Transcript THE POLITICAL THEORY OF THE CONSTITUTION James Madison’s Federalist 10 and 51 Topic #8

THE POLITICAL THEORY OF
THE CONSTITUTION
James Madison’s
Federalist 10 and 51
Topic #8
Federalist 10 and 51
• Federalist papers #10 and #51, both by James Madison, are
generally considered to be the most important and, over the
subsequent years, the most influential of the 85 papers.
• They are certainly the two that are the most widely discussed and
(mostly) admired by contemporary political scientists.
– They are now regularly included — along with the Declaration of
Independence and the Constitution — in the appendices of
American Government textbooks.
• In these two papers, Madison sets out the basic theoretical rationale
for the Constitution.
– Madison would acknowledge that making the new central
government as “democratic” as possible was not the Framers’
overriding motive.
– Rather, it was to create a central government that would be
• popular in form, and
• effective (unlike the A. of C.), and
• at the same time, safe — that is, non-tyrannical or “Lockean.”
Two Forms of Popular Government
• Madison [Fed. 10] distinguishes between two types of popular
government [i.e., “government by the people”]:
– a [pure] democracy, by which I mean a society consisting of a
small number of citizens, who assemble and administer the
government in person [e.g., “town meeting” or “participatory
democracy”], and
– a republic, by which I mean a government in which the scheme
of representation takes place.
• The two great points of difference between a democracy and a
republic are:
– first, the delegation of the government, in the latter, to a small
number of citizens elected by the rest;
– secondly, the greater number of citizens, and greater sphere of
country, over which the latter may be extended.
• Clear we mostly use the term “democratic” today to refer
to systems that Madison would call “republican.”
Popular Government
• While generally supporters of “popular” (or what we today would
loosely call “democratic”) government, the framers were not
sentimental or uncritical supporters of such governments.
– In their view, popular governments are not automatically
desirable governments.
– Because people
• are rarely entirely benevolent,
• are often self-seeking,
• are often fallible, and
• are sometimes driven by “passions.”
• Jefferson: “Elective despotism is not what we fought for” (and the
principles of the D. of I. cannot justify “elective despotism”).
• A government that is strong enough to protect your property from
theft by others are also strong enough to steal your property itself.
The Dangers of Government [Fed. 51]
• All governments, even popular ones, are potentially
dangerous and oppressive.
– If men were angels, no government would be necessary.
– If angels were to govern men, neither external nor internal
controls on government would be necessary.
• In framing a government which is to be administered by
men over men, the great difficulty lies in this:
– you must first enable the government to control the governed
[the A. of C. fails on this count];
– and in the next place oblige it to control itself [an unlimited
Hobbesian government would fail on this count].
• A dependence on the people is, no doubt, the primary
control on the government; but experience has taught
mankind the necessity of auxiliary precautions.
The Dangers of Government (cont.)
• What is the danger against which such “auxiliary precautions”
should be taken?
– In general, tyranny, but let’s distinguish between two types.
• Classical tyranny: a despotic government that oppresses the great
bulk of the population (e.g., King George [maybe] or Saddam
Hussein [certainly])
• Factional tyranny: one sector of the population that oppresses
another sector of the population (e.g., potentially Shia and Sunnis in
post-Hussein Iraq, or “tyranny of the majority”).
– Madison to Jefferson: Wherever the real power in a Government lies,
there is the danger of oppression. In our Governments the real power
lies in the majority of the community, and the invasion of private rights is
chiefly to be apprehended, not from acts of Government contrary to the
sense of its constituents [i.e., classical tyranny], but from acts in which
the Government is the mere instrument of the major number of the
Constituents [i.e., factional tyranny, including tyranny of the majority].
– Federalist 51: It is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of the
society against the injustice of the other part.
What Are the Auxiliary Precautions?
• What auxiliary precautions can be taken against these
dangers, and which does the actually Constitution use?
– We framers rejected one possible precaution: a mixed
regime, with built-in non-popular elements.
– Fed. 51: One possibility is to create a will in the
community independent of the majority [e.g., a “House
of Lords”], that is, of the society itself; this method
prevails in all governments possessing an hereditary or
self-appointed authority.
• But such “a power independent of the society” may itself
become tyrannical.
• And our goal was to preserve the spirit and the form of popular
government, so we sought and found a republican remedy for
the diseases most incident to republican government.
Auxiliary Precautions (cont.)
• According to Madison, such auxiliary precautions can be
rooted in
– the distinction between the republican and democratic forms of
popular government, and
– the opportunities presented by the republican form in
encompassing an extensive compound republic.
• Democratic government is necessarily simple, but
republican government permits and requires a more or
less complex structure of governmental institutions.
– How big will its elected assembly be?
– Will it be unicameral or bicameral?
– How will it be elected? From districts or at-large? Using what
kind of electoral system?
– For terms of what length? Will they be staggered?
– Will there be a separate executive? How elected?
– Etc.
Auxiliary Precautions (cont.)
• The unavoidable complexity of the republican form
provides opportunities for creating auxiliary precautions.
• Fed. 51: We can so contrive the interior structure of the
government as that its several constituent parts may, by
their mutual relations, be the means of keeping each
other in their proper places.
• Madison is referring to the familiar “checks and
balances” built into the Constitution:
–
–
–
–
–
among the three branches of the federal government,
between the two houses that constitute the legislative branch,
among the different levels of the federal court system,
between the federal and state governments, and [we might add]
between competing political parties.
Auxiliary Precautions (cont.)
• Such a separation of powers, e.g., between the legislative and
executive branches, may be necessary to preclude tyranny -- or may
not be (surely today there are many non-tyrannical parliamentary
systems) – but in any event certainly is not sufficient.
• That we need more than “mere parchment barriers” is illustrated by
“the American [state] constitutions,” where we see the legislature
has too often encroached on the executive branch, leading to
potential tyranny.
• Instead we must give each branch and component of government –
by constitutional design – the means and resources sufficient
– to protect its constitutional power against such encroachments
and/or
– to retaliate against and thus deter such and encroachments.
• The occupants of these offices must also have the motive to use
these resources, but this is pretty well assured because they will be
ambitious political leaders.
Auxiliary Precautions (cont.)
• But the great security against a gradual concentration of
the several powers in the same department, consists in
giving to those who administer each department the
necessary constitutional means and personal motives to
resist encroachments of the others. The provision for
defense must in this, as in all other cases, be made
commensurate to the danger of attack. Ambition must
be made to counteract ambition. The interest of the
man must be connected with the constitutional rights of
the place.
• Think of the standard fair division procedure that may be
used by two squabbling and distrustful children for
dividing a piece a cake between them in a fair manner:
– One child cuts, the other chooses.
– Greed counteracts greed to produce a fair division.
Auxiliary Precautions (cont.)
• Experience has shown that legislative authority is
naturally predominant in government.
– This is the lesson of the “American [state]
constitutions”.
– So we want to strengthen the executive, and
• divide the legislature into rival houses
• with different schemes of representation
– though remember that Madison at the Convention had
vigorously opposed equal representation of states in the
Senate.
Auxiliary Precautions (cont.)
• Such a system of constitutional “checks and balances”
also mitigates problems of factional tyranny, in so far as
they are driven by passions that arise quickly and then
subside in due course.
– Suppose some circumstance arises (e.g., a devastating terrorist
attack) that creates a passionate majority that, if it got full control
of the government, would try use governmental power to deprive
some minority of its basic rights, i.e., that might become a
“tyrannical majority.”
• It will on average take such a majority about a year to get control of
the House of Representative.
• It will typically take it longer to get control of the Presidency, still
longer to get control of the Senate, and longer still to get control of
the Supreme Court and other courts.
• In the meantime, passions are likely to subside, so no great harm
can be done.
Factional Tyranny
• But in Federalist 10, Madison argues that the republican
form of popular government offers a further protection
again factional tyranny.
– The republican (unlike the democratic) form can
encompass a large political union,
– and a large union typically incorporates a system of
“social checks and balances” [among multiple
“factions”].
The Mischief of Factions (Federalist 10)
• By a faction, I understand
– a number of citizens,
– whether amounting to a majority or a minority of the whole,
– who are united and actuated by some common impulse of
passion, or of interest,
– adverse to the rights of other citizens, or to the permanent and
aggregate interests of the community.
• Factions, if unchecked, cause problems.
– If one faction becomes dominant, factional tyranny may result.
– If two large factions become rivals, civil war (and/or anarchy)
may result.
The Mischiefs of Factions (cont.)
• There are two methods of curing the mischiefs of faction:
– the one, by removing its causes;
– the other, by controlling its effects.
• There are again two methods of removing the causes of
faction:
– the one, by destroying the liberty which is essential to its
existence;
– the other, by giving to every citizen the same opinions, the same
passions, and the same interests.
• But
– the first remedy is worse than the disease, and
– the second expedient is impracticable, as the latent causes of
faction are sown in the nature of man [vs. Jefferson’s ideal of
“agrarian democracy”].
Controlling the Mischiefs of Factions
• So the CAUSES of faction cannot be removed, and . . . relief is only
to be sought in the means of controlling its EFFECTS.
• How to control the effects of factions?
• Minority vs. majority factions:
– If a faction consists of less than a majority, relief is supplied by
the republican principle [i.e., majority rule], which enables the
majority to defeat its sinister views by regular vote.
• A minority faction may clog the administration, it may
convulse the society; but it will be unable to execute and
mask its violence under the forms of the Constitution.
– When a majority is included in a faction, the form of popular
government, on the other hand, enables it to sacrifice to its ruling
passion or interest both the public good and the rights of other
citizens. To secure the public good and private rights against the
danger of such a [majority] faction, and at the same time to
preserve the spirit and the form of popular government, is then
the great object to which our inquiries are directed.
Controlling the Mischiefs of Factions (cont.)
• The republican form of popular government permits the formation of
a extensive (and probably compound, i.e., confederal or federal)
union.
• The question resulting is, whether small or extensive republics are
more favorable to the election of proper guardians of the public
weal; and it is clearly decided in favor of the latter by two obvious
considerations:
– In a large republic public opinion is more refined through the
process of representation.
– The other point of difference is, the greater number of citizens
and extent of territory which may be brought within the compass
of republican than of democratic government; and it is this
circumstance principally which renders factious combinations
less to be dreaded in the former than in the latter.
Controlling the Mischiefs of
Factions (cont.)
• A large republic takes in a greater diversity of interests
and opinions.
– So it is less likely than any single faction (united in opinions,
interests, and passions) will have majority status.
– Rather lots of (potential) minority factions will exist, which tend to
“check and balance” each other.
– Elections will be won and laws passed by coalitions of minorities,
which must make compromises among themselves.
– Even if a majority faction does exist, it numbers will likely be
spread out over a large area, making coordination difficult.
Controlling the Mischiefs of Factions (cont.)
• The smaller the society, the fewer probably will be the
distinct parties and interests composing it; the fewer the
distinct parties and interests, the more frequently will a
majority be found of the same party; and the smaller the
number of individuals composing a majority, and the
smaller the compass within which they are placed, the
more easily will they concert and execute their plans of
oppression. Extend the sphere, and you take in a greater
variety of parties and interests; you make it less probable
that a majority of the whole will have a common motive
to invade the rights of other citizens; or if such a
common motive exists, it will be more difficult for all who
feel it to discover their own strength, and to act in unison
with each other.
• This was a novel argument at the time, when the popular wisdom
(reflected in arguments made by the Antifederalists) was that stable
popular government could exist only at the local (or possibly state)
level.
Study Guide Q4
• In 1787, many states still had established churches (e.g.,
the Congregational Church in Massachusetts and other
New England states, the Anglican [Episcopal] Church in
many southern states [including Virginia until shortly
before 1787]) and also had religious tests for holding
public office. The U.S. Constitution established no
church and prohibited any kind of religious test for
holding U.S. office. How does this fact lend support to
Madison’s argument in Federalist #10?