The Federalist Papers | Study Guide

Alexander Hamilton

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The Federalist Papers | Essays 37–39 | Summary



Essay 37: Concerning the Difficulties of the Convention in Devising a Proper Form of Government

In this essay, Madison considers the practical challenges confronting the Constitutional Convention, which was held in Philadelphia from May to September 1787. At the beginning of his paper, Madison laments the lack of a "spirit of moderation" in considering public affairs. He regards this defect as "inseparable" from human affairs. All too often bias plays a major role in men's evaluation of something like a new Constitution, whether they oppose or support it. Nevertheless, Madison will try to present a balanced prologue to considering the subject so the public can responsibly judge it.

Madison emphasizes the novelty of the framers' undertaking. He also draws attention to the potential conflict between two highly desirable goals: to ensure the Constitution is a document of stability and energy and to ensure that citizens retain their liberty in a republican framework of government. Madison repeats the word energy several times, as if to highlight the dynamism that the federal government must possess if it is to be more effective than the Articles of Confederation.

Madison also points out the challenge of a federalist structure: where should the line be drawn between the authority consigned to the national government and the authority that is to be retained by the states? There is also the balancing of the interests of larger states versus those of smaller states. When readers consider the complexity of the ideas dealt with by the convention, as well as the difficulty of expressing these ideas in suitable and accurate language, they come to appreciate the enormity of the task facing the convention. The real wonder, Madison says, is that the convention not only confronted but also surmounted such challenges and did so with a unanimous outcome. The framers exhibited a deep conviction that "private opinions and partial interests" needed to be sacrificed for the public good.

Essay 38: The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed

Madison begins this paper by observing that throughout history the framers of government have been single individuals, rather than committees or groups. He mentions such lawgivers as Minos in ancient Crete, Theseus and Draco and Solon in Athens, Lycurgus in Sparta, and Romulus in Rome, followed by his successors Numa and Tullus Hostilius.

Madison then details some of the objections to the new Constitution, which he shows to be both incoherent and insubstantial. Scarcely any two critics can be found to agree with each other. An objector from a large state, for example, criticizes the equality of representation in the Senate, while a critic from a small state is equally strident in criticizing the unequal representation in the House of Representatives. Some objectors say a Bill of Rights is absolutely essential, but add it ought to list the rights reserved to the states rather than held by individuals.

It is remarkable, says Madison, that the critics of the new Constitution never discuss the defects of the Articles of Confederation, which it will replace if it is ratified. It is not necessary, according to Madison, that the new Constitution should be perfect—just that it be better than the Articles, which are highly imperfect. Under the Articles certain powers are declared "absolutely necessary," but the reality is that these powers are, in fact, "absolutely nugatory." America is continually exposed to a "dissolution or usurpation."

Essay 39: The Conformity of the Plan to Republican Principles

At the beginning of this paper, Madison proposes to satisfy his readers that the new Constitution is authentically republican in nature. He surveys the distinctive characteristics of republican government. He defines a republic as "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by people holding their offices during pleasure, for a limited period, or during good behavior." He then briefly surveys the principal offices provided for in the new Constitution: the House of Representatives, the Senate, and the presidency, and he comments on the term of office for each, drawing various analogies to some of the states. The new Constitution also prohibits any titles of nobility.

Madison also discusses at some length the criticism that the Constitution will not result in a confederation but rather in a consolidation. He rejects this claim, distinguishing between national government and federal government. Analyzing the main branches of government, Madison concludes there will be a blend of nationalism and federalism—a government, in other words, of "mixed character." The same may be said if one scrutinizes the procedure by which amendments can be made to the Constitution.


In the second paragraph of Essay 37, Madison delivers a programmatic statement of the purposes and intentions of The Federalist Papers. The papers are addressed, he says, to those who possess "a sincere zeal for the happiness of their country." Unfortunately, bias plays a major role when people discuss political measures, and it is only too apparent that some critics have scanned the new Constitution "not only with a predisposition to censure, but with a predetermination to condemn."

Madison was, of course, uniquely qualified to write about the experiences of the convention. The delegates met in secret, but Madison took copious, day-by-day notes of the proceedings. His papers contain the only detailed history of the debates, resolutions, and votes of the delegates. Therefore, when he comments on such topics as novelty, energy, and federalism, readers are compelled to evaluate his remarks as well considered and authentic.

Madison also uses analogies effectively. In Essay 37, for example, he draws a comparison between the framers' attempts to distinguish between federal and state authority and the attempts of naturalists or biologists to trace the definition and characteristics of vegetable life. In Essay 38 he uses an extended analogy to compare America under the Articles to a sick patient whose disease is growing worse by the day.

Madison's style and progression of thought are enviably clear, but he also turns out to be a master at presenting confusion and incoherence. Consider, for example, the jumble of criticisms and cavils voiced by the new Constitution's clamoring critics, which Madison catalogs almost comically in Essay 38.

Toward the end of Essay 38, Madison offers an argument that may seem less than satisfactory to some readers. He declares the new Constitution does not need to be perfect; it is sufficient that it be less imperfect than the Articles. Madison's conclusion may be compared with a similar evaluation by Benjamin Franklin, delivered at the end of the convention in September 1787: "I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them ... I doubt too whether any other Convention we can obtain, may be able to make a better Constitution."

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