Federalist 51 Part 2
Last week I discussed perhaps the most famous passage in all The Federalist: Madison’s claim that “men are not angels” and are not governed over by angels. This tension – the people need to be governed by the government and the government needs to be governed by the people – forms the paradoxical core of Publius’ reflections on government. The threat to the Newtonian system he created (every action requires an opposite and equal reaction) resulted from the preeminence of the most popular branch of government – the legislative.
Note well: Madison assumed that ambition is what will motivate most people who seek office, especially at the national level. By connecting “the interests of the man” to the “rights of the place,” political actors had at their disposal the tools to resist encroachments upon their powers. The overreach of legislative power could be checked by the presidential veto, and the abuse of the veto undone by the congressional override. This pattern of resistance would keep ambition in check, everyone in politics being primarily interested in protecting his turf.
Madison carefully connected this principle not only to the relationship between the three branches of government, but also between the federal government and the states. This vertical portioning of power (federalism) mirrored the apportionment horizontally (division between the three branches), resulting in “a double security … to the rights of the people.” Federal and state governments would control each other, and the governments would be controlled internally by the different branches.
Tyranny of the Majority
Okay so far. Here’s where things got tricky. In all our contemporary handwringing about “threats to our democracy,” we tend to forget that democracy is an inherently unstable form of government and that “the tyranny of the majority” is to be feared every bit as much, if not more, than the tyranny of one. Majority rule is great, so long as you’re part of the majority. “If a majority be united by a common interest,” Madison observed, “the rights of the minority will be insecure.”
Madison had provided his solution to this problem already in Federalist 10. One response to majoritarianism, he wrote in 51, was to have a “true” interest separate from the interest of the majority, the solution favored by monarchical or tyrannical regimes. The solution Madison favored was to encourage a diversity of interests, to fracture the elecorate, to comprehend “in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”
Americans complain about gridlock, about threats to our democracy, about how divided we are. Those seriously concerned about such matters should go re-read Federalist 51 and realize that these are features of and not bugs in our system. E Pluribus Unum: Whereas Jay had celebrated the Unum, Madison advocated for the benefits of the pluribus, insisting that “the society itself” needed to be “broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
Consider, for example, how Americans solved the problem of religious freedom. Even without a first amendment, religious freedom would have been guaranteed in America by the sheer number and variety of sects and faiths. No one sect would be able to assert power over all the others. The variety of religions guaranteed their freedom. The guarantees of the first amendment are mere words on paper, only as good as the mind and will of the court; the social contestation of groups primarily preserved liberty. Likewise, in a highly pluralized society no stable combination of interests could form that would threaten individual or group rights. The lack of unity could prove a stabilizing force, contrary to what Jay had argued in prior Federalist essays.
More Territory, More Groups
The key, as in Federalist 10, was the audacious and counter-intuitive claim that rescaling republican politics would relieve its otherwise mean estate. “All sincere and considerate friends of republican government” would come to realize that the expansion of the polity, both demographically and geographically, would best secure liberty precisely because it would create so much diversity that unified action would become impossible. The more “circumscribed” the polity was the more likely you would find oppressive combinations. It was in small polities, Madison believed, that the strong would feast on the weak; in larger territories even the most ravenous would have difficulty tracking its prey.
Keep in mind Madison’s premise: you had to have government, but you had to enfeeble it enough that it posed no danger to freedom. Given the contestation of all the differing views and interests and beliefs, only those that had wide purchase could bend the instruments of power to their will. This, Madison believed, meant that policy “could seldom take place upon any other principles, than those of justice and the general good.” Government would rarely be able to act, but when it did citizens could have a high degree of confidence that the outcome would be just and serve the common good.
That, after all, was the point of not merely government, but good government. Here too, however, Madison sensed a paradox. Allowing that “justice is the end of government” he also concluded that “it ever has been, and ever will be, pursued, until it be obtained, or until liberty be lost in the pursuit.” Understanding the nature of this delicate balance, Madison offered in Federalist 51 this fascinating observation: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Why would liberty be lost in the pursuit of justice? What is it about justice that makes it a potential threat to liberty?
Justice as a Threat to Liberty
Let me suggest various reasons why this might be the case.
First, justice as a virtue admits of much confusion, making justice peculiar among the four cardinal virtues. We have a pretty good idea what courage and temperance and prudence are, but the essence of justice eludes us. This nebulous quality makes it capable of producing prodigious and dangerous errors in its name. It’s in the nature of prudence and temperance that we can’t really be mistaken in our exercise of them, and while we may be mistaken in our exercise of courage, perhaps only once. But justice seems to admit of infinite error when we act in its name.
This indefinite nature is in part why justice admits of appending endless qualifiers. Aristotle discussed distributive and retributive justice, procedural and restorative, but we also now hear of racial justice, environmental justice, criminal justice, sexual justice, and so forth. It wouldn’t make much sense for us to talk about racial courage, or criminal prudence, or environmental temperance. We will take to the streets demanding justice, but no one marches with placards calling for prudence. The desire for justice inflames our passions in a way the other virtues don’t, and it also seems to connect directly to our perceived interests. Indeed, we too often dress our naked interests in the cloak of justice.
“Justice!” Nietzsche wrote, “I’d sooner have people steal from me than be surrounded by scarecrows and hungry looks; that is my taste. And this is by all means a matter of taste, nothing more.” We construct the idea of justice, he suggeseted, simply to ward off people who mean us harm, but he also drew our attention here to its subjective nature. Even more damningly, his Zarathustra admonished his disciples to “mistrust all who talk much of their justice! Verily, their souls lack more than honey. And when they call themselves the good and the just, do not forget that they would be pharisees, if only they had—power.”
This pharasaism has become a central feature of our politics, for one of its characteristics is its unwillingness to accept disagreement as a condition for knowing; the Pharisees (and I’m using the term in its pejorative sense) convinced as they are that they already possess the fullness of truth and understand clearly the demands of justice—such conviction having been long ago undone by Socrates and warned against by Publius. Whatever else is true about battles over social justice, one would have to be willfully blind not to see how the grasping for power drives the enterprise. But such grasping for power should not lead us to the conclusion that there is therefore no underlying moral impulse, or that justice is meaningless. It’s elusive quality simply means we need to approach it with great care and caution, remembering one of the great dangers of our time: an unwillingness to see in our opponents some grasping at a moral truth and the concomitant inability to consider we might be wrong.
Justice as a Relational Virtue
One cause of confusion is that justice is a relational virtue, whereas the other three cardinal virtues refer primarily to the self. I am temperate or I am courageous; but justice refers to the ways in which persons relate to one another or to the whole. A statesman may be courageous or temperate, but we expect a regime to be just. The relational aspect of justice is testified to by the fact that we react strongly to breaches of fairness. It’s one of the first things we learn as children. Few things upset us more than the sense that something isn’t fair, and that experience often results in bitterness and resentment.
I think Madison is getting at the ways in which our convictions concerning the rightness of our beliefs and values distorts the democratic enterprise and, worse, puts liberty constantly at risk. We will bypass constitutional limits and design in order to get our way. If we can’t get advance our interests through normal politics, we will turn use other measures, such as the courts. Think about how much liberty has been sacrificed in the name of “social justice” or “the common good” or “the national interest.” These abstract ideas carry concrete costs, and I believe Madison was warning us against investing too much in these abstractions.
Madison’s system might have worked too, had it not been for two serious and related blind-spots in his analysis in 51. First, his belief that politicians would be primarily motivated by protecting their powers and privileges has simply been wrong. They are most interested in getting reelected, a problem the Antifederalists would have taken care of via term limits and more frequent elections, both of which, along with local autonomy, would have lowered the stakes. In the last century we have dramatic evidence of how two branches will gladly cede authority to the third if it serves their electoral interests to do so. The Supreme Court’s recent ruling in FCC v. Consumer’s Research allowed Congress to once again delegate its powers to the executive branch, something Congress does with alarming frequency.
For that matter, the Supreme Court has often operated as a “super-legislature” simply because the Congress and the President not only prefer to be off the hook, but as importantly often agree with the Court’s results. Put another way, Madison did not think carefully about how either parties or ideology would operate as a wrench in the works. Maybe people weren’t as motivated by turf protection as he believed. Maybe sharing power to accomplish preferred outcomes mattered more to them then protecting what little they had, especially if they were but one member of Congress.
Along those lines, the system clearly was not well-calibrated to operate with only two major parties, both of which would try to put large coalitions in place within the electorate so that, once in office, they could use party discipline to push through majoritarian measures, thus unleashing a cycle of rule that would become increasingly retributive. The need for compromise would be severely diminished in a two-party system, and since the parties operated by definition from a set of interests contrary to the other or to the good of the whole, the rights of anyone not associated with that party would be tenuous. So long as your party is on power you’ll think the system works well, and if it is out of power you will become increasingly hysterical about the infringement on your rights.
Madison’s important insight in Federalist 51 should be read alongside his equally apt claim in Federalist 37 that “a faultless plan was not to be expected,” or (spoiler alert) Hamilton’s contention in Federalist 85 that he never expected “to see a perfect work from imperfect man.” From the crooked timber of humanity nothing straight was ever built. Re-reading Federalist 51 in light of our contemporary concerns should remind us that politics is, as Weber said, a slow and arduous drilling through hard boards, that we are dealing with endemic problems, should not scapegoat certain populations when things don’t go our way, and that there really isn’t any way out of our mess, only the effort to live civilly within it. The American republican experiment is good precisely because it’s so damned hard. That ought to be enough.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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