Is Madison Still Relevant?

“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy

The American Constitution — drafted in Philadelphia during the sultry summer of 1787 — is an ingenious document for two reasons: First, it provided a working blueprint for the American experiment; and, second, the Constitution, along with the Federalist Papers, completely overturned conventional political thinking about republics and the recipe for their success. Unfortunately, the recent paralysis of the federal government and the election of an incompetent president with autocratic tendencies and little regard for constitutional niceties call into question the survival of the Constitution and the theory undergirding it.

Baron de Montesquieu

The delegates meeting in Independence Hall had to devise a plan of government for a nation of 13 fractious and independent-minded states sprawling over one-thousand miles along the Eastern seaboard. The problem: There was no precedent for how to construct a republic over such a large area. Prevailing political wisdom — from Plato and Aristotle through the Enlightenment — held that republics had to be small to survive: The Greek city-states of antiquity and contemporary Swiss cantons, for example. Oppressive governments could be checked only in small communities. In larger nations, civic virtue would be undermined because of individual self-interest. “In an extensive republic, the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and of course are less protected,” wrote the Baron de Montesquieu in The Spirit of Laws, one of the seminal 18th-century works on republicanism. 

James Madison, Father of the Constitution

James Madison of Virginia, known to history as the Father of the Constitution, thought Montesquieu had it backwards. Madison went to Philadelphia armed with the Virginia plan — a proposal to create a strong national government to replace the moribund Articles of Confederation, the first American constitution. Madison failed to get all he wanted at the Constitutional Convention, but the final draft the delegates submitted to the states for ratification reflected Madison’s thinking on the nature of republics.

Madison outlined his new theory in letters to friends and in speeches at the Convention. But, Madison’s thought can be most cogently analyzed in the Federalist Papers, a series of newspaper articles, later bound, written to persuade wavering delegates to state conventions to ratify the Constitution. Alexander Hamilton began drafting the essays, then enlisted Madison and John Jay (who wrote only a few since he had not been in Philadelphia). Hamilton and Madison soon became rivals in the new government, but, during the struggle over ratification, the two worked closely to compose a document, initially intended to secure approval of the Constitution, that eventually earned fame as an important work on political theory.

Like most of his contemporaries, Madison believed faction was the enemy of republican constitutions. He defined a faction as a group organized around, as Madison put it in Federalist No. 10 “some common impulse of passion, or of interest, adverse to the rights of other citizens.” Powerful factions threatened the rights of minorities. Avoiding oppression by a majority while preserving a republican form of government was, Madison wrote, ”the great desideratum.”

Large republics, Madison reasoned, best protected minority rights. “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,” Madison said. As Noah Feldman shows in The Three Lives of James Madison: Genius, Partisan, President, Madison reached this conclusion based on the fight he led a few years earlier for religious liberty in Virginia. After the Revolution, Virginians had to decide what to do about the established Anglican (now Episcopal) Church. Some wanted to maintain its establishment and support by public taxation, while others, Patrick Henry, most notably, wished to continue to tax for religious purposes but allow each citizen to designate to which denomination his tax money should go. Madison, allied with his good friend Thomas Jefferson, argued for religious liberty, every person free to worship as he or she pleased, with no public money used for religious purposes. This was possible, Madison said, because Virginia was a large state with many denominations, and just as “a multiplicity of sects” guaranteed religious freedom in Virginia, “a multiplicity of interests” in the new Republic guaranteed civil liberty. 

Madison’s theory of enlarging the republic — combined with the Constitution’s checks and balances and separation of powers — worked, for the most part (the Civil War being a prominent exception). But, in recent years the constitutional safeguards against powerful factions (what we call parties) oppressing the rights of minorities appear to have eroded. Throughout most of American history the two parties have represented coalitions of differing interest groups (factions) combining to achieve specific goals. Those coalitions have shifted over time, and sometimes change has come through bipartisan cooperation. 

Today, the system seems not to be functioning, or, rather, not functioning the way Madison described large republics would. Each political party has ossified into a combination of like-minded people who talk only to each other and only consume news that confirms what they already think. This phenomenon has been dubbed tribalism, whose effects have been greater perhaps upon Republicans, but Democrats are not immune from it. This has happened because of another phenomenon that Madison could not have anticipated: The United States has become far smaller than it once had been. Our continental empire of over 300,000,000 people has shrunk due to the effects of the revolution in communications. Cable news, the internet, social media, and the like bring people closer together, and, at the same time, modern techniques of mass communications allow people to choose their groups, or, in this case, their tribes. Combine this with a president who veers toward authoritarianism — and who is an effective user of social media (Twitter, in this case) — and the possibility of majoritarian oppression of minorities becomes no longer unthinkable. 

Is the concept Madison propounded in Federalist No. 10 of the mitigating effects of large size on factions still relevant in the age of gridlock and President Donald Trump? The answer is not clear yet, but there are still powerful institutional protections protecting American liberties and the rights of minorities. Among these is the Bill of Rights, which Madison had initially opposed but agreed to support only as a tool to convince opponents of the new Constitution to agree to its ratification.

When the Constitutional Convention ended, a Mrs. Powel asked Ben Franklin, “Well, doctor, what have we got? A republic or a monarchy? A republic, replied the doctor, if you can keep it.”

Let us hope we can still “keep it.”

Posted March 27, 2018

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