Acknowledgements

Note to the Reader

Introduction

1 Publius—A Split Personality?

2 Majority Rule and the Extended Republic Theory of James Madison

3 Separation of Powers and the Madisonian Model: A Reply to the Critics

4 James Madison and the Principle of Federalism

5 The Supreme Court, Judicial Review, and Federalist 78

6 Due Process, Liberty, and the Fifth Amendment: Original Intent

7 Abortion and the American Political Crisis

Suggestions for Further Reading

I would like to express my appreciation to the following individuals and organizations for making this work possible. James B. Williams, Michael Jackson, Roland Gunn, and Pamela Sullivan, over the years, have read and critically commented on one or more of the selections that follow. Needless to say, I have benefitted from their criticisms. David A. Bovenizer is due special thanks for lending his deft editorial hand to the completion of this book.

The substance of the chapters that follow first appeared in article form in various journals, although I have significantly revised some of them. I would like to thank Donald P. Kommers, editor, Review of Politics, for permission to incorporate “Publius—A Split Personality?” (January 1984); George Panichas, editor, Modern Age, for “Majority Rule and the Extended Republic Theory of James Madison” (Winter 1976) and “The Supreme Court, Judicial Review, and Federalist Seventy-Eight” (Fall 1974); the American Political Science Association for “Separation of Powers and the Madisonian Model: A Reply to the Critics” (American Political Science Review, March 1978); James McClellan, editor, Benchmark, for “James Madison and the Principle of Federalism” (January–April 1987) and “Liberty and the Fifth Amendment: Original Intent” (Fall 1990); and James P. McFadden, editor, Human Life Review, for “Abortion and the American Political Crisis” (Winter 1977).

The generosity of the Earhart Foundation, Ann Arbor, Michigan, and the Institute for Educational Affairs, Washington, D.C., provided me with the opportunity to complete major sections of this work. I am deeply grateful.

Finally, I owe a special debt to James McClellan. In his capacities both as Director of the Center for Judicial Studies and now as Publications Director for Liberty Fund, he has been a source of inspiration and encouragement.

January 1995	George W. Carey
	Georgetown University

Throughout this book all references to The Federalist are to the student edition edited by George W. Carey and James McClellan (Dubuque: Kendall/Hunt, 1990). The parenthetical citations in the text refer to essay number and page except when the essay number is evident from the discussion.

The following abbreviations have been used in the parenthetical citations in the text of chapter 1, “Publius—A Split Personality?” SP refers to Alpheus T. Mason’s article, “The Federalist—A Split Personality,” American Historical Review 57 (1952); TF, to Gottfried Dietze’s The Federalist: A Classic on Federalism and Free Government (Baltimore: Johns Hopkins Press, 1960); and DP, to Douglass Adair’s article, “The Authorship of the Disputed Federalist Papers,” reprinted in Fame and the Founding Fathers: Essays by Douglass Adair, ed. Trevor Colbourn (New York: W. W. Norton, 1974).

While the essays that follow are addressed to different aspects of our constitutional order and operations, there is an underlying unity to them. The principal source of this unity takes the form of a reaction to a revisionist school of thought, now dominant in academia, that has sought in various ways to disparage our Founding Fathers and their handiwork. Because so much of what I say in the following selections presupposes an understanding of the development and major tenets of this school of thought, I will examine it and the consequences that have flowed from its “teachings” at the outset.

For several decades now, since the early 1900s to be exact, the Constitution has come under increasingly severe and sustained attack for what is alleged to be its “undemocratic” character. The initial attacks were “shocking” in the sense that they challenged the prevailing orthodoxy that served to place the Founders and the Constitution above reproach. Today, by contrast, the gist of these early attacks constitutes commonplace observations—advanced normally in the guise of undisputed facts—found in many colleges and high school government and history texts concerning the motives and purposes of our Founding Fathers and the nature of the system they bequeathed to us.

While, as we shall see, there are differences between the early revisionists and their modern counterparts, the most notable being a belated but welcome acceptance of a strong national government, there is at least one common theme that weaves through their critiques: namely, the Constitution is an “undemocratic” document. In this respect, the critiques are, so to speak, double-edged; that is, not only is the Constitution found wanting from the perspective of the majority rule principle, it is viewed as an instrumentality that thwarts the realization of “democratic” ends such as those presumably embodied in the second paragraph of the Declaration of Independence. Thus, the revisionists’ democracy is of two kinds: one concerned with the means or methods of decision making, the other with goals or ends.

Now what is often overlooked is that these two conceptions of democracy are not entirely compatible. For instance, a majority may vote for policies that contravene the presumed democratic ends. To some extent, the liberal revisionists have been able to avoid facing the theoretical difficulties posed by this incompatibility by assuming, sometimes tacitly, that majorities do cherish these democratic ends, but that our institutions and processes either thwart or distort their will. Accordingly, they have long held that, once the Constitution has been democratized, majorities will actively pursue and ultimately realize these democratic ends. For the New Left, neo-Marxists, and other social dissidents, of course, to reach this coincidence of ends and means requires a good deal more than mere institutional “reform,” since institutions are only the reflection of dominant social and economic forces. For them the problem is overcoming the hurdles—social, economic, educational, and the like—that prevent majorities from perceiving their true interests, an undertaking that would necessarily involve comprehensive social engineering.

What seems increasingly clear in recent decades is that the revisionists, off at the end, have given primacy to ends over means; that is, their commitment to majority rule is secondary to their commitment to democratic ends which, to a great extent, come down to egalitarianism mixed with virtually unbridled liberty. Indeed, their commitment to majority rule seems to be contingent on whether they like what the majority wills. One reason for this, we may surmise, is that it is now painfully obvious to most revisionists that majorities can (that is, from the revisionists’ point of view) be a “beast,” that they are not as “enlightened” as some of the earlier revisionists seemed to assume.

Without going into the whys and wherefores—for this is a matter I will take up in due course—what has emerged from these revisionists’ reservations concerning republicanism and their quest for the realization of democratic ends is what can appropriately be termed a new “constitutional morality”; that is, they advocate and justify a way of looking at the proper operations and relationships of our constitutional institutions and processes that is inimical to the older morality wrought by the Framers and articulated in The Federalist. This new morality, it should be noted, is truly revolutionary because it represents, as the following essays will endeavor to show, a repudiation of the basic principles upon which our constitutional system was founded. In this connection, we should also observe that this new morality, though revolutionary, is often not perceived for what it is, primarily because of the evasive tactics of revisionists that I will spell out later.

My conclusions, I believe, are borne out by looking at the enormous power the courts have assumed within our system, an assumption of power that, according to one constitutional authority, rests on a conviction “almost universal among academics…that the American people are not to be trusted with self-government and are much in need of restraint by their moral and intellectual betters.” Such a view, he quite rightly holds, “is an insult to our national heritage.” ¹ But even this depiction of the Court’s new role is understated. As the late Charles S. Hyneman was one of the first to perceive,² the Court by the mid-1950s had already reached a new plateau of power well beyond that attained by the Court of the mid-1930s that had prompted Roosevelt’s Court packing plan. The 1930s Court had merely “vetoed” certain of Roosevelt’s New Deal programs, whereas the modem Court has actually concocted “constitutionally” mandated remedies for perceived social ills.

Hyneman wondered aloud whether the Court would be so bold as to take upon itself the task of correcting the presumed “political failures” of the elective branches. The answer was soon forthcoming in a series of reapportionment decisions in the 1960s based on the formula, “one man, one vote” —a “standard” of republicanism that, in the words of Philip Kurland, “never existed in the past…was clearly rejected by the framers of the national constitution for the national government and…remains a standard unjustified by the Court itself.” ³ Instances of equally blatant judicial behavior and reasoning abound. No serious student of the Court today, no matter what his ideological or political persuasion, denies that the Court in many instances simply legislates. What is more, many controversial pieces of such “legislation” are based upon constitutional interpretation that places them “above” ordinary laws passed by Congress. All of this, I daresay, is something relatively new under our constitutional sun—a state of affairs alien to the abiding principles of the Constitution as it emerged from Philadelphia.

That the Court provides perhaps the most visible example that can be offered to illustrate the altered character of our regime should not blind us to other, equally significant, departures from the constitutional morality of the Framers that inhere in this state of affairs. For instance, for the Court to legislate in the fashion it does without being called to account indicates that we have either forgotten or discarded the Framers’ concern about maintaining the separation of powers. Moreover, implicit in the expanded conception of judicial power and authority is a distrust, not only of the Founders’ “solution” to the problem of curbing unjust majorities, but of our representative institutions as well. Beyond this, we are led to speculate why it is that the Court—not, say, the Congress—seems to be the centerpiece of this new morality. This can be taken as further evidence that beneath this morality resides a primary concern, not with guaranteeing republican government understood as rule by the people, but with securing “rights” and substantive ends that conform with preconceived patterns of “justice” —rights and ends that might not be recognized as such by the more politically accountable branches. In sum, the exalted position of the Court, though noteworthy in its own right, is the outgrowth of fundamental changes in position and attitude toward basic principles—e.g., republicanism, the separation of powers—woven into our constitutional fabric.

This much said by way of general introduction, two observations are called for that will serve to refine and sharpen the theoretical concerns that prompted the following essays. First, my assessment and that of many others, if correct, would mean that we are in a constitutional crisis of sorts. This crisis can be pictured in terms of a new and antagonistic morality encroaching upon the old, an encroachment that has caused, and will continue to cause, bitter divisions in the nation. These divisions do and will revolve not only around the substance of given decisions but around the legitimacy of the manner or processes by which they are made. Such is the case because the new morality, if nothing else, involves a significant reshuffling of decision-making authority among the branches of government.

I am well aware that there are legitimate rejoinders to this position. A very persuasive one is simply that there is nothing really unique about our present constitutional differences: that, in fact, our system has never really been free from controversy over what must be regarded as constitutional questions of the first order. In the very first decade of its operation, for instance, disputes arose over the relative authority of the state and national governments, the extent of Congressional power vis-à-vis the executive authority, and, inter alia, the role of the Supreme Court.

One answer to this rejoinder that, I believe, helps us to comprehend the nature of our present difficulties can be put as follows: these early controversies, as well as those of similar nature we have experienced throughout our history, normally involved disagreements about the proper applications or operations of a given constitutional principle, not the principle itself. In this respect, evidence abounds that the Founders fully anticipated such disputes arising once the system was set in motion. However, rather than trying to provide any hard and fast answers to forestall such disputes—an impossibility on the face of it—they left their resolution to be worked out under the forms and processes provided in the Constitution. For example, and very much to this point, Madison, in writing about the separation of powers fused into the Constitution, does not even attempt to delineate with precision the relative boundaries of the three branches. Rather, he relies upon the operations of the system itself, wherein “those who administer each department [are given] the necessary constitutional means and personal motives to resist the encroachment of the others,” (51:26)⁴ to secure these ends. In other words, the Framers seemed to feel that the Constitution, once set in motion, would be a self-adjusting or self-correcting mechanism. In these terms, our present predicament is of a different order: it involves, not an adjustment through the system in the fashion described by Madison, but a fundamental change in the system itself.

The distinction that I draw here is far from being simply academic. Certainly no one would deny that we confronted a constitutional crisis at the time of our Civil War. To be sure, at its center was an irreconcilable difference over what is the most fundamental of all constitutional concerns—the nature of the union established by the Constitution. Nevertheless, its character was not unlike that which we confront in the disputes over our constitutional order today. In both cases, we see differences over constitutional principles, the resolution of which cannot help but have a “ripple effect” on the fundamental character of the regime. Suppose, to illustrate this point dramatically, the view of the union as a contract or compact between the states had prevailed at some point in our history prior to the Civil War. Clearly, the entire character of our union—the relative powers of national and state governments, to say nothing of the role and function of the Supreme Court—would be drastically different from what it is today. Indeed, it might well be that the states would not be politically unified to any significant degree.

My second point relates to the nature of the new morality. To this juncture I have been using the expression “new constitutional morality” in a manner to suggest that it constitutes a body of principles as reasoned, coherent, and complementary as the older morality. But this is not quite the case. On certain matters relating to both means and ends, this morality is clear enough. We know, for instance, that its scope is far ranging; that it would call for the abandonment or drastic reformulation of principles long associated with our constitutional tradition. But save for heroic, though unsuccessful, efforts to reconcile judicial supremacy with republicanism, the proponents of the new morality have not to any great extent systematically explored the questions and problems that logically flow from its principles.⁵ Not the least of these, trivial though it may seem at first glance, relates to the tacit assumption that a legal education equips the judges to exercise their newly acquired authority wisely.

Of course, there are concerns of a more strategic nature. One of the most important of these in my estimation is this: given the fact that the new morality is ill at ease, so to speak, under the existing and presumably antiquated constitutional forms and principles, why is it that its proponents do not seek constitutional changes that would serve to reconcile theory and practice? One obvious answer, in my opinion, is that the proponents of the new morality know very well that they could not secure the necessary changes that, in fact, would probably necessitate an entirely new constitution. Outside the groves of academe, that is, the American people still very much revere the Philadelphia Constitution, and they certainly would not look kindly upon any proposal whose declared purpose is to dismantle it. From the Machiavellian point of view, then, these proponents can be viewed as having adopted a strategy that will allow them to achieve their ends, or many of them at any rate, through the path of least resistance.

Clearly, however, this strategy can be successful only as long as it is not widely perceived for what it is—a fact that, I believe, goes a long way towards accounting for the character of our contemporary “debate” on this matter. This is to say, as most opponents of the new morality would no doubt argue, the strategy has not been widely perceived in its proper context so that the real issue at stake—i.e., should we overhaul the Constitution or not—remains “hidden” from the people.⁶ Be that as it may, it can be said that, whether by design or not, the reasoning and lines of argument advanced in its defense go a long way towards insuring that the issue remains hidden. In this regard, for example, we find aspects of the older tradition co-opted and employed on behalf of the new. Thus, somewhat ironically, we find arguments on behalf of an independent judiciary, which do make sense in the context of the older morality, transposed to support the notion of judicial supremacy. At another level, we are told that ours is a “living” and “flexible” Constitution and that the Framers would surely want us to adapt it to the changing circumstances of the modern world, which, of course, seems reasonable enough but leaves us with a host of questions regarding what particular provisions of the Constitution should or should not be treated as “living” and “flexible.” Or we may be told, depending on the particular circumstances, that it is difficult, if not impossible, to determine the Framers’ intent so that the Courts are obliged to use their best lights to interpret the Constitution in keeping with its “spirit” or, if not that, within the bounds of “contemporaneous consensus.” In other words, the justifications are linked, however tenuously, to the older constitutional morality in such a way as to direct our attention and critical thinking away from the central issue and over to matters that, by their very nature, are incapable of definitive resolution. I cannot help but note, for example, that the findings of Raoul Berger’s monumental study⁷ of the intended scope of the Fourteenth Amendment, no small matter given the key role of this amendment in reshaping the American political landscape by judicial fiat, can so easily be dismissed by new morality advocates on various grounds—e.g., the Courts of the modern era are interpreting the Fourteenth Amendment in the “spirit” intended by its drafters—which are, by their nature, virtually impossible to come to grips with.

These observations lead to questions of a different order whose answers are, at least in part, to be found in the sustained attacks on the Constitution that have encouraged the development of this new morality. That is to say, the new morality did not achieve its present status and acceptance overnight, particularly among academics. What are its attractions? How can it be justified? What are its objectives?

We can, I believe, trace its origins back to shortly after the turn of the century with the publication of James Allen Smith’s The Spirit of American Government. ⁸ Smith’s work was revolutionary primarily because it challenged the then prevailing belief that the Constitution embodied democratic principles. For this reason, it is generally recognized as the first of the “revisionist” works that have proven so instrumental in providing the foundations for the new morality.

Smith contended that “ordinary text books” and “popular works” that dealt with the Constitution did not deal sufficiently with the “political philosophy upon which it rests” so that “the American people,” he felt, were ill-informed about the “fundamental nature of their system of government.” ⁹ “Democracy—government by the people, or directly responsible to them—was not,” he argued, “the object which the framers of the American Constitution had in view, but the very thing which they sought to avoid.” ¹⁰ He found it “difficult” to believe that anyone at all familiar with the proceedings of the Philadelphia Convention or the character and background of the Framers could think otherwise. For his part, he found the “evidence…overwhelming” that the Framers placed “no faith in the wisdom or political capacity of the people.” Rather, in his words, they sought to entrench the “wealthy and conservative classes.” ¹¹

Smith provided still another perspective for looking at the Constitution and the purposes of the Founders, namely, that the Constitution was a reactionary document designed to reverse the democratic impulses unleashed during the Revolution. In this vein, he wrote, “our form of government after the Declaration of Independence” —i.e., the Articles—was clearly democratic in character because the “English system of checks and balances was discarded” and “all important powers of government were vested in the legislature.” ¹² All this, he took pains to emphasize, was undone with the adoption of the Philadelphia Constitution.

Certain of Smith’s views have been extensively modified or even abandoned over the decades. Revisionist thought, for example, eventually came to reject the value of political decentralization that Smith, true to Jeffersonian principles, regarded as essential for truly popular rule. And history has proved him wrong in his conviction that the Supreme Court would constitute a permanent barrier for majorities intent upon securing economic “justice.” In recent decades, for reasons that will become apparent in due course, the Court has come to be viewed from a perspective that simultaneously renders it central to the new morality and compatible with the overarching values associated with revisionism. Nevertheless, two major elements of Smith’s thought are very much with us today. The first of these is that the Constitution is basically an undemocratic document designed by men who feared the levelling tendencies of popular majorities. The second, which to a great extent flows from the first, holds that the Constitution represents a betrayal of the values associated with the Declaration of Independence or, if not that precisely, those associated with “social justice.”

Both these themes were refined and developed some twenty years later in Vernon Parrington’s widely heralded two-volume work, Main Currents in American Thought,¹³ which he dedicated to his former teacher James Allen Smith. Parrington pictured the theoretical climate prior to the Constitution against the backdrop of “French radicalism” and “English liberalism.” “The root of French radicalism,” according to Parrington, “was anarchistic, and its idea was an agrarian society of freeholders. It would sweep away the long accumulated mass of prescriptive rights, the dead hand of the past, and encourage free men to create a new society that should have as its sole end and justification, the common well-being.” ¹⁴ He regarded Rousseau as the chief spokesman for the “passionate social idealism” that characterized “French romantic philosophy” whose main elements were, in Parrington’s words, “that a juster, more wholesome social order should take the place of the existing obsolete system; that reason and not interests should determine social institutions; that the ultimate ends to be sought were universal liberty, equality, and fraternity.” For Parrington, “English liberalism,” originally set forth by Harrington and subsequently refined by Locke and Adam Smith, embraced principles essentially alien to these. Moreover, he believed, the freedom and liberty it sought was of a markedly different kind: its “great concern,” in his view, was that government “should…assist and not hamper industry and trade” and that “political policies should follow and serve commercial interests.” ¹⁵

Parrington did not disguise his feelings towards these two schools of thought. While he noted that both were “characterized” by a “pronounced individualism,” he went on to remark that the French individualism “was humanitarian, appealing to reason and seeking social justice,” whereas the English “was self-seeking, founded on the right of exploitation, and looking toward capitalism.” But, he continued, “the French humanitarian conceptions of equality and fraternity found little response in [the] middle-class, competitive world” of the era.¹⁶ Thus, the main question at the time of founding, as Partington viewed it, came down to whether the confederation under the Articles ought to be replaced by a stronger, more “coercive” national government. And he was outspoken in his belief that the adoption of the Constitution was brought about “by a skillful minority in face of a hostile majority.” Outside the South, he contended, this minority represented the “large property interest” or “powerful money groups” that had since “pre-Revolutionary days … greatly increased” both their “resources and … prestige as a result of war financing and speculation in currency and lands.” This monied group, in Parrington’s scenario, found a willing ally for a stronger national government among the “planter aristocracy” of the South.¹⁷

In Parrington’s account, as we might expect, the real loser in all of this maneuvering turned out to be the “small property holders” who lacked “disciplined cohesion.” As he would have it, “astute politicians” like Alexander Hamilton blamed the post-war depression on “too much agrarianism” which, in turn, they attributed to “too much democracy.” Their argument that “prosperity” was not possible until such time that “a competent national government was set up on a substantial basis” was, in Parrington’s estimation, “a sharp setback” for the “ideal of popular democratic rule.” Indeed, he contended, the “aristocratic prejudices of the colonial mind” were exploited by “skillful propaganda”: “Democracy was pictured as no other than mob rule, and its ultimate purpose the denial of all property rights. Populistic measures were fiercely denounced as the natural fruit of democratic control.” ¹⁸

Parrington’s views on the Constitution and the founding period are the most comprehensive we have of one wing of revisionist thought. To be sure, Charles A. Beard’s An Economic Interpretation of the Constitution of the United States ¹⁹ had covered a good deal of the same general terrain some fifteen years earlier. And Beard’s thirteen-count indictment of the Framers certainly raised more eyebrows than did Smith’s charges, no doubt, in large part because Beard presumably had mustered the evidence to prove that the Framers were “with but few exceptions, immediately, directly, and personally interested in, and derived economic advantages from, the establishment of the new system.” ²⁰ Moreover, Beard’s work added a good deal of credibility to what can be termed the “conspiracy theory” of our founding. To this end, for example, he pointed out that there was no popular vote, either direct or indirect, “on the proposition to call” the Philadelphia Convention; that “a large propertyless mass” was “excluded” from any role in “framing the Constitution”; and, inter alia, that because of apathy and suffrage qualifications, “not more than one-sixth of the adult males” voted to ratify the Constitution.²¹ However, it was Parrington who wrapped Smith’s concerns about the direction of our political tradition together with Beard’s allegedly “hard” data concerning the Framers’ economic motivations into a coherent whole.

No account of revisionist thinking that has contributed to the new morality would be satisfactory or complete without surveying the “progressive” thought of Herbert Croly, particularly that set forth in his Promise of American Life ²² which appeared only four years after Smith’s initial assault on our constitutional heritage. Croly, like Smith, was aware that his view on the Constitution might well seem heretical. Indeed, for Croly, the existing “strong, almost dominant tendency to regard the existing Constitution with superstitious awe, and to shrink with horror from modifying it even in the smallest detail” served to hold the genuine “American spirit” in “great bondage.” ²³ Moreover, his vision of our “national promise” in many ways paralleled Parrington’s conception of the “French humanism” that had been rejected in favor of “English liberalism” at the time of our founding. For instance, Croly was extremely critical of the “traditional American confidence in individual freedom” which he believed “had resulted in a morally and socially undesirable distribution of wealth.” The self-acquisitiveness that had produced this state of affairs, he argued, needed to be supplanted by a new morality calling “for the subordination of the individual to the demands of a dominant and constructive national purpose.” What Croly sought was “a higher type of associated life” in which “desirable competition” would be encouraged by minimizing the “mercenary motive” and placing a premium on “excellence of work.” ²⁴ Beyond this, he sought to attain or approach as nearly as possible the Rousseauistic ideal of “individual disinterestedness” wherein each citizen would be willing “to sacrifice his recognized private interest to the welfare of his countrymen.” ²⁵

There are differences of varying degrees between the views of Croly and those of Smith and Parrington that, in the main, stem from Croly’s realization that the achievement of the “American national promise” could only be brought about through a strong national government. For this reason, it would seem, Croly did not look upon the founding period in the same black-and-white terms as Smith. For instance, he viewed the adoption of the Constitution not as the result of any conspiracy or political chicanery but as the outcome of the “conversion of public opinion” through “powerful and convincing arguments.” It was achieved, in his words, “chiefly by virtue of capable, energetic and patriotic leadership.” What is more, he had kind words for Hamilton and the early Federalists for realizing the potential of the new government and for advancing the national welfare: “A vigorous, positive, constructive national policy was outlined and carried substantially into effect—a policy that implied a faith in the powers of an efficient government to advance the national interest, and which justified the faith by actually meeting the critical problems of the time with a series of wise legislative measures.²⁶ Where Hamilton failed, in Croly’s estimation, was “in seeking to base the perpetuation of the Union upon the interested motives of a minority of well-to-do citizens” rather than entrusting “its welfare to the good-will of the whole people.” And this Croly attributed to Hamilton’s “English conception of a nation state, based on domination of special privileged orders and interests.” ²⁷

As we might expect from his appraisal of Hamilton, Croly was highly critical of Jefferson, whose conception of democracy he describes as “meager, narrow, and self-contradictory” because of its “extreme individualism.” While Croly held that Jefferson “understood his fellow countrymen better and trusted them more” than Hamilton, his conception of democracy was flawed because it carried with it the implication “that society and individuals could be made better without actually planning the improvement or building up an organization for the purpose.” In sum, from Croly’s point of view, Jeffersonian democracy called for a negative, “hands off” government, one ill-equipped to promote a “higher type of associated life.” ²⁸

Croly’s critique of the Constitution and what he took to be the Framers’ motives is not totally dissimilar to that of Smith, Parrington, or Beard. But, again, he is not nearly so harsh. The Federalists, he acknowledged, “demanded a government adequate to protect property rights,” but, in his view, “they were not seeking any exceptional privileges.” ²⁹ The chief end of the Constitution, he held, was to secure “liberty from any possible dangers,” and, for this reason, he maintained, it “was framed, not as the expression of a democratic creed, but partly as a legal fortress against the possible errors and failings of democracy.” The “system of checks and balances” and the separation of powers were, in his judgment, “calculated to thwart the popular will” but only when that will threatened “the essentials of a stable political and social order.” ³⁰ In sum, he was not overly concerned about the “undemocratic” character of the Constitution. Indeed, he wrote that, for “all its faults,” it “proved capable of becoming both the organ of an efficient national government and the fundamental law of a potentially democratic state.” ³¹ In this last analysis, from Croly’s perspective, the basic flaw of the Constitution was that it lacked the power that “every popular government should possess,” that is, after due deliberation, the capacity to take “any action, which, in the opinion of a decisive majority of the people, is demanded by the public welfare.” ³²

The views of Croly, Smith, Beard, and Parrington have been modified over the years. However, what we see in these modifications are principally variations on two basic themes. The first of these, which emerges most clearly in the writings of Smith, Beard, and Parrington, is that the Constitution is not a democratic document, and that it was drafted to protect the interests of economic and social minorities from the ravages of majority rule.³³ Modern political scientists who dwell on this theme are apt to put it somewhat differently. They would say that the constitutional rules—both the formal and the informal, which have developed over the years—are skewed to benefit certain interests at the expense of others in ways consonant with the general aims of the Framers.³⁴ That is, in their view, the more affluent and better organized interests in society enjoy a distinct advantage over groups less well organized and affluent: the rich and well-to-do, in other words, still run the show. This at least is the impression conveyed, expressly or implicitly, in the vast majority of American government college texts.

In this connection it is not surprising to note that by 1950 a majority of the leading college textbooks in American history had come to embrace the proposition that “the Fathers were intent on protecting the property of the few at the expense of the many.” Moreover, the conception of the Constitution as a “reactionary” document, that is, as one rejecting the noble and progressive doctrines of the Declaration of Independence, had also gained widespread acceptance by this point in time.³⁵ As one close student put this: “The Declaration is portrayed as the ultimate expression of Revolutionary ideals, to wit, egalitarianism, popular majority rule, and human rights; the Constitution is cast in the role of a counterrevolutionary reaction in support of monied privilege, minority rule, and property rights.” ³⁶ In this respect, the revisionists’ views seem to have won the day over those of the “traditionalists.” Whereas Smith and Croly may have been fighting a lonely battle in their time, today the traditionalists’ views are seldom heard, much less defended, in the academy.

The second basic theme relates to Croly’s major concern, namely, the conception of democracy associated with and to some extent embodied in the Constitution leads to a protective, limited, and relatively inactive government. Now this is a far more complicated theme than the first because its expression has subsequently taken many forms. Croly, more activist-oriented and less wedded to Jeffersonian theory than either Smith or Parrington, provides us with a greater insight into the basic difficulty that seems to have prompted a good deal of revisionist thought in the first place: namely, the lack of an instrumentality to achieve the desired ends that, in recent decades, have come to be those derived from the second paragraph of the Declaration. To put this more accurately, Croly had no substantial complaint with the Constitution as an instrumentality; rather, as we have seen, he was distressed with the Jeffersonian theory that guided its use. For him, the basic difficulty with the system could be overcome with the acceptance of the Hamiltonian conception of union. For this reason, Croly is regarded by some as the “theoretical” father of the New Deal, which certainly seemed to follow his prescriptions by adopting Hamiltonian means while simultaneously paying due homage to Jeffersonian ends.³⁷

The initial success of the New Deal in inaugurating policies that had long been dormant on the liberal agenda certainly lent credence to Croly’s views. However, while there is virtual unanimity that the Hamiltonian conception is necessary for the achievement of a comprehensive program such as that embodied in Croly’s “national promise,” few today would regard it as sufficient. This is to say, according to modern critics, the system seems to move in “fits and starts,” reacting in piecemeal fashion to problems and then only when they become acute.³⁸ From the critic’s point of view, it seems incapable of formulating comprehensive and sustained programs that can produce either the changes or the results necessary for the realization of “liberal” ideals.

While a variety of reasons have been offered for this state of affairs, most of them bring us back around, in one fashion or another, to the first revisionist theme: that the structure and principles of the system simply militate against such programs. For one thing, authority is dispersed among formal and informal institutions and procedures. For another, this decentralization not only provides an outlet for the numberless interests that have naturally arisen in our free society, it even encourages the growth of new ones. Given those conditions, then, it is not hard to see why the development of a consensus on interrelated, long-term, national goals and policies such as that envisioned by Croly is extremely time-consuming, difficult, or, in some cases, simply impossible. This, at least, seems to be the view of many, if not most, reform-minded political scientists who over the decades have sought to join Woodrow Wilson’s notion of a cabinet government with the British “model” of disciplined, responsible, and programmatic political parties.³⁹ Their reforms are designed, in other words, to channel our pluralism through the medium of our parties, while simultaneously overcoming the centrifugal forces of federalism and separation of powers.

To reform our parties, to “nationalize” them by pulling up their roots which are now firmly implanted at the state and local levels, and to overcome the friction between the branches would require an overhaul of the entire system. This means, in effect, that the American constitutional order will never outwardly conform to what can be called the “liberal” model. Nevertheless, under its present form, it may operate in the same way as the liberal model presumably would. A “strong” president like Roosevelt II, for example, can overcome for a short period the inherent centrifugal forces and tendencies of the system. But the operative words here are “a short period,” because what seems clear is that such unity comes about only occasionally and then only as a result of a national crisis. Put otherwise, the openings or opportunities for ambitious programs designed to fulfill our “national promise” are infrequent and short-lived. What is more, sustaining, modifying, or expanding such programs is extremely difficult once the “window of opportunity” has been “shut.”

With these observations before us it is not difficult to see why the new morality poses such a formidable threat to the older morality that has guided our constitutional development for the better part of two hundred years. In significant political and social areas, the Court can provide the central direction necessary for reshaping American society. To reemphasize the point I made at the outset, the Court under this new morality is not confined to saying “no” to the actions of the political arms of our system; rather, it can itself undertake positive and comprehensive action to achieve what it interprets to be constitutionally mandated conditions or goals. Moreover, and this again according to the tenets of the new morality, it can do so as the final arbiter of the meaning and language of the Constitution, that is, with an authority that neither the Congress nor the President can ever claim. In sum, this judicial supremacy that lies at the heart of the new constitutional morality undercuts virtually every constitutional principle in providing an ingenious shortcut to the attainment of the ideals that the revisionists thought could not be achieved under the forms of the Philadelphia Constitution. And, as I have noted, its proponents can claim, spuriously, but nevertheless with sufficient effectiveness to confuse the issue in the public arena, that it is nothing more than the logical outgrowth of the principles embodied in the older morality.

The foregoing discussion and analysis form a backdrop against which the following essays should be read. These essays, in turn, are directed at one or more of the four fundamental principles of the American political system: republicanism, the separation of powers, federalism, and limited government. I have used this approach for a number of reasons, the most important of which are that it not only embraces the full range of concerns and debates over the nature of the American system such as those discussed above, but it also helps us to focus on the significant, rather than secondary, issues. Additionally, it offers a framework that readily allows one to see interrelationships between constitutional principles. For those so inclined, it is also convenient for drawing comparisons with other political systems.

Finally, by way of introduction, I should note that my analysis of the Philadelphia Constitution with respect to these principles relies heavily, though not entirely, on The Federalist and, in particular, on the contributions of Hamilton and Madison written under the pseudonym “Publius.” This should be the least controversial aspect of this undertaking because there is a consensus among both friend and foe of the Philadelphia Constitution that The Federalist represents by far the most comprehensive defense and explication of the Constitution that we have. Put another way, The Federalist lends a coherence and theoretical understanding to the Philadelphia deliberations that no other single document can even approach. So much, at least, is acknowledged by the revisionists and critics of the Constitution who have, over the decades, increasingly seen fit to direct their attacks against the Constitution by tackling The Federalist.

INTRODUCTORY NOTE

It may seem odd that I begin with an essay that touches upon what would, at first glance, seem to be an arcane academic quarrel concerning the authorship of certain essays in The Federalist. After all, how can such a dispute possibly bear upon our understanding of the Constitution and the intentions of the Framers? The answer is a bit involved, but, as I will show, the relationship is undeniably an important one.

This dispute over the authorship of these essays has now entirely subsided. But, until its resolution in relatively recent times, it provoked some anger and hard feeling among scholars as their debate over the relative merits of the competing claims of authorship took on a partisan character. In the course of these debates, as we might expect, the substance of the essays assumed importance on the unarticulated assumption that there were theoretical differences of sufficient degree and depth between Hamilton and Madison to settle the matter of authorship. Oddly enough, however, no one ever systematically set forth these differences in a manner that could authoritatively settle the controversy. And the question that still remains long after the smoke has cleared is why, if their theoretical differences were so pronounced, there should have been any dispute about the authorship in the first place. Or, to put this somewhat differently, if there were significant theoretical differences between them, why couldn’t this controversy, involving no less than one-fifth of the essays, be resolved in short order, the more so as certain of the papers in dispute were, by any standards, among the most theoretical of the lot?

The fact is that it was only after the disputed papers controversy was resolved by Douglass Adair in the mid-1940s (see text below) that relatively coherent and plausible claims concerning philosophical differences between Hamilton and Madison writing as “Publius” were advanced. But, as I point out below, those who advanced this thesis—and that would include Adair—pretty much assumed what they wanted to prove. They began, that is, with the assumption that there must have been significant differences between them in their views of the Constitution, the nature of man, the need for government, and so forth. They then selectively combed the text, or, what is worse, manipulated the positions of Hamilton and Madison, to prove their point.

There is room for intelligent speculation about the whys and wherefores of this alleged “split personality” within the framework of my introductory remarks. For the better part of his political life Madison was an ally of Jefferson. No doubt for this reason alone, revisionists feel the need to separate his thoughts from Hamilton’s to make it appear that the two were very uneasy allies in the ratification struggle. But the thesis serves other purposes as well. By contrasting the republican Madison with the “authoritarian” Hamilton, it amends and clarifies the revisionists’ position. For instance, in these terms Madison’s contribution to our founding and institutions can explain why Jefferson was favorably disposed towards the Constitution—a fact that early revisionists avoided like the plague. At the same time, given the picture painted by Hamilton, the revisionists’ interpretations gain credibility; that is, their charges can readily be accommodated to this view by maintaining that the system has in reality operated in accordance with Hamilton’s presumed design to thwart democracy and protect vested interests.

The “split personality” thesis, taken as a whole and developed fully, can provide a sufficiently expansive framework to explain or account for virtually every twist and turn, theoretical or otherwise, in our constitutional development. If it were valid, however, it would for this very reason leave us at sea without a rudder. By denying that “Publius” expressed a consensus and by asserting that he gave us not one, but two or more constitutional moralities, it leaves us uncertain of our heritage. What is more, it simultaneously lays the groundwork for the revisionist interpretations of our constitutional heritage to claim legitimacy.

PUBLIUS—A SPLIT PERSONALITY?

In 1944, Douglass Adair published a seminal two-part article, “The Authorship of the Disputed Federalist Papers.” ¹ While this article is rightly celebrated for authoritatively settling the long-standing controversy surrounding the authorship of certain essays in The Federalist claimed by both Hamilton and Madison, it also advanced a thesis whose significance for scholars of the American political tradition far exceeds the resolution of this controversy.² Specifically, Adair wrote that though Hamilton and Madison “agreed that the proposed Constitution should be ratified and laid aside all differences to bring this about … the two statesmen’s radical divergence on what constituted good government gave Publius truly a split personality” (DP, 55). Eight years later, in an article entitled “The Federalist—A Split Personality,” Alpheus T. Mason echoed this thesis by maintaining that there are clearly discernible differences between Hamilton and Madison writing as Publius on basic issues and principles relative to the proposed Constitution.³ And Gottfried Dietze, in writing the first book-length analysis of The Federalist, found Mason’s “contributions” on this score to be “indispensable.” ⁴ Accordingly, Dietze saw fit to deal with the contributions of John Jay, Madison, and Hamilton to The Federalist in separate sections and chapters on the grounds, we may presume, that their positions and theories are sufficiently different to warrant such treatment.

Clearly this split personality thesis has far-reaching implications for scholarly inquiry into our political tradition. Obviously, if the lines of argument in The Federalist are as divergent as Mason, Adair, and other scholars intimate,⁵ then its status and role in our tradition must be reevaluated, particularly by those who have come to regard it as a relatively coherent and authoritative source for a fuller comprehension of the underlying principles of our constitutional system. Viewed from another perspective, however, the split personality thesis might lead us to a woefully inadequate understanding of the foundations of our political order. By emphasizing the differences between Hamilton and Madison, it could lead us to minimize or downplay the areas of substantial agreement surrounding the major underlying principles of the system. But, more significantly, the thesis would have us read The Federalist in a way not intended by its authors, that is, as the product of two pens, not one. And, because the authors regarded their work a coherent whole, it may well be that the “tensions” and seeming contradictions we find within its pages are not the result of differences between them on matters of principle or theory, but rather manifestations of basic, underlying difficulties—some of them perhaps insoluble—inherent in the proposed Constitution or republicanism.

In sum, the split personality thesis does pose difficulties for those who seek to come to grips with the teachings of The Federalist and, more generally, the nature of our political foundations. My purpose here is to critically examine this thesis with an eye to determining whether Publius does, as some scholars contend, speak with a forked tongue or whether, as equally serious students of the tradition hold,⁶ the alleged theoretical divergences are either exaggerated or contrived.

SPLIT PERSONALITY THESIS: DEVELOPMENT AND SUBSTANCE

At the outset we should note that, while Adair’s use of the disputed papers controversy to advance the split personality thesis seems understandable enough at first glance, the two concerns are, upon examination, theoretically distinct. More specifically, theoretical analysis confined solely to The Federalist only establishes with a relatively high degree of certainty Madison’s authorship of certain disputed essays (48, 49, 50, 51, 62, and 63).⁷ This, in turn, is accomplished by linking the substance of essay 10, whose authorship is beyond dispute, with the concerns of the disputed essays, primarily 51. By no means, however, can we take the validation of Madison’s claim to authorship of these disputed papers as validation of this thesis.

The resolution of the controversy over the disputed papers does touch base with the split personality thesis over the pivotal role of papers 10 and 51 for an understanding of the main pillars of Madison’s thought. Both Adair and Mason use these essays as a nucleus for their arguments, which are strikingly similar in substance and mode. Both see the major differences between Hamilton and Madison as centering around the immediate issues of controlling factions and the proper and prudent scope of popular sovereignty. They even manage to widen the scope of these differences by relating to these key essays seemingly disparate concerns, such as the proper relationship between the state and national authorities and the responsibilities of the departments. All of this they are able to accomplish, as we might expect, by contrasting certain of Hamilton’s arguments and positions set forth at various points in The Federalist with what they regard to be the logic of Madison’s extended republic theory set forth in essays 10 and 51. With this overview in mind, let us take a closer look at their analysis.

Mason writes that “John Quincy Adams did not take the trouble to spell it out, but he hit upon a most significant aspect of the ‘diversity’ in this great collaboration [ The Federalist ] when he described Hamilton’s number 9 and Madison’s number 10 as ‘rival dissertations upon Faction and its remedy.’ ” (SP, 636). But aside from arguing that Hamilton wanted to establish a “consolidated system,” “Union under one government,” “perfect subordination of the states to the general authority of the union” (all these goals presumably set forth by Hamilton in Federalist 9) whereas Madison on the basis of essays 10 and 51 was a pluralist who felt the existence of viable states with residual sovereignty essential for the national government, Mason does not elaborate extensively on the nature of this “diversity.”

Adair goes into this particular matter more extensively. He contends:

Hamilton felt so strongly about the need for an overruling, irresponsible and unlimited government that it showed through even in his Federalist essays, in spite of his attempt to conceal his opinions in order to achieve ratification. Federalist 9 indicates clearly that he expected a continual use of military force would be required to keep the rebellious poor in their place. In this essay the union is advocated because it will permit the use of troops raised in one section of the country to stamp out revolts in other districts.… Essays 23 and 30 mirror his belief that no government would endure without unlimited fiscal and military power and foreshadow his doctrine of “liberal construction” (DP, 68).

And, after quoting from the latter part of essay 51 to the effect that the multiplicity and diversity of interests renders an “unjust combination of a majority of the whole very improbable, if not impracticable,” he writes: “Madison, it is clear, had emancipated himself from the sterile dualistic view of society that was so common in the eighteenth century and that so obsessed Hamilton. Madison was one of the pioneers of ‘pluralism’ in political thought. Where Hamilton saw the corporate spirit of the several states poisonous to the union, Madison was aware that the preservation of the state governments could serve the cause of both liberty and union” (DP, 70).⁸

Likewise, both Adair and Mason detect authoritarian overtones in many of Hamilton’s essays, overtones that, they maintain, are absent from Madison’s contributions. Adair contends that in Federalist 51 Madison offers a republican remedy to Hamilton’s “overruling, irresponsible, and unlimited government.” ⁹ More specifically, in essay 51 Madison eschews the notion that a will, independent of society, is needed to prevent factious majority rule. And this, Adair argues, sets him apart from Hamilton: “discussion of the executive in Federalist 71 reveals his dearest hope that the president would develop an ‘independent will.’ And his analysis of the powers of the Supreme Court in Number 78 was in time to provide an enduring sanction for the development of an independent and irresponsible judiciary” (DP, 68–69).

Mason develops Adair’s contentions on this point more fully. Hamilton, he points out, favored a strong executive or at least one who would not bend “to every sudden breeze of passion or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests” (71:369). Mason continues: “Hamilton placed perhaps even greater reliance on the federal judiciary—especially because of the provision for indefinite tenure of judges—as a safeguard against factions” (SP, 636–37).

For Mason there is also an “authoritarian” overtone in Hamilton’s essays devoted to the executive and judiciary. “In essay 71,” he writes, “one encounters Rousseau’s sentiments, that though the ‘people commonly intend the PUBLIC GOOD,’ they do not ‘always reason right about the means of promoting it.’ The exalted role carved out for the executive and judiciary, especially the latter, is faintly suggestive of Rousseau’s ‘Legislator’ — ‘a superior intelligence beholding all the passions of men without experiencing any of them.’ ” (SP, 637). But this, to Mason’s way of thinking, raises the same kind of problem inherent in Hobbesian theory, namely, “does not such executive and judicial preeminence call for considerable qualification of those unseemly qualities Hamilton elsewhere attributed to the general run of mankind?” (SP, 637–38) Hamilton, Mason postulates, must have held to the proposition that possession of power would have a “purifying effect” on the officeholder (SP, 638). On the other hand, Mason maintains, Madison’s solution to the problem of controlling government and factions rests upon the conflict and tensions between interests, sects, and classes—the operations of an unfettered pluralistic society.

THE EXPANDED SPLIT PERSONALITY THESIS CRITICALLY EXAMINED

While there are other points made by Adair and Mason, these are the key issues upon which the split personality thesis rests. These issues are, moreover, potentially far more crucial than either Adair or Mason seem willing to let on. It simply will not do to note these alleged differences and then proceed to point out that the areas of agreement between Hamilton and Madison were far greater and more significant than their differences, or that the differences between them come down merely to shades of grey.¹⁰ The issues, as both Adair and Mason pose them, involve the critical question. What kind of regime is it that The Federalist is recommending for the American people? If we are to accept the split personality thesis, half of Publius is advocating a republican form, the other half an oligarchy of sorts. And, if this be so, The Federalist can only be viewed as a jumble, at least with regard to the most important element of the proposed constitutional system.

Bearing this in mind, we can profitably examine these contentions starting first with those that seem to derive from the so-called diversity between essays 9 and 10.

First, it is certainly far from clear, as Adair contends, that Hamilton “expected a continual use of military force would be required to keep the rebellious poor in their place.” Adair would appear to be referring to the very first sentence of Federalist 9 which reads, “A firm Union will be of the utmost moment to the peace and liberty of the States as a barrier against domestic faction and insurrection” (9:38). This statement as it stands is eminently sensible. In fact, Madison writing in Federalist 43 makes essentially the same point. For example, he quotes approvingly of a confederate republic: “ ‘should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound’ ” (43:226). On this score, Madison is, in effect, repeating what Hamilton had stated in essay 9.

Perhaps more to the point of Hamilton’s opening sentence is Madison’s remark that the national government’s “right to interpose” in cases of domestic violence and insurrection within these states “will generally prevent the necessity of exerting it” (43:226). Certainly from the examples and commentary in the very first paragraph of Federalist 9, this would seem to be the thrust of Hamilton’s argument; that is, a “firm Union” will serve to prevent the “perpetual vibration between the extremes of tyranny and anarchy” (9:38).

In any event, Adair’s contention that Hamilton envisioned “continual use of military force … to keep the rebellious poor in their place” cannot be sustained from the text. What Adair has done is to extrapolate from Hamilton’s other writings or speeches to reach this conclusion.

Second, to show that Hamilton believed in “unlimited” and “overruling” government Adair makes reference to essays 23 and 30 which deal, respectively, with the defense and taxation powers of the national government. Let us see what Hamilton says in these essays that could justify these charges.

With regard to the national powers to “raise armies,” “build and equip fleets,” and so forth, Hamilton writes: “These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed” (23:119). And in the very next paragraph he is to strike a theme that recurs in one fashion or another throughout The Federalist: the national government must possess the means necessary for the ends that are entrusted to its care. As he puts it: “the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained.” This proposition rests upon “axioms as simple as they are universal” (119).

Hamilton is both instructive and logical about the matter of common defense and the powers that the national government must possess to fulfill its obligation; he never flinches from the conclusions that flow from these axioms. “Whether there ought to be a federal government entrusted with the care of the common defense,” he writes, “is a question in the first instance open to discussion; but the moment it is decided in the affirmative, it will follow that the government ought to be clothed with all the powers requisite to complete execution of its trust” (23:119–20).

This same line of reasoning leads him to contend in Federalist 30 that the powers of the national government “to raise its own revenues by the ordinary methods of taxation” (that is, to possess the powers of sovereign states to requisition the necessary financial support to fulfill the ends entrusted to them) simply must replace reliance on the states to meet their requisitions (149).

The differences between Madison and Hamilton on these specific matters seem minuscule at best. Madison also subscribes to Hamilton’s axioms regarding means and ends: “No axiom,” according to Madison, “is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included” (44:232). Again, when it comes to the matter of the national government’s power to provide for the national defense, there seems to be no substantive difference between Hamilton and Madison. Madison writes: “The means of security can only be regulated by the means and danger of attack. They will, in fact, be ever determined by these rules and by no others. It is vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions” (41:210).

Finally, to the point of the differences between Hamilton and Madison concerning the powers of the national government, it is interesting to note how they describe the principal objectives of the proposed union. For Madison they are:

1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers (41:210).

For Hamilton:

The principal purposes to be answered by Union are these—the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and States; the superintendence of our intercourse, political and commercial, with foreign countries (23:119).

From this it would seem the two were remarkably close together on the substantive goals of the proposed system.

And, third, the charge that Hamilton in Federalist 9 advocates a “consolidated system,” “a perfect subordination [of the states] to the general authority of the union,” or, in other words, a unitary system, is also without textual foundation.

What Hamilton does do is enlist the authority of Montesquieu to answer critics of the proposed union who argue that an extensive republic must necessarily be short-lived. Using a lengthy quote from Montesquieu as a point of departure on the advantages of a “CONFEDERATE REPUBLIC ” (9:40), Hamilton proceeds to argue that there is widespread misunderstanding concerning the essential elements or features of a confederacy. His purpose, it would appear, is to broaden the meaning or definition of confederacy so that the proposed system will fit within its confines. In any event, he concludes that “a confederate republic seems simply to be ‘an assemblage of societies,’ or an association of two or more states into one state.” The members of this association need not be considered as political equals, nor is the central government forbidden from acting directly upon individuals rather than through the governments of the member states. To argue otherwise, he contends, would be to adopt a position that is “supported neither by principle nor precedent.” He writes that “the extent, modification, and objects of the federal authority [that is, the central government of a confederacy] are mere matters of discretion” (41).¹¹

It is in this context that the quote “perfect subordination to the general government” appears. The passage from which this phrase is taken reads as follows and comes immediately after the sentence quoted above relating to the “extent, modification, and objects of federal authority” being matters of “discretion”:

So long as the separate organizations of the members be not abolished; so long as it exists, by a constitutional necessity, for local purpose; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states or a confederacy (9:41).

This is clearly presented by way of showing what at a minimum would constitute a confederacy and is consonant with his apparent end of broadening the definition of confederacy so as to include the proposed system. However, it is crucial to note that he feels the relationships stipulated in the Philadelphia Constitution are well “above” the stipulated minimum. The proposed system, he informs us in the sentence immediately following the above quote, “so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.” He goes on to write that this arrangement “fully corresponds, in every rational import of the terms, with the idea of federal government” (9:41).

His reference to “certain exclusive and very important portions of sovereign power” that are retained by the states certainly does not render him a champion of states’ rights as they are contended for today. Yet such an admission certainly does cast grave doubts on the argument of the proponents of the split personality thesis who argue that Hamilton, unlike Madison, believed in a centralized and authoritarian system. And the fact is that, on these and other matters relating to federalism and state-national relations, there appears to be no principled difference between Hamilton and Madison. Both, for reasons set forth in Federalist 37, are necessarily vague and general about the relative powers of each government. Madison, for instance, is scarcely any more precise and informative than Hamilton when he writes that the powers of the national government are “few and defined,” whereas those of “the State governments are numerous and general” (45: 238). Nor can Madison be viewed as a champion of states’ rights in maintaining that the people, considered as a whole, should be free to repose their trust in whichever government, national or state, demonstrates “manifest and irresistible proofs of better administration.” And in adding that “the State governments could have little to apprehend” from such a process “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered,” he even undercuts the presumed constitutional status of the states’ residual powers (46:241).

I should add, rather than relegating the matter to a footnote, that, instead of driving a wedge between Federalists 9 and 10, the students of the document would do well to read them as complementary.¹² Hamilton, to be sure, concentrates more on the traditional or formal arguments concerning the advantages to be derived from political union. However, in stressing the advantages of “ENLARGEMENT of the ORBIT” (chief among those principles of an improved science of politics), Hamilton consciously or unconsciously laid the groundwork for Madison to stress, as he had done at Philadelphia and in his writings, that the pluralistic nature of the proposed union would also operate to reduce the possibilities of factious rule or insurrection.¹³ To put this otherwise: rather than being in opposition, both see the advantages of an extended republic from different perspectives.

The second major dimension of the split personality thesis, as I have said, involves the scope and degree of popular control. Hamilton, to be more exact, has been charged with backing off from the republican principle in those essays dealing with the executive and judicial powers and functions. Again, we can take up this matter point by point:

(a) Hamilton writes in Federalist 71, when discussing the veto power of the president:

When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from the very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had the courage and magnanimity enough to serve them at the peril of their displeasure (71:370).

This, as far as I can tell, is the strongest statement that Hamilton makes on behalf of a president’s using his powers to resist or thwart the will of a presumed majority. In essay 73 and elsewhere he urges the executive to use his veto power to protect the legitimate domain of executive authority and power against the encroachments of the legislature. With Madison, Hamilton believed that the legislative branch was most to be feared because of its inherent “propensity … to intrude upon the rights, and to absorb the powers, of the other departments” in order to advance the cause of one faction or another (379). Hamilton also believed that the veto should be exercised to protect the community “against the passing of bad laws, through haste, inadventure, or design” (380). But this stand is certainly not antirepublican, unless, of course, republicanism is equated with a senseless government. This use of the veto, moreover, is directed at the legislature, not the will of the people.

Hamilton goes on to write that the morality he is urging regarding the veto power is not based “upon the supposition of superior wisdom or virtue in the executive,” but rather “upon the supposition that the legislature will not be infallible,” and that there may be occasions when a factious spirit takes hold of the Congress that leads its members to pass legislation which upon due reflection they themselves “would condemn” (73:379–80).

Again, it is difficult to see how Hamilton’s position on these matters differs from Madison’s. Recall that Madison in discussing the utility of the Senate remarked that “such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.” While the “cool and deliberate sense of the community ought … ultimately to prevail,” he wrote, there are times when the people, actuated by passions or demagogues “may call for measures which they themselves will afterward be the most ready to lament and condemn” (63:325). At best, the advocates of the split personality thesis have a very shaky point on this particular issue. Yet, let us recall, the point is an extremely important one for their thesis.

(b) There are a number of things to note about Hamilton’s argument for judicial review and the contentions of both Adair and Mason. First, the judicial review that Hamilton advocated was quite narrow in scope. He believed that the Courts should declare void only those legislative acts contrary to the “manifest tenor” of the Constitution (78:402). Before a statute could be declared unconstitutional, the Court would have to show an “irreconcilable variance” between the statute and the Constitution (78:403). The Court, according to the morality set forth by Hamilton, “should be bound down by strict rules and precedents” (78:406).

These rather rigid restrictions hardly support the notion that Hamilton provided a “sanction for the development of an … irresponsible judiciary.” ¹⁴ Of course the Court has in recent years overstepped the boundaries set forth by Hamilton. Clearly, the blame for this lies not with Hamilton but with recent generations of legal scholars who have praised and justified judicial imperialism and supremacy.

Second, as we know, Hamilton invokes the “higher” or “fundamental law” theory to justify judicial review: “the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former” (78: 404). Quite obviously, he does not believe that legislative majorities, even those with strong popular support, have the authority to pass laws that contravene the Constitution. It is difficult to see how Madison could have held a different position. In Federalist 53, in trying to discover the grounds for the maxim “that where annual elections end, tyranny begins,” Madison remarks that it must have arisen in political systems where the body that possessed “the supreme power of legislation” also possessed the authority and power “to change the form of government” (277–78). “Even in Great Britain,” he notes, “where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable as well with regard to the Constitution as the ordinary objects of legislative provision.” In such systems, consequently, the legislative bodies can change “the period of election” through the very same processes by which they pass ordinary laws. But in America, he points out, it is “well understood” that there is a difference “between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government” (277).

Third, there can be no question that, if Hamilton had really wanted to establish the judiciary as the bulwark against majorities (the poor) bent upon exploiting minorities (the rich), he would have moderated his remarks about the addition of a bill of rights. Plainly, the addition of a bill of rights would only serve to enhance the authority of the Court.¹⁵

On this score, it can be argued that Hamilton (and certainly by all evidences Madison) wanted to skirt the bill-of-rights issue because it was a “front” under which the Antifederalists sought to drain the national government of vital powers (e.g., the authority for direct taxation). But another reason for Hamilton’s animus towards a bill of rights is that the bill would be ineffective in curbing majority factions.¹⁶ And still another, which confutes the charges that Hamilton was a monarchist, elitist, authoritarian, or the like, was his belief that a bill of rights, as traditionally understood, was inappropriate in a republican form of government such as that established by the Constitution. Rights, he points out, had traditionally been viewed as limitations on the power of the king towards his subjects, but, under the proposed system, the people rule. “WE, THE PEOPLE of the United States,” he continues, constitutes “a better recognition of popular rights than volumes of those aphorisms … which would sound much better in a treatise of ethics than in a constitution of government” (84:443).

(c) To Mason’s point that Madison did not share Hamilton’s implicit belief in the purifying effects of power, the response must be that, in the first place, there is no basis, save pure speculation, for attributing any such belief to Hamilton writing as Publius. In the second place, there is a definite correspondence between Hamilton and Madison, not only with regard to the question of human nature, but also to the general character of those who would hold office in the proposed system.

Madison in Federalist 10 tells us that the extended republic holds out every prospect that the representatives of the people (certainly a healthy majority of them) will be those “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.” In fact, he even goes on to say, “it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for that purpose” (47). He discusses this more fully in Federalist 57 where he spells out why he believes the system will normally operate to produce representatives of high caliber.¹⁷

Hamilton did not have occasion to speak to this point at length. It is clear, however, that he shared Madison’s presumptions, namely, that the conditions associated with the extended republic, coupled with the “Duty, gratitude, interest, and ambition” of the representative himself, would operate to provide fit and responsible officeholders (57:297). For instance, Hamilton writes that “the office of the President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Why so? Largely because of the extensiveness of the republic:

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue (68:354).

The fact is, of course, that both Hamilton and Madison were fully aware of the dangers of faction. Both knew that men could be selfish and shortsighted—prone to place their short-term interests and gratifications above the long-term interests and well-being of either themselves or the nation. Consequently, one of the central concerns of the authors of The Federalist is, quite simply, this: given the nature of man, is it possible to institute a republican government that will not succumb to tyranny or majority oppression? A good deal of The Federalist —when the authors have the opportunity—centers on this and like questions.¹⁸

What is evident, to return to the split personality thesis, is that the charge that Hamilton believed in the “purifying effects” of power, or that he must have assumed this given his estimate of mankind, could equally apply to Madison. Put otherwise, whatever burden is placed upon Hamilton to show that the chief executive or members of the Supreme Court will be able to exercise their powers with the restraint necessary for a nontyrannical republican system falls as well upon Madison, perhaps even more so because it was his lot to defend Congress, that institution most likely to represent the very worst characteristics of the people.

SOME CONCLUSIONS

What I hope to have made abundantly clear is that a careful analysis of The Federalist does not lend support to the split personality thesis. Whatever plausibility this thesis does possess would appear to derive from the differences between Hamilton and Madison over matters political, economic, and otherwise that arose either before or after ratification. These differences are, of course, marked, and certainly would lead one to regard any collaboration by Hamilton and Madison as unlikely. But, as I have indicated, evidences of their differences, in the sense of antagonistic views on the nature of the Constitution, are not present in The Federalist.

This fact tends to confirm the commonly advanced proposition that each of Publius’s component parts knew full well the dimensions of the task before them, that perhaps the opportunity for a stronger union might never again present itself, and that, in addition, a united and coherent defense of the proposed Constitution would require them to trim their theoretical sails, that is, to accommodate themselves and their thinking to the implicit values and assumptions of the document, as well as to the sensibilities of each other.

This analysis, it should be noted, does not bear upon serious questions that have been raised about The Federalist: To what extent does it reflect the concerns and thinking of the Framers? Does it represent the consensual views of those who favored ratification? Is it reflective of the predominant views of its time concerning the need for a stronger union? What the analysis does show is that two political thinkers and activists with divergent views, Hamilton and Madison, were in substantial agreement on the principal issues surrounding ratification and the nature of the proposed system. In this sense, at least, The Federalist is a “consensual” document, one well suited to serve as a benchmark in charting the course of our political development.

Finally, this analysis should not be read to imply that there are no tensions or contradictions in The Federalist. But the more important of these, it would appear, reflect problems implicit in the proposed Constitution or inherent in republicanism. As such, they reside in Publius as a whole, not as conflicting parts. Recall, for instance, that the proposed Constitution called for an entirely new relationship between the national government and the states: a relationship that did not fit any of the traditional categories known to Publius¹⁹ or his contemporaries, and that defies precise delineation even today. Nor should we forget that the proposed system wedded republicanism to a new version of separation of powers, one calling for an independent and coordinate judiciary, a wedding that was bound to pose unforeseen problems, both theoretical and practical.²⁰ And it is, I would submit, the holistic perspective of The Federalist that holds out the best prospect for identifying, illuminating, and comprehending these and like concerns surrounding the foundations of our system.

INTRODUCTORY NOTE

Of all the Federalist essays, Federalist 10 is by far the most widely read and cited. Indeed, most students of the American political tradition have come to regard it as the document to which one must recur in order to understand the underlying theory of our constitutional system. Its assumptions, principles, and theorems form the foundations of what is commonly known as the “Madisonian model” which many close observers, scholars and practical politicians alike, believe best explains the nature and operations of the American political system. Thus, the essay enjoys a quasi-constitutional status.

That much may be said about Federalist 10 without too much fear of contradiction. However, principally because of its acknowledged and strategic role in fixing the character of the regime, it has been subjected to numerous readings and interpretations, and many of these can hardly be characterized as “neutral.” In this respect, I should remark, it would seem that many, if not most, analysts do not employ the essay as an “eyepiece” through which they might gain a clearer or more comprehensive picture of the American political system; rather, they seem to use it for purposes of finding theoretical support for conclusions they have already reached about the salient characteristics of the system and its operations. This often leads to a piecemeal and distorted interpretation of Madison’s extended republic theory, a theory set forth not only in this essay but in his personal correspondence and at the Philadelphia Convention.

Charles Beard’s An Economic Interpretation of the Constitution of the United States, a work that can be credited with sparking the enormous interest that has been shown in Federalist 10,^* is perhaps the best example I can offer. Briefly put, Beard quotes extensively from a portion of the essay in an effort to show that Madison was a pre-Marxian Marxist who believed that the basic divisions in society would be economic, between the “haves” and the “have nots.” Yet, Beard was able to accomplish this only by deleting key sentences in the middle of the quoted portion—sentences that clearly indicate that Madison was very much aware of other and, as many analysts would argue, even more potentially devastating sources of division and conflict originating from distinctly noneconomic sources involving passion and opinion. In his Main Currents in American Thought, Vernon Parrington is also guilty of the very same practice, though his elliptic surgery is more precise than Beard’s. And both are also guilty of not pointing out another facet of his theory that does not so readily fit their preconceived notions: Madison also anticipated a “horizontal” conflict between different economic interests, not simply a “vertical” conflict between those with and those without property.

The modern critics of the “Madisonian model,” though they subscribe to essentially the same revisionist thesis concerning Madison’s underlying thoughts about the need to protect the “haves” from the “have nots” who constitute a majority, are less direct and more subtle in presenting their case. Thus, disentangling their arguments is sometimes a difficult matter. For instance, as we shall see in chapter 3, we find Madison’s arguments for an extended republic mixed with and fused into his arguments concerning the necessity for the separation of powers. But other lines of argument seem designed to show that we cannot really take Madison’s position very seriously, presumably because it will not withstand critical analysis. Madison presumes, for example, that the permanent and aggregate interests of the community and rights of citizens are not necessarily what the majority may hold them to be at any given moment; that, in other words, they have an existence quite apart from what majorities may will or think. This, however, makes no sense to many moderns who have come to regard man as the measure of all things. From their perspective Madison was offering up, much as our politicians of today are wont to do, sweet-sounding maxims designed to enlist popular support: rather than offering an “operational” theory, he was presenting an attractive and appealing rationale for minority rule.

These lines of analysis or argument are appealing primarily to those already convinced that our system is built on the foundations alleged by the revisionists. Put another way, they do not come to terms with Madison’s argument on Madison’s terms; they simply reject the presumptions that lie at the heart of his approach. For instance, those who do not believe in an objective moral order cannot “enter” Madison’s system; they must summarily reject it or, as I have intimated, question his motives or sincerity. However, as I believe the following analysis will make clear, the central issue in the revisionists’ critique is whether Madison makes his case that the rights of other citizens and the permanent and aggregate interests of the community can be protected in the proposed system without having to abandon the republican principle of majority rule. This, in my estimation, is both a legitimate and crucial question raised by the modern critics. Yet, it is also one they have not chosen to explore with any intellectual rigor.

A few words are in order about the last section of my analysis. It was written in 1975 shortly after New York City went bankrupt. I believed—and one has only to read William Buckley’s The Unmaking of a Mayor to see why—that a major contributing cause of this bankruptcy was the practice of pandering to virtually every identifiable interest in the city.^** I could also see that politics at the national level was alarmingly similar to that of New York, particularly after the enactment of the Great Society programs. While New York could turn to the national government for relief, the question arose in my mind, “Where can the national government turn once it runs out of money?”

My basic concern then and now, to put this in terms of my introductory remarks, is that the active, positive government along the lines suggested by Croly and initiated by the New Deal is in the long run incompatible with the conditions and processes necessary for the successful operation of the “Madisonian model.” I see no reason to change my prognosis. Indeed, it has been borne out over the years, nor is there any indication that our leaders are about to change course. The principal reasons for my assessment—that groups will not willingly give up benefits or advantages once bestowed by the government whether they are needed any longer or not; that our present morality encourages groups to take full advantage of governmental largess; and, among others, that our elected officials seem incapable of resisting or tempering the demands of significant groups—are still operative. I would add only that the “new morality” that triggered this seemingly irreversible process has produced a state of affairs completely at odds with what it intended or promised. Rather than making the nation more of a nation in the manner Croly envisioned, it has served to make it less so.

MAJORITY RULE AND THE EXTENDED REPUBLIC THEORY OF JAMES MADISON

The American experience with self-government has long been the object of admiration by foreign observers. Principally for this reason students have pored over the records, debates, and pronouncements of our founding period with an eye to discovering the principles, theories, and beliefs that undergird the system and seem to have contributed to its success. Their interest has been more than academic. A belief, still widely held and for good reason, is that certain principles embodied in our constitutional framework are exportable, that underdeveloped nations, or nations embarking on the enterprise of deliberately creating governments, may benefit from our experience by incorporating certain of our principles into their political design.

But the results of these searches into our underlying principles have been less than encouraging. Rather than coming to substantial agreement, scholars seem hopelessly divided concerning even the most basic and important features of the American system. Were our institutions designed to allow for popular control of government or were they the product of men who actually feared republican government? Was the system really designed to provide for a unitary form wherein authority would be centralized in the national government, or was it intended to provide for an effective and meaningful division of powers between the states and national government? Was the President intended to be a prime mover among our branches of government or was this to be the function of Congress? These are only a few of the fundamental matters over which there has been lively dispute. The predictable result is great uncertainty concerning precisely what our basic principles are. Most certainly, it seems impossible to construct any coherent political theory that must have guided our Founding Fathers.

The situation is such that the contention advanced by John Roche seems warranted. He writes that the Framers are best understood “as extremely talented democratic politicians” and that the emergent Constitution was not “a triumph of architectonic genius,” but rather “a patch-work sewn together under the pressure of both time and events.” ¹ From this point of view, the search for coherent theory is necessarily doomed to failure; or, if not that, the underlying theoretical principles will at best be hazy, less than well developed, and often employed with an eye to their acceptability and workability given the political and social circumstances of the time. Moreover, we should not expect consistency in their application given the practical bent of the Framers.

Despite all this, there was one overriding question of enormous theoretical import that the Framers and presumably a majority of the American people answered affirmatively and unambiguously with the adoption of the Constitution; namely, they believed a republican and nontyrannical government over an extended territory possible. Certainly, in back of, or overarching their democratic caucusing, as Roche would have it, there must have been a prior and fairly wide consensus as to the feasibility of their undertaking. Admittedly not all shared this conviction—not, at any rate, to the degree and extent of the Constitution’s more ardent proponents—and in many respects it can be viewed as one of the most, if not the most, basic issue(s) that divided the political leadership during the period of ratification. The issue, to be sure, may not have been put precisely in these terms on every occasion, but key debates over the role of the national government vis-à-vis the states, how secure the liberties of the people would be in the hands of the national government, the role and accountability of representatives in the national government, and popular recourse from abuses of power by the national government can be directly related to and subsumed under the more general question of the feasibility of a nontyrannical republic over an extended territory.

Our purpose here is a limited but important one. We will examine with some care Federalist 10, an essay in which Madison sets forth what is generally conceded to be the strongest argument for the workability of a stable, nontyrannical, and republican form of government over an extended territory. We will do so with certain critical questions in mind: What novel features or departures from traditional teachings does Madison advance? What presumptions must Madison have held in advancing his thesis? What changes in our social and political environment seem to bear upon critical elements of his argument? What conceivable developments might destroy or undermine the validity of his arguments? An examination of these and similar questions will hopefully provide some clues as to what the future holds for our republic.

THE EXTENDED REPUBLIC THEORY

Federalist 10 presents us with a number of novel theses. In this respect, the main thrust of the essay, which stresses not only the workability but desirability of an extensive republic, is noteworthy. At the time Madison wrote, the traditional and widely accepted teaching held that a republican government—a government based upon the democratic principles of majority rule and political equality but one in which elected representatives would meet to conduct the business of the whole community—would be short-lived and marked by turbulence unless it operated upon a relatively small and homogeneous population within a relatively confined territorial expanse. Madison, however, advanced precisely the opposite proposition. In direct or “pure” democracies, where the entire people would meet to conduct the business of the community, and in small republics as well, the majority will more easily and readily feel “a common passion or interest”; “a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual” (46). Thus, he reasoned, pure democracies and small republics were inherently ill-suited to control the effect of majority factions, that is, a majority “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” (43–44). But a large and extensive republic, he maintained, held out every prospect for controlling the effects of majority factions. Why so? Precisely because of the conditions necessitated by and associated with extensiveness. Extensiveness would require representation of some kind and that would serve, in his judgment, “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” (47). More: extensiveness would of necessity involve the inclusion of a greater number of parties and interests which would hamper the formation of factious majorities. In his words,

Extend the sphere and you take in a greater variety of parties and interests: you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary (48).

Summing up this whole matter in the latter portion of Federalist 51, which is recognizably a reiteration of the argument presented in Federalist 10, Madison writes: “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” (269).

Now, in setting forth his theory relative to the extended republic, Madison is ever mindful of the basic requirements of republicanism; namely, in the last analysis, a truly republican government “derives all its power directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.” What is “essential to such a government,” he takes pains to emphasize, is “that it be derived from the great body of society, not from an inconsiderable proportion, or a favored class of it” (39:194–95). His avowed strategic purpose in Federalist 10 is to convince the reader that in the extended republic the effects of majority faction can be controlled without violence to these republican principles. So much he makes clear at the outset of this essay and in the final paragraph he writes, with seeming confidence in his analysis, “we behold a republican remedy for the diseases most incident to republican government” (48).

His republican remedy for a republican disease, like his inversion of the traditional large versus small republic theories, is highly original but also enigmatic. As we shall see later, its enigmatic character derives from the obvious assumption that the attributes of extensiveness, representation, and multiplicity of interests will serve to thwart majority factions without doing violence to the republican principle. But, we are entitled to ask, since republicanism involves control by the “great body of the people,” presumably at least a majority, how do the attributes of extensiveness serve to control this majority when it should be controlled, that is, when its ends are factious? Will such majorities somehow be “forced” to restrain themselves? If so, how can this be accomplished without recourse to some process or institution independent of the “great body of society” which would represent a significant departure from the republican principle?

One approach that leads to the heart of the enigma is to focus on solutions to the problem of majority factions that Madison expressly rejects. In doing this, we can best see what intellectual baggage Madison explicitly discarded or left by the wayside in the development of his theory. The results of such an undertaking are quite revealing in their own right largely because they stand in direct opposition to most of our contemporary interpretations of how the American system was “designed” to handle the problem of unjust and overpowering majorities.

One method that Madison rejects outright can be termed the traditionalist approach. It is the one that most readily comes to mind and finds its contemporary expression in the faith that some individuals place in certain of our institutions, most notably the Supreme Court. Quite simply this approach involves placing a veto power over actions of a majority in the hands of a select group. In Madison’s time, for instance, theories of “mixed government” that would lodge such powers in the hands of the major social classes were prevalent and obviously could have been adapted to the American environment to provide a ready framework for such a solution. Yet, it must be emphasized that aside from the principle of representation that would require a legislative body, Madison at no point in Federalist 10 speaks of constitutional institutions as barriers to factious majorities. The means by which their effects will be controlled relate only to the noninstitutional factors associated with extensiveness that we have already noted. This fact, often overlooked by contemporary scholars, provides very strong, albeit indirect, evidence that Madison was aware that such institutions would rest upon nonrepublican foundations and would, moreover, at best be a precarious check on factious majorities. We need not, however, rely upon inferences. At other points he explicitly rejects any such approach. He writes that we cannot count on “enlightened statesmen” to control factions because they “will not always be at the helm,” besides which, even if they were, they would be of little use since “indirect and remote considerations … rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole” (10:45). He flatly rejects creating a will in the community independent of the majority—that is, of the society itself. This he notes is the method that “prevails in all governments possessing an hereditary or self-appointed authority.” “This, at best,” he warns, “is but a precarious security because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties” (51:268).

Another approach to the problem of majority factions, one that at least seems to fascinate behaviorists concerned with the development and formation of the norms, attitudes, and values upon which political behavior is predicated, would be this: to produce and inculcate in the general population democratic values and norms with the end in mind of creating such a consensus that divisive issues (e.g., issues involving the truth or wisdom of basic values or ways of life of the society) would simply not arise in the political arena. Or, to put this into a more respectable framework, we know that every viable society rests upon some commonality of belief or, quite simply, it no longer remains a viable society. This commonality of belief—if, of course, it conforms with the known and tested standards of virtue—would serve to limit the boundaries of political discourse, particularly the introduction of factious proposals. In this connection, we cannot help but note that one of the critical functions of public education, at least as it was originally conceived, was to reinforce and bolster in each successive generation the fundamental ethics of this commonality.

With this we come to one of the most interesting and perplexing aspects of Madison’s thought, to wit, his rejection of this approach for both normative and empirical reasons. For one thing, Madison seems adamant in rejecting methods that would serve to eliminate the causes of faction. “The latent causes of factions,” he writes in Federalist 10, “are sown in the nature of man.” And even if “no substantial occasion presents itself [such as attachment to different political leaders, or matters concerning “government” or “religion” ] the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.” It would be “impracticable” (at other points he suggests impossible) to give “to every citizen the same passions and the same interest” that, if it could be done, would surely serve to eliminate the causes of faction. Nor is he about to destroy liberty, the other means he perceives for eliminating the causes of faction. This would be analogous to “the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency” (44). From Madison’s vantage point, there is little that can or should be done to eliminate factions. They will always be with us:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his 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 (44).

And, as we might expect, he placed little reliance on appeals to a higher morality or religion in staying the hands of a majority faction. “They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful” (10:46). By the same token, he placed little faith in the sufficiency of written limitations to block factions. At other points in The Federalist (e.g., Federalist 48) and consonant with the general approach set forth in Federalist 10, he is somewhat disdainful of “parchment barricades” controlling the effects of factious groups. And even after his change of heart concerning the need for a bill of rights, it is apparent from his own language that he holds out limited and guarded prospects regarding their efficacy in curbing majority factions:

It may be thought that all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.²

The perplexing aspect of Madison’s theory in this respect can be put as follows: unlike many of his contemporary critics, Madison was an objectivist in the sense that he attached meaning to such terms as “justice,” “permanent and aggregate interests of the community,” and the “rights of other citizens.” In his very definition of factions, for example, he uses this terminology to set such groups apart in a class by themselves on the rather obvious assumption that, by reference to such objective standards as “rights” and “permanent and aggregate interest,” they could be operationally identified. For instance, justice, probably his highest end, is not to be equated with what any majority or “the great body of the people” may regard it to be at any given point in time; it embodies known and objective characteristics that are the measure of whether a group is factious. In sum, Madison was not a relativist.

In light of this and his depiction of majority factions, his assertion that a majority will “seldom” coalesce on any other principles than “those of justice and the general good” is startling. What kind of faith can we place in any such prediction? Why are we to assume majorities will almost always act in a manner consistent with the public good? Factions, after all, are inevitable; they are the source of “the diseases most incident to republican government.” Factious majorities, and this seems to be another of their inherent characteristics, will seldom, if ever, be dissuaded or show forbearance; they will press ahead with their demands no matter how unjust their cause, totally unaffected by appeals to a higher morality, justice, or the common good. Debate, deliberation, and reason, the characteristics of decent and orderly government, will be of no avail in modifying or thwarting their ambitions. They will introduce “instability, injustice and confusion” into our highest councils and when the opportunity presents itself—once, that is, they are the “superior force” —they will rule without regard for the “rules of justice and the rights of the minor party” (10:45).

Madison’s answer centers on the extensiveness of the republic. And, as we have seen, he sees no need to depart from the republican principle that, of course, leaves majorities virtually unlimited. But, given the very formidable threat posed by majority factions to the existence of the republic, we are entitled to ask whether extensiveness alone is sufficient. To answer this, we must examine more thoroughly the arguments that he advances.

THE VIRTUES OF EXTENSIVENESS

The two attributes of extensiveness, already noted, that serve to control the effects of faction are representation and the multiplicity and diversity of interests. We shall discuss these in greater detail with an eye to determining how it is they might operate to accomplish this end consonant with republican principles.

At least one claim advanced by Madison on behalf of a system of representation in the context of a large republic seems self-evident. He observes that there must be an upward limit to the size of a representative assembly. The reasons for this are twofold: the assembly cannot be so large as to constitute a tumultuous mob incapable of conducting its assigned business in an orderly fashion; nor, by the canons implicit in republicanism, should it be so large that strict oligarchic internal rule is needed. Quite obviously, the larger the republic in terms of population, the more fit characters there will be to choose among for the limited number of positions in the legislature (10:47). To put this point in a familiar context, we can be reasonably certain, all things being equal, that a high school with 5,000 students will be able to field a better football team than one with but 500 students.

The greater number of fit characters means that the opportunities for selection of worthy representatives are increased. Extensiveness also provides other opportunities that are not so obvious. The larger the constituency, the less susceptible is the election to the “intrigues of the ambitious, or the bribes of the rich” (57:298). In other words, the possibilities of one man or a small group of men manipulating the electoral outcome are drastically diminished. The campaigns promise to be open contests wherein the voters will more likely be freed from the pernicious influences that all too frequently afflict small electoral districts.

And Madison seems to suggest something beyond this when in Federalist 10 he maintains that in large republics “it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried” (47). Here, because he is contrasting the conditions of democracy with those of republicanism, we can without injustice take him to mean that extensiveness will diminish the opportunities for the election of demagogues. This rests on two assumptions that seem warranted in light of his general theory: first, the worthy candidates will be able to counteract the effects of the demagogue; and second, extensiveness will require a candidate to expose himself repeatedly to a variety of audiences, which means at a minimum that he cannot secure election by one passionate appeal in a setting where all the voters are present. Each candidate, in sum, will be forced to state his case repeatedly before different groups with sufficient opportunities for rebuttal by opposing candidates. This will serve to give the electorate sufficient opportunity to reason and deliberate.

These are forceful, though far less than compelling, arguments to the effect that the electorate would have a greater opportunity to select representatives “whose patriotism and love of justice will be least likely to sacrifice” the common good “to temporary or partial considerations.” But Madison is less than convincing in telling us why the attention of the people will focus on men of the most attractive merit. The opportunity may be there but the motive may be lacking. To recur to our football team analogy, the coach of the high school with 5,000 students may by design, ignorance, or stupidity select the worst, not the best, available talent for the team. Conversely, the coach of the school with 500 students may be knowledgeable and conscientious and field a far better team.

Madison’s clear assumption, stated in Federalist 57, is that the people will choose those “whose merit may best recommend” them “to the esteem and confidence of [their] country”:

As they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements (296).

Bearing this in mind, let us look at the end that Madison felt would be attained through representation to see how this relates to the majority faction problem. The representative assembly, for one thing, will constitute a “chosen body of citizens” that will “refine and enlarge the public view” and “whose wisdom may best discern the true interest of the country.” Moreover, the representatives “patriotism” and “love of justice,” as we have mentioned, will presumably operate to prevent the sacrifice of the true interest to “temporary and partial considerations.” And of this, Madison goes on to write, “it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose” (10:47).

We can ask, apart from the fact that representatives are more capable and virtuous than the average constituent, why should the representative assembly possess this clearer conception of the common good? One obvious answer is that the representative assembly is so constituted that its members collectively, through their deliberations and debates, will provide a picture of the whole so that, unlike an ordinary constituent, the representative can weigh and measure with greater knowledge and certainty the impact of particular policies upon the whole country, not just one section or district. They are, in other words, strategically placed for this purpose. Contrasting the domains of the states and national government, for example, Madison writes:

The great theatre of the United States presents a very different scene. The laws are so far from being uniform that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils, to which a knowledge of them will be brought by the representative of every part of the empire (53:279).

Thus a policy that may have only a marginal benefit for a given geographical section of the country may have factious effects for another and eventually the whole nation. Or, it could be that a policy when viewed in the context of the whole may be seen as counterproductive. At least this much a representative will be in a better position to determine than constituents who, we must presume, will have more partial views.

Such a position regarding representation is easily reconciled with republicanism by assuming that, if the constituents possessed the same knowledge as their representatives, they, too, would see matters in the same light as their representatives and abandon their temporary or partial interests. For such a process to occur would require a fairly high degree of “communion” between the representatives and their constituents because the representatives would be obliged, in this variant of republicanism, to make as accurate a calculation as possible concerning what factors or values derived from a comprehension of the whole, if known to the constituents, would cause a shift in their thinking. Madison perceived this need for communion,³ as we have termed it, but it presented him with serious problems. Critics of the proposed Constitution contended that the electoral districts under the new form of government would be so large that communion between constituents and the representatives would be virtually nonexistent. Madison was able to counter that the districts would be no larger than those found in certain of the existing states. Yet, on Madison’s own showing this was hardly a satisfactory rejoinder. If, as he conceded, the population of the nation would grow and if, as he also conceded, there must be an upward limit to the size of the representative assembly, the bonds of communion could not help but be severely weakened, if not entirely broken. Madison’s general comment reflecting on this problem is noteworthy because it touches upon a theme that recurs throughout The Federalist:

By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures (10:47).

But, in suggesting the need for a division of authority between the states and national governments, Madison theoretically evades one problem only to introduce another that even to this day defies solution.

If representation itself provides at best only a very partial solution to controlling the effects of faction, what can be said of the other characteristics of an extended republic, namely, multiplicity and diversity of interest? The clearest statement of the desired effect of multiple interests is found in Federalist 51:

Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in a little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government (268–69).

By recurring to Federalist 10, we find specific reasons that we have mentioned in another context as to why this state of affairs will prevail. Here, again, we find the conditions of the small and large republic contrasted. In the small republic, with fewer “distinct parties and interests,” the likelihood increases that interests composing a majority will possess a common motive to oppress or otherwise abuse a minority. Beyond this, the opportunities for discovering and acting upon such a common motive are more abundant because of the “small compass” within which the interests operate. The opposite is true of the large republic that Madison envisions. The interests and parties will be so numerous that it will be difficult for them to discover a common motive for oppressive action. And even if such a motive does exist—and here Madison seems to feel geographical factors come into play— “it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” In this view of things, each interest is a small stone in a large mosaic.

In addition to all the difficulties attendant upon majority formation with such a diversity of interests, Madison cites another impediment: “where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary” (10:48). This, of course, presumes that there are recognized social norms regarding what constitutes an unjust or dishonorable purpose, even to the extent that factious leaders sense they are doing something wrong. To what extent this would really operate as an impediment, given Madison’s characterization of factions, is somewhat questionable. However, and more important in light of his general theory, is the “distrust” that is bound to occur among the diverse interests. Given the picture painted by Madison, the degree of mutual suspicion might well be sufficient to preclude unified action. To this we might also add that organization for unified action would probably have to take on conspiratorial overtones because secrecy might well be required in plotting action contrary to the common morality. Thus, all the factors of extensiveness operate to render a successful conspiracy most unlikely.

Yet there are obvious problems with Madison’s theory. Why will the extensiveness operate to thwart only factious majorities? Why, that is, won’t the hurdles of interest diversity operate to prevent the formation of virtuous or nonfactious majorities? Still another and more crucial problem can be put as follows: Madison clearly didn’t want an inert government, one incapable of making necessary decisions. And the fact is that the system he designed does make far-reaching decisions. Given this, how are we to tell whether factious majorities have been able in practice to overcome the hurdles of extensiveness? To answer these and like questions we must probe Madison’s theory a bit further.

EXTENSIVENESS, INTERESTS, AND THE COMMON GOOD

A fruitful approach to the central problems posed by Madison’s interest theory is to set forth and examine the currently fashionable interpretation of the American political process, which is presumably a logical outgrowth of the Madisonian system. In the course of this we will also have need to cast Madison’s remarks on representation in a somewhat new light, one that links them more closely to his interest theory.

A standard but by no means universally accepted theory of American politics, derived from Madison’s extensive republic theory, comes to this: there are, indeed, varied and numerous interests vying with each other; and, as Madison put it, the chief task of modern legislation is to regulate “these various and interfering interests.” ⁴ Our political processes, both between and during elections, are best viewed as shifting alliances or coalitions of these various groups and interests. The processes of decision making are slow, but through compromises, log rolling, and other give-and-take practices, a general consensus emerges on policy matters. Certain interest alliances, if strong enough, may block action, but, whether consensus is reached or not, the process is best understood as an interplay between the varied and numerous interests that comprise the republic.

This, in brief outline, is probably the most widely shared view of how the American political system operates at the national level with regard to those features with which we are concerned. It is also considered, as we have mentioned, to be the logical outgrowth of the Madisonian theory, which we have set forth in some detail. What we see at once, however, is that this account of the process does not deal with the key normative elements of Madison’s theory. Put otherwise, our processes are viewed in terms of a collision of interests where it is assumed that the outcome of the collision accords with the common good largely because of the degree of consensus behind it. Absent from this depiction are such considerations as “the true interest” of the country, “the permanent and aggregate interests of the community,” or the “general good.” More to the point, while the foregoing account may be an accurate portrayal of the American system in its relevant dimensions, there is little reason to presume that we have a republican government free from the control of factions.

This matter can be put another way. Madison’s theory, no matter how one chooses to read it, does not support the notion that the true interests of the country emerge through the resolution of interest conflict. For example, two or more factions may be the participants in any such conflict and one would be hard pressed to say that the ensuing result is likely to conform with the general or common good. Far from it: the presumption would have to be precisely the opposite. But Madison tells us this will seldom happen, and we are led to ask: what does the Madisonian theory require that is overlooked or ignored in our contemporary theory? If we were, in fact, following the Madisonian model, what would our political processes look like? How would they vary from what we have today as described by most observers?

The major difference, as we see it, is the emphasis that the Madisonian theory places on the cultivation and existence of a predominant independent force in our highest decision-making councils. What precisely do we mean by an independent force? In essence this: a group of decision-makers sufficiently detached from the immediate interests of a given controversy that they would serve more or less as a jury to judge the relative merits of the arguments and proposals advanced by the interested and contending parties. The members of the independent force would necessarily change from issue to issue as different interests become embroiled in controversy. Yet, the point is that on any given issue the force would be of sufficient size to hold the balance among contending interests.

The whole thrust of Madison’s theoretical discourse leads us to this conclusion. To see this, we need only transpose Madison’s thought a bit: suppose we do not, as Madison did, focus our attention on how the large republic will serve to control the effects of faction, but rather on how the large republic and the conditions associated with it will serve to produce an independent force of the kind described above. In other words, if we look to Madison’s theory as an explanation of why it will come to pass that no interest group will become “a judge of its own cause,” we are in a better position to understand how Madison’s extended republic will control the effects of faction. Indeed, Madison as much as invites us to look at the matter this way when he laments the character of the decision-making process that has led to the undoing of republics:

No man is allowed to be a judge of his own cause because his interest would certainly bias his judgment, and not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of the legislators but advocates and parties to the causes which they determine? (10:45)

If we transpose Madison’s theory, we can readily see how the conditions that he identifies in the large republic will enhance the probabilities of an independent force. Let us detail some of these:

(a) Multiplicity and diversity of interests certainly reduce the possibilities of a widespread union of interest with common motives. Thus, on any given issue normally only a small proportion of the entire population is likely to be aroused or involved. As a result there will be a large independent force that can perform a “jury” function. In these terms the contrasts between the small and large republic are striking: in the small republic where the interests are fewer and the ties between individuals are such that most individuals are forced to take sides one way or the other, the possibilities of an independent and decisive force in the decision-making councils are considerably reduced.

(b) The independent force, freed from the interest bias that clouds and distorts judgment, is more likely to resort to the accepted norms of the community in making its decision. Certainly it will have no need to deviate markedly from the accepted norms; it has no axe to grind, nor does it seek favors that might impinge on the rights of others. In sum, there is every reason to suppose it would represent a stable and calm force during stress and conflict.

(c) Representation, aside from placing a third force at a critical juncture in the decision-making process, is bound to temper deliberations. Interest advocates possessed of a greater knowledge of the whole would be obliged to weigh the contentions of opposing interests. The outgrowth of this would be a debate in which passions are minimized in large part because the contending parties must come to grips with the issues, that is, with the long-term effects, the merits, and shortcomings of any given proposal with an eye to persuading the independent force.

(d) When issues arise where the prospects of an effective independent force seem unlikely—that is, issues that “mobilize” the entire community sentiment one way or another—Madison seems to presume one of two processes occurring. Where a common motive prevails there is less likelihood of factious behavior because all interests alike will perceive a common stake in the outcome. Such, for example, would normally be the case with respect to a foreign attack or intrigue. Where, as in the case of competing religious sects, a partial end is sought to the detriment of other sects, the fragmentation of interests will preclude any action.

With this before us we are able to perceive why nonfactious groups are in a far better position to achieve their ends through the system, and why it is that factions face almost insurmountable obstacles. To the extent that proposals do not impair the accepted rights of others, there is every presumption that the independent force will favor them if they are otherwise meritorious. In any event, members of the independent force will be able to do those things good and virtuous representatives should do: act in the true interest of the country. Stated otherwise, when there is no independent force, the possibilities of factious control are greatly increased.

If this view is substantially correct, it would seem to follow that the Madisonian theory presupposes what can be termed a low-key or relatively passive government. If it were otherwise, the problems of controlling the effects of faction would go well beyond those canvassed by Madison. A positive government would, more likely than not, serve to arouse the people; and, to the extent that it became the mechanism through which interests, factious or not, could achieve differential and favored treatment, it would increasingly become the object of capture or domination. Scarcely any interest could avoid being drawn into this political vortex. Soon “horse trading” and coalitional politics, all with the end of securing needed majorities, would become common practice. With this the prospects of an independent force would be greatly diminished. Moreover, as the government would be obliged to embark upon long-range programs that would necessarily favor one set of interests over another, the society would become increasingly polarized. To a lesser and lesser extent would issues be decided on the basis of the common good or the true interests of the nation. Rather, such decisions would be made with an eye on how to maintain and enlarge a winning coalition. In sum, an active government involves a form of bribery in which only a few can afford to remain neutral. And, on Madison’s own showing, once this process begins, there is little, if any, hope that considerations of long-term national interest will arrest the tide.⁵

Active or positive government thus poses very critical problems for Madison’s extended republic theory. Once a government has shifted gears from a more or less passive instrumentality that operates within a relatively narrow sphere to an instrumentality for the advancement of interests and purposes that are of enormously broad scope, the best one can hope for consistent with the Madisonian theory is that the true interests of the country reside somewhere within the depths of the forces that propel the dominant interest coalitions, or that, at the very least, these forces do not contain strategically placed factions. But, in light of Madison’s assumptions, these hopes are at best very dim.

THE MODERN PROBLEM

With the foregoing in mind, we have at least some idea of where to look to determine whether Madison’s solution to the problem of factions is any longer applicable to the American system as it presently operates. We shall briefly examine some of the characteristics of our present system with reference to Madison’s basic assumptions and propositions.

In one respect—the continued growth of the United States—the conditions essential for a nontyrannical republic seem to have been immensely strengthened. Whether the effects of this growth have been offset by advanced systems of communication and travel is obviously a judgmental matter. However, because of our industrial and technological development, interest proliferation has been increasing at an enormous rate. Today there is virtually no sector of American life in which interest organizations do not abound, and many of these are highly organized for political action. Thus, one is safe in saying that one of the basic props of the Madisonian theory, multiplicity and diversity of interest, is quite sound.

Developments of another sort, however, present a very basic and serious threat to a republic free from the control of faction. We have already commented on the effects of positive government with reference to Madison’s theory. In this regard, we have already witnessed a dramatic shift in our thinking about the legitimate role of government in our society. We can say that, since at least the advent of the New Deal, Madison’s basic presumption regarding the role of government has been rendered inoperative. Since that time the dominant political forces have seen their main task as one of achieving “social democracy,” which, when distilled, comes down to greater economic and social equality. The extent of the shift since the New Deal can hardly be exaggerated. What were formerly regarded as dispensations by government are now looked upon as vested rights. We now have entrenched interests in the bureaucracy whose very livelihood depends upon identifying social “wrongs” and developing long-range plans to ameliorate them. The quest for equality in all spheres of social life seemingly knows no bounds short of repealing the laws of nature. In this process, the government has massively intervened in precisely those areas of economic and social life where it is abundantly clear that the opportunities for factious influence abound. It has done so, moreover, where independent forces by the very nature of the situation are either weak or nonexistent.

Equally important in the disintegration of independent forces produced by positive government is the ideology that has justified and propelled positive government, namely, secular liberalism. The characteristics of this ideology hardly need recounting here. Yet we must not ignore two of its features that do bear upon our analysis. First, the push for social and economic equality moves us in a direction clearly fraught with danger. In an important sense, such movements, when carried to the extreme, embody the essence of what Madison seemed to regard as factionalism: namely, the attempt to reduce men as far as possible to the condition of sameness. A second and related feature worthy of note is a perverse form of relativism that exalts equality or, better said, transforms equality into the common good or the true interest of society, but simultaneously and dogmatically holds that it is meaningless to speak of national interest or the common good as something apart from and “above” the clash of particular interests. In this, the contemporary and prevalent ideology and Madison’s theoretical presumptions, which were plainly not relativist, are poles apart.

Secular liberalism would pose no dangers in terms of Madison’s extended republic theory save for its pervasiveness. Its simplicity and moral gloss make it the standard to which academics, the priests of the mass media, and, perhaps because of this, our political leaders, repair. It is the source of “respectable” opinion and those who operate most effectively within its confines are our “statesmen.” Yet, its acceptance at the highest levels further diminishes the possibilities of an independent force in our decision-making assemblies. The ideology, being the measure of what is best for the country, serves to exclude from consideration measures, policies, and proposals at variance with its principles, no matter how prudential, worthy, or effective they may be. Even in the field of foreign policy, where we would expect to find a vast independent force at the national level, the effects of ideology on our policies are pronounced.⁶ More than this, it threatens to incapacitate the national government in performing its requisite and primary functions, such as securing the common defense and providing for domestic tranquillity.

Finally, secular liberalism’s attachment to pure democracy, as far as that is attainable in the United States, promises to reduce even further the possibilities of an independent force. The reforms of political parties and Congress, all designed in the name of greater democracy, have this effect. Not only would they create a decision-making structure that would force a division of the whole society along majority-minority lines, they would also assure that this cleavage was reflected in our decision-making bodies, thereby eliminating the possibilities of an independent force. Thus the benefits of diversity, one of the fundamental pillars of Madison’s theory, would be lost in this rigid and constrictive framework.

A number of reasons can be adduced as to why we have not as yet evidenced the full effect of factions. The basic reason, as we see it, is to be found in the relative affluence of the American society. This is to say that interests caught up in the politics of positive government have to date experienced little hardship. Quite the contrary. To this point in time, most of the interests have benefited. In addition, the potential independent forces have been, so to speak, bought off. Thus, positive government has generated an interest of its own that all but forecloses a significant number from showing forbearance. For any substantial group to try to arrest the process now in full operation would be considered an act of betrayal and bad faith that could only result in severe deprivations for the “guilty.”

Yet the day of reckoning is inevitable. Hard and painful choices will have to be made as resources become scarcer. Circumstances not of human design or volition will force forbearance. The severity of withdrawal will depend in large measure on the sacrifices demanded of interests, and this, in turn, will depend on the extent to which government will be forced to curtail its activities. But as the tide of secular liberalism has not ebbed, we have every reason to believe the reactions will be severe. And the severity of the reaction will be compounded by the fact that the major interests, because of their strategic positions in society, can resort to forms of extortion to gain favored status or to hold at least whatever gains they have made. Those, for instance, performing essential services can always hold out the threat of a general strike. But whatever configuration politics does assume at this juncture, there is little prospect that the effects of faction can be controlled without resort to coercion. Whether coercive powers will be exercised moderately or in a relatively benevolent manner would seem to depend on whether the middle class will be able to act as a viable independent force.

One thing does emerge from this analysis. Madison’s reliance on the extended republic to prevent the abuses of faction, like such devices formulated by the traditionalists, is far from foolproof. This can be seen in our increasing popular reliance on the feeblest of the traditional devices, a body presumably removed from the purely political arena (the Supreme Court) empowered to enforce written limitations (a Bill of Rights). This is indicative of the misdirection and sad state of our thinking about the problem of the nature of factions. It also constitutes a remarkable regression in our thinking about democratic government.

Certainly Madison cannot be faulted for not having seen the true dimensions of the problems associated with factions. Perhaps more clearly than other theorists who preceded him, he saw their root causes. Yet, he can be faulted for not having urged upon his audience the observance of that morality necessary for the perpetuation of the regime he envisioned.