Our identity politics could use some Madisonian wisdom.
James R. Rogers contended in his piece, “Americans No Longer Believe in the ‘Consent of the Governed,’” that as a people we no longer believe in the consent of the governed, nor in the foundations of government noted in the Declaration of Independence.
The last general election seem to contradict those claims.
In The Federalist #10 James Madison famously observes that the “most common and durable source of factions has been the various and unequal distribution of property.” But Madison discusses numerous other sources of faction as well:
The Trump phenomenon—whose latest instantiation is his outright lie about hordes of Jersey City Muslims cheering the collapse of the Twin Towers—is widely thought to be a test of other Republican candidates. It is more than that. With Trump still leading national polls—still?—it is becoming a test of the Madisonian thesis.
When the topic is the Constitution, law professors and political science professors often talk past each other, and I’ll cop to talking past Randy Barnett, whose work commands respect even by way of dispute, first. But I’m not sure his reply at Volokh—which, in fairness, was primarily to Ed Whelan, mentioning my post here only in passing—reached my argument either. I never fired on the hill Barnett defended.
His post defended judicial review. I attacked judicial supremacy. There’s a difference.
To gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.
That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”
Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.
Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.
The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.
In this, its centennial year, Charles Beard’s 1913 An Economic Interpretation of the Constitution of the United States retains its hold on both the publication market and, at least in certain circles, the popular imagination. Its claim that the Founders were possessive aristocrats out to protect the property of the privileged has, to be sure, been demolished in the scholarly literature, most notably by Forrest McDonald. But it may be time for those who respect the Framers to acknowledge at least one deep vein of truth in Beard’s thesis and reply with an even deeper one. Call it “the Seinfeld defense”: Yes, they wanted to protect property—not that there’s anything wrong with that.
The idea that the Founders had to be redeemed from Beard’s charge has so framed the response to the Progressive historian that the charge itself has been too little examined. But while Beard’s assessment of the personal economic stakes of the Philadelphia delegates was, as McDonald and others have shown, mistaken, his deeper point cannot and indeed ought not be dismissed: One purpose of the Philadelphia project was the protection of property.