Federalist 37-38: Making Government Is Hard! (A Two-Part Blog That Includes Supreme Court Musings)

James Madison is sure a whiny sonofabitch.

Sorry. That's crass and vulgar, not at all in keeping with the high-minded aspirations of this project of reading all the way through The Federalist Papers, which is the Founding Fathers' gift to us, the best explanation we have on hand of why they did what they did in crafting the Constitution of the United States.

But in Federalist 37 and 38, we're reminded that the Founders weren't actually demigods who met at a modern Mount Olympus and received the text as a gift from some even higher power. (Not that Madison and others weren't interested in promoting that storyline: "It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.") They were politicians, really, and very human. And like all humans who have worked really hard on a project, they got irritated at the challenges put forth to the work they'd done.


So these chapters are as full of snark and self-righteous defensiveness as you'll find -- so far, at least -- in these writings, and they boil down to a two-sentence defense against the criticism of the Antifederalists:

* Making government is hard!

* If you think it's so easy, why don't you try it!

The latter sentiment actually dominates Federalist 38. Madison recounts a litany of criticisms of the proposed Constitution -- a long, long litany -- and through the sheer tedious mass of gripes manages to make them seem trifling, petty things. A sampling:

Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives.

And so on and so forth. He keeps going like this for quite awhile, only to pick up a few pages later with a thought experiment: What would happen if all the critics got together and tried to make their own Constitution? Why, the thought itself is mockable!

Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.

In other words, the petty, trifling critics of the Constitution would be undone by their own petty, trifling natures. Could they do better? Ha! Let them try!

AND NOW: A CHANGE OF TOPIC THAT PROBABLY DESERVES ITS OWN BLOG POST, EXCEPT FOR THE FACT THAT WE'RE STILL TALKING ABOUT FEDERALIST 37!

It's possible my conservative friends will dispute my following characterization -- and I hope they'll weigh in if they do -- but it seems to me that the dominant feature of conservative jurisprudence is its certainty. There's an idea that tough questions that come before (say) the Supreme Court, while complicated, tend to have either right or wrong answers and that the right answer is relatively easy to determine if you simply apply the Constitution in the right way.

It's a bit more complicated than that, I think, and I think Ronald Dworkin got to the heart of it in a recent article in the New York Review of Books:

True, some clauses of the Constitution are explicit and require no interpretation. As Kagan pointed out, judges may not declare that the Constitution’s requirement that senators be “thirty” years old really means “forty” because people live longer now. But some of the most important constitutional clauses are drafted in abstract moral language, such as the Fourteenth Amendment’s injunction that government must accord everyone the “equal protection” of the law. How can judges decide whether laws against consensual gay sex or gay marriage deny equal protection to homosexuals without deciding, for themselves, what equal citizenship means and requires?

What does all this have to do with the Federalist Papers?

The conservative take on reading the Constitution in these difficult cases boils down to this: What would the Framers have understood the Constitution to mean in a similar situation?

All you have to do is read a little James Madison, though, to understand the impossibility of the task. Making a government is hard, remember -- and so is governing. And so is understanding the rules of governing. Here he is in No. 37:

Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

All you have to do is look at history:

The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.

Madison, it should be noted, isn't really telling us how to read the Constitution. He's trying to explain the difficulty of coming up with bright dividing lines for federal and state responsibilities. But even that context is pretty interesting; some of today's Tea Partiers think they understand that dividing line quite well.

No language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Heh. If we can't even discern God so well, what makes us think we'll have better insight into the thoughts of 18th century farmers and generals?