Friday, September 9, 2016

Federalist No. 51, Part V: Lessons & Limitations, contd.

Less ambiguous – for a modern audience, at any rate – than certain of Madison’s explanations in No. 51 for the structure of the federal government was his assertion of the danger presented by unchecked majority rule. Though the government that he and his colleagues had designed relied heavily on the common notion that a majority, be it elective or legislative, possessed inherent legitimacy, he was careful to note that the rights of the minority did not disappear simply because they were the minority. Under the system of government framed by the proposed constitution, the winner of an election for a seat in the House of Representatives was the candidate that received the most votes, and a piece of legislation put before the federal Congress became law when a majority of those present voted in its favor. That being said, Madison cautioned in No. 51, the residents of a given congressional district who voted against the eventual winner did not give up their right to be represented, and even an overwhelming majority in Congress could not be permitted to abrogate the liberties of those whose representatives were in the minority. “In a society,” he accordingly asserted in the tenth paragraph, “Under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature [.]” In order to prevent such an outcome from playing out within the proposed national government, some kind of safeguard was necessary.

Before moving on to discuss the counter that Madison offered in Federalist No. 51 against the scourge of popular tyranny, the basic assumption he put forward perhaps bears some thought. In the United States of the late 18th century, legislative authority was almost universally trusted to a great extent than executive authority. As a result, many state constitutions, and even the proposed national constitution, placed a great deal of power in the hands of legislative authorities and consequently a great deal of trust in the concept of majority rule. This was acceptable, Madison argued in No. 51, or even preferable. Rapid, arbitrary decision-making – a king deciding to raise an army on his own authority, for instance – was made far more difficult by diffusing power across a large body of legislators, each of whom nurtured their own personal set of interests and priorities. That being said, he warned, majorities were no freer from sin than any man. The decisions of the Massachusetts General Court, the Pennsylvania Legislative Assembly, or the federal Congress may well have carried the weight of law and the confidence of the people, but each of these bodies was still as capable of infringing upon the rights of man and citizen as any king, governor, or president. Majority rule is a simple and durable logic by which to govern, but a majority that abuses its power and violates the liberties of those that fall outside of its consensus effectively abdicates its claim to legitimacy. Founder par excellence James Madison believed this, and said as much, in 1788.

Without picking out any specific examples, it would be difficult to argue that subsequent generations of Americans have always held to this principle. Across the history of the United States, spanning the 18th, 19th, 20th, and 21st centuries, state legislatures and Congress alike have been guilty of abusing their collective ability to make law in order to oppress or sideline ethnic, religious, and political minorities considered by the mainstream as falling outside the orthodox definition of responsible citizenship. Native Americans, African-Americans, Chinese Americans, Catholics, Mormons, Muslims, Socialists, and Communists, to name but a handful, have all been victims of popular tyranny – of “we the people” – at one point or another. And though many of the worst abuses have since been remedied, the temptation and the ability to visit similar offenses upon equally outnumbered populations remains ever-present. This, Madison tried to make clear in Federalist No. 51, is why constant vigilance is required of every responsible citizen of a republic. Not only is it essential, he asserted, that every person vigorously guard their own rights, but they must fly to the defence of their neighbor’s rights as well. Governments that are subject to election are subject to change; and so majorities change, and so laws change. The difference between being “in” and being “out” can at times boil down to a handful of votes, and so it behooves every person, whether they are at the helm of power or not, to rally against the abuse of those outside the consensus of the moment. There are few more valuable lessons than this that documents like No. 51 have to impart, and fewer yet more clearly applicable to the American historical and political context.  

Madison’s solution to this problem, his answer to the requirement that a republic, “Guard one part of the society against the injustice of the other part [,]” was an unusual one for its time. Unlike a monarchy, he argued in the tenth paragraph of No. 51, which could rely on the existence of an entity removed from the electorate –a king or an aristocracy – to guard the rights of the minority, the United States was required to look internally for protection against the inescapable threat of popular tyranny. Fortunately, he observed, the American republic occupied a vast swath of territory and held within its borders a similarly large and varied population. Therein lay the key to the country’s salvation. Counter to the contention advanced by French philosopher Charles-Louis de Secondat, Baron de Montesquieu (1689-1755) – perhaps the single most popular European thinker among the colonial American elite – that stable republics could only exist within a small geographic expanse, Madison maintained in No. 51 that the great size and diversity of the United States actually made the nation more secure, its citizens safer, and its government lest given to abuse. The reasoning behind this claim, a truly revolutionary notion for its time and place, was exceptionally simple.     

Encompassing such a large expanse of territory, the United States was home to a great number of people spread across a set of geographically diverse regions and engaged in a sizeable number of different professions. As a population, Americans recognized different religious faiths, spoke a fair number of different languages, and nurtured a great many different individual and community priorities. They were unalike, to put it simply, and could be said to agree on very little. This, Madison argued, was a great virtue. “In the extended republic of the United States,” he declared in the tenth paragraph of No. 51,

And among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.

Smaller populations could boast of no such inherent protection against majoritarian tyranny. Products of the same geography and more likely to share the same customs and cultural experiences, a republic of three thousand or five thousand citizens could very easily fall prey to a political consensus that prioritized the mainstream and ignored or punished the outsider. The United States of America, by comparison a nation of approximately three million as of the mid-1780s, was less likely to give rise to such exclusive majorities because there was almost no single faith, sect, profession, or culture that was truly and unequivocally dominant. Thus robbed of the opportunity to further the priorities of their particular creed by numbers alone, Madison believed that his fellow Americans would have no choice but to forge alliances and build majorities around only those ideals – liberty, stability, reason, justice, etc. – that accorded with the rights and sensibilities of all.

        While there can be no denying that James Madison was a brilliant and innovative political philosopher and statesman, and that his ideal of the “extended republic” was both ingenious and theoretically sound, a moment’s consideration of modern American political culture reveals beyond any doubt that the even the vaunted Founders could not foresee all that the United States would become. The U.S. is, as Madison observed, a very large country. From the Atlantic to the Pacific, its three million square miles currently contains upwards of three hundred million people. These figures are far in excess of what Madison believed sufficient to ensure a diverse and divided population, and, true to form, American politics at the dawn of the 21st century can fairly be described as combative. Disagreements at the state and national level over the purpose of government and the needs of society have made consensus relatively rare, and the debates that spin out of national elections frequently reveal the great diversity of interests and priorities nurtured by the voting public. In spite of this abiding diversity, however (and as mentioned previously), majorities have emerged throughout the history of the United States that have served to disempower and disenfranchise whomever fell outside the reigning consensus. Entire communities, ethnic, religious, or otherwise, have been barred from owning property, from voting, and from attending the schools and patronizing the businesses of their choice. The reason for this evident contradiction, between what Madison assured his readers was impossible in 1788 and what 21st century observers cannot fail to recognize, stems from the emergence of something the Founders widely rejected and consequently failed to account for: political parties.   

            The antipathy the Founders nurtured towards the concept of partisan politics has been discussed in previous posts in this series. Having inherited, in large part, many of the political assumptions and customs of their British radical antecedents the Whigs, supporters of the American Revolution and American republicanism accordingly shared their forebears’ distrust of any faction or individual in government whose motivation were anything other than outwardly virtuous or self-sacrificing. To be “interested” was to have an agenda other than the promotion of the public good, and to worse yet be a member of an organized party or faction was to tacitly admit that the public good was itself perhaps less important than jockeying for power or advantage. Because the Founders endeavored to create, in the various states and at the national level, governments whose primary function was the protection of individual rights and the betterment of society as a whole, the existence of entrenched parties – viewed as inherent disruptive – was never factored into their designs. Madison’s assertion in Federalist No. 51, that the abiding diversity of opinion in the United States would be enough to prevent any one sect or interest from rising to a position of power, speaks to this very assumption. He did not consider the possibility that people would rally around something other than their faith, their regional identity, or their profession, or that the factions they formed could expand to the point of exerting a tremendous influence on the national political agenda. This, of course, is exactly what modern political parties are, and this is exactly what they do.

            Ethnic identity is a marker of political self-identification that, if it moves at all, moves at a glacial pace. People think of themselves as Black, White, Hispanic, Chinese, Arab, or Austronesian (for instance) based mainly on who the parents were, what language they speak, and the culture they identify with. Religious faith, while in many cases a matter of personal choice, is also a relatively static political identifier because established belief systems tend to evolve very slowly, over decades if not centuries. Party identification is conversely flexible, fluid, and highly porous. Established parties are often centrally-led, coalesce around specific issues, actively try to expand their electoral support, and undergo constant change. Being a Democrat, consequently, is not like being Hispanic. There is no Hispanic National Committee that controls membership, defines a central platform, engages in public relations exercises, and tries always to get more people to be Hispanic. There are, however, Democratic and Republican national committees that do all of these things. And the fundamental goal of both of these parties, whether they have stated as much or not, seems to be the eventual and complete domination of American political life. Democrats would like it if everyone was a Democrat, and Republicans would like it if everyone was a Republican. In pursuit of this goal, American political parties – including 19th century Whigs, Democratic-Republicans, Federalists, Know-Nothings, et al. – take every opportunity to build majorities around divisive, often morally-charged, issues. From the French Revolution to slavery to same-sex marriage, partisan politics in the United States have almost always used the most contentious terms to build the broadest possible consensus.

            The struggles of generations of party faithful, and the alarmist, epithet-slinging, pot-banging politics that accompanied them, are a large part of the reason why the promise of America has been denied time and again to unoffending and inoffensive minorities within the general population. The United States Constitution, though designed with many an ingenious and time-tested safeguard in mind, was not constructed with political parties in mind. As a result, they have to some degree subverted the expectations and intentions of the Founders and the Framers by creating a new axis upon which American politics pivots. Not culture, not language, not faith, and not vocation, they are a kind of tribal identification that constantly and quickly shifts from one moment to the next. Madison did not foresee this, as No. 51 makes clear. He believed, peering out at the world through the lens of the late 18th century, that the size and diversity of the United States would prevent the political rise of any one sect or faction. Doubtless he also believed that as the country expanded the accompanying growth in population and the distances involved would only maintain and increase that diversity – after all, what could a farmer in Massachusetts possible have in common with a merchant on the California coast?

The emergence of parties – parties that are constantly trying to reach for the largest slice of the American population – have of course elided this diversity and united large groups of people around the same core sets of issues. Advances in communications technology have greatly accelerated this trend, to the point that people in Maine, and Alaska, and Florida, and California have been made to understand that they do indeed have a great deal in common. To say whether this is a good thing or bad thing is to attempt to judge objectively what it by its very nature subjective. Political parties exist in America. They are. The Founders, that handful of demi-gods whose words and deeds are ever a source of wisdom/validation in matters public and private, utterly failed to account for their existence, as Federalist No. 51 helps illustrate. Does this matter? Are parties, therefore, illegitimate? Again, these are not question that have simple answers. What is clear, however, and ought to be remembered and repeated, is that there are many things about what the United States has become that it creators could not, and did not, predict. They were wise and intelligent men and women, and a great deal can still be learned from the legacy they left behind, but oracles they were not. Self-aware enough to understand this about themselves, they accordingly did their best to design systems and frameworks of government that would allow subsequent generations to decide for themselves the nature and meaning of the grand experiment that is the United States of America.

But please, really, judge for yourself:

https://en.wikisource.org/wiki/The_Federalist_(Dawson)/50

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