On this day in 1788, Federalist Paper No. 50 is published. Publius continues to address the best system of addressing constitutional infractions.
He is specifically addressing a proper method of “PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.” He views this issue as separate from a closely related topic: “ALTERING the Constitution itself.”
Our Constitution primarily relies on a system of checks and balances: Each governmental branch has tools with which to pull the other branches back in line when they exceed their authority. Federalist No. 49 argued against one alternative to this system: occasional appeals to the people. Federalist 50 argues against a second alternative: periodic appeals to the people.
Publius believes that periodic appeals will also be ineffective at enforcing the Constitution.
If periodic reviews are too close together, then “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.” In other words, partisan considerations might creep in. Or perhaps the very legislators involved in the infractions will be selected to sit on the reviewing body. Publius notes that previous attempts by Pennsylvania to use such a reviewing body had faltered for this very reason.
On the other hand, if the periodic reviews are too far apart, then they are an ineffective restraint.
“Is it to be imagined,” Publius asks, “that a legislative assembly . . . eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it” would be discouraged by a review “of their conduct at the future distance of ten, fifteen, or twenty years?” The consequences are too far down the road; they cannot deter unwanted behavior. Moreover, conducting reviews so long after the fact causes another problem: The abuses would “have completed their mischievous effects” before they can be fixed. Some abuses “would be of long standing, would have taken deep root, and would not easily be extirpated.”
We know that phenomenon quite well, don’t we? The longer an entitlement sticks around, the harder it is to reform or get rid of it.
Logistical note for those who care:
The authorship of this paper is disputed, and the essay is included in both the Hamilton and the Madison papers. However, the editors of the Hamilton papers write that “Madison’s claim is more plausible” than Hamilton’s. Thus, I have gone with Madison as the author in the attached picture.
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