James Madison to George Washington (April 16, 1787)I have been honoured with your letter of the 31 of March, and find with much pleasure that your views of the reform which ought to be pursued by the Convention, give a sanction to those which I have entertained. Temporising applications will dishonor the Councils which propose them, and may foment the internal malignity of the disease, at the same time that they produce an ostensible palliation of it. Radical attempts -although unsuccessful- will at least justify the authors of them.
Having been lately led to revolve the subject which is to undergo the discussion of the Convention, and formed in my mind some outlines of a new system, I take the liberty of submitting them without apology to your eye.
Conceiving that an individual independence of the States is utterly irreconcilable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable. I have sought for some middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.
I would propose as the ground-work that a change be made in the principle of representatiom According to the present form of the Union in which the intervention of the States is in all great cases necessary to effectuate the measures of Congress, an equality of suffrage does not destroy the inequality of importance in the several members. No one will deny that Virginia and Massachusetts have more weight and influence both within and without Congress than Delaware or Rhode Island. Under a system which would operate in many essential points without the intervention of the State Legislatures, the ease would be materially altered. A vote in the national Councils from Delaware would then have the same effect and value as one from the largest State in the Uniom I am ready to believe that such a change will not be attended with much difficulty. A majority of the States, and those of greatest influence, will regard it as favorable to them. To the Northern States it will be recommended by their present populousness, to the Southern by their expected advantage in this respect. The lesser States must in every event yield to the predominant will. But the consideration which particularly urges a change in the representation is that it will obviate the principal objections of the larger States to the necessary concessions of power.
I would propose next that in addition to the present federal powers, the national Government should be armed with positive and compleat authority in all cases which require uniforrnity, such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, etc. etc.
Over and above this positive power, a negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded and defeated. The States will continue to invade the National jurisdiction to violate treaties and the law of nations and to harass each other with rival and spiteful measures dictated by mistaken views of interest. Another happy effect of this prerogative would be its controul on the internal vicisitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals. The great desideratum which has not yet been found for Republican Governments seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the State. The majority who alone have the right of decision, have frequently an interest real or supposed in abusing it. In Monarchies the sovereign is more neutral to the interests and views of different parties, but, unfortunately he too often forms interests of hls own repugnant to those of the whole. Might not the national prerogative here suggested be found sufficiently disinterested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole Society. There has not been any moment since the peace at which the representatives of the Union would have given an assent to paper money or any other measure of a kindred nature.
The national supremacy ought also to be extended as I conceive to the Judiciary departments. If those who are to expound and apply the laws, are connected by their interests and their oaths with the particular States wholly, and not with the Union the participation of the Union in the making of the laws may be possibly rendered unavailing. It seems at least necessary that the oaths of the Judges should include a fidelity to the general as well as local constitudon, and that an appeal should lie to some National tribunals in all cases to which foreigners or inhabitants of other States may be parties. The admiralty jurisdiction seems to fall entirely within the purview of the national Government. The national supremacy in the Executive departments is liable to some difficulty, unless the officers administering them could be made appointable by the supreme Government. The Militia ought certainly to be placed in some form or other under the authority which is entrusted with the general protection and defence.
A Government composed of such extensive power should be well organised and balanced. The legislative department might be divided into two branches, one of them chosen every years by the people at large, or by the Legislatures; the other to consist of fewer members, to hold their places for a longer term, and to go out in such a rotation as always to leave in office a large majority of old members. Perhaps the negative on the laws might be most conveniently exercised by this branch. As a further check, a council of revision including the great ministerial officers might be super-added.
A National Executive must also be provided. I have scarcely ventured as yet to form my own opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed.
An article should be inserted expressly guarantying the tranquility of the States against internal as well as external dangers. In like manner the right of coercion should be expressly declared. With the resources of Commerce in hand, the National administration might always find means of exerting it either by sea or land. But the difficulty and awkwardness of operating by force on the collective will of a State, render it particularly desireable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutuality of dependence between the General and particular authorities, as to answer this purpose or perhaps some defined objects of taxation might be submitted along with commerce, to the general authority. To give a new System its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures. This will be the more essential as inroads on the existing Constitutions of the States will be unavoidable.