After Jefferson finished writing "Notes on the State of Virginia," he added a rough draft of a constitution he hoped would be adopted at a state constitutional convention held in 1783. This draft constitution, like everything Jefferson wrote, is original and comprehensive. It is especially pertinent because Jefferson draws our attention to the weaknesses, as well as to the strengths, of a republican form of government. One of his proposals, intended to prevent one branch of government from becoming too powerful, is unique, but the writer has some criticism of it. He recommends that a constitutional convention should be held whenever two branches of government, by a two-thirds vote, desire to change the Constitution or correct any violation in it.
Since the people are the source of power in a republican form of government, it would seem logical to consult them whenever one branch becomes too powerful or whenever there is a constitutional crisis. But there are problems in relying on the people to keep each branch within its constitutional limits. In the first place, the people cannot prevent the possibility of two branches combining their strength and power against the third branch. In the second place, frequent appeals to the people suggest a serious defect in government. Such appeals threaten the stability necessary to good government because society is always in a state of turmoil. Although Madison concedes that this country has been successful in revising its form of government, too much experimentation can be dangerous. Because the revolution is behind the country, divergent views and strong disagreements are coming to the surface.
Madison continues that it is evident that the legislative branch is most likely to seize power from the other two branches. The appeals of the people would, therefore, come from either the executive or the judicial branch. But those branches combined are smaller than the legislative branch, and the people are not as familiar with them. The judicial branch, in particular, is far removed from the people because justices are appointed, rather than elected, and serve for life; the people will always view the president with certain skepticism; every administration will be subject to a degree of unpopularity and distortion. By contrast, members of the legislative branch move freely among the people and are connected to them by ties of blood and friendship. The representatives are elected by the people and are the most responsive to their wishes. Furthermore, they are regarded as the chief defenders of the peoples' rights and liberties. For these reasons it is doubtful that the executive and judicial branches could enlist the sympathies of the people. Not only could the legislators plead their cause most successfully, they would dominate the very conventions called to air the grievances against them.
Analysis
In this essay, more than any other besides perhaps 51, Madison lays out his philosophy on free government. Madison does not state in the Federalist how the state of nature is abandoned and government created. We may assume, however, that his opinion does not differ here from what has been called the core of his philosophy, namely the compact theory of the foundation of the state. This theory was generally accepted at the time the essays were written, whereas the organic theory was hardly known. Madison adhered to it even when it was being abandoned by most European theorists, and called it a "fundamental principle of free government." Furthermore, the acceptance of the compact theory in the Federalist can be concluded from the fact that Madison, who recognizes a parallel between the formation of the state by individuals and the formation of a confederacy by state, calls the Confederation "a compact among the States."
Madison's view on the relation between people and government has important consequences. His conception of government as a means follows not only the primacy of the individual's protection before popular participation in government, but also his Federalist, advocating the Union, can be a treatise on the Union only in a relative sense and must, in an absolute sense, be a treatise for individual rights. His conception of society as an intrastate phenomenon must influence his view on the nature of confederations and the Union. Finally, from the necessity of the independence of the government from the people follows the possibility that government abuses it power. In that case the people, possessing "the transcendent and precious right . .. . to abolish or alter their governments as to them shall most likely to effect their safety and happiness (62)" may resort to a revolution. Furthermore, from the subjection of government under a constitution follows the existence of two sorts of man-made law; that by which the government is bound (society-made, fundamental, constitutional law), and that by which the government binds the people (government-made, ordinary, statue law).
In summary, Madison believed that the individuals, motivated by self-interest, leave the state of nature in order to live under justice in a free government that, primarily, protects their lives, liberty, and property and, to the degree compatible with the security of these rights, permit people to participate in government under a constitution. The main threat to free government arises form its own creation of factions, the control of which is of vital importance. The latter observation has important implications for Madison's inquiry into the compatibility of concrete governments with the ideal free government. In his search for the government that is most likely to realize that ideal, he need only look for a government under which factions are controlled.
