Direction from James Madison

Direction from James Madison January 14, 2021

In trying to think through the challenges to our democratic system that I have been blogging about this week, I re-read some of the Federalist Papers, which were written by several of our nation’s founders–James Madison, Alexander Hamilton, and John Jay–who themselves were thinking through how our Constitution would work.

Central to their argument is Federalist No. 10 by Madison.  I was struck by how well it anticipated and addressed issues and problems we are having to deal with today:  polarization, conflicting ideologies, political involvement of religion, diversity.  And his insights also have application to smaller questions, such as whether a president can pardon himself.

Here are some excerpts.  To get not just isolated insights but an actual connected argument, you need to read the whole document, which is only 3000 words, about eight pages.  It’s all online at the link.

From James Madison, Federalist 10: [my bolds and commentary]

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. . . .The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. . . .

Note just how realistic Madison is.  He recognizes that the political life of the nation will be torn by conflicting ideas, competing interests, strong emotions, and politicians eager to exploit these conflicts to gain power.  The purpose of government, he says, is not to unify everyone in an idealized utopia but to manage them so that one faction is not able to impose itself on the others, so that citizens have the liberty to pursue whatever factions they want to as individuals and the government can go forward in its “ordinary operations.”

Note how Madison, in a completely different context, addresses our current question of whether a president can pardon himself:

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail.

Conservatives are supposed to be “originalists” in their approach to the Constitution; that is, they believe that it should be interpreted according to the meaning of words and the intentions of the original authors.  Well, Madison was one of the original authors of said Constitution.  If “no man is allowed to be a judge in his own cause,” that would include President Trump granting a pardon to himself.

The issue here, of course, is not that.  Madison is acknowledging that the legislators who might be thought to adjudicate the “factions” will themselves be part of factions.  Therefore, he will argue, we need a system that will limit what the legislators can do

Factions are inevitable.  So are factious politicians.  So we need to control the effects of the disagreements:

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. . . .

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. . . .

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. . . .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 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.

Some political thinkers of his time argued that democracies and republics will only work in small countries, but Madison maintains that such systems work better in large nations, because having more factions among more people spread out across a bigger area will mean that it will be harder for one faction to win over the others.  (Thus, our information technology and social media, which has been said to shrink the country by making everyone accessible to everyone else despite their physical distance from each other, has been intensifying our factions and making them more formidable.)

So Madison recommends not a pure democracy but a representative republic.  He thinks filtering the issues through representatives will provide distance for the “passions” and enable wise reflections.

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.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

OK, I think he is being a little naive here, in assume the officials whom the people elect will put first “the true interest of their country” because of their “patriotism and love of justice.”  Our politicians often instigate the trouble. But still, the system can tamp down the bad effects of the factionalism:

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.

Diversity of ideas is not a weakness but a strength, so that one idea does not become dominant and that freedom can be preserved.  One “religious sect” cannot take over the country because there is a such a large “variety of sects” that would make that impossible, which is why religious liberty is so important.

Madison goes on to develop the concept of the balance of powers, which is a major feature of our Constitutional framework.  Notice, though, that Madison is not simply proposing “checks and balances” to put limits on the federal government.  He wants to do that in order to “check and balance” the factions that will otherwise tear the country apart and result in one of those factions tyrannizing the others.

We citizens need to check and balance ourselves!

 

Illustration:  James Madison [the fourth president], from W Kennedy, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons


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