Federalist 62 Warned That Mutable Laws Betray a Free People

Ignorance of the law is no excuse. Every first-year law student learns the maxim, and it made perfect sense when the law of a country could fit on a shelf. It makes rather less sense when the law fills a warehouse and the warehouse gets a new wing every business day. At that point the maxim stops being a rule of justice and becomes a trap with a Latin label.

The Founders saw this coming. In Federalist 62, published in early 1788 and attributed to James Madison, the author explains why the Constitution created a Senate, and then, almost as a climax, delivers one of the sharpest warnings in American political writing: a government can be elected by the people and still betray them, simply by making laws nobody can read or keep up with. The passage is worth framing on the wall of every committee room in the Capitol. Since that is not going to happen, let us at least read it here, along with the argument for the Senate that leads up to it.

Who wrote it, and why it matters

Federalist 62 was one of the papers whose authorship was once disputed between Hamilton and Madison. Historians now attribute it to Madison, and a well-known statistical study by Frederick Mosteller and David Wallace in 1964, comparing word habits across the papers, supported the attribution. The point is not trivia. Madison had sat through the Convention's long fight over the Senate and had lost the part of it he cared about most, proportional representation in both houses. Federalist 62 is the defense of a compromise by the man who argued against it. That gives the paper an unusual honesty.

The paper opens by taking up the Senate under heads: the qualifications of senators, their appointment by state legislatures, equal representation of the states, and the number of senators and the duration of their appointments. Then it turns to why a Senate is needed at all.

Qualifications: thirty years and nine of citizenship

The text of Article I, Section 3 is precise:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

For the House the requirements are twenty-five years of age and seven of citizenship. Madison explains the difference by the nature of the office. The senatorial trust requires greater information and stability of character, and because the Senate shares in making treaties, its members should be free of the foreign attachments that might cling to a newly naturalized citizen. Nine years was a middle course between excluding naturalized citizens entirely and admitting them too quickly.

Appointment by the state legislatures

Under the original Constitution, senators were chosen by state legislatures. Madison defends this on two grounds: it was a way of making a "select appointment," and it gave the state governments an agency in forming the federal government, which would both secure their authority and serve as a link between the two systems.

The Seventeenth Amendment, ratified in 1913, replaced that method with direct popular election. Conservatives argue about whether that was wise. What is not arguable is that it removed the state governments as governments from the federal machinery, which was one of the features Madison counted on to protect federalism. We take up the question of Senate representation in Calling the Senate Undemocratic Misses Why It Was Built to Represent States.

Equal representation: the compromise defended

Here Madison is at his most candid. He had fought equal representation in the Senate. The Convention adopted it in the Connecticut Compromise of July 16, 1787, by a single state's margin; see The Connecticut Compromise Passed by One Vote on July 16, 1787. In Federalist 62 he says, in substance, that it is superfluous to test by theory a provision that everyone admits was the result not of theory but of the spirit of amity and mutual concession the situation required. The alternative was not a better Constitution. It was no Constitution.

But having admitted it was a compromise, he defends its effects, and the defense is strong:

the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.

And then a structural advantage that is easy to overlook:

No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.

Two majorities, measured two different ways. A law must satisfy both. Madison admits this could sometimes block good laws, but observes that the excess of lawmaking is the disease to which free governments are most liable, so a check on it is more likely to help than hurt. Hold onto that thought.

Why a Senate at all

Madison then gives the reasons a republic needs a second, smaller, longer-serving chamber. Number them, because he does.

1. A second check on betrayal. A single assembly might forget its obligations to its constituents. A second assembly, distinct from the first, doubles the security, because both would have to join in any scheme of usurpation or perfidy.
2. A check on sudden passion. Numerous single assemblies are prone to yield to "the impulse of sudden and violent passions" and to be seduced by factious leaders into intemperate resolutions. A body with fewer members and longer terms can cool them.
3. A remedy for inexperience. Members chosen for short terms, drawn from private pursuits, cannot be expected to learn the laws, the affairs and the interests of their country in the time they serve. Madison writes that a good government implies two things: fidelity to the object of government, which is the happiness of the people, and knowledge of the means by which that object can best be attained. The House supplies the first; the Senate is meant to improve the second.
4. A cure for mutability. And here the paper reaches its real subject.

The mutable-laws passage

Madison begins with a diagnosis:

The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government.

He notes that every new election in the states had changed half the representatives, and with the members changed the opinions, and with the opinions the measures. He describes the effects abroad: a nation that changes its laws constantly loses the respect and confidence of other nations, which treat it as an easy mark. And then he turns to the effects at home, which he calls still more calamitous. This is the passage that matters:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Every clause is a separate charge.

• "So voluminous that they cannot be read." Volume is a betrayal in itself. A law no one can read cannot guide anyone's conduct.
• "So incoherent that they cannot be understood." Bad drafting is not a technicality. It hands the real lawmaking to whoever gets to interpret the mess.
• "Repealed or revised before they are promulgated." A law changed before people can learn of it is no law at all.
• "Incessant changes." A rule that changes constantly cannot be planned around, and planning is how free people use their liberty.

And then the closing question, which is the whole argument in a sentence: how can that be a rule which is little known and less fixed?

Who wins when the law keeps changing

Madison does not stop at the abstract principle. He asks who benefits when laws are voluminous and unstable, and his answer is pointed. Every new regulation concerning commerce or revenue, or affecting the value of property, presents "a new harvest to those who watch the change, and can trace its consequences." Those people are the well-connected and the well-advised. The harvest, he says, is reared not by them but by the toil of their fellow citizens. His verdict:

This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.

He adds the effect on enterprise:

What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?

This is the most conservative passage in the paper, and it is also the most populist. Unstable, complex law is a subsidy to the people with lawyers, lobbyists and compliance departments. The small businessman, the farmer and the family are the ones who cannot keep up. The same point is made in modern terms in Big Companies Can Afford Regulation, Which Is Why Some of Them Ask for More.

Madison ends by naming the deepest cost of all: the decline of the people's attachment and reverence for a political system that shows so many marks of infirmity. A government that cannot make stable law loses the respect of its own citizens. A government, like an individual, he says, will not long be respected unless it is truly respectable, and it cannot be truly respectable without a certain portion of order and stability.

Applying the test to federal law today

Now hold Madison's four charges up to the modern federal government.

Voluminous. The Federal Register published 3,248 final rules in 2024 and 2,441 in 2025. That is 5,689 final rules in two years, each with the force of law. Add the annual appropriations, the massive omnibus spending bills often released days or hours before a vote, and the Code of Federal Regulations that accumulates all of it, and "so voluminous that they cannot be read" is not a rhetorical flourish. It is a literal description. In March 2010, then-Speaker Nancy Pelosi said, in words widely quoted since, that Congress had to pass the health-care bill so that people could find out what was in it. Madison had answered that idea in 1788. Plain-language answers to how the Code works are at Your Questions About the Code of Federal Regulations, Answered Plainly.

Incoherent. When statutes are written in broad terms, agencies and courts fill in the meaning. For decades the Chevron doctrine told courts to defer to the agency's reasonable reading of an ambiguous statute, so the effective law could change when the agency's leadership changed. Loper Bright Enterprises v. Raimondo (2024) overruled Chevron and returned the job of interpreting statutes to judges, which should make the meaning of a statute more stable from one administration to the next.

Incessant changes. The definition of "waters of the United States" under the Clean Water Act is the classic modern example. Successive administrations rewrote the rule repeatedly, so a landowner could not know whether a wet patch on his property fell under federal permitting. The Supreme Court narrowed the definition in Sackett v. EPA (2023). For years before that, the honest answer to "is my land regulated?" was "it depends who won the last election." That is Madison's "no man, who knows what the law is to-day, can guess what it will be to-morrow."

A harvest for the few. Tax law with scheduled expirations and temporary provisions, rules that change with every administration, and regulations so complex only specialists can comply with them all favor those who can afford to watch the change. The idea of a regulatory budget, which would force Washington to count and cap the cost of its rules, is argued in A Regulatory Budget Would Make Washington Count the Cost of Its Rules, and the comparison between the rule count and the law count in Agencies Write Thousands of Rules a Year While Congress Passes Hundreds of Laws.

The objection: stability protects bad laws

The strongest objection, stated fairly: Madison's argument is a brief for inertia. Stability sounds wise, but it entrenches whatever the law happens to be, including bad laws. Some of the most important changes in American history required rapid legal change. A modern economy is complex, and complex problems require detailed rules; you cannot regulate pharmaceuticals or aviation in a pamphlet. And the Senate, the institution Madison built for stability, has itself become a source of dysfunction, passing almost nothing until deadline-driven omnibus bills sweep everything in at once.

The answer, point by point.

1. Madison opposed mutability, not change. His complaint was about laws that change so often or so unpredictably that no one can rely on them. Deliberate, durable reform passed through both houses and signed by the president is exactly what his design allows. The Constitution's checks make change slower so that change, when it comes, lasts.

1. Detail belongs in law Congress actually writes. Complexity is an argument for careful legislation, not for handing lawmaking to agencies whose output changes with each administration. If aviation safety requires detailed rules, Congress can enact the important ones and require its own vote on major regulations. Expertise can draft. Elected legislators should decide.

1. The omnibus problem proves Madison's point. When Congress stops doing ordinary appropriations bills one at a time and instead passes a single enormous bill at the deadline, it produces exactly the "voluminous" law that cannot be read. That is not a failure of the Senate's design. It is a failure to use it. The answer is regular order, not a weaker check.

1. Bad laws can be repealed, and Madison wanted them repealable. A stable legal order is not a frozen one. Prohibition was adopted by amendment and repealed by amendment, each through the full process. That is stability and change working together. See Gridlock Is the Constitution Working, Not the Constitution Failing.

The verdict: Federalist 62 is not a defense of inertia. It is a defense of law that a citizen can read, understand and plan around. A free people cannot be governed by anything less.

The case in brief

1. Federalist 62 defends the Senate's qualifications, its original appointment by state legislatures, equal representation of the states and its long, staggered terms.
2. Equal representation was a compromise, but it requires every law to win two majorities, one of the people and one of the states.
3. Madison's deepest reason for the Senate was stability: laws so voluminous, incoherent or changeable that no one can know them betray the people who elected the lawmakers.
4. Unstable, complex law is a harvest for the well-connected few and a burden on the many who cannot afford to watch the changes.
5. Measured by the volume of rules, the swings in regulation and the habit of omnibus bills, Madison's warning describes the modern federal government with uncomfortable accuracy.

What you can do: ask your senators' offices in writing whether they will vote against any spending bill released less than seventy-two hours before the vote, and check how they actually voted on the site's scorecard.