WE LEARN FROM THE DECLARATION THAT THE PURPOSES of government are the protections of our rights, our safety, and our happiness. We learn from John Adams, and from the Virginia Declaration of Rights, that these goods depend on certain qualities in us that can be trusted with power and on the ascendance of those qualities as we exercise power. The qualities are not, however, by any means ubiquitous among human beings. In fact James Madison made his own preparation for writing the Constitution with a reflection not only on virtue, but also on vice. It is this problem of vice, and the requirement that government act in response to virtue, that provides the fundamental necessity of constitutional rule.
In April 1787, less than a month before the opening of the Constitutional Convention, James Madison wrote an essay calling for a change in government titled “Vices of the Political System of the United States.”1 In it, he lists twelve vices. They are the reasons the nation might fail, the reasons it requires a new form of government. The cure for these vices, Madison conceives, is the Constitution of the United States. It is the virtue necessary to heal the body politic.
One of these vices, Madison says, is found “in the people themselves,” and it is “more fatal” (if that can be) than the others.2 This vice begins where vices do begin: in the passions and the interests of people. It becomes a political problem when a person or a group of people pursue his or their passions or interests at the expense of the rights of other people or of the minority. It becomes the most severe political problem when the people animated by it constitute a majority because in a republican government the majority speaks for the nation, and it may do what it pleases.
Madison has a way of saying things that seems cynical at first, but not so much after one thinks about them. He says in this essay that the members of a dangerous faction have a motive to restrain themselves by “a prudent regard to their own good as involved in the general and permanent good of the Community.” This consideration, he says, is “of decisive weight in itself,” and yet it goes unheeded. Both nations and individuals forget that “honesty is the best policy.”3
This is a commentary on the nature of people in two ways. In one way, they are forgetful of the rights of others, of their own larger interest, and even of the fact that “honesty is the best policy.” In another way, the fact about people is that “their own good is involved in the general and permanent good of the Community,” and this is of “decisive weight.” We may harm the public good by the pursuit of our own interest, but we harm our own interest at the same time. We may forget it, but honesty is the best policy anyway. This lays a basis in reality for a reconciliation of the private and the public interest. This is an opportunity, not easy to seize, but there for the seizing. Human nature is revealed in the fact that the public and the private interest can be reconciled; human nature is revealed in the fact that people often do not see or do this.
The intractable problem of human nature gives rise to a set of intractable political problems. These problems are present in every political society, but they take a republican form in a republican society. For Madison, they are the “diseases most incident to republican government.” Madison and his colleagues at the Constitutional Convention sought to devise for them a “republican remedy.”4 Republicanism, the principle of representation of the great body of the people in the government, is taken to an unprecedented extent in the American Constitution. Madison emphasizes this fact inFederalist 63: “The true distinction” between the American governments and others, he writes, lies in the “total exclusion of the people in their collective capacity” from any share in the administration of the government.5 This is to be the first purely representative government in history.
Madison elaborated the same themes seven months later in one of his most famous essays, Federalist 10. There we learn that faction is the political manifestation of our passions and our interests. These become political vices when they animate us to act adversely to the rights of others or to “the permanent and aggregate interests of the community.”6 Our passions and interests cannot be expunged: they grow in our self-love, and they grow in the differences in our faculties, which are our natural property, and which give rise to differences in the material and other property that we hold. We have a right to this kind of property, too, but it divides us. It is the most durable source of the division among us. In a free system, these differences will thrive and grow. We will never give to everyone a uniformity of interests. Moreover, our reason is fallible and connected to our self-love: we cannot expect people to simply think their way out of the practice of these vices, at least not unaided. “The latent causes of faction are sown in the nature of man.”7This means, logically, that it can infect the majority as well as it can infect an individual. For one thing, “important acts of legislation” are “so many judicial determinations . . . concerning the rights of large bodies of citizens.”8 In that case, the majority may be judging its own cause. Injustice follows.
Some have taken this to be a gloomy view of human nature, and in some ways it is. But the gloominess is not unrelieved:
As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.9
The new “republican government” under the Constitution will depend on these qualities of men that justify confidence, but it will not forget the other part of human nature. To find a way to distinguish them, and to rely on the one and not the other, is the difficulty.
We could get rid of faction by suppressing it, that is, by the suppression of freedom. “Liberty is to faction as air is to fire.” But this, says Madison, is a cure “worse than the disease”; the cure would kill the patient.10 Madison is willing to risk fire for the sake of breathing, and he is willing to risk faction for the sake of freedom. But what if one could have breathing and still keep fire under control, and freedom and still keep faction under control? How would that be done? It cannot be done, we learn elsewhere, by subjecting the majority, meaning effectively the whole society, to some will outside itself.11 Madison does not like kings or privileged classes. He takes pride in the fact that there are to be no titles of nobility permitted under the Constitution. Aristocrats have passions and interests, just like everyone else.
Madison begins to offer the solution to these problems in Federalist 10. They have to do with the advantages of republican, meaning representative, government. These advantages, it will emerge, involve both external and internal controls on the government.12External controls have to do with the relation of the citizens to the government; internal controls have to do with the arrangements inside the government. These have powerful effects on each other, and they overlap.
Federalist 10 concerns two of the main controls, both external. The first is that representative government passes the public will through 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.” This will “refine and enlarge the public views.”13
This solution is helpful but insufficient. Representation does not always produce good results or good officials: especially in a small republic, “men of factious tempers” may “by intrigue” be elected to betray the interest of the people. Also there are limits to the capacities of most statesmen, even when they are well meaning. “Enlightened statesmen” might be able to “adjust these clashing interests and render them all subservient to the public good.” Yet such statesmen “will not always be at the helm.”14
To help cure the vice of faction, representation brings a second advantage. It is a very American advantage because it is specifically adapted to the situation and character of the American people. Americans have two habits that do not fit perfectly together. They give their trust to the government nearest them, the government most completely in their own hands. They like the local, the thing they can manage and control with the people they know. This follows from our sense of equality: we want to do it ourselves because we think we ought and we think we can.
Americans also have a habit, ingrained just as deeply, that is contrary to the first. They imagine their country the greatest in the world, and so they think grandly. The first legislative body to represent all the colonies called itself the “Continental Congress.” At that moment no one knew for sure how big the continent was, nor would they have an official report of its size until the return of Lewis and Clark in 1806, a full generation later. The raggedy army under the authority of the Continental Congress came to be called the “Continental Army,” which risked absurdity. But George Washington did not think it absurd, and he would eventually prove that it was not. Jefferson, like many of the Founders, would speak of America as the Empire of Liberty.15 The first Federalist paper thinks the people of this country will decide, “by their conduct and example,” “whether societies of men are really capable or not of establishing good government from reflection and choice.”16 This mission for the country is like the principles of the country: it encompasses all mankind.
Representation makes it possible to capitalize on both inclinations in the American soul.17 The country can be large and small. It can have, through representation, a government to encompass all the states and all the states that may be added; at the same time it can have a government for each state, separate and unto itself. The bigness of the Union will help to control the vice of faction. Madison thinks those wrong who believe that the small and the local can best stop the vice of faction by themselves: they make it worse. In a larger republic, each representative is chosen by a greater number of citizens, which makes it harder for vicious politicians to practice their arts. There will be a larger number of “parties and interests,” and this will make it less likely that any one or any coherent group of them will gain a majority.18
This gives the impression, or anyway the impression is often taken, that for Madison the liberation of factiousness is the cure to faction. This is not true, but something related to it is true. The reasoning of Federalist 10 is in some ways parallel to the reasoning of Madison’s contemporary, Adam Smith. The power of self-interest, including its power for good, is very great. As Adam Smith writes of the individual in a free market:
He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.19
In political terms, the operation of self-interest helps to lay the basis for the kind of liberal society established in all the major laws following from the American Revolution. For there to be representative government, there must be an independent society to be represented. What happens in this society is private, not public, and yet it has profound public significance. If the interest of the butcher leads him to steal from his customer, there will often be war between them, or the law must intervene. If the butcher’s interest, properly understood, is to give good service to his neighbor, and the neighbor’s interest is to pay him, then there will be smaller need either for war or for the intervention of the law. The combined energies of people pursuing their interest in a lawful and private economy can work many wonders. When Madison writes that it is the “chief object” of government to protect the unequal faculties from which the differences in property arise, he is making a point not only about the private but also about the public good.
There is another advantage to bigness, and it cuts in a different direction. In a larger republic, Madison argues, communication becomes necessarily more open. It may be harder to keep secrets in a small place, but the one you want to talk with is always at hand: you can whisper to him. In a larger place one must speak more openly to reach the number of people necessary to make a significant force. Thus “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.” It is harder to operate a conspiracy against the rights of others among a large group of conspirators. You never know who might be listening.20
The first advantage of bigness, then, is that it multiplies the number of passions and interests. The second is that it helps to moderate and elevate them. Speech, to be effective across a large area and to a large number of people, must be fairer and truer than among a cabal. The justice of speaking candidly has a goodness of its own, and also now it appeals more to the interest of the speaker.
In America today we have television and the Internet, vehicles of instant mass communication unimagined previously. One might say that these prove Madison wrong. What do they show in the political debate except a clamor of distortion and cock-and-bull, self-serving and partisan? But does it not often happen that someone gets a camera and a microphone into a political meeting not meant for the whole public? And when that happens, one hears a tone that is very different. The person who yesterday was saying in a televised interview that he had great respect for his opponents and hoped to reach agreement with them says in private company that he hopes to push them in the ditch. Open communication must be more civil; it must appeal to a wider sense of justice. The effort toseem fair elevates the public debate and confines our speech to more reasonable points. Also it is harder to get away with pushing someone in the ditch if you have promised not to do it.
There is a glimmer here of what will become clearer. The right forms of government have a far-reaching and powerful effect. If running a conspiracy against the rights of others and the good of the community is less likely to succeed, the practice will not be so common. If speaking fairly and truly is more effective, those who can do it will advance, and at least some of those who cannot will practice the art. The right forms of government benefit the character of the citizens; good character in the citizens benefits the public good. It is another circle.
Representation makes possible another advantage concerning size. The government (and the nation) can be not only big; also the government can be small. It can defy political physics as they have been known: it can be large and small at the same time. Madison writes:
It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives 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.21
The powers of the states are said to work in “combination” with the powers of the federal government. Madison conceived them as a whole. At the Constitutional Convention, he and others argued for stronger authority for the federal government than it was given. He and his Federalistcoauthor Hamilton opposed at first the compromise that gave the states control over the Senate. In the Federalist they began to make a virtue of necessity, and then to admire the virtue. At no point did Madison believe that either the states or the federal government was sovereign if sovereignty means the ultimate authority over the government. The people have that sovereignty. He had hoped that the people would delegate a larger share of the legal authority to rule to the federal government, but it was theirs to delegate, and that was not changed in principle by the Constitution, nor could it be. In Federalist 51 he writes:
In the compound Republic of America, the power surrendered by the people is first divided into two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.22
Federalism, then, operates as a parallel to separation of powers. Like separation of powers, it provides an internal control on the government. It is the business of the states to check the power of the federal government, but also it is the business of the federal government to restrain the states. The Constitution presents the power of the states as the logical equivalent of separation of powers. There are seven articles in the Constitution, but only four of them concern the regular operations of the government.23 The first three concern each of the branches of government. The fourth concerns the relations of the states to the federal government.
As with the external controls, so with the internal we find an arrangement that takes account of the interest and the passions of the people involved. We find an effort to enlist these interests and passions on the side of a good result. This result is defined independently of the interests and passions. It is a thing outside our wants, outside even our needs unless those needs are defined comprehensively.
These internal controls are necessary because the “exterior provisions are found to be inadequate.” The “defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”24
The key to these internal controls is, therefore, in the separation of powers and in the division of power between the states and the federal government. Just as the external controls on the government are made possible by the representative nature of the government, so, too, is separation of powers. One cannot conceive of separation of powers in a simple democracy because the people are both the source of all authority in the government and the maker of the particular laws. When the people are assembled as a legislature and watching, no executive would dare to defy them. When they are away and distracted, the executive may run amok.25 If, on the other hand, the sovereign is excluded from the operations of the government, it may delegate a portion of its authority to one place and to another, each then standing on an equal footing.26
According to the Federalist, it is not sufficient simply to write down the duties of each branch and assign different officers to manage them. These are mere “parchment barriers.”27 They will likely be overcome by the prestige and relatively undefined scope of the legislature. On this point Madison quotes with favor his friend Thomas Jefferson, who had written in his Notes on the State of Virginia a well-known passage:
All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.28
“Not an elective despotism” might make a good subtitle for the Federalist. To avoid that fate, Madison writes that one must not only separate but also connect and blend the powers among the branches so as to give them “constitutional control” over each other.29In the Constitution the president has a share of the legislative power: he may veto bills. The Congress has a share of the executive power: it may oversee the executive departments and has control of their funding. The judiciary has a share of the legislative power: it may refuse to apply unconstitutional laws to the cases before it. The states have a control over the federal government: their legislatures elect the members of the Senate. The federal government has a control over the states: its Constitution is the “supreme law of the land,” and its court rulings are binding on all lower courts.
To maintain these controls inside the government, the Constitution once again harnesses the power of self-interest. Officials must defend their territory. Each department must have the “constitutional means” and the “personal motives” to resist encroachments from the others: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”30 Madison is aware that he is not describing an elevated assemblage of the sages and the elders. He admits this in a famous and telling passage:
It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.31
This is another of Madison’s seeming cynicisms, rising above cynicism. The existence of government proves that we are not angels and that angels do not govern us. The passage reminds one of the appearances of God in the Declaration of Independence. Here in the Federalist, as in the Declaration, the lesson is that all the powers of government may not be vested in the hands of a single being, except when those hands are the hands of God or His angels. Government exists to supply a defect that is inherent in our nature—we are not angels. This defect cannot be removed, only mitigated. It is apparent by comparison of the human with the divine. And when it is recognized, the distance between the human and the divine is diminished, if only a little.
Immediately after siding with Jefferson in Federalist 48, Madison takes issue with him in the next paper. He does this gently, amidst much praise. In a draft constitution that Jefferson prepared for Virginia, never adopted, Jefferson proposed a mechanism for two of the branches of the government to call, whenever they please, a convention elected by the people to alter the Constitution. This, Madison says, is “strictly consonant to the republican theory.”32 There is “great force” in Jefferson’s reasoning, and Madison agrees that a means must be provided for a decision of the people on constitutional subjects “for certain great and extraordinary occasions.”33 But not often.
Not often because each appeal would “carry an implication of some defect in the government,” and so frequent appeals would “deprive the government of that veneration which time bestows on everything.” Governments “rest on opinion”; the opinions in individuals are stronger when they are widely shared.34 “The reason of man, like man himself, is timid and cautious when left alone.”35 Then Madison writes:
A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato.36 And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.37
The Constitution, which is to be made by special process resting directly upon the people, will be their creature, but also it must have their veneration. This is important because neither statesmen nor citizens are likely to be philosophers. The arrangements in the Constitution are organized to couple power with restraint, power made more effective and consistent when restrained. Respect for this restraint must settle into the characters of the people. They make the Constitution, but then they must live within its discipline.
It is not only the people who must be restrained. The officers of government also have interests and passions. If these officers go to the people for a change in the Constitution, they will generally do so out of some interest or passion of their own. In that case the members of the legislature, more numerous and closer to the people, will have the advantage. But whatever branch is able to command a majority in altering the Constitution, it is likely to be animated by a partisan spirit inimical to the separation of powers. In such a case, Madison writes in a famous passage: “The passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.”38
The classical description of the well-ordered soul is one in which the reason moderates and guides the passions toward good action.39 Madison here is not calling for the elevation of one class of person over another. It is rather one capacity in the people that he wishes to promote. The city (or in this case the constitutional republic) is the soul writ large. If the reason of the public is guiding the government, then the rights of the minority and the “permanent and aggregate interests” of the community will be safe. This is the very definition of virtue, which we know from John Adams as much as from Aristotle to be the key to happiness. George Washington would give expression to this idea as well in his First Inaugural Address:
[T]here is no truth more thoroughly established, than that there exists in the economy and course of nature, an indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity: Since we ought to be no less persuaded that the propitious smiles of Heaven, can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained: And since the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.40
This speech was pronounced by the chairman of the Constitutional Convention, who was also the symbol in our nation of the virtues of character. His comportment on the battlefield and his refusal to use the glory that he won there to demand political station won him that distinction. He was the man most qualified to deliver this pronouncement upon the purpose of the nation through its Constitution. It is fitting as well that the words were written by the man who must be the most competent presidential speechwriter in history, the Father of the Constitution, James Madison.41
It was a new step in the course of the American Revolution to build a Constitution that both represented and regulated individual citizens across the nation. It was a step that many were reluctant to take, and it was made only by compromise that preserved extensive legal authority in states. In this sense, those who say that the Constitution changes the course of the American Revolution are correct.
The American Revolution happened as every large human enterprise happens, one step after another. The Constitution did not spring full grown from the mind of James Madison the first time the British government made him angry. He and his colleagues worked and learned through war and struggle, debate and discussion. They got better at what they were doing. The Constitution of the United States is better than the first Virginia Constitution. Its structure is more elaborate, and it takes advantage of insight and of necessity in many places to make it so. The explanation of the Constitution in the Federalist is among the greatest modern writings about politics. These advantages were made possible in part by the fact that the Founders had already made their first attempts in Virginia and Massachusetts and elsewhere.
There was much disagreement at every stage of the American Revolution. Some were for independence and some for the Crown. Some were for a stronger and some for a weaker constitution. Yet the Constitution follows a pattern that is apparent in each of the major earlier steps that preceded it. It is more sophisticated as an instrument of government than any of those predecessors, but the sophistications are elaborations of that pattern. The Virginia and Massachusetts constitutions and the Constitution of the United States are things obviously of a kind, similar in form at a glance. Even inside the much shorter Declaration of Independence, a form of government is indicated. The protection of rights requires a government that is representative of the governed, its powers separated among branches, its scope and size limited to be consistent with a liberal and free society. Only such a society can be sufficiently independent of the government to hold the sovereignty upon which government is based.
The writing and ratification of the Constitution provided an occasion for a deepened understanding of constitutionalism. Politics, being itself a feature of human nature, is faced with all the contradictions that human nature presents. We are mortal beings with immortal souls. We live in a world of need, want, and partial understanding. We have at the same time the capacity to stand outside ourselves and judge our actions by a standard different from our needs and wants. Not philosophers, we have within us the faculty with which philosophy operates. The divisions and limits in these three constitutions are added for this reason. They are not added because the Founders wish to remove the government from popular control, but because they are determined to base it entirely upon popular control. This was at the time an unprecedented achievement in human history, still unsurpassed.
If the purpose of our lives is happiness, as the Founders agreed, then virtue is its substance and its cause. Virtue is not in ample supply. The virtue of the good citizen is not present in every citizen or in any citizen all the time. The virtue of the statesman, at its peak a thing of a very high order, is so rare that it appears in classic works as a synonym for chance. In the Federalist, these qualities are valued, and every device is deployed to encourage their presence. But their presence is not relied on alone. The best statesmen are too knowing to build a structure that depends too much on people like themselves; they build constitutions instead, and they hope for the right kind of ability to be available when it is needed. This kind of ability, too, is “much rarer than the largest and purest diamonds.”42
Representative government places ultimate authority outside the government, which restrains both the government and the governed. In such a system, citizens have endless opportunity to talk, but they may act only on certain occasions. They are encouraged, therefore, to think, and to think together, before they act. The same restraints operate inside the government to encourage statesmen and citizens to the same habits.
Under the Constitution the institutions of government provide a better forum for good speech than for bad. They teach us to justify our actions before a court larger than ourselves, and therefore they teach us to look up to a standard that can be apprehended, and some little bit emulated, by our highest capacities alone. In teaching us that men are not angels, they tell us how we can attain a limited but beautiful quantum of this divine aspect. To attain it enough, and for long enough, to preserve our freedom and the goodness of our land is an achievement of constitutionalism.
Because the Constitution of the United States was written and explained by statesmen, and ratified by citizens in open debate, it is an achievement of the very statesmanship and citizenship that the Constitution hopes to sustain. In its structure, if not in its language, it shines with a beauty rivaling that of the Declaration of Independence, for it is an element and a condition of the same beauty. It is the soul writ large.