In a pre-election issue of The New Yorker, the editors placed a cartoon on the cover of the magazine depicting George Washington and Abraham Lincoln looking in horror at a television screen showing Donald Trump delivering one of his campaign speeches. The message was clear enough: Mr. Lincoln and the Founding Fathers, if they could be with us today, would be appalled at the spectacle of the billionaire mogul running for president as the authentic voice of the people. Many commentators on the left and right, and in between, joined in agreement to say that the Founders designed the Constitution precisely to prevent populist demagogues from getting anywhere near the presidency. There was considerable confusion in these circles as to whether they judged Mr. Trump to be an authentic populist or just another standard-brand candidate claiming to speak for the people—or, indeed, if they were saying nothing more than that a successful candidate who disagrees with them must be by definition a demagogue. Nevertheless, now that Mr. Trump has won the election, they are singing a slightly different tune, now relying upon the checks and balances in the Constitution to keep him from carrying out some of the policies he called for during his campaign.
It is heartening to hear these appeals to the Founding Fathers from liberals and leftists who typically scorn the Constitution as an out-of-date relic from the eighteenth century that does far too much to protect minorities and not enough to empower majorities. This is the refrain that we have been hearing for close to a century since Progressives like Woodrow Wilson and Theodore Roosevelt launched the modern critique of the Constitution. The separation of powers promotes gridlock and governmental ineffectiveness; the equal representation of the states in the Senate gives too much power to small states at the expense of the large ones; federalism is a tool that permits states to resist national majorities; the Supreme Court has more power than it should have in a popular system; the Constitution is far too difficult to amend and far too complex for the average citizen to understand. These critics, and there are many of them, prefer a framework of government that is less complex and more democratic or majoritarian than the one the Founders left us with, perhaps something resembling the parliamentary system in Great Britain or the initiative and referendum system for making policy used in California and in a few other states. In those systems, electoral majorities are able quickly to translate their victories into public policy without much regard for the opinions of the minority, which is the standard the critics use to measure “democracy” and “majority rule.”
Under the U.S. Constitution, a populist “moment” is not sufficient to win the long game.
Many find these arguments against the Constitution persuasive from an intellectual point of view—at least until they find themselves on the losing side of an election or two, at which point the indirect and complicated character of the Constitution looks like a political lifeboat that is conveniently available to save them from being overwhelmed by the majority. This seems to be where we are today with those in the national press or others close to the centers of power in Washington who never imagined that Mr. Trump could be elected President, much less carry his party into majorities in the House and Senate. Many who yesterday saw the Constitution as an impediment to their desires are relieved today to find that it also acts as a reciprocal impediment for their adversaries. Their credo, to paraphrase Mr. Dooley, might be summarized as, “Throw out the Constitution—on the other hand, not so fast!”
The framers of the Constitution did not use the term “populism,” but they were aware of the phenomenon it describes—that is, an uprising by the voters against what they judge to be a corrupt or out-of-touch elite. James Madison, for example, referred to something roughly similar in his extensive discussions in the Federalist of factions and “factious majorities.” To a considerable degree, the challenges posed by “populism” were front and center in the debates that eventually produced the Constitution. For better or worse, the framework Madison was instrumental in creating does not easily allow for the kind of popular referendum through which a majority of voters in Great Britain decided to pull that country out of the European Union, or the more recent referendum in Italy through which voters turned down a package of constitutional reforms. In this sense, the U.S. Constitution operates as an impediment to populism because it substitutes representation and deliberation for national referenda and direct democracy.
In the United States, of course, voters can decide to pull out of a treaty or an alliance or repeal a law, but they must do so indirectly by first electing a willing President and Congress, and then hoping that the two can find enough common ground to enact a program—and then sustain that program through subsequent elections. Under the U.S. Constitution, a populist “moment” is not sufficient to win the long game; the moment must be sustained over a sequence of elections such that a temporary uprising of voters is translated into a durable governing majority, which is a difficult thing to accomplish in a country as large and diverse as the United States, as the Founders well understood.
The populist moment that we seem to be in, here and abroad, is a propitious occasion to reconsider some contemporary assumptions about democracy and majority rule in relation to the arguments advanced by the Founders on those same subjects. Many today are instinctively inclined toward democracy and majority rule but are also worried about the implications of “populism.” Can they have it both ways? After all, populism, to the extent that we use it in a pejorative way, implies that majority rule is not always a good thing, and that, as James Madison argued in the Federalist, there can be “bad” majorities as well as “good” ones. How do we tell the difference? And how does one design a system to deter or to deflect these “bad” majorities? Once we raise such questions, we enter into the political and intellectual world of Madison and the Founders.
If George Washington was “the father of his country,” then, according to one of his contemporaries, James Madison was the “father of the Constitution.” Madison outlined the first draft of the Constitution, kept a diary of the debates at the federal convention, set forth the philosophical foundations of the document in several key entries in the Federalist, maneuvered it through to ratification, and then wrote the Bill of Rights as a series of amendments to the Constitution. Later he helped to implement and guide the system as a Congressman, party leader, Secretary of State, and, finally, as President of the United States. No other member of the founding generation could lay claim to such an impressive list of accomplishments.
Nevertheless, it is as the principal intellectual architect of the Constitution that Madison is most well known to us today, and it is in that role that he is the target of barbs claiming that he was hostile to popular rule due to various features he or his colleagues inserted into the Constitution. These barbs usually point in two directions—toward Madison’s theory of the extended republic that makes it difficult for majorities to form and sustain themselves; and toward his defense of the separation of powers under the Constitution that supposedly works against majority rule and renders the federal government weak and ineffective.
How does one design a system to deter or to deflect “bad” majorities?
These criticisms are either wrong or overstated in connection with Madison and the Founders, and by inference with the Constitution itself. From the beginning of his career during the revolutionary years, Madison expressed strong support for popular government and majority rule, because from a republican point of view there is no other objective standard to determine political legitimacy. While it is true that he disapproved of “populism” (as we call it today), he did so mainly because it threatened to discredit republicanism as a form of government by rendering it unstable and unreliable. Madison was concerned about the potential abuses of majority rule but not opposed to majority rule itself. According to Irving Brant, Madison’s biographer, Madison fought throughout his career for three great principles: a strong union of the states as the guardian of liberty; freedom of conscience and personal liberty; and a republican form of government, based broadly upon the will of the people. As Greg Weiner argues effectively in a recent book, Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics, Madison strongly supported popular government and majority rule, but wished to slow down the tempo of national politics to provide space for reasoned deliberation. Madison surely agreed with Thomas Jefferson, who said in his first inaugural address, “though the will of the majority is to prevail in all cases, that will to be rightful must be reasonable.”
Madison and many of his political allies began their political careers during the years of the Revolution, most of them as members of the Continental Army or the Continental Congress, or as office holders of some kind under the continental government. It was in this way that the Revolution produced a division within the governing class of the new nation between those who experienced the war in various continental or national posts and those who fought the war in the state militias or devoted their careers to state or local offices. The “nationalists” traveled abroad and up and down the continent conferring with colleagues from other states, while wrestling with national issues like taxation, foreign affairs, and overall military strategy. They were a relatively small but tightly knit group that included Madison (who served both in the Continental Congress and the Virginia legislature), Jefferson, Franklin, Adams, Hamilton, and, of course, General Washington. They disagreed then and later on many important issues, but they were of one mind about the fatal weaknesses of the Articles of Confederation. After all, they were the ones who had struggled and largely failed to turn the continental system into an effective political force. They were the first to conceive of the United States as a nation in need of a government worthy of the name. Those who labored in the states came more slowly to this outlook. Most could not reconcile themselves to the concept of a strong national government located in a faraway capital.
Madison, along with several others of this national outlook, began to press in the mid-1780s for revisions in the Articles out of concern that the national union was too weak to sustain itself and, indeed, was on the verge of falling apart. In the aftermath of the Revolution, the states drafted and ratified constitutions that allocated the preponderance of power to the legislatures in keeping with the theory that the executive poses a threat to liberty and the legislature is the appropriate repository of popular power. By the mid-1780s, the various legislatures in the states were erecting trade barriers against neighboring states, issuing worthless paper currency, interfering with treaties with other nations, and allowing mobs to threaten courts of law—all of it under the banner of populism and popular rule. In addition, those legislatures withheld taxes and revenues due to the Continental government, thereby weakening it further and leaving it vulnerable to possible attacks from European powers. One might describe this as the original “populist” moment in the history of the United States.
Madison’s Virginia Plan was majoritarian or popular in character.
By 1787, the national group, led by Madison and Hamilton, persuaded the various legislatures to approve a national convention to meet in Philadelphia for the purpose of recommending revisions to the Articles. They also maneuvered in their respective states to win appointment as delegates to that convention.
In preparation for the convention in Philadelphia, Madison drafted a memorandum outlining the key weaknesses of the Articles of Confederation and the features that he felt should be incorporated into a new framework of government. He saw two near-fatal defects in the Articles—first, that they relied upon the good will of the states to implement the policies or to collect the taxes approved by the Continental Congress, because the continental government possessed no powers to sanction recalcitrant states; second, the Articles required the approval of nine of the thirteen states before any policy could be carried into operation, thereby allowing a minority of states to veto measures approved by a majority. Both were features that tended to enfeeble the continental government—the first by making it impossible for the Congress to enforce its policies, the second by giving to a minority the power to stymie the operations of government. The minority veto he saw as a double-edged weapon that may have protected the minority but at the expense of paralyzing the government. When a few months later the convention discussed methods for ratifying the Constitution, he rejected proposals to require unanimous agreement from the states because, as he wrote in Federalist No. 40, it would be absurd to subject “the fate of twelve states to the perverseness or corruption of the thirteenth.”
Madison, working in league with other delegates, proposed to dispense entirely with the Articles of Confederation and to draft an completely new constitution for a strengthened national government. He arrived a week early in Philadelphia in May 1787 to plot strategy and to prepare for the task ahead. He used those days to draft his Virginia Plan, which he introduced early in the proceedings to serve as a template for discussion and debate over the form of the Constitution. His Virginia Plan was majoritarian or popular in character, in that it called for both houses in the legislature to be apportioned by population, with elected members of the House of Representatives empowered to select members of the Senate, and then a group of Senators and Representatives in turn selecting the executive. This was in keeping with his theory that the national government should be based upon a representative body answerable to the people, with that body then selecting higher officers in the government. By that means he hoped to “refine” public opinion by using the popular branch as the basis for selecting the most able individuals to hold the higher posts in government. He lost those battles in the convention when the smaller states insisted upon an equal representation of the states in the Senate—a compromise that Madison saw as necessary to win support for the Constitution but also not entirely consistent with the principles of republican government. Still, as he saw it, the Constitution that emerged from the convention was a vast improvement over the Articles of Confederation.
With the drafting of the Constitution complete, Madison threw himself into the ratification process, with a focus on two key states—his home state of Virginia and New York. Opponents in his home state did all they could to deny him a seat in the ratifying convention in recognition of his mastery of the arguments for and against the proposed constitution. His eventual success in winning that seat was a critical step in the ratification fight, for, as his biographers agree, without Madison’s presence in the convention, the Constitution might easily have gone down to defeat in Virginia, and probably in other states, too.
During these months, Madison shuttled back and forth from his home in Virginia to New York City as a delegate to the Confederation Congress, which provided an opportunity to collaborate with Alexander Hamilton in the ratification debates in New York. Hamilton conceived of a plan to issue a series of essays to be published in a local newspaper answering critics of the Constitution and explicating its various controversial and unfamiliar features. The two men (with the initial help of John Jay) produced eighty-five essays between October (1787) and June (1788), with Madison producing a third of them—often writing them as quickly as his publishers could set the type. Though the essays were published anonymously, most readers suspected that Hamilton and Madison were the true authors. Still, for that reason, no one knew at the time or for decades afterwards which man wrote which essays.
Madison’s theories point toward self-interest as a principal motivation in politics.
The essays proceeded according to Madison’s analytical style. The papers are closely reasoned and answer objections raised by critics without resorting to personal attacks, overstatement, or hyperbole. Jefferson would later describe the Federalist as “the best commentary on the principles of government which ever was written.” With the Federalist, along with his Notes of the Debates in the Federal Convention, Madison authored the two great commentaries on the federal Constitution.
It was in the Federalist that Madison authored his most influential essays—especially Numbers 10 and 51—outlining his theories of the extended republic and the separation of powers. These papers are notable for Madison’s realism in incorporating conflicts of interest into the operations of government, somewhat in contrast to traditional theories of politics that tended to rely on the good will and virtue of participants. Madison’s theories are thus modern in pointing toward self-interest as a principal motivation in politics and in harnessing conflicts of interest as instruments for arriving at the public good—somewhat parallel to Adam Smith’s use of self-interest in his theory of free markets.
In Federalist 10 Madison addressed the issue that gave rise to the constitutional convention in the first place—the instability in the states due to powers given to the legislatures in the new state constitutions. There were many complaints, he noted, that governments are “too unstable,” and that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and over bearing majority.” The root cause of the problem was “faction,” which he defined as any group, amounting either to a majority or a minority, activated by some impulse of passion adverse to the rights of others of to “the permanent and aggregate interests of the community.” Since factions cannot be eliminated short of destroying the freedom that gives rise to them, the only solution is to find some means of keeping them in check and limiting the damage they can do. If a faction amounts to a minority of the whole, then, as Madison argues, they can be checked in a popular system by resort to elections and majority rule. But when a faction amounts to a majority, the form of popular government permits it to have its way at the expense of the public good or the rights of the minority. As he developed his argument, it was clear that Madison was worried mostly about factions of interest rather than of passion, and particularly those that pitted the poor against the rich with an eye to redistributing wealth and property.
This, then, was the basic challenge the Constitution addressed—“to secure the public good and private rights against the danger of such a (majority) faction and at the same time to preserve the spirit and form of popular government.”
In providing his solution, Madison, perhaps with some help from David Hume, turned on its head the anti-federalist claim that popular governments can operate effectively only in cities or in small territories where the people can form close bonds with representatives. Hume had argued in “The Idea of a Perfect Commonwealth” (1752) that though it is difficult to set up a republican government in a large territory “there is more facility, when once it is formed, of preserving it steady and uniform without tumult and faction.” In a large territory, as Hume argued, “the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.”
Madison’s argument, as the late Douglas Adair pointed out, runs parallel to Hume’s. While majority factions may run amok in a city or a small territory, they are less likely either to form or to win power in a large system made up of many subordinate parts. “Extend the sphere,” Madison wrote, “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.” But even if such a common motive could be found, the faction would have difficulty communicating it to like-minded citizens across a large system. Thus, he argued that the extended republic formed by the union of the states had an advantage over the individual states in controlling the effects of majority factions. This, he wrote, represented a “republican remedy for the diseases most incident to republican government.”
The extended republic, strictly speaking, is not a republican remedy in that it relies upon the expansion of territory and the multiplication of interests (and not representation, per se) to discipline majority factions. Madison certainly had in mind the concept of limited government when he articulated this idea, because the extended republic would prevent government from acting except in rare occasions in which a national consensus could form, organize, and win power. Critics over the years have pointed out that while Madison may have preserved the spirit and form of popular government, his solution effectively dispensed with the actuality of popular rule. Yet the critics miss Madison’s main point—which was to design a popular system that tended to temper and slow down the operations of government in order to allow opportunities for deliberation and debate. Determined majorities might still govern, but in the extended republic they would have to sustain themselves across a broad territory and through several election cycles.
There is an influential critique of Madison that suggests that, if the extended republic is effective in preventing tyranny of the majority, then the separation of powers into three competing departments of government is redundant and unnecessary. Yet the separation of powers in the Constitution was not designed principally to discipline majorities but rather as an instrument to force government to control itself. It was an accepted principle at that time—and remains so today—that the concentration of all powers into a single person or department is the very definition of tyranny. The separation of powers into different and conflicting departments—executive, judicial, and legislative—is the foundation for the rule of law as an alternative to arbitrary power. As Madison argued in Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The separation of powers was a device to prevent tyranny, and operated on the basis of conflict out of which something akin to the public interest was expected to emerge.
The separation of powers was a device to prevent tyranny.
As Madison wrote, “the policy of supplying by opposite and rival interests the defect of better motives might be traced through the whole system of human affairs, private as well as public . . . the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.” But it is true, to give critics their due, that the separation of powers does to some extent discipline majorities by forcing them to win control of all three branches in order to impose their will, though it is also true that disciplined minorities also face the same challenge. As with the extended republic, the separation of powers tends to slow down the operations of government to permit deliberation.
Madison may have been too sanguine in his belief that the problem of minority faction can be readily taken care of by an appeal to the ballot box. In the first decade following the ratification of the Constitution, Madison and Jefferson, along with many allies in the states, found themselves fighting against Hamilton’s commercial program that relied on government borrowing, a national bank, subsidies and tariffs to aid commercial enterprises, support for Great Britain in her wars against France, and loose construction of the Constitution. Madison, taking up his pen against Hamilton, accused the Federalists of trying to organize the new republic on the model of Great Britain and by building support through office seekers and corrupt bribes through the operations of the Bank of the United States. In order to make their opposition effective, Jefferson and Madison saw that they would have to build an opposition party based upon the voters in the states to oppose the schemes of consolidation taking place in the Capitol. Their party—the Democratic-Republican Party—succeeded in winning the contested election of 1800, along with the next five presidential elections through 1820, thereby providing the instrument for that durable majority that Madison felt was necessary to permit a majority to govern. In the process, they also created the needful instrument (the mass political party) for the expression of populist impulses.
In 1836, Madison was in the final year of his life, and as he noted in one of his letters, he was the last surviving member of Constitutional Convention of 1787 and of the Virginia Assembly that in 1777 approved the Virginia Statute for Religious Freedom. “Having outlived so many of my contemporaries,” he wrote, “I ought not to forget that I may be thought to have outlived myself.”
The Constitution by its design can handle threats of populism and majority tyranny.
He had been born a British subject and had survived nearly through the administration of Andrew Jackson, the populist president who resurrected the Democratic Party as an instrument for majority rule. Alexis de Tocqueville had only just the year before published the first volume of Democracy in America, the widely-read work that declared that, notwithstanding the Constitution, democracy and majority rule had won the battle in America against the rule of aristocracy and elites. John C. Calhoun, Jackson’s Vice-President, would concur disapprovingly a few years later in A Disquisition on Government, where he argued that majority tyranny is inevitable in any system of popular government. A majority, he argued contra Madison, will eventually discover itself in any popular system, and when it does it will approve measures for taxes and regulation that will be oppressive to minorities. Calhoun, who in those years flirted with nullification and secession, favored a system that would permit influential minorities to veto measures supported by majorities.
As his health declined in that final year of his life, Madison had every reason to think that his constitutional measures for regulating factions had failed in the face of the populist resurgence of the Jackson years, the rise of sectionalism, and the general movement in America at that time toward the equality of condition. Yet, given the views he expressed in the letters he wrote at this time, Madison did not seem especially worried about majority tyranny, populism, or the capacity of the Constitution to deal with those particular challenges. He feared instead that his extended republic might fall victim to the centrifugal forces of secession and disunion. In 1834, knowing that the end was not far off, he wrote a letter titled “Advice to My Country,” to be opened and published only after his death. “The advice nearest to my heart and deepest in my convictions,” he wrote,
is that the Union of the States be cherished & perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise.
Those fears proved prescient at the time: the generation of leaders that followed disregarded his advice and interpreted the outcome of one election in 1860 as a signal to break up the union. Who knows?—Madison’s advice may yet be pertinent today. The Constitution by its design can handle threats of populism and majority tyranny. Its undoing—should that ever happen—will come from other sources. George Washington and Abraham Lincoln, emancipated from the perfervid imagination of the media, can rest easily.