The Founders at Home: The Building of America, 1735-1817

by Myron Magnet

  “What is government itself but the greatest of all reflections on human nature?” he asked. “If men were angels, no government would be necessary.” But they are not. In spite of the Lockean social contract they have made, men, under the power of their passions and their interests, sometimes break their pledge not to invade one another’s rights and property (and note that from the American Revolution’s first slogan, “Liberty, property and no stamps!” to the Continental Congress’s 1774 declaration of the colonists’ rights to “Life, liberty and property,” the Founders took the Lockean view that the protection of property is a key governmental charge). “What is the meaning of government?” Madison asked. “An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all.”42

  Yet once a free people gives government the power to use force as the Framers were doing through the Constitution, a further problem arises. Men must administer that government, men with the same human nature as everyone else, often with its worst defects in abundance. What motives, after all, drive men to seek elective office? “1. ambition 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent.” Such men often have “interested views, contrary to the interest, and views, of their Constituents,” whom they too often hoodwink by masking their “base and selfish measures . . . by pretexts of public good and apparent expediency.” Since “power is of an encroaching nature,”Madison warned, “all men having power ought to be distrusted to a certain degree.” One can argue that honesty is the best policy or that considerations of reputation and religion ought to make officials behave virtuously, but experience shows that they don’t—and they especially don’t in large groups like legislatures, where “passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”43

  “In framing a government of 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.” And here political theorist Baron de Montesquieu’s version of checks and balances does its work, with power divided not among king, lords, and commons, but among executive, legislative, and judiciary, with each branch of the federal government limiting and policing the power of all the others—very different from the old, unicameral Congress, which wielded executive as well as legislative authority. “Each department should have a will of its own,” Madison wrote, its officers as independent as possible from the other branches for their appointment and their salaries. To Montesquieu’s well-known theory, which Federalist 47 had brilliantly parsed, Madison added a psychological wrinkle. Yes, politicians are ambitious, so the new Constitution will take advantage of what eighteenth-century psychology saw as the most fundamental of the passions. “Ambition must be made to counteract ambition,” he wrote: an individual officer must feel his own power, importance, and self-interest bound up with the constitutional rights of his office, which he will jealously protect. By splitting the legislature into two independent branches elected differently, by assuring that judges are independent because they have lifetime tenure, and by arming the executive with a veto, the Constitution’s “constant aim is to divide and arrange the power of the several offices in such a manner that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights,”44 for every elected official will be dependent for his continued employment not on other officials but on the citizens who elected him.

  THOSE CITIZENS have interests and passions of their own, however; and despite the supreme value Madison placed on free, popular government, he knew from all his political experience that when a majority succumbs to such impulses, even free, democratic governments can wield power tyrannically. “As air is to fire,” freedom nourishes the interests and passions that can overwhelm reason and justice. That’s true even of the intellectual freedom so precious to Madison. “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed,” which in turn—because man’s “opinions and his passions will have a reciprocal influence on each other”—will nurture a multiplicity of passions: a “zeal for different opinions concerning religion, concerning government,” for example, or “an attachment to different leaders ambitiously contending for pre-eminence and power.”45 As for the interests, a “distinction of property results from the very protection which a free Government gives to unequal faculties of acquiring it. There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest.”46 Such differences, “sown in the nature of man,” inevitably will give rise to factions, which Madison defined as “a number of citizens . . . 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.”47

  Once a faction amounts to a majority, tyranny threatens, as Madison explained in his greatest Federalist essay, Number 10. “The most common and durable source of factions, has been the various and unequal division of property,” he argued. “Those who hold, and those who are without property, have ever formed distinct interests in society.”48 How does such factionalism breed oppression? “The apportionment of taxes on the various descriptions of property, is an act which seems to require the most exact impartiality, yet there is perhaps no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.”49 In other words, taxation with representation can be tyranny, if the unpropertied majority levies disproportionate taxes on the richer minority, unjustly transgressing the natural right to property that society exists to protect.

  The poorer majority can cook up sundry other “improper or wicked project[s]” to invade the property of the rich through state power, including a “rage for paper money” (which, by debasing the currency, expropriates by inflation), “for an abolition of debts” (as Virginia tried to do by barring British creditors from suing debtors in its courts and as Shays’s Rebellion tried to accomplish by stopping mortgage foreclosures in Massachusetts just before the Constitutional Convention began), and even “for an equal division of property.”50

  The great challenge of constitution making for a free people, Madison argued, is to “secure the public good, and private rights against the danger of such a faction,” while preserving “the spirit and the form of popular government.”51 His safeguard against the tyranny of a democratically elected majority—which generally, he thought, would take the form of unjust taxation—entirely contravenes conventional wisdom as Montesquieu had formulated it. The French philosopher had declared that democracies had to be small in area, so that all citizens could gather for face-to-face deliberation—a view that caused some thoughtful Founders to oppose the Constitution on the grounds that a strong popular government over America was bound to decline into tyranny because the country’s vastness precluded such face-to-face lawmaking.

  On the contrary, Madison argued: history shows that small “democracies have ever been spectacles of turbulence and contention; . . . incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.”52 That’s because the smaller the society, the fewer the interests it contains, and the easier for one of them to form a majority. The smallest democracies are the worst of all: only consider “the notorious factions and oppressions which take place in corporate towns limited as the opportunities are”—a reality that anyone will acknowledge who considers how today’s city councilors are generally more corrupt than congressmen, congressmen more corrupt than senators, and senators (probably) more corrupt than presidents. And, Madison would say, just look
at the antics of state legislators.53

  The Constitution, by contrast, provides Americans with a form of government that has “no model on the face of the globe”—an extended republic.54 Its rationale is Madison’s great contribution to political theory and practice.55 Unlike a pure democracy, where all the citizens meet and vote on every law, a republic delegates power to “a small number of citizens elected by the rest,” and the selection process aims to produce representatives “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.” Since it’s easy for a handful of representatives to gather from great distances for lawmaking sessions, such a government can embrace a very large territory, which yields a further advantage. “Extend the sphere,” Madison argued, “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.” A multiplicity of competing interests—like the multiplicity of sects that kept Virginia from imposing a religious tax early in Madison’s political career—prevents a single interest from predominating. “We behold,” Madison triumphantly concluded, “a republican remedy for the diseases most incident to republican government.”56

  FOR ALL Madison’s worry that it was in man’s nature for passion and interest to overwhelm his reason and virtue—that man was a creature more given to rationalizing than to rationality—he nevertheless believed that, while “there is a degree of depravity in mankind which requires . . . circumspection and distrust: So there are other qualities in human nature, which justify . . . esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.” If “there is not sufficient virtue among men for self-government,” he wrote in Federalist 55, then only “the chains of despotism can restrain them from destroying and devouring each other.”57

  That’s why he set such store by the Senate, which he idealistically envisioned as “the great anchor of the Government”—a “temperate and respectable body” of “enlightened citizens,” who would “watch & check” the representatives, lest they err “from fickleness or passion” or even “betray their trust.” Such a body (which John Adams had first envisioned as part of a bicameral legislature in his 1776 Thoughts on Government) would defend “the people against their own temporary errors and delusions” and against “the artful misrepresentations of interested men,” demagogues seducing citizens to “measures which they themselves will afterwards be the most ready to lament and condemn,” Madison wrote in Federalist 63. “What bitter anguish would not the people of Athens have often escaped, if their government had contained so provident a safeguard against the tyranny of their own passions. Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens, the hemlock on one day, and statues on the next,” as the Athenians honored Socrates after condemning him to death by poison.58

  Madison recommended a Senate “so small, that a sensible degree of the praise or blame of public measures may be the portion of each individual,” and he thought senatorial terms should be long—nine years, he first suggested, before settling on six—so that each member’s “pride and consequence . . . may be sensibly incorporated with the reputation and prosperity of the community,” again mobilizing personal ambition in the public service. Long terms would also give senators “an oppy. of acquiring a competent knowledge of the public interests” and the chance to plan and carry out “a succession of well chosen and well connected measures, which have a gradual and perhaps unobserved operation,” whereas congressmen’s two-year terms allow them to see only “one or two links in a chain of measures, on which the general welfare may essentially depend.” Without such a “stable institution” as this ideal Senate, there will be “mutability in the public councils” that will unsettle both commerce and foreign affairs. “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?” Madison asked in Federalist 62.59

  In addition, Madison saw the Senate, like the House of Lords in British constitutional theory, as the principal guardian of “the rights of property,” which should “be respected as well as personal rights in the choice of Rulers,” because property “chiefly bears the burden of government & is so much an object of Legislation.”60 Since propertyless Americans will in time outnumber the Americans with land, capital, slaves, factories, ships, warehouses, and so on, the propertyless, he feared, “will either combine under the influence of their common situation: in which case, the rights of property and public liberty, will not be secure in their hands,” or else they will become the bought and paid-for “tools of opulence & ambition.” A safeguard, he thought, would be to make the right to vote for congressmen as wide as possible, while narrowing the right to vote for senators to the propertied.61 “Give all power to property, and the indigent will be oppressed. Give it to the latter and the effect may be transposed. Give a defensive share to each and each will be secure,” he concluded.62

  SHORTLY BEFORE the Convention opened, Madison wrote Washington outlining his plans for a new government, which included his precious federal veto “in all cases whatsoever on the legislative acts of the States,” to ensure federal supremacy. But in the same letter, it’s clear he had begun formulating a different way of achieving the same goal. He told the General that he had been meditating “some middle ground” between complete “independence of the States” and “a consolidation of the whole into a simple republic”—a middle ground that would rest on “an equality of suffrage,” so that every citizen’s vote “in the national Councils” would be of equal weight. No longer, as under the Articles of Confederation’s system of voting by states, would a citizen of little Delaware have more weight than a Pennsylvanian.63 As the Convention debates unfolded, the notion of a “middle ground” grew upon him, and he withdrew the Virginia Plan’s call for a national veto over state laws, and federal force to make states comply with national measures, which, he conceded, “would look more like a declaration of war.”64 He came to see that the Constitution’s supremacy clause—declaring the Constitution and the federal laws the supreme law of the land, which every judge in the nation would have to enforce—would serve just as well as a federal veto over state laws to establish the federal government’s preeminence. The national government, he explained to Jefferson, “instead of operating on the States, should operate without their intervention on the individuals composing them” with “every power requisite for general purposes” (as enumerated in Article I, Section 8 of the Constitution), leaving to the states “every power which might be most beneficially administered by them.”65

  His three key points—the extended republic as a shield against liberty-destroying faction, the Senate as the concentrated distillate of the nation’s wisdom and virtue, and the federal government as supreme—required, in Madison’s view, an equal principle of representation, whether by population or tax contribution. By definition, representatives in an extended republic—senators as well as congressmen—ought “to bear a proportion to the votes which their constituents, if convened, would respectively have.”66 Proportional representation was equally necessary to allow the senate to draw on the whole pool of the country’s talent for disinterested guardians of the national interest.

  Little wonder, then, that Madison vehemently opposed the Constitutional Convention’s Great Compromise, put forth on June 11 by Connecticut delegate Roger Sherman, “an old Puritan, honest as an angel,” in John Adams’s phrase, a cobbler’s son who in Thomas Jefferson’s estimation “never said a foolish thing in his life.”67 The small states, continuing an argument that had simmered since the very first discussions about the Articles of Confederation in 1776, had declared that they wouldn’t accept proportional representation and give up the equal representation of one vote for each
state’s delegation that they had already exercised for a decade under the Articles of Confederation. They’d sooner erase all state boundaries, said Delaware’s George Read derisively, or redraw them, according to David Brearley of New Jersey, so “that a new partition of the whole be made in thirteen equal parts.”68 To Sherman’s suggestion that the large states meet them halfway by adopting proportional representation in the House and representation by states in Madison’s precious Senate, which would now be a creature of state interests rather than his ideal conclave of philosopher-kings, Madison objected strenuously in speech after speech.

  Such a Senate, he correctly argued, had no theoretical justification whatsoever. The new government was not designed to act on the states, as Congress under the Articles of Confederation does, he pointed out. There is not “a single instance in which the Genl. Govt. was not to operate on the people individually,” in both its lawmaking and tax-collecting capacities.69 On what principle of legitimacy, then, could representation by state rest? Would not a constitution that contained that principle, even in part, fail to cure the Articles of Confederation’s chief defect: that it created something that is more like a league or “a treaty of amity of commerce and of alliance” than a nation?70 Wouldn’t it create once again “a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals”—which every political philosopher has argued is a theoretical absurdity? Worse, “in practice, it is subversive of the order and ends of civil polity,” because its lack of adequate power dooms it to failure, as all historical experience—which is “the oracle of truth”—unequivocally proclaims.71