We finally arrive at James Madison’s first contribution to the collaborative effort to advance the cause of ratification. Madison’s essay is perhaps – along with the 51st essay in the series - the most well-known of the Federalist Papers. This is a rare occasion where the hype is merited, and in fact the essay might be under-appreciated in certain respects. While Madison enlarges upon Hamilton’s theme from the ninth paper re: the size of the Union acting as a check against faction, this paper is also theoretically significant because in it Madison explains the difference between republics and democracies. It is a distinction that is often overlooked, but it represents they key difference between Madison and the Framers on one hand, and Thomas Jefferson and other radical democrats on the other.
Madison begins by covering ground from the previous essay. This is a long paragraph, so let’s break it into two parts.
Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.
Like Hamilton, Madison advances the argument that a large Union will control the effects of faction, which are the “mortal disease” which destroys republics. He continues.
The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, 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 overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.
Madison praises the state constitutions for improving upon the ancient models. Yet these constitutions are imperfect because they have not curtailed the perniciousness of factionalism. Again, Madison re-asserts what has been stated previously, namely that the situation in the states is precarious. Madison had outlined many of the problems in fragmented form in his “Vices of the Political System of the United States,” an unpublished document that he used to guide his thinking as he prepared for the constitutional convention. Here Madison details what he sees as the failings of the confederate system. These were the problems that Madison hoped to correct in Philadelphia, and while the Constitution did not adequately address all of these issues, it went far enough to secure the type of order that was lacking in 1787 America. And these are the issues that Madison is now alluding to in the paragraph above.
Madison proceeds to define what is meant by the term faction, and then enumerate the possible ways of dealing with them.
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
Here’s where I wish I had a chalkboard so that I could outline Madison’s argument. He first details how to remove the causes of faction.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
As he now explains, neither is a particularly palatable alternative.
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
Here Madison makes what could be termed a libertarian argument. He does not want to squash the valued liberties that the revolutionaries had so valiantly fought to secure. Doing so would be a betrayal of the cause of 1776. It is unimaginable to curtail civil liberties just to avoid the evils of faction. As for the second method of removing causes – well, that’s just impossible.
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
If we didn’t have over two centuries of historical experience it might almost seem that Madison is engaging in a bit of a straw man argument. After all, who seriously desires to render unto each person the same political opinion? Perhaps the practitioners of political correctness can best answer that question.
In all seriousness, this is an important point. The fact of the matter is that as long as we are free we are going to form different opinions. No two people can think alike, no matter how much we try to inculcate certain points of view. Furthermore, life experience is going to alter our viewpoints, and it is from this diversity of thought and experience that factions will inevitable have to form.
From here we delve into a bit of philosophy that we’ve seen before.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.
This is an elegant expression of first principles. Publius has repeatedly offered a pessimistic – or perhaps just realistic – appraisal of the human condition. As Madison would say down the road, men are not angels. We’re dealing with man as he is, not as he ought to be. This has to be the source of our constitutional musings. Since reality cannot be overcome, and since the reality is that man is an imperfect animal, we must form our political institutions to deal with the real world. This again gets to a crucial difference in worldviews between Madison and Jefferson. Though Jefferson is not exactly a cock-eyed optimist who thinks man perfect in any way, he certainly does not share the pessimism of men like Madison, Hamilton, Adams and most others of the Founding generation.
It is here where Madison transitions into what is a very telling portion of the essay, and perhaps the most illustrative group of paragraphs penned by any of the Founding Fathers. Madison has established that the formation of factions is an inevitable outcome of a free society of imperfect human beings. Based on this insight into human nature, Madison begins to lay down his anti-majoritarian sentiments.
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; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. 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.
In a direct democracy where citizens get to establish laws and vote directly on all essential matters of state, the more numerous parties will have an essential advantage. This leaves the minority vulnerable and with little recourse to protect their interests. Moreover, in smaller democracies there will be fewer factions – there being fewer people, their interests will be more uniform because the number of classes is diminished. Even a representative democracy will fail to fully curtail the pernicious effects of faction because, as he puts it:
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
“Enlightened statesmen will not always be at the helm.” Were truer words ever spoken? This may appear to be a mere truism, but it gets to the heart of a fundamental difficulty. Political theorists have always been interested in attempting to establish the best forms of government. Philosophers throughout the ages have discussed the relative advantages of monarchy, aristocracy, and democracy. At this stage in history Americans had seemingly coalesced around the idea that some form of democracy was the best fit for them. Though Not all agreed that democracy was best, and even among those who did favor democracy they disagreed as to what type of democracy was best. But there was a general consensus in favor of some kind of democratic form of government.
But that is not enough. Once the general type of government has been established, it is now even more crucial to establish the institutional mechanisms that will safeguard the polity. From here on in Madison outlines the institutional response, as I like to phrase it, to the problems of majority tyranny and factionalism. We will look at what Madison has to say in the next post.