The Federalist, No 62, by James Madison

Among the priceless treasures of American history is work collectively known as The Federalist, written while the adoption of our Constitution was still a matter of public controversy. Some, looking to the chaos and confusion stemming from trying to govern thirteen unruly colonies under the weak and ineffective Articles of Confederation, believed that only a united government could keep America strong and free—or, in the words of the Preamble, to “secure the Blessings of Liberty for ourselves and our Posterity.” Others, the Anti-Federalists, feared that a strong, centralized government would be a vehicle for tyrants to impose their will on the population.

In the ensuing public debate, a writer known only as Publius, wrote a series of persuasive essays, pointing out the benefits on the new federal constitution, as well as explaining its provisions to the reading audience. In truth, the essays were written by three giants of American history: James Madison, who would become our fourth president; Alexander Hamilton, who would become our first Secretary of the Treasury; and John Jay, who would become the first Chief Justice of the United States Supreme Court.

In the sixty-second essay, James Madison explained the purpose and theory behind having a second house in the Legislature, which the proposed Constitution called the Senate. Among its benefits was intended to be to lend a degree of stability to the new government: since its members would serve six-year terms, he argued, they would be more inclined to take a broader view—and would serve as a brake upon the House of Representatives, which—being elected every two years (and expected to have a high turnover, service in the House being perceived as a sacrifice for those elected to serve), would lack the institutional memory needed to keep the young nation on a steady course.

To the modern reader, such concerns may seem prophetic—for Madison wrote of the need of the nation to avoid being “inconstant” or to “carry on...affairs without any plan at all,” to escape becoming “a speedy victimness to...unsteadiness and folly.” A constant parade of ever-changing laws and regulations, he feared, would give the “moneyed few” a distinct and unconscionable advantage over the industrious masses—for money would enable the elites to monitor and manipulate changes in the laws to their own advantage, while leaving the rest of the country in scrounging for a living in the dust and mud. And constantly changing laws would “be so voluminous that they cannot be read, or so incoherent that they cannot be understood,” leaving the “prudent merchant” or farmer or manufacturer reluctant to “hazard his fortunes” on any new enterprise, mindful of the fact that the laws were as variable as the wind, and that his fortunes would always be at the mercy of “an inconstant government.”

Like many passages in the Federalist, Number 62 is remarkable for its concise logic, the gracefulness of its expression, and the persuasive quality of the writing. It is also among the most prescient and insightful commentaries on the risks of self-government—and its lessons about incoherent and intrusive laws appear to have been forgotten, when they should be required reading for everyone, most particularly those who aspire to take upon themselves the responsibility to write our laws and set our policies.

From The Federalist, No. 62, by James Madison:

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

JEFFREY CAMINSKY, a retired public prosecutor from Michigan, writes on a wide range of topics. His books include the science fiction adventure novel The Star Dancers, the exciting second volume in the Guardians of Peace-tm series, The Sonnets of William Shakespeare, and the acclaimed Referee’s Survival Guide, a book on soccer officiating. All are published by New Alexandria Press, and are available on Amazon, as well as directly from the publisher.