There is a core incongruity at the center of the
Constitution. It might even be described
as a core incompatibility. By every historical example available to the
drafters at that time, it shouldn’t have worked.
Republics, to the extent they existed, had either grown
large, autocratic, unwieldy, and then collapsed on themselves (like the Roman
Republic), or remained small and un-influential, like the numerous Swiss
Cantons, each of which had their own armies, border controls, and currencies.
In effect, Madison, on behalf of the Nationalists, was
arguing three things, all of which were open to dispute. The first was that the system created by the
Articles wasn’t working, and the nation was the lesser for it. The second was
the reason the Articles weren’t working was because of the weaknesses of the
republican system: The “democratic” elements that existed in each state—local
government, a state legislature, a chief executive, bred insularity and a
tendency to be dominated by special interests. Madison abhorred factionalism. But the third was a peculiar elide. The same system that did not work on the
state level could and would work if applied nationally.
This wasn't easily sold. There was obviously vigorous “political” opposition. The larger
and more powerful states liked their heft, and the smaller ones liked their
autonomy. In their respective
communities, within their fiefdoms, the new structure might have had some flaws
(a bankrupt national treasury and unpaid soldiers came to mind) at a national level, but, at home,
it looked pretty good. State government was certainly more
representative and less dictatorial than a distant King, and it was
unquestionably more representative of their
interests.
But, even if one agreed, politically, with the first two of
Madison’s points, where was the intellectual justification for the third? If
each state was an example of a smaller form of republic, with an executive and
a state legislature, and local municipalities, all tending to local interests, why
wouldn’t that same lack of broader vision also apply to a Federal
Government? In fact, why wouldn’t a more
powerful central structure amplify the very shortcomings Madison was
critiquing—more factionalism, more pettiness?
David Stewart, in his recent book, “Madison’s Gift” says
Madison’s solution is “mechanistic, suitable to an age in which clockworks were
a powerful metaphor.” In effect, Madison
would build a better mousetrap, where systemic checks and balances would create
an environment of vigorous debate, followed by both consensus and
decisiveness.
Stewart’s formulation is in line with most contemporary
evaluations—the Constitution as a marvelous and enduring machine, begun as a
contract, or better yet, a compact, between consenting adults, self-correcting
and perfect. As a lawyer, it appeals to
my sense of order and of bilateral obligations.
But, I don’t find it fully satisfying. Madison was too intelligent to believe that
the small state government model was fully scalable. First, to create a muscular new nation, you
needed muscle at the top. That involved
an element of coercion—not as much as his fellow author of the Federalist
Papers, Hamilton, wanted, but nevertheless, someone, or some body, had, at
certain times, to be King. You could devise a system where the respective parts
of government could review each others’ actions, and even reverse them (the
power of the purse, Judicial Review, the veto, veto-override, etc.) but that
process had to have limits. There had to be finality.
Second, I doubt Madison trusted men enough to
think any system he or anyone else devised would always be up to the task. The very things Madison worried about— "No man is allowed to be a judge in
his own cause, because his interest would certainly bias his judgment, and, not
improbably, corrupt his integrity. With equal, nay with greater reason, a body
of men are unfit to be both judges and parties at the same time" (Federalist 10) are
not fully resolved by his schematic, and he had to have realized that. His own “first draft”, the Virginia Proposal,
which presumably reflected his true desires, was far more top-heavy than what
was ultimately adopted. And, he
initially opposed the Bill of Rights, switching sides after he saw it as a political necessity, not necessarily a
philosophical one.
Madison may have been influenced by Adam Smith’s The Wealth of Nations, adapting
Smith’s idea of a self-regulating economic marketplace to the possibility of
creating a political one. In this
construct, Madison would have agreed with Smith’s idea "It is not from the benevolence of the butcher, the brewer, or the
baker that we expect our dinner, but from their regard to their own interest” and
would have applied it to government. Think
of it as type of embryonic rational choice theory, where the aggregate political
behavior as expressed through the actions of government reflects the sum of the
choices made by elected representatives. They, in turn, are directed by the
preferences or restrictions of the people who sent them there. Thus, the sum, if properly channeled (through
Stewart’s grandfather’s clock?) must reflect consensus and compromise.
Joseph Ellis, in The
Quartet doesn’t buy the Adam Smith analogy.
By 1787, he feels, the drafting of the Constitution is beyond heavy
philosophizing and into practical politics.
Madison was acting as a skilled political partisan doing what he had to
do to get the legislation he wanted. And
what he wanted was a strong central government—certainly a lot stronger than
the Articles provided. If he had to
compromise at the margins to do it, that was irrelevant to the larger
goals.
I think Ellis discards the idea a little too quickly, maybe
because I prefer to romanticize the situation just a bit. The Constitution was carefully thought out,
and argued, and intensively negotiated. It has compromise written all over it.
It might have been the best deal Madison, Hamilton, Washington, Jay and the
Nationalists could have struck, but I don’t think Madison signed on to it just
because it was a deal. I think he needed
something more—some confidence that the apparent incongruity of arguing that
something he himself said had failed at the state level would work the national
one was not really incongruous. He
didn't want his baby to fail.
That confidence, I suggest, came from the negotiating
process itself. Remember, what was going
on here was basically unprecedented. A
free people were setting the terms upon which they would agree to limit their
freedoms. The fact that they could do
such a momentous thing implied that, perhaps, rational actors could look for
profit and loss in a political context. Put
in the worst possible light, even if the negotiators may have come into the
room looking solely for their own benefit, "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."
What shouldn’t have worked, quite miraculously, did. We are still around, kicking, screaming, elbowing,
and looking for every last bit of personal and political profit. Perhaps that’s because we expect that our market,
sooner or later, will self-correct, and the monopolists, the price-gougers, the
purveyors of inferior and outdated products will be shown the door.
Well, at least that’s the theory. We can
discuss this again next November.
June 14, 2015
Michael Liss (Moderate Moderator)
Please join us on Twitter.
https://twitter.com/SyncPol
Or, if you would like to be notified of a new post (we don't sell advertising or email addresses), please contact us.
Or, if you would like to be notified of a new post (we don't sell advertising or email addresses), please contact us.
