A few months after the Federalists had secured the votes of nine state conventions to ratify the Constitution, James Madison wrote to Thomas Jefferson on the subject of future congressional action on a promised bill of rights.
Madison proved ambivalent in his letter of October 17, 1788. Although he favored a bill of rights as an additional safeguard of “public liberty & individual rights,” a standard that could help keep rulers under the law, he worried that any formal declaration of rights amended to the Constitution might also be interpreted as conferring on the federal government powers not constitutionally granted to it. What was designed to keep power within the “requisite latitude” might actually contribute to power’s escape from confinement.
The creator of some of the most important architecture in the Constitution acknowledged that “parchment barriers” could only protect the vital principles of a freedom-loving people so far. Wherever sovereignty lies, said Madison, there lies the danger. During the Critical Period, the years immediately preceding the Constitutional Convention, “overbearing majorities” had taken hold of various state legislatures. If the new secular order were to bring not only peace and prosperity to America’s citizens but serve as a liberating beacon light for oppressed people around the world, then the ultimate safeguard of that new secular order rested on the spirit of the people—especially their vigilance in preventing overbearing majorities from destroying the rights they thought they had won in revolution.
Joseph Postell joins a long line of clinicians, past and present, who recognize that somewhere along the way, the great experiment went awry. Generations of citizens seem to have flunked the test of self-government. The country has reached the point of cracking under stress. The very idea that the rest of the world would look to Kardashian Land as a shining example of civic virtue seems ludicrous. The differences that divide the country at the moment appear deep and abiding, even irreconcilable, reminiscent of the sectional civilizational struggle that came to a head in 1860-61 with the election of Abraham Lincoln and the secession crisis. What happened? Where does the problem lie?
Dr. Postell rightly notes in his Liberty Forum essay that leaders of the Founding generation had serious doubts about the workability of their model. According to the Baron de Montesquieu, the colossus whose shadow hung over the political thinking of the Founding era, virtue was the animating feature of republics, and they could only thrive when confined to a small territory. The Constitution established an extended republic, and although many of the Framers spoke the language of disinterestedness, they concluded that virtue could not be relied on in maintaining their new secular order. In a free society, factions would invariably arise, and so they created institutional structures to channel the clashing interests of factions into a dynamic that they hoped would yield the public good.
Tyranny of the majority is no less a tyranny because it is popular. Ask conservatives at a faculty meeting. In a popular government, a general will that promotes human happiness does not necessarily equate to a majority will. Federalists regarded the republican form created at Philadelphia in 1787 as superior to pure democracy precisely because it had mechanisms designed to refine the will of the people, however defined. The Framers had no fondness for plebiscites or referenda. Recall that in the 85 essays of The Federalist, the word “democracy” appears a total of 10 times, and never in a positive sense. Publius wrote the majority of the essays to persuade the public that the Constitution accorded with the essentials of republicanism.
Over time, the country has become more democratic and less republican. Perhaps therein lies the problem. Dr. Postell turns to Willmoore Kendall for insight into the workings of majority rule, “the central problem in modern politics and modern political theory.” He finds Kendall’s diagnosis perceptive but his solution “unworkable.” I would argue that Kendall, one of the most brilliantly original political theorists in American history, stands as less a “conservative populist” than a majority-rule authoritarian—but one of a peculiar kind, whose thinking on the American political tradition did align in important ways with that of John Calhoun in a delicate balancing act.
For Calhoun, Man was essentially a social animal with primary obligations to his community. Human beings enter into communities to preserve themselves; different communities beget different vital interests. Society precedes government, and government must be made to restrain itself. Calhoun embraced republican rule but remained concerned during the last decades of his life about the threat that majoritarian rule posed to minority interests, particularly those of the South. His artistic rendering of the theory of the concurrent majority attempted to strike a balance between popular rule in a republic, on the one hand, and the need, on the other, to rein in popular excesses that could endanger the vital interests of minorities.
The idea of the concurrent majority takes into account that a community, like a confederated union or nation, may have more than one vital interest, which without protection, could lead to domestic upheaval, decadence, and disunion. Kendall agreed with Calhoun that in a democratic-republic, the right to vote may collect the sense of the community, but that sense may more likely represent a passion or interest flaring with particular intensity at a given moment within an aggregation of excitable individual units. In an unrefined democratic system, public opinion becomes the non-rule that rules, and it can be manipulated by power.
The rise of mass-based political parties compounded the problem. Government by a party that had control of all three branches of the federal government could elevate demagogues to power, which would lead to the abuse of power.
It is Kendall who articulated the concept of “public orthodoxy.” No civilized society, he argued, has ever existed without a “matrix of convictions, usually enshrined in custom and ‘folkways,’ often articulated formally and solemnly in charter and constitution” that speaks to what constitutes the good life.
Acceptance of a public orthodoxy forbids indifference. One might argue that in the beginning, the public orthodoxy of the United States centered on certain understandings of limited government, religious toleration, voluntary exchange, private property, and civil liberty. The American Revolution was propelled by a paradoxical people who in 1775 numbered among the freest and most prosperous people on the planet. They feared, however, that their cherished liberties, rooted in the freehold—that is, privately owned land, were being placed at risk by a corrupt monarchy that was moving to reduce them to servility through the exercise of arbitrary and despotic power in defiance of custom and positive law.
To be sure, Kendall’s (and Calhoun’s) preferred polity would move slowly and confine itself to issues properly within its jurisdiction. Not all minorities would have to sign off on any given political outcome for that outcome to be legitimate. But internal structures would ensure that key national decisions were made by supermajorities, that is by a broad consensus, worked out through compromise, in a hierarchy of bodies in which representatives of the people would patiently deliberate under God. The Kendallian system would not guarantee the survival of the public orthodoxy, but would dramatically enhance its chances of survival.
In the debates between Federalists and Anti-Federalists, fierce exchanges occurred about the nature of the federal government created under the Constitution. Federalists maintained that while building a stronger central government, the Framers had put in place sufficient safeguards to assuage anxieties about a federal authority that would naturally agglomerate power to itself. In Federalist 39, Madison, in less-than-coherent fashion, tried to reassure doubters that the Constitution represented a federal document, not a national one, in which “the Several states” retain “a residuary and inviolable sovereignty.”
No Anti-Federalist clanged the alarm bell about the threat of federal consolidation louder than did Brutus, whose series of essays urged the people of the state of New York not to ratify the Constitution. Sounding like the progenitor of Murray Rothbard, Brutus declared that the power conferred on the federal government by the Constitution portended a power to be “exercised without limitation.” He warned that the Constitution was the blueprint of a federal government that would
introduce itself into every corner of the city, and country — It will wait upon the ladies at their toilette, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!
What Brutus did not recognize, but Alexis de Tocqueville did, was that the people would give, give so willingly. Democracy became the irresistible force. States wedded themselves to it to become mightier than the mightiest absolutist monarch haunting Brutus’s nightmares. When Tocqueville visited the United States in the 1830s, he believed there were enough makeweights in place—in private associations and state governments, for example—to keep the country on the freedom road. But the makeweights weakened over time with the people’s drift toward the center. Subjects-turned-citizens eventually discarded the old wisdom about the need to check and restrain power.
Not only had the people become lax in their vigilance; they were actively contriving to bring on their own servitude. The beast with the insatiable appetite had acquired a human face and with it a dual personality. This was a subtle phenomenon, for its manner more often resembled that of the shepherd than the policeman. Naked against the state, the people proved impressively malleable. Democracy fostered equality; equality fostered individualism. As a member of an increasingly lonely crowd, the sociable person seeking the public good metamorphosed into the atomized individual demanding equality.
“In this extremity,” predicted Tocqueville, the American “naturally turns his regard to the immense being that rises alone in the midst of universal debasement.” Since the reality of life yields inequality from the inborn differences of human capacity, the resulting inequality stokes envy and grievance. Abstract equality becomes the formula for both redress and perpetual revolution. The state grows whether it delivers on its promises or not.
The Bill of Rights, which was understood in 1833, by no less fervent a nationalist than John Marshall, as a brake on the exercise of power by the federal government against the states, turned into exactly the opposite in the 20th century when interpreted through the lens of the Fourteenth Amendment’s Equal Protection Clause. Where once the security of private property served as the guardian of other rights, the Leviathan state in its “benevolent,” egalitarian redistributions has made private property insecure, subject to confiscation by the handmaidens of the regulatory state.
The private ownership of property not only acts to enhance the efficient allocation of goods and services, but it internalizes externalities, thereby holding individuals accountable for their own actions. In contrast, the modern state externalizes internalities, creating a massive free-rider effect, in many ways incentivizing behavior that is anything but virtuous.
Voila, the stake of the stakeholders depends on the state of the state. The public orthodoxy has been turned on its head.
If the free society and the public orthodoxy on which it originally rested is to be sustained, Leviathan must be arrested. That is the central problem of modernity. The fatal delusion, as F.A. Hayek reminded us, is that when the people came to power, restrictions on state power would become unnecessary.
 Frederick D. Wilhelmsen and Willmoore Kendall, “Cicero and the Politics of Public Orthodoxy,” Intercollegiate Review 5, no. 2 (Winter 1968-69): 84-100.
 Brutus #6, December 27, 1787, in The Anti-Federalist Papers and the Constitutional Convention Debates, edited by Ralph Ketcham (New American Library, 1986), pp. 283-84.
 Alexis de Tocqueville, Democracy in America, edited by Harvey C. Mansfield and Delba Winthrop (University of Chicago Press, 2002), p. 644.
 This is the phrase used by Hayek in his review of Bertrand de Jouvenel’s 1948 book, On Power: The Natural History of Its Growth, published as “The Tragedy of Organized Humanity” in the British weekly Time and Tide, November 6, 1948, p. 119.
In response to: Can the American People Be Trusted to Govern Themselves?
The question posed in Joseph Postell’s Liberty Forum essay—“Can the American people be trusted to govern themselves?”—sounds strange, at least at first, to a student of empirical political science, especially of comparative politics. It sounds strange because it suggests that America’s experiment in self-government might have failed or might be failing or faltering in some…
Joseph Postell’s Liberty Forum essay intervenes in a multifaceted debate about whether Congress or the presidency best embodies the American people governing itself. A third possibility also entertained is that self-government emerges from a creative interplay between the two, and a fourth is that perhaps self-government isn’t possible at all. Absent from this debate are some…
I’m thankful to Richard Reinsch for putting together this lively and interesting forum on the pressing difficulty of self-government in America today, and to those who responded to my initial essay in the Liberty Law Forum. Each response brings a different perspective to this debate. They range from optimistic about the practice of self-government in…