Federalist No. 38 was written by James Madison under the name Publius and published on January 15, 1788. In this essay, Madison keeps pushing the theme from Federalist No. 37, but with sharper elbows. He argues that the Constitution’s critics are often inconsistent, mutually contradictory, and strangely unwilling to compare the proposed system with the deeply defective Articles of Confederation it would replace.
This paper matters because Madison is not claiming the Constitution is flawless. He is saying the real choice is between a serious improvement and a failing system, not between perfection and imperfection. He also says that people denouncing the Convention’s remedy ought to do better than wave their arms around like windmills in a storm. They should at least agree on a substitute.
1. History usually trusted single lawgivers more than large deliberative bodies
“the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.”
Madison opens with a striking historical point: ancient governments were often founded by one famous lawgiver, not by a convention. That makes the American experiment look even harder, because a large body had to deliberate, compromise, and still produce something workable.
2. Ancient reformers also had to bend, compromise, or force things through
“not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices.”
That line about Solon is excellent. Madison is saying even celebrated lawgivers did not hand down perfect systems. They had to work with prejudice, habit, and political reality.
3. America improved on the ancient method, but the dangers remain
“to admire the improvement made by America on the ancient mode”
“to admonish us of the hazards and difficulties incident to such experiments”
Madison gives America credit for using a more regular and consent-based process than the ancients did. But he also says that should make us more cautious, not cockier.
4. Some errors can only be discovered by actual trial
“such as will not be ascertained until an actual trial shall have pointed them out”
Very important line. Madison says some constitutional defects are not visible in theory. You only see them when the machine starts running. That was true of the Articles, and it may be true of any new system.
5. The Articles’ biggest defects were not clearly identified beforehand either
“not one is found which alludes to the great and radical error which on actual trial has discovered itself.”
That is a devastating point. The Articles were once ratified without many people identifying their deepest structural weakness. Madison is using that fact to argue for humility in judging the Constitution too quickly.
6. America is like a patient who needs treatment fast
“a patient who finds his disorder daily growing worse”
“an efficacious remedy can no longer be delayed without extreme danger”
This is one of the best analogies in the paper. America is sick, the case is worsening, respected physicians have agreed on a remedy, and the critics keep shouting “don’t take it” without agreeing on what should replace it.
7. The critics do not deny the danger or the need for a remedy
“Do the monitors deny the reality of her danger? No.”
“Do they deny the necessity of some speedy and powerful remedy? No.”
That is Madison tightening the screws. The opposition is not really arguing that everything is fine. They know the system is in trouble.
8. The critics do not even agree with one another
“Are they agreed, are any two of them agreed”
This is the beating heart of the essay. Madison starts listing contradictory objections and lets them knock each other over like drunks in a hallway.
9. One objector wants more national government, another less
“it is not a confederation of the States, but a government over individuals.”
“Another admits that it ought to be a government over individuals to a certain extent”
Madison shows that even on the most basic question — what kind of government this should be — opponents cannot hold a common line.
10. One demands a bill of rights, another wants a different kind, another says it is unnecessary
“to the want of a bill of rights.”
“declaratory… of the rights reserved to the States”
“a bill of rights of any sort would be superfluous and misplaced”
That sequence is brutal. Madison is showing that even when critics use the same words, they often mean very different things.
11. Large and small states complain in opposite directions
“a large State exclaims loudly against the unreasonable equality of representation in the Senate.”
“A small State is equally loud against the dangerous inequality in the House of Representatives.”
You cannot ask for both at once. Madison’s point is not that there are no tensions, but that the Constitution was trying to govern real competing interests that naturally pull against each other.
12. Some say the government is too expensive, others say it is too small to represent the people
“the amazing expense”
“the Congress will be but a shadow of a representation”
This is another great contradiction. Too many officials, but also too few. It is hard to build a house when the critics insist every room is both too big and too small.
13. Some say it tends to monarchy, others aristocracy, others the opposite
“a direct and irresistible tendency to monarchy”
“it will end in aristocracy”
“will not be sufficient to keep it upright and firm against its opposite propensities.”
Madison basically says: pick a lane, gentlemen. If your alarms point in every direction at once, maybe the problem is not the Constitution.
14. Separation-of-powers objections also collapse into disagreement
“scarce any two are exactly agreed upon the subject.”
Madison notes that even where critics agree vaguely that the departments are improperly mixed, they cannot agree on which exact arrangements are wrong or what the fix should be.
15. A second convention would likely be even more chaotic
“whether, with all their enmity to their predecessors, they would… depart so widely from their example, as in the discord and ferment that would mark their own deliberations”
This is one of the strongest practical points in the paper. Madison says a new convention is not some magical fountain of harmony. It would likely be a larger pile of discord.
16. Better is not the real test. Another might be worse.
“not until a BETTER, but until ANOTHER should be agreed upon”
Great line. Madison is saying that insisting on “another plan” without a realistic path to “a better plan” is a dangerous game.
17. The real comparison is with the Articles
“It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect.”
This is one of the load-bearing lines in the whole paper. Madison is saying the proposed Constitution wins if it is a real improvement over the existing system. It does not need to be flawless.
18. The Articles contain many of the same alleged dangers, but worse
“most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation”
That is Madison swinging the hammer. If you are terrified of mixed powers, indefinite fiscal powers, treaty powers, or slavery clauses, the Articles do not rescue you. In many ways they are worse.
19. The Articles already let Congress wield huge powers badly
“a single body of men, are the sole depositary of all the federal powers.”
Madison reminds the reader that the current system puts legislative, executive, and other federal functions into one body. If critics hate mixed powers, they should hate the Articles first.
20. The Articles permit the slave trade forever, while the Constitution limits it to twenty years
“Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.”
This is a striking comparative line. Madison is not defending the arrangement as morally ideal. He is saying the objection lands harder on the Articles than on the proposed Constitution.
21. A “lifeless mass” of power is its own absurdity
“absolutely necessary, and at the same time rendering them absolutely nugatory”
This is Madison’s point about the Articles: they proclaim important federal powers, then starve them of practical effect. That is not safety. That is foolishness in formal clothes.
22. Congress is already accumulating power through the western lands
“A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE body of men”
This is one of the paper’s sharpest warnings. Under the Articles, Congress is already acquiring control over western territory and future revenue, without the cleaner constitutional structure critics now reject.
Why Federalist No. 38 Works for Highlights
Federalist No. 38 works extremely well as a highlights page because it is Madison in prosecutor mode. He does not just defend the Constitution. He cross-examines its critics and points out that their objections collide, overlap, and often boomerang straight back onto the Articles of Confederation.
It is also one of the best papers for practical political thinking. Madison is saying: yes, criticize the plan. But do it honestly, consistently, and comparatively. A nation in crisis cannot live forever on theatrical objection alone.
Related Links
- Federalist No. 38 Full Text
- Federalist Papers
- James Madison
- Federalist No. 37
- United States Constitution
- Articles of Confederation