.
Every unbiased observer may infer, without danger of mistake, and at
the same time without meaning to reflect on either party, or any
individuals of either party, that, unfortunately, passion, not
reason, must have presided over their decisions. When men exercise
their reason coolly and freely on a variety of distinct questions,
they inevitably fall into different opinions on some of them. When
they are governed by a common passion, their opinions, if they are
so to be called, will be the same.
Fourthly. It is at least problematical, whether the decisions of
this body do not, in several instances, misconstrue the limits
prescribed for the legislative and executive departments, instead of
reducing and limiting them within their constitutional places.
Fifthly. I have never understood that the decisions of the council
on constitutional questions, whether rightly or erroneously formed,
have had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, than in one
instance the contemporary legislature denied the constructions of
the council, and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its
researches, the existence of the disease, and by its example, the
inefficacy of the remedy.
This conclusion cannot be invalidated by alleging that the State in
which the experiment was made was at that crisis, and had been for a
long time before, violently heated and distracted by the rage of
party. Is it to be presumed, that at any future septennial epoch the
same State will be free from parties? Is it to be presumed that any
other State, at the same or any other given period, will be exempt
from them? Such an event ought to be neither presumed nor desired;
because an extinction of parties necessarily implies either a
universal alarm for the public safety, or an absolute extinction of
liberty.
Were the precaution taken of excluding from the assemblies elected
by the people, to revise the preceding administration of the
government, all persons who should have been concerned with the
government within the given period, the difficulties would not be
obviated. The important task would probably devolve on men, who,
with inferior capacities, would in other respects be little better
qualified. Although they might not have been personally concerned in
the administration, and therefore not immediately agents in the
measures to be examined, they would probably have been involved in
the parties connected with these measures, and have been elected
under their auspices.
Signed "PUBLIUS"
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