Method of Guarding Against the Encroachments of Any One

Department of Government by Appealing to the People Through a

Convention

From the New York Packet. Tuesday, February 5, 1788.

To the People of the State of New York:

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 a 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 co-ordinate 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 commissions, 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 no 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 numberous. 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 pre-existing 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 principles, and all of them are framed