Federalist 49

Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention

By:  James Madison

(The full text of Federalist 49)

Beware of calls to amend the Constitution to solve the problem of encroachments

The Constitution must be a “palladium (a safeguard or source of protection) to the weaker departments of power against the invasions of the stronger…”

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.

While Jefferson proposed appealing to the people if “two of the three branches of government the use of Constitution Convention for correcting breeches” Madison warned against this proposal.

  1. the constitution must be the object of a very special kind of public opinion, namely, deep respect or veneration;
  2. a popular decision concerning violations of separation of powers would, therefore, not be made on the merits of the case.

Madison refers in Federalist 10 to the weakness of reason and the strength of the self-regarding passions that define human nature and faction. Which amendments since added to the Constitution further American Liberty and which were the product of passions and faction. Certainly America’s venture into Prohibition was an amendment driven by faction that sought to change human nature through overreach of the Judiciary and Legislative Branches. The purpose of the Constitution is not to direct human nature, but rather to limit and separate the powers of government.

Human nature itself is not something that should be feared – we must learn to use its power

  • as each person possesses god-like characteristics – invention, creation, and selfless love,
  • as well as those more base and course passions of wanting something for nothing, covetousness, greed, and selfishness,
  • because as Madison writes:   … the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.

However, factions must not be allowed to control the Constitution

  • because a public suspicion that the whole system is defective, lest the wisest and freest governments [lose] the requisite stability.
  • An opinion held by many persons, an opinion based on examples that are many, and old—examples of the constitution working successfully—would engender the unanimous respect or veneration of the constitution essential for stability in government.
  • This special and rare kind of public opinion cannot take root if the whole people are called upon to decide the most difficult problems of constitutional interpretation: alleged violations of separation of powers.

The great value of stability in free government is well stated in Federalist 37:

“Stability in government is essential to national character and the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people.”

Instability in government– means either anarchy or rule of the arbitrary: subjection to “the capricious will of another.”

  • Continued over generations, instability produces in the people either abject lawlessness, or a mentality of passivity and a deep-seated lack of confidence—in oneself, in others, and thus in the future.  
  • In either case, citizens have no belief in their own capacity for self-government.  
  • Long-term financial investments are impossible, since the long-term contracts on which they are based lack credibility due to pervasive distrust. For these reasons,  
  • “stability in government is essential to national character.”  

Madison’s remedy for the spirit of faction and the effects of instability:

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 opinon. 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.

We currently are experiencing tyranny of the minority due to an hereditary class of elected legislators. We are the source of power for the Constitution. Therefore, we must resist all current calls to amend the Constitution in order to solve the problems created by human nature, not The Constitution. The most pressing reason for this is that the people participating in the convention would be the very faction calling for it, or even worse, a group of people so lesser in their thinking and abilities so as to be uninvolved in political discourse meddling in things they don’t understand or appreciate.

Therefore, “The PASSIONS, therefore, not the REASON, of the public would sit in judgment.”

But judgment distorted by partiality is not acceptable concerning the most serious problems of the constitution, that is, concerning the structure and operation of separation of powers itself. For “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.”

But yet, the Democratic Party is nothing but a collection of factions created by the lowest level of human nature using an endless source of demagoguery in order to deprive all Americans of Liberty.





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