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Chapter 2

Madison’s Compound Republic and the Logic of Checks and Balances

Learned men pledged to the defense of individual rights forged political institutions for the new United States. They constructed forms of government not seen before, thus transforming our understanding of politics itself. The U.S. Constitution was the culmination of their efforts, and James Madison the principal genius behind its creation. Alexander Hamilton boasted that the original constitution was itself a bill of rights (Fed. 84, p. 477),¹ even before the first ten amendments. Although the original constitution contained grave flaws, above all the accommodation of slavery, its underlying principles inspired many to seek improvements, efforts that bore fruit in subsequent amendments abolishing slavery and requiring equal protection of the laws. Our current understanding of human rights owes an immense debt to American innovations in the art of government.²

Gratitude for the theoretical contributions of the Founders, and Madison in particular, has nourished the view that U.S. institutions do not stand in need of international human rights law. There is a sense that Madison and his colleagues solved the main difficulties, that to institutionalize external supervision of U.S. human rights practices or incorporate international human rights law into America’s domestic legal system would be to tinker with the Founders’ wise design, a move both ungrateful and imprudent. Mixed with these feelings is the pride of vicarious authorship (the thought that the Founders’ achievement is ours, too) and an attachment to strong national sovereignty as a matter of principle. Belief in the sovereign right of Americans to govern their affairs without external supervision and belief that the Founders made the correct institutional choices are mutually reinforcing.

I propose that such thinking leads us astray, and that Madison shows us why. The political theory presented in his Federalist essays furnishes an argument for the integration of constitutional democracies, not least the United States, into a transnational human rights regime. He leads us toward the theory of cosmopolitan republicanism, by which I mean the view that individual freedom depends on a particular configuration of domestic and international institutions working in tandem.³ Aside from passing suggestions, Madison does not make this view explicit, understandably so, given that neither international institutions nor other large-scale republics existed in his time. But his writings lend theoretical support to the view.

I develop this argument in the course of an examination of Madison’s constitutional philosophy. Along the way, I hope to correct what I regard as certain common misconceptions about Madison’s own political thought and, with Madison’s help, to challenge widespread, but I think mistaken, ways of understanding democracy. Specifically, I shall argue that Madison is a democratic thinker; that he wisely provides democracy with a nonvoluntarist justification, valuing popular government not as an end in itself but as an indispensable means to the end of justice; that he properly warns us against an adversarialist, self-interest-based model of political action; and that he sensibly grounds checks and balances on a logic of concurrent responsibility, in which different institutional actors ensure one another’s compliance with the dictates of justice.

I argue that Madison leads us toward a worthier conception of democracy, thus placing its legitimacy on firmer ground.⁴ One of my purposes is to show that there is no conflict between democracy on the one hand and constitutional bills of rights or international human rights law on the other. Madison’s nonvoluntarist conception of democracy helps us make this argument. However, not everyone may be persuaded to adopt a nonvoluntarist conception of democracy. In Chapter 6 I shall argue for the democratic legitimacy of international human rights law (and of constitutionally entrenched rights) without assuming a nonvoluntarist conception of democracy.

Madison as a Democrat

Madison is remembered as a theorist of checks and balances, divided powers, federalism, and representative government. He is less often remembered as a friend of democracy. Bernard Manin writes that “for Madison, representative government was not one kind of democracy; it was an essentially different and furthermore preferable form of government.”⁵ With notable exceptions,⁶ this is the prevailing view.

I want to consider a different possibility—that Madison, instead of rejecting democracy, invites us to redefine it. Perhaps we are mistaken about democracy and Madison can set us straight. Madison is committed to popular government, but not on the voluntarist grounds that have come to dominate democratic theory. Preventing the misuse and abuse of power is his aim. “Checks and balances” are the central device—understood not as an “invisible hand” mechanism that renders personal virtue unnecessary to the common good, but as a means of harnessing moral impulses that are distributed among the citizenry at large. They are the core of a civic ethic that extends beyond interbranch relations and federalist arrangements to the construction of civil society, popular political participation and debate, and the act of voting.

Inspired by Madison, we can think of democracy as a system designed to ensure the responsible exercise of power by means of checks and balances, in which popular participation through voting is the most important but not the sole check. In democracy rightly understood, citizens reinforce and enhance one another’s efforts to comply with justice and seek the common good. Realization of the people’s will is not the purpose of democracy. (By the common good, I have in mind outcomes that are beneficial and morally desirable, though not required by justice—for example, a policy that takes a good educational system and makes it even better. Justice takes precedence over but does not exhaust the common good. Both are proper ends of democracy. I shall sometimes use the term “justice” as shorthand for both.)

Like Locke and Rousseau, Madison does not call himself a democrat.⁷ But he earns the title of democrat as that term is now ordinarily used, because he declares himself a friend of popular government and takes it for granted that “the people are the only legitimate fountain of power” (Fed. 49, p. 313). Though he favors republics over democracies (the latter being impossible in any territory larger than a city-state), he defines both as a species of popular government: “in a democracy the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents” (Fed. 14, p. 141). America’s glorious gift to posterity and the world (p. 144) was the discovery that by means of representation governments of large territories (for example, both the individual American states and the contemplated union) could remain “wholly popular” in character (p. 141). Europe originated the principle of representation, but “America can claim the merit of making [it] the basis of unmixed and extensive republics” (p. 141).

Of course, Madison does not idealize the people. He worries about the propensity of popular government to mobilize faction, and he seeks institutional arrangements that will allow a virtuous few, chosen by the people, to carry out the main tasks of government. Yet to call him an elitist is misleading. Though he believes that some people possess more virtue than others, he does not regard virtue as the exclusive property of any class (Fed. 57, pp. 343–44). Public officials should be chosen by the people or their elected representatives, not assigned by heredity. He follows the republican tradition of placing all social classes under suspicion: the rich have their vices no less than the poor.⁸ If the emboldened state legislatures of the 1780s heightened his distrust of the people, his subsequent break with the Federalists and horror at the Alien and Sedition Acts reawakened his fear of arrogant elites. Even in The Federalist (written when the recent excesses of empowered majorities were freshest in his mind), there is a straightforward reason for his preoccupation with majority tyranny that has nothing to do with aristocratic leanings.⁹ The reason is that there is an obvious solution to minority tyranny, namely popular government and majority rule, whereas the solution to majority tyranny is harder to figure out (Fed. 10, p. 125).

Madison illuminates the value and purpose of popular government. Contemporary readers are sometimes bothered by the rude things he says about the people. How can someone with such a dim view of the people believe in their right to govern? But that is precisely the point. Madison does not trust the people, because he does not trust anyone. Or more precisely, he does not trust any collectivity defined by a shared interest or identity. His constant fear is that power will be misused or abused. Participation in government is not a prize to be distributed for our enjoyment, but a responsibility whose burden should be keenly felt. If widespread character flaws threaten the proper exercise of power, those flaws should be constantly kept in mind so that we can more adequately correct and counteract them. Self-distrust, like mutual distrust, is a necessary precondition of good government.

To ensure the responsible exercise of power, we must enlist one another’s help in exposing and correcting our errors. Since partiality hinders perception of our own faults, we need others to help point them out. Mutual criticism protects society, not only by exposing error to public view, but also by encouraging virtue, since to avoid the shame of external criticism and correction, we become more self-critical. Madison embraces what I call the principle of concurrent responsibility, according to which each actor must ensure that all actors (oneself and the rest) exercise their power responsibly. Concurrent responsibility is another name for checks and balances and forms the heart of “Madisonian democracy,” by which I mean the engagement to hold one another accountable in a shared project of crafting and enacting policies that promote justice and the common good.

The reason why concurrent responsibility, or checks and balances, implies democracy is that popular control is the most important of all checks. “A dependence on the people is, no doubt, the primary control on government” (Fed. 51, p. 320). Madison does not pause to defend the claim—perhaps it struck him as obvious.¹⁰ Let us say the following. Because respect for individual rights is the chief element of justice, all individuals must be given a voice. Self-interest makes us vigilant custodians of our own rights. Empathy and a sense of justice as well as self-interest (violations visited on others may be visited on us next) motivate us to protect the rights of others.¹¹ The virtues of empathy and justice receive encouragement when the people can express their views not only through voting but also through voluntary associations and the press.¹² In a thriving and inclusive civil society, new perspectives demand attention; errors are challenged; and those who want to view themselves and be viewed by others as good, fair, and decent must work harder to prove the case. Not least, popular government models the equality and universal respect that are inseparable from the idea of individual rights.

Madisonian Checks and Balances

Though dependence on the people is the primary control on government, “experience has taught mankind the necessity of auxiliary precautions” (Fed.51, p. 320). Most obviously, a majority may perceive a shared interest in oppressing a minority. In Federalist 10, Madison devises a sociological remedy and in Federalist 51 an institutional one. First, construct a polity in which no faction is likely to embrace a majority of the people. Second, divide and disperse power so that public officials can monitor and check each other’s behavior. The latter solution (on which I shall focus for the time being) is the principle of checks and balances. As I stated above, checks and balances should be understood as the “concurrent responsibility” of each actor to ensure that all actors exercise their power responsibly.

Concurrent responsibility is woven into the design of the U.S. Constitution. Members of Congress “and all executive and judicial Officers” take an oath to support the Constitution (U.S. Const., art. VI). If an unconstitutional bill is introduced in the Congress, legislators have a duty to reject it. If passed in one house, legislators in the other must block it. If they do not, the president has a duty to veto it, and if he or she fails to do so, or Congress overrides his or her veto, the federal courts have a duty to declare it unconstitutional.¹³ We can tell similar stories about the concurrent responsibility of the three branches to block unconstitutional acts by the executive and judiciary.

If Congress does its duty, the matter will not come before the president or the courts, but their independent power to block unconstitutional laws in case of congressional malfeasance reminds Congress of its constitutional obligations. Checks and balances thus perform an educative and reforming function. They serve not merely as an insurance mechanism, but as a means of habituating actors into virtuous behavior and thus (in good Aristotelian fashion) making them virtuous. They foster dialogue, thus creating possibilities for mutual learning and assistance as well as mutual supervision. In a constitution of divided powers and mutual checks, John Adams wrote, “a general emulation takes place.”¹⁴

We must stay clear of two persistent confusions, one regarding institutional design and the other regarding the motivation of the parties. The first is an identification of checks and balances with a strict separation of powers scheme in which functionally defined branches enjoy undisturbed authority within their respective spheres. An example of this view is the theory of the unitary executive, supported by a selective (and mistaken) reading of Alexander Hamilton’s Federalist essays, which in its most extreme version holds that the president has sole decision-making power on executive matters.¹⁵

The question is how we should understand the concepts of separation of powers and checks and balances. I do not intend to pit these two concepts against each other, since the meaning of both is what needs to be determined. Theorists often define one in terms of the other, and this is to be expected, because on the most plausible accounts they are functionally related. The question is which model ought to underlie both concepts. For our purposes, I shall distinguish between a “strict separation model”¹⁶ and a “mutual interference model,” and argue for the latter over the former.

Not only is the strict separation model contradicted by numerous provisions in the U.S. Constitution that institutionalize interbranch monitoring and control, but Madison clearly rejects it in his theoretical writings, and for sound reasons. He ties his view to that of Montesquieu, who (Madison tells us) understood the separation of powers as prohibiting only those arrangements in which “the whole power of one department is exercised by the same hands which possess the whole power of another department.” Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other” (Fed. 47, p. 304, emphasis in original). What is required is a modified rather than strict separation of powers.

Strict separation is impossible in practice: “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained” (Fed. 48, p. 308). An unmodified separation of powers leads to its own collapse. But the purpose of mutual controls is not merely to preserve a partial separation between the branches. As the discussion in Federalist 48 of Pennsylvania’s recent troubles makes clear, their purpose is to prevent constitutional violations in general, including violations of individual rights.

More worrying to Madison than the blurring of functional boundaries is the concentration of power itself. The “encroaching nature” of power (Fed. 48, p. 309) means that no department should acquire disproportionate strength. The early history of the American states had convinced Madison that, in republics, “the legislative authority necessarily predominates” and should therefore be divided in two (Fed. 51, p. 320). Soon after the federal union was created, he learned to fear the power of the executive branch, and adjusted his constitutional strategy accordingly.¹⁷ His interest in devising cross-departmental checks, evident at the Philadelphia Convention, persisted after the national constitution was drafted. In 1788 he recommended that Virginia adopt a “Council of Revision” drawn from members of the executive and judiciary branches with the power to veto “precipitate,” “unjust,” or “unconstitutional” laws passed by the state legislature.¹⁸

Separation of powers is not an end in itself. The reason not to combine legislative and executive power, Locke and Montesquieu argued, is that officials could otherwise enact oppressive legislation, serene in the knowledge that it would not be applied to themselves.¹⁹ Virtuous government involves distinct tasks: enactment of good laws and faithful interpretation and enforcement of the law. While some division of labor is necessary, so that each task is carefully distinguished and thus conscientiously carried out, the overall enterprise is cooperative in nature, and the separate branches can help each other fulfill their duty. An outsider’s perspective may more easily identify errors and abuses, while the consciousness of external monitoring encourages scrupulous performance of each task. Note that some interbranch independence is necessary for these checks to remain in place. Madisonian checks and balances entail mutual interference between the branches as a necessary precondition for virtuous government.

The second confusion to be avoided is an overly “adversarialist” reading of Madison’s theory of checks and balances. I have in mind the attribution to Madison of the view that, given the right institutional setting, virtuous motivation is not needed to steer political actors to just and wise policies. In the following paragraphs, I first comment on adversarialism and remind readers that it is not Madison’s view, and then argue that implicit in his actual view is a call on citizens and officials to intensify rather than relax their sense of individual moral responsibility.

Adversarialism is the belief that, in certain contexts, the vigorous pursuit of one’s self-interest leads by an “invisible hand” to the common good. While some applications of the theory are true, many are not. Too often, it becomes a license to engage in predatory and exploitive behavior with a clear conscience. Thus encouraged, corporate lobbyists deceive public opinion and obtain legislative favors, politicians mislead voters and rouse or pander to unreasonable passions, citizens demand pork barrel appropriations and low taxes, advertisers manipulate consumers, cartels block competition, businesses resist health and environmental regulations, corporations use scorched-earth legal tactics to protect or increase profits, employers exploit workers, powerful countries bully weak ones, and prosecutors use extortion and deceit to maximize convictions. The adversarialist theory is not the only source of these practices, but it lends them powerful support, loosening the restraints of conscience and distorting our moral compass. Harmful practices are conducted openly, without embarrassment—sometimes indeed with righteous satisfaction, as vice assumes the mantle of virtue.

Invisible hand arguments that convert self-interest or adversarial contest into public good earn our trust when their causal mechanisms are clearly explained, their enabling conditions fully recalled, their claims carefully tested, and their limits duly noted. These requirements are often evaded, however, as we succumb to the counterintuitive charm and flattering convenience of the central idea. A theory that yields important insights when properly circumscribed propagates harmful myths when reduced to a simple form. Background conditions on which the logic depends (for example, free entry and full information in the market context, equality of arms in the legal context, a shared recognition that certain strategies are off-limits) are forgotten, or it is forgotten that their preservation requires other than self-interested motives. When the theory becomes ideology—when it is imposed on rather than tested by experience—pathologies appear. The costs of generalized self-interest go unseen (because they do not fit the theory) or even cease to be regarded as costs. (Social Darwinism is the extreme example of this tendency.) A Panglossian circularity enters our reasoning. The result is that our characters are warped—our ends altered, and habits of self-restraint (on which most valid forms of the theory depend) eroded. Vice parades as virtue, while true virtue is mocked as self-indulgent preening. Responsibility is dissipated, because the “system makes everything turn out all right.”

The adversarialist reading of Madison draws on the famous passage in Federalist 51 arguing that, since men are not angels, a well-designed constitution uses “opposite and rival interests” to supply “the defect of better motives.” “Ambition must be made to counteract ambition,” Madison writes. “The interest of the man must be connected with the constitutional rights of the place.” Offices should be arranged in such a manner that “the private interest of every individual may be a sentinel over the public rights” (Fed. 51, pp. 319–20). We should not misconstrue these remarks, however.

Hume held it “a just political maxim that every man must be supposed a knave.”²⁰ Montesquieu argued that no republic could survive without virtue.²¹ On this question, Madison sides with Montesquieu. His Federalist essays are saturated with references to virtue. His constant fear is that men of deficient virtue will be chosen for positions of political authority, and this in fact becomes one of his main arguments for an extended republic in Federalist 10. His adherence to Montesquieu is made plain in the conclusion to Federalist 55:

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. (p. 339)

In the Virginia ratifying convention, he rebuked the adversarialist conceit in the clearest terms:

I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.²²

These words echo the assertion in the 1776 Virginia Declaration of Rights that “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.” I find no hint in Madison’s writings that the effort to be virtuous may ever be relaxed. Deviations from angelic motivation and understanding are to be expected and planned for, not celebrated or encouraged. The view, widespread in contemporary American political culture, that self-interest legitimately determines the political choices of citizens, candidates, and elected officials is wholly opposed by his theory.

Madison writes in the peroration of Federalist 51: “Justice is the end of government. It is the end of civil society” (p. 322). I take it that this is the attitude proper to citizens and officials, not just those watching from the outside. We should elect representatives “whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice” (Fed. 10, p. 128) and “whose patriotism and love of justice will be least likely to sacrifice [the interest of their country] to temporary or partial considerations” (p. 126). We should reject “Men of factious tempers, of local prejudices, or of sinister designs” who “may by intrigue, by corruption, or by other means first obtain the suffrages and then betray the interests of the people” (p. 126). In Federalist 57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust” (p. 343).

When Madison writes, “No man is allowed to be judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity” (Fed. 10, p. 124), he implies that the attitude appropriate to elected officials and the citizens who choose them is that of an impartial judge, seeking only to attain a just outcome as determined by the rights of all parties: “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?” The task of Federalist 10 is to devise a system that selects political officials genuinely motivated by justice and that minimizes their temptations to deviate from justice.

Let us note that Madison’s preoccupation with justice is by no means limited to the rights of property. The man who wrote the “Memorial and Remonstrance Against Religious Assessments,” drafted the Bill of Rights, and sought to mobilize state resistance against the Alien and Sedition Acts is animated by a far broader conception of human dignity. In the ringing defense of unalienable rights that concludes the 1785 Memorial (a passage Lance Banning calls the most explicit statement of “the consistent core of fundamental principle that guided him through all the turns of his career”),²³ Madison invokes freedom of the press and trial by jury but not property. Property may receive the emphasis Madison gives it in Federalist 10 because recent economic conflicts raised its salience in readers’ minds. Even in the warning against majority tyranny that concludes Federalist 10, however, fear of religious persecution is mentioned before fear of paper money (p. 128). Madison does not favor unlimited accumulation of wealth, and he retains the traditional republican fear of sharp economic divisions. In 1792 he argued that the spirit of party faction should be combated by (among other means) opposition to “an immoderate, and especially an unmerited, accumulation of riches” and “by the silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort.”²⁴ We should take Madison at his word when he claims his primary allegiance is to justice.

If his conception of justice is in some respect mistaken, we should correct it, as he himself would desire. He would hardly claim immunity from the forces that distort opinions about justice. (Madison’s compromises with slavery—he did not free his own slaves, sold some of them to another master, and although professing opposition to slavery argued that the solution lay in the removal of freed blacks to Africa—are a reminder that he was all too fallible.)²⁵ In his preoccupation with human fallibility and his belief that a well-designed political system rescues collective deliberation from the worst effects of interest and passion, we see a hint that our understanding of justice can improve over time. Madison suggests that constitutional democracy is conducive to moral progress. I find his political philosophy hard to reconcile with theories of constitutional interpretation that wed us to understandings of moral and political concepts prevalent at the time of ratification.²⁶ As Justice Kennedy writes of those who drafted the Due Process Clause in the Fifth and Fourteenth Amendments, they did not presume to know “the components of liberty in its manifold possibilities,” for “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”²⁷

The sources of human fallibility are complex. Our political judgment is warped by self-interest, ambition, pride, opinion, religious zeal, and personal loyalties.²⁸ These give rise to factional allegiances so intense that we often prefer to harm our adversaries rather than seek mutual advantage (Fed. 10, p. 124). It is not enough to be motivated by justice. We may be taken in by the noble rhetoric of cynical leaders.²⁹ More important, our opinions about justice are distorted by self-interest and pride: “As long as the connection subsists between [man’s] reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves” (pp. 123–24). In addition, the intrinsic difficulty of political questions (emphasized in Fed. 37) renders inevitable the emergence of deep-seated disagreement, which self-interest and pride easily fan into mutual animosity and distrust.³⁰

Avowed self-interest is not the main issue. Rather, self-interest is one of several motives that distort our judgment. The antisocial motives are often disguised as demands for justice. This is a problem—the antisocial motives are harder to unmask—but also an opportunity—we find ourselves arguing about justice, and thus potentially in a position to be influenced by reason.

We should strive ever harder to comply with justice. We are not angels, however, and humility requires acknowledgment of our imperfection. Virtue is proven by our acceptance of checks that raise the standard of our deliberations.

Why does Madison say that “ambition must be made to counteract ambition” and that “the private interest of every individual may be a sentinel over the public rights”? (Fed. 51, pp. 319, 320). I propose the following account. Under a well-designed constitution, officials chosen for their virtue and wisdom are pledged to uphold the constitution, defend justice, and seek the common good. Seeking a reputation for public probity and effectiveness, they have reasons of pride and political ambition as well as duty to honor their commitment. Scrutiny by an informed electorate and by the independent branches raises the level of performance needed to maintain a favorable reputation. It is to be expected, moreover, that officials will form some identification with their own department. Conscious of its contributions to the public order, and eager to demonstrate their personal abilities, they will have self-interested as well as principled reasons to resist improper encroachment on their constitutional responsibilities. Ambition thus sharpens their perception of their rivals’ misdeeds. But any claims made against the other branches must be presented on impersonal legal and moral grounds. Conscientious officials will internalize this requirement, impartially evaluating the counterclaims of the rival branches, and asking themselves whether their own arguments are truly sound. Ambition and interest contain a moral element: we can take pride in satisfying high moral standards, while interest makes us sensitive to injustices that others inflict on us. Madisonian checks and balances harness the moral side of interest and ambition as one strategy among others to heighten our sense of moral responsibility. Madison’s view is the opposite of the adversarialist position with which it is often confused.

Constitutional theory has become a haven for two fallacies—the adversarialist conceit that a well-designed system reliably directs self-interest to the public good, and the related institutionalist conceit that a well-designed system will yield good results without the determined efforts of the parties. Madison emphatically rejects both: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” If the people be not virtuous, “No theoretical checks—no form of government can render us secure.”³¹ The Constitution is not a “machine that would go of itself.”³² It is not a machine at all. It is a mutual commitment to seek justice and the common good, in which we not only pledge our own efforts to that end but hold one another accountable for doing the same. Recognizing our imperfection, we employ one another to correct our errors, but external oversight does not relieve us of the burden of striving to act and judge as justice requires. When Senator Arlen Specter voted for the 2006 Military Commissions Act despite his belief that its denial of habeas corpus to military detainees “was patently unconstitutional on its face,” stating as his excuse that the Supreme Court “will clean it up,” he was led by a false constitutional morality to violate his constitutional oath of office.³³ Waiting for the Supreme Court to clean up our mess was never Madison’s idea of checks and balances.

Madisonian Democracy

Democratic theorists often locate the value of popular government in the empowerment of the people’s will. To let the people decide public policy is to realize the good of self-government or public autonomy. Madison takes a different approach. On his view, popular government is an indispensable means to justice. Because it is not sufficient, however, “auxiliary precautions” are needed. He supports a combination of popular government and other institutions that are collectively needed to secure justice. Constitutional democracy is the term we now use for this arrangement. (Of course, there are also non-Madisonian arguments for constitutional democracy.)

We can agree with Madison that the purpose of popular government is to secure justice without binding ourselves to his own conception of justice. For example, we can insist more clearly than Madison that justice requires equal universal adult suffrage. (The mature Madison moved toward endorsement of universal adult (white) male suffrage, but continued to show some sympathy for the argument that only property holders should be allowed to vote for the upper house.)³⁴ To deny some adults an equal vote is an affront to justice, because it denies their status as equal members of the community, entitled to an equal voice. Principled support for equal universal suffrage can be fitted into a “Madisonian” conception of democracy. It is different from saying that the purpose of popular government is the realization of the people’s will, because (1) equal universal suffrage forms only one element of the larger end of justice, and (2) the purpose of political power, in whosever hands it is placed, is to secure justice.

Why not say that the purpose of popular government is public autonomy or the realization of the people’s will, regarded as an end in itself? I believe that references to public autonomy or the people’s will obscure the central fact that popular government, like all forms of government, is a system of rule. Popular government is not continuous with individual autonomy, because some people are obligated to obey rules they do not in fact agree with. The stakes are high, every decision produces winners and losers, and the potential to harm others unjustly is always present. It is hard to believe that choice is a value when the choice being exercised affects the vital interests or decides the fate of other people. What is valuable is the avoidance, by means of the correct choice, of injustice or misfortune.

If we are honest, popular government always entails rule over others.³⁵ The use of the term “self-government” as a synonym for popular government is enormously misleading.³⁶ Because decisions must be made, minorities must defer to majorities. There is not enough role-switching to lend this practice the semblance of self-government even over the long term. Decisions are continually made regarding specific groups of people—farmers, factory workers, teachers, welfare recipients, homeless people, drug addicts, and so on—by people who do not belong and do not expect to belong to the affected categories. Even if we grant the fiction of a collective “self,” there is a vast range of policy making that still cannot fall under the description of self-government. It is not self-government when countries undertake foreign policy, or adopt policies affecting children, or future generations, or animals, or the rest of nature. In an interdependent world, moreover, externalities loom large: our decisions affect outsiders even when the outsiders do not enter our thinking. A domestic energy or industrial policy, or lack of such a policy, may exacerbate global climate change, causing catastrophic floods and droughts elsewhere in the world, or the loss of agricultural lands and densely populated areas, even entire countries, to rising seawaters. Domestic deliberations on such matters cannot be termed an exercise in self-government. And this is not even to mention the effects on children, future generations, animals, and the rest of nature.

When we realize that popular government is not self-government, we ought to be nervous about its legitimacy. What gives the people the right to govern if their decisions reach far beyond themselves? The answer is that popular government offers necessary protection against the unjust and unwise use of power. Once we have enunciated this thought, however, we are reminded that the people can abuse power, too: a majority can mistreat a minority, and a community can mistreat outsiders. Additional protections are needed to forestall these dangers. We might say that the “auxiliary precautions” are the security the people must offer in exchange for their necessary but also dangerous exercise of political power.

This is a nonvoluntarist conception of democracy. The point of popular government is not to realize the people’s will (whether taken as given or refined through deliberation) but instead to foster just and wise policy. Democracy is a system designed to ensure the responsible exercise of power by means of checks and balances, with popular participation through majority voting serving as the most important check, but not the only one. Justice and the common good, not self-interest or group interest, should determine the political choices of citizens and officials alike. Of course, citizens should be on guard against policies that would cost them unjustly; our talent for identifying such policies is one of the principal reasons for democracy. However, we should always strive to distinguish between those personal costs that justice forbids and those that it permits or even requires. We may advocate our interests as far as justice and the common good permit, but no farther. Virtuous citizens in a democracy strive to honor the distinction and help one another do the same.

A venerable tradition in democratic theory has sought to reconcile the concepts of popular government and justice. The true will of the people (on this view) is that which can receive everyone’s reasonable consent, and to pass such a test is to comply with the demands of justice. Rousseau’s Social Contract is a classic statement of this argument, but it echoes among many heirs to the social contract tradition. The emphasis that democratic theorists often place on reciprocity as a norm of collective decision making—rotation of office, a general will that abstracts from the particular will, public reason, orientation toward consensus, inclusive deliberation—may be seen as an attempt to yoke collective will formation to the demands of justice. I agree that we should support institutional devices that steer public deliberation toward justice (indeed, that is what I am arguing). I think it is wisest, however, to keep justice analytically distinct from the popular will. We otherwise run the danger of misrepresenting the people’s will to make it conform to justice, or redefining justice to fit the people’s will. The strain is evident in Rousseau’s argument. We all know that the actual will of the people easily diverges from justice. If we turn from actual to hypothetical consent—that is, what it would be reasonable for the people to consent to—it is difficult to define “reasonable” without importing norms of justice (reached independently of the people’s will). When we recall that justice also governs our treatment of those not included in the deliberative process—foreigners, children, future generations, animals, and the rest of nature—it becomes still harder to posit a conceptual identification of justice with the popular will.

One possible response to this line of argument is that since justice is a contested concept, we must refer the question of its meaning and application and weight relative to other values to a process of political deliberation. Such a view (though widespread in contemporary political theory) carries epistemic modesty too far. It does little good to pretend that we (you and I) know nothing about justice. Even though our understanding can be improved—and public debate is necessary for its improvement—we already know a great deal. We know that justice requires respect for human rights (under a conception not too distant from that of the Universal Declaration of Human Rights), respect for the rights of animals (implying, at a minimum, the prohibition of systematic cruelty to animals undertaken to maximize economic profits), and abstaining from policies that consign future generations to conditions of life significantly worse than our own. (Of course, we know much more about justice than these minimal propositions.)³⁷

The question that should guide the citizen’s political choices is not what do I want?, or what do we want?, but instead, what does justice require? (And to the extent that justice is not at stake, what does the common good, broadly understood, require?) Of course, you may be mistaken about what justice requires. Because your opinion is fallible, you should reexamine it and expose it to the force of other people’s criticisms. A well-designed political system encourages critical reflection on our views regarding justice. It also strives to ensure that the policies actually adopted will be just. Madison’s constitutional theory is a major contribution to the science of designing such institutions. It would be a mistake, however, to say that the outcome of any constitutional process is just by definition. True regard for justice forbids any such complacency. In a proper checks-and-balances system, justice remains an independent standard for evaluating any policies proposed or adopted.

Some people may deny that Madison really articulates a theory of democracy. But why not? It is true that he defends popular government mostly as a means rather than an end, yet he regards it as an indispensable means. His commitment to popular government is firm.

Some may argue that Madison is less than democratic because he believes that laws should be made by the people’s chosen representatives rather than the people themselves; because he expects that (at least in the federal union) elected representatives on average will be superior in virtue and wisdom to the people at large; and because he wants representatives to develop a perspective partly independent from that of their constituents, even though the latter, at periodic intervals, can remove them from office.

Are such views undemocratic? Not according to contemporary usage, for we now take it for granted that in “democracies” laws are made by the people’s representatives, and the idea that the people should choose representatives of better than average character and judgment is viewed as common sense rather than as a rejection of democracy. Yet some argue that contemporary usage has gone astray, that if we recall the original meaning of the word, we should at least acknowledge that the move from direct to representative democracy is a move toward less democracy. My goal has been to show that this view is not obligatory—that, with help from Madison, we can think about democracy in a different way. The inclination to view representative democracy as less democratic is part of a general inclination to view any impediment to the people’s will as a diminution or limitation of democracy. We can shed this assumption if we think that the purpose of popular government is to secure justice. Popular government is necessary, but the reason why it is necessary is the reason why a robust system of checks and balances is also necessary. If our goal as a people is justice, we will insist on holding power and also insist on a system of limits, restraints, separations, divisions, checks, revisions, and vetoes to block unjust policies. We do so because we appreciate both our capacities and our limitations, and recognition of our limitations is one of our capacities. Because this theory firmly commits us to popular government, because it articulates a rationale for constitutional systems that contemporary ordinary (that is, nonacademic) usage considers “democratic,” and because it provides a superior account of political legitimacy, we are permitted to say that it gives us the true meaning of democracy. (I know that some readers will persist in saying that I am making an argument to reject rather than redefine democracy.)

This conception of democracy (inspired by Madison) does not envisage a passive or docile citizenry. The quest for justice is no less demanding or inclusive than the articulation of the people’s will. There is a need for communication, information, criticism, debate, airing of multiple perspectives, reflection, and revision. Difference becomes a resource rather than a complication. A free media and vigorous civil society, supported by a strong educational system, help complete the constitutional order. They train their gaze not only on the political sphere but also on areas of social life where political institutions do not and sometimes should not intrude. What is needed above all is a critical posture toward oneself and others, a moral alertness. Hence the need to institutionalize challenges from those who are differently situated, including minorities, and to stand ready to offer an account of oneself. Madison writes, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob” (Fed. 55, p. 336). Socrates says the same in Plato’s Apology, when explaining why he could not continue to participate in politics without sacrificing his integrity. Like Socrates, Madison fears that in large assemblies group sentiment will replace individual judgment and conscience will fall asleep.³⁸ Responsibility is dissipated in crowds. Though respect for character may be a strong motive in individuals, “In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame.”³⁹

Madison rejects direct democracy because he views it as impractical on anything other than a local scale, where parochialism and group think pose grave dangers to justice, and because he cannot imagine how to supply the necessary checks against majority tyranny. He also thinks that many adults lack qualifications to decide complex policy questions; they are better able to choose suitable lawmakers than to make laws themselves. Though he recognizes the problems of direct democracy, he appears less alert to those of representative democracy. He should have known better than to assume that in a system based on geographic representation, voters would choose lawmakers “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” (Fed. 10, p. 126). Experience has proven what common sense would predict. When representatives are beholden to geographic constituents, who are not institutionally constrained to justify their preferences to other citizens, parochialism asserts itself with a vengeance and lawmakers are under pressure to flout justice. Direct democracy at least has the advantage that all citizens are present to challenge one another’s demands. One attempt to address this dilemma is the consensus model of democracy, which by stipulating that government policy should secure the widest possible agreement seeks to raise the standard of public justification.⁴⁰ Some of the devices characteristic of this model (bicameralism, judicial review) are familiar to American citizens, others less so (proportional representation, multiparty systems, coalition cabinets, multiparty appointment of judges). Political scientists debate the merits of the consensus model of democracy, but it deserves our attention as one attempt to remedy the deliberative defects of geographic representation.

Madison’s Cosmopolitan Republicanism

Other commentators have noted the cosmopolitan logic implicit in Madison’s thought.⁴¹ By “cosmopolitanism,” I mean support for international institutions that constrain national policy in the interest of justice and the common good. Of course, Madison does not expound the idea; he does not follow his thought to its logical conclusion. This is unsurprising, for international institutions did not exist at the time, and it took the genius of Kant to theorize their possibility.⁴² (Kant’s “Perpetual Peace” appeared seven years after The Federalist.) Yet Madison’s thought points unmistakably in a cosmopolitan direction.

Madison’s cosmopolitanism springs from three sources: his support for cooperative solutions to otherwise insoluble problems, his commitment to avoiding injustice toward minorities (tyranny of the majority), and his commitment to avoiding injustice toward outsiders.

Madison (writing in 1788) believes that closer political integration of the American states is necessary, because it offers security against foreign danger and against “contentions and wars” among the states, and because it guards states against “violent and oppressive” internal factions and against military establishments poisonous to the foundation of liberty (Fed. 45, pp. 292–93). To object in the name of the sovereignty of the individual states is to make a fetish of particular institutions, no wiser than the old attitude that “the people were made for kings, not kings for the people” (p. 293). “Peace, liberty, and safety” should not be sacrificed so that the governments of the individual states “might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty.” Instead, “the public good, the real welfare of the great body of the people, is the supreme object to be pursued,” and “no form of government whatever has any other value than as it may be fitted for the attainment of this object” (p. 293).

Madison’s views are worth keeping in mind today when the world’s safety, freedom, and welfare are imperiled by global climate change, weapons of mass destruction, and financial interdependence. Our response must take the form of close international cooperation, with institutional mechanisms to ensure that countries honor their commitments. We now have many generations’ worth of experience with international institutions and understand that their benefits could not have been secured by other means. If thicker international institutions are the rational solution to looming disaster, emotional attachment to strong state sovereignty must not bar the way.

Madison has no patience for institutional inertia. The spirit of innovation, informed by reason and experience, is famously celebrated in Federalist 14. “Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.” The glory of the people of America is “that, whilst they have paid a decent regard to the opinions of former times, and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience” (Fed. 14, p. 144). In Federalist 49 Madison warns against frequent invitations to constitutional transformation, as destabilizing, dangerous, and unnecessary. This does not contradict the clear implication of Federalist 14 that revisions should be undertaken when circumstances require.

It may be objected that Madison’s argument depends on a sense of national belonging, which gives us reason to support national integration but to resist the cosmopolitan project. It is true that in Federalist 14 (from which I have just quoted) and Federalist 45 appeals are made to a shared American identity. Madison writes that “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union and excite horror at the idea of their becoming aliens, rivals, enemies” (Fed. 14, p. 144; see also Fed. 45, p. 293). But we do not have to choose: cosmopolitanism, as I use the term, does not imply the disappearance of the nation-state. It envisages international institutions that constrain national policy for the sake of justice and the common good. In fact, as I argue in my next chapter, some cosmopolitan goals may prove unattainable without the preservation of the nation-state.

We should also recall the purpose of Madison’s remarks. Responding to those who think a federal union is impractical, he argues that a sense of national identity (recently reinforced by the shared sacrifice of the War of Independence) is sufficient to guarantee the enterprise. He does not claim it is necessary. It is worth noting that appeals to national belonging take up very little space in his Federalist essays. His case for the federal union rests on justice and the need to solve shared problems. Nowhere does he say these reasons are insufficient to motivate action, and the view should not be imputed to him. Unlike Hamilton, moreover, he is not guided by a desire for national self-assertion.

The second source of Madison’s cosmopolitanism is his fear of majority tyranny. The perennial threat to justice is faction, defined as any majority or minority group “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” (Fed. 10, p. 123). Republican government solves the problem of minority faction but not that of majority faction. Madison’s famous solution to the latter involves the geographic redistribution of decision-making authority. His epiphany is that majority faction is disarmed in large republics, because factional interests and passions are less likely to command a majority, and, if they do, coordinated action is more difficult (p. 127). Where force of numbers no longer avails, rational persuasion must be tried instead. “In the extended republic of the United States, 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” (Fed.51, p. 322). In a large and heterogeneous republic, there are enough parties with critical distance from sectional disputes to constitute an impartial judge. Let us call this the sociological argument.

Madison’s pessimism about small republics can be severe. Rhode Island is doomed to majority tyranny or dictatorial usurpation unless it joins a federation (Fed. 51, p. 322). It must choose between complete independence (strong sovereignty) and republican government; it cannot have both. Without the federal union, we lack a “disinterested and dispassionate umpire in disputes between different passions and interests in the state.”⁴³ Not only does the extended republic create the possibility of an impartial judge, but the Constitution, recognizing the fragility of republican institutions at the state level, provides formal guarantees. Under Article IV, “the United States shall guarantee to every State in this Union a Republican form of Government,” while under Article I, Section 10, no state shall “pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Although these rights are promised in most state constitutions, “Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted” (Fed. 44, pp. 287–88). Chief Justice John Marshall called Article I, Section 10 “a bill of rights for the people of each state.”⁴⁴ The Constitution is, among other things, an early human rights treaty.

The importance of the sociological argument cannot be overstated. Critics of Madison’s checks and balances model have faulted him for not anticipating the rapid emergence of party politics—which, ironically, he took a lead in creating not long after The Federalist appeared. But I think Madison in The Federalist is aware of the danger. His very awareness that no system of checks and balances is foolproof causes him to make his last stand with the sociological argument. On it depends the success of his project. Hence his fear that constitutional checks and balances are insufficient to prevent majority tyranny in the unfederated states; his belief that territorial enlargement is the main reason why faction becomes less dangerous in republican than in democratic government;⁴⁵ and his decision to conclude Federalist 51, the locus classicus of his institutional checks and balances argument, with a recapitulation of Federalist 10.

The sociology of Federalist 10 must be updated, however. Let us admire The Federalist without pretending that time stopped in 1788. Madison himself predicts the growing homogenization of the United States: “increased intercourse among [citizens] of different States … will contribute to a general assimilation of their manners and laws” (Fed. 53, p. 329). This admission, damaging to the argument that the diversity of an enlarged republic will allow rational discourse to replace factional dominance, should have set alarm bells ringing in his head. Of course, the succeeding centuries have effected deeper transformations than he could ever imagine. Today, mass parties, instant communications, modern broadcast technology, and the concentration of enormous economic and media power in a few hands allow political mobilization to quickly outrun rational discourse, and they make it all too easy for majority and minority factions to seize control of the policy process. In addition, the national security state has concentrated vast unchecked powers in the executive branch. In such an environment, individual rights, justice, and the common good are easily overwhelmed.

The conditions that in Madison’s time threatened justice in direct democracies and small republics are today reproduced and exacerbated at the national level. To ignore this problem is to risk the fate of Rhode Island. Federalist 10 teaches us to seek help from the outside. In our own time, Madisonian constitutionalism calls for international oversight of national policy—in other words, the creation of a strong international human rights regime. Under such a regime, national policy is monitored by those with both the institutional and psychological independence, the means and the motive, to act as an impartial judge. International monitoring not only offers an additional check against injustice, but provides needed reinforcement for domestic checks and balances.⁴⁶ Of course, the monitors must be guided by a genuine commitment to human rights, and the regime must incorporate mechanisms of mutual accountability to prevent corruption and political manipulation.

I argue in the next chapter that the transnational human rights regime developed in Europe over the last seventy years offers a model of how such a regime might be constructed. The United States can learn from Europe’s example. I do not wish to be misunderstood: there are obvious differences between an international human rights regime and the kind of compound republic that Madison aimed to achieve by means of a closer union of the original American states. An international human rights regime (of the kind found in Europe) is unlike a national government, because it lacks its own legislature and military or police apparatus, and because its mandate extends only to human rights rather than the much wider set of purposes entrusted to national governments (though as in Europe it may be enmeshed in regional organizations exercising broader governance responsibilities). However, it provides the advisory, admonitory, deliberative, and adjudicative functions that Madison argued in Federalist 10 and 51 were necessary for the promotion of justice. It rests on Madisonian principles of wise constitutional design.

Because of his commitment to justice, Madison is pledged to the rights of outsiders. This is the third source of his cosmopolitanism. The third, fourth, and eleventh Vices of the Political System of the United States are, respectively, “Violations of the law of nations and of treaties,” “Trespasses of the States on the rights of each other,” and “Injustice of the laws of the States.”⁴⁷ The rights of minorities and outsiders are closely connected; both groups stand as outsiders to legislative majorities with the power to dispose of their fates. In discussing the “Injustice of the laws of the States,” Madison comments: “Is it to be imagined that an ordinary citizen or even an assembly-man of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.?”⁴⁸ Madison wrote to George Washington on April 16, 1787, that in the absence of institutional reform “the States will continue to invade the national jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest.”⁴⁹

The legal education of the time was steeped in the law of nations, and Federalists held it in highest regard. They were alarmed to see widespread violations of the law of nations by individual states under the Articles of Confederation, and viewed the prevention of such violations as one of the chief purposes of the Constitution.⁵⁰ When presenting the Virginia Plan to the Constitutional Convention, Edmund Randolph listed among the defects of the Articles “that they could not cause infractions of treaties or of the law of nations, to be punished.”⁵¹ Madison’s first question in response to the New Jersey Plan was:

Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole.⁵²

John Jay asserted in Federalist 3 that “it is of high importance to the peace of America that she observe the law of nations towards [foreign] powers” (p. 95).

Madison glimpsed the need for transnational oversight to restrain transnational injustice. He wrote in Federalist 63 (p. 369): “What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?” In describing the problem, Madison reveals the solution: the relevant policies should be evaluated “by the unbiased part of mankind.” He writes in the same passage that “in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.”⁵³ And in Federalist 43, he allows himself to hope that the federalist solution to interstate conflict might find an international analogue:

In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! (p. 283, emphasis added)

Madison’s cosmopolitan intimations are remarkable because they predate the creation of international institutions that could serve as a model, and because his fear of the injustices America may inflict on outsiders long precedes its rise to global hegemony. In our own time, when the problem is incomparably more grave and the path to a remedy easier to discern, Madison’s cosmopolitan reasoning should be carefully heeded.

Do international institutions suffer from a democratic deficit? (For if so, the cosmopolitan and democratic readings of Madison may be in tension with each other.) I argue in Chapter 6 that international human rights institutions, like constitutional bills of rights, do not subvert democracy because they bar policies that governments should not consider anyway. What about international institutions that address issues of justice and the common good beyond human rights? The question may be too complex to admit a straightforward answer. On the one hand lie fears that decision-making power is delegated to supranational bodies too little dependent on the popular will, and that participation may be extended to nondemocratic governments that do not allow popular input at all. On the other hand lie arguments that in democratic states the people in fact exercise some control over international institutions, and that international institutions remedy a democratic deficit inherent in a Westphalian system, namely, the ability of states to affect the lives of outsiders without the latter’s consent. Exploration of this important controversy, however, lies beyond the scope of this book.

It is customary to cite Kant as a source of cosmopolitan thought. I close with the suggestion that Kant’s essay on “Perpetual Peace” and Madison’s Federalist essays provide a necessary complement to each other. Madison theorizes a compound republic in which the union can harness the critical energies of its component parts to check injustice. But the main part of his theory is constructed within a national frame. He intimates but does not render explicit the cosmopolitan tendency of his thought. Kant theorizes the possibility of international institutions, yet his understanding of such institutions is circumscribed. For example, he grasps that lasting peace depends on the emergence of republican constitutions, but does not call on international institutions to encourage the emergence or guarantee the preservation of such constitutions. The closest he gets to the topic is to state his categorical opposition to the forcible interference by one nation with the constitution and government of another.⁵⁴ Kant and Madison supply the missing elements of each other’s vision. Kant shows that countries can form not only treaties but also international institutions to promote peace and justice. Madison shows that separate polities can create an overarching structure that consolidates and promotes republican institutions at the unit level.⁵⁵

The lesson to be drawn from a careful reading of Madison’s political theory is that democratic states should help one another live up to their constitutional commitments. How this idea might be implemented in practice is the subject of my next chapter.