Nearly half a century ago I published a lecture that was highly
critical of what I called “Madisonian Democracy.”1
Now I find myself both more sympathetic with Madison and more critical.
I'm more sympathetic because I've come to understand how
experience with the rapidly emerging American democracy led James Madison
to views that I would regard as somewhat more democratic than those he
expressed at the Constitutional Convention of 1787 and soon thereafter in
the
I'm more critical because of his willingness
to exclude a very large part of the adult population from enjoying the
rights of citizens in the political system he helped to create.
Despite my criticisms of Madison, I bear a deep respect for the depth
and range of his understanding of political life and his constant search
for propositions that rose above the level of description to reach a
higher level of generality. In this sense he was a distinguished political
scientist. Even more, his capacity for modifying his earlier conclusions
through later observations gave him the perspective of a true scientist of
politics.
Yet his view of politics went beyond empirical observations. For his
interest in politics was profoundly anchored in concerns not only for what
was, but also, in his view, what ought to be. His lifelong effort to
understand politics was clearly motivated by a desire that Americans might
achieve a good polity.
In Madison's view, a good polity for Americans would necessarily
be a government that derived its just powers from the consent of the
governed, or, as we might say today, a democracy. His role in the
evolution of democratic ideas and institutions was extraordinary. By his
creative leadership at the American Constitutional Convention in 1787 and
his persuasive contributions to the Federalist immediately
thereafter, he helped to inaugurate one of the most fundamental changes in
democratic ideas and practices that has occurred over the entire history
of this ancient form of government. Henceforth, “government by the
people” would no longer be restricted to assemblies of citizens in
small units like city-states. Nor would the right to choose
representatives to legislatures in larger units be restricted to an
exceedingly tiny number of men drawn from the privileged few, as it then
was in the parliaments of Britain and Sweden. Judged from this
perspective, Madison was, in his own cautious fashion, a
revolutionary.
Yet if we were to judge Madison by standards widely used today in
determining whether a large political system possesses all the
institutions minimally necessary for it to be considered a democracy, we
would have to conclude that when he attended the American Constitutional
Convention and wrote his essays for the Federalist in 1787, he
was not much of a democrat. As readers of his well-known contributions to
the Federalist are aware, he even insisted that the term
democracy was not appropriate for the government he envisioned. Instead,
it should be designated a republic.
A stunning instance of the shift from the first
constitutional theory to the second is his role in the formation of the
Republican Party.
Yet even in his post-1787 constitutional theory, the more democratic
Madison endorsed views and practices that were far less acceptably
democratic than those that would come to prevail during the next two
centuries.
A Republic or a Democracy?
By “pure democracy,” Madison said, he meant “a
society consisting of a small number of citizens, who assemble and
administer the government in person….” Democracy thus
defined—pure democracy—stands in contrast to “a
republic, by which I [Madison] mean a government in which the
scheme of representation takes place … [and] … the
delegation of the government … [is granted] to a small
number of citizens elected by the rest …”7
In advancing this definition, Madison confronted a genuine problem. In
the eighteenth century no generally accepted name existed for the kind of
government that he and his contemporaries were struggling to create: a
government that acquired its legitimacy from the sovereignty of the
people, but in which the people would govern indirectly by electing
representatives with the power to enact the laws. Although classification
schemes from Aristotle to Montesquieu were often presented with more
nuance and subtlety than I need to explore here, a common practice was to
divide constitutions or political regimes into the rule of the one, of the
few, or of the many, each of which might be divided in turn into good and
bad forms, depending on whether the rulers sought to achieve the common
good or merely their own interests. The good and bad forms of rule by the
one were monarchy or despotism. Rule by the few would be aristocracy or
oligarchy. What about rule by the many? Should the good form be called a
democracy or a republic? What about the bad form?
Around 400 BCE the Athenians, drawing, naturally, on their own
language, chose to call their system a “democracy,” from
demos (“the commons,” or “the people”)
and kratos (“rule,” “sway,” or
“authority”). At about the same time, the Romans called their
system a republic, from the Latin res, thing, affair, and
publicus, public. In the thirteenth century, when the Italian
city-states of Venice, Florence, Siena, Lucca, Genoa, Bologna, and Perugia
adopted constitutions providing for a measure of self-rule, they all, of
course, drew on their own language and history and called their
governments republics.
The difference in word usage boiled down to language, not political
institutions. Yet whether called democracies or republics, the political
systems of Athens, Rome, and the Italian city-states were totally
inappropriate for eighteenth-century America. To be sure, along with their
citizen assemblies, the Athenian democracy and the Roman republic had some
elements of representation. But by no stretch could their political
systems serve as models for a representative government in the United
States of America. As for the Italian republics, they may have been
aristocratic or oligarchic republics, but they were definitely not
democratic republics.8
In the words of a
leading historian, they were “constitutional oligarchies”
(Martines 1979, 148).
To add to the confusion, the two terms—democracy and
republic—were, it appears, commonly used more or less
interchangeably among Americans in the eighteenth century.9
My guess is that Americans who were more favorable
toward rule by the people tended to use the term democracy, while those
who were more dubious preferred the term republic.
In any case, Madison's famous distinction between the terms
democracy and republic was somewhat arbitrary and ahistorical. Even some
of his contemporaries, like James Wilson, referred to the new
representative system as a democracy.10
Speaking at the Pennsylvania ratifying convention in November
1787, a mere two months after the convention ended, James Wilson, who was
Madison's ally at the Convention and, like Madison, one of its most
influential members remarked: “… [T]he three
species of simple governments…. are the monarchical, aristocratical
and democratical. In a monarchy, the supreme power is vested in a single
person; in an aristocracy …. by a body formed upon the principle of
representation, but enjoying their station by descent, or election among
themselves, or in right of some personal or territorial qualifications;
and lastly, in a democracy, it is inherent in a people, and is exercised
by themselves or by their representatives. …
[O]f what description is the Constitution before us? In its
principles, Sir, it is purely democratical: varying indeed in its form in
order to admit all the advantages, and to excluded all the disadvantages
which are incidental to the known and established constitutions of
government. But when we take an extensive and accurate view of the streams
of power that appear through this great and comprehensive plan … we
shall be able to trace them to one great noble source, THE PEOPLE.
[sic]” (Bailyn 1993,
802–3, emphasis added). The following June, at the Virginia
ratifying constitution, responding to the criticisms of Patrick Henry,
John Marshall contended that “The Constitution provided for ‘a
well regulated democracy,’ where no king, or president, could
undermine representative government” (Simon
2002, 25).
The term democracy soon came into general usage.11
An interesting deviation from this pattern persisted in
presidential inaugural addresses. I find that throughout the nineteenth
century, if a president referred to the American political system in an
inaugural address, he used the terms republic or republican and, with only
one exception, never democracy or democratic. The exception was the
ill-fated William Henry Harrison who in 1841 said of the Framers that
“there were in it [the Constitution] features which
appeared not to be in harmony with their ideas of a simple representative
democracy or republic.” From this we can infer that the terms
“republic” and “representative democracy” were
understood as equivalent. I need hardly add that during the twentieth
century, in their inaugural addresses presidents frequently referred to
the United States as democratic or a democracy. In his four inaugural
addresses, FDR used these terms twenty times and “republic”
not once. Reagan and the first Bush used both in equal numbers, while
Clinton and the second Bush employed only the term “democracy”
in their inaugural addresses.
The Republican Party, founded by
Jefferson and Madison, was swiftly renamed the Democratic Republican Party
and its successor, in 1828, the Democratic Party. Tocqueville's
famous volumes published in 1835 and 1840 were, as we all know, named
Democracy in America.12 In Europe,
as the Oxford English Dictionary reminds us,
“republic” came to mean “without a monarch,” as in
France, Germany, and elsewhere. Thus the Scandinavian countries, along
with Holland and Spain, are not republics; but, as in the rest of the
world, their people rightly call them democracies.
The plain fact is that James Madison has decisively lost the battle of
terminology.13
An authoritative example: The
Oxford English Dictionary defines democracy as “government
by the people; that form of government in which the sovereign power
resides in the people as a whole, and is exercised either directly by them
(as in the small republics of antiquity) or by officers elected by
them.”
I would dismiss the whole question as trivial if it
were not for the frequency with which I have encountered the assertion
that the founders created a republic, not a democracy. One could interpret
this to mean that by excluding more than half the adult population from
the rights necessary for a system to meet today's democratic
standards, the founders created an oligarchy—an oligarchic republic,
if you will, not altogether unlike the medieval Italian republics. But it
is my impression that those who make this claim want to use the authority
of the founders to reject the legitimacy of “democracy” as an
appropriate standard for contemporary America. To which I would like to
reply, if the United States is not, and should not be, a democratic
republic, then what kind of republic is it or should it be? An
aristocratic republic? An oligarchical republic?
Let me now turn to Madison's response to the second question;
Does a common good exist and, if so, can we know what it is? Adopting a
view that was common in his time, Madison assumed that a common good
existed and could be definitely known, at least by some. Yet despite
Madison's confidence, after two millennia philosophers continue to
disagree over two central issues. Just how can we know what the
public good truly is? And what persons would be most likely to
know and actually seek to achieve the public good? As to the first issue,
is knowledge of the public good self-evident? If not, can it be derived by
pure reason, and perhaps only by pure reason, as Kant would assert? If
pure reason is insufficient, does knowledge of the public good depend on
intuitions? On feelings and emotion? Experience? All of these?
Madison's position was unequivocal: he came down firmly on the
side of reason and, like Kant, refused to allow any place for emotions and
passions.14
Here, Madison's understanding of human
nature seems to have deserted him, which is particularly surprising
because his view flatly contradicted that of David Hume, whose work he had
reread before attending the convention and whose argument on the
advantages of size for reducing the evil effects of faction anticipated
Madison's.
15 Because the physiological connections between
reason and emotion were largely unknown until the late twentieth century,
aseptic views like Madison's and Kant's were beyond effective
refutation. In light of what is known today, however, the assumption that
reason can be wholly separated from emotion appears to represent a
fundamentally mistaken view of human nature.
16 As to the second issue, Madison appears to have believed, not unlike
Plato, Confucius, and many of his contemporaries, that certain persons of
greater wisdom and public virtue might know better than others what the
public good truly is, and would also be more inclined to act on it. A
crucial advantage of a representative republic over direct or assembly
democracy, Madison asserted, is that the requisite wisdom and virtue are
more likely to exist among the elected representatives than among the
people who elect them. In Federalist 10 he wrote that the effect
of elections is
to refine and enlarge the public views, by passing them
through the medium of a chosen body of citizens, whose wisdom may best
discern the true interests of their own country, and whose
patriotism and love of justice will be least likely to sacrifice it to
temporary or partial considerations. Under such a regulation, it may well
happen that the public voice, pronounced by the representatives of the
people, will be more consonant to the public good than if pronounced by
the people themselves convened for the purpose. (My
italics)
Madison was too experienced in the ways of politics and politicians to
assume that this desirable outcome was inevitable, and he immediately adds
a realistic qualifier:
On the other hand, the effect [of elections] may be
inverted. Men of fractious tempers, of local prejudices, or of sinister
designs, may, by intrigue, by corruption, or by other means, first obtain
the suffrages, and then betray the interests, of the people.17
Before turning to Madison's solution to this dilemma, I want to
underscore his implicit assumption that the “public good,” the
“interests of the people,” could be definitely known and
described. If Madison were alive today, I find it hard to believe that he
would advance this assumption as if it needed no further justification.
Today's Madison would surely ask a question like this: In concrete
situations when people disagree about the public good, as they commonly
do, how can we know what is best? In Madison's own time, didn't
the interests of slave owners, including enlightened slave owners like
Madison himself, conflict with the interests of others—not least, of
course, those who were enslaved? Don't basic human rights trump
property rights? Or are property rights inviolable even when they violate
fundamental human values?
If some citizens believe that their interests conflict with the
interests of others, how should the matter be decided? What is the proper
place of public deliberation, and how is it to be achieved? When interests
conflict, should we be guided by the utilitarian formula of “the
greater good of the greater number,” and if so just who constitutes
the “we” entitled to make that decision? Or, given the
pitfalls hidden in that formula, should the decision follow some other
moral principle? If so, what? And just what is the legitimate role of
majority rule?
Even if Madison's assumptions about the public good may have been
persuasive in his own time, today his contention that the public good can
be definitely known by elected representatives would scarcely be
debated.
This leads me to my third question. In Madison's view, what are
the major threats to achieving the common good? In his 1787 constitutional
theory Madison was primarily concerned, I think, with two of these. One I
have already mentioned: “Men of fractious tempers, of local
prejudices, or of sinister designs, may, by intrigue, by corruption, or by
other means, first obtain the suffrages [votes], and then betray
the interests, of the people.” His main solution to this problem of
leadership—a solution widely supported by his colleagues at the
convention—was the famous separation of powers into the different
branches of government that would serve as checks and balances. Because I
want to focus here on some changes in the views Madison came to express as
he, the country, and indeed the world gained more experience with
large-scale representative government, I'll say no more about this
solution and instead turn briefly to the other major threat: factionalism.
“By a faction,” he wrote, “I understand a number of
citizens, whether amounting to a majority or minority of the whole, who
are 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.” Where liberty exists,
factions are inevitable. “As long as the reason of man continues
fallible, and he is at liberty to exercise it, different opinions will be
formed…. The diversity in the faculties of men….
[is] an insuperable obstacle to a uniformity of
interests…. The latent causes of faction are thus sown in the
nature of man …. [T]he most common and durable source
of factions has been the various and unequal distribution of
property.”18
Ibid., 54–56 (emphasis added).
How might the dangers of faction be mitigated? “If a faction
consists of less than a majority,” Madison wrote, “relief is
supplied by the republican principle, which enables the majority to defeat
[the minority's] sinister views by regular vote.”19
But what if the faction were itself a majority? “In our
Governments,” he wrote to Jefferson in 1788, “the real power
lies in the majority in the Community, and the invasion of private rights
is chiefly to be apprehended, not from acts of Government contrary to the
sense of its constituents, but from acts in which the Government is the
mere instrument of the major number of the Constituents.”
20 Like many of his colleagues at the convention, and the
classic writers from Aristotle onward who had helped to shape their
views,
21 Madison believed that the greatest threat to
fundamental rights would come from majorities of citizens who possessed
little or no property. For if the many lacked property, they would, driven
by the overpowering force of self-interest, surely attempt to infringe on
the property rights of the few who did own property.
Turning to Madison's fourth question, if factions that threaten
the basic rights and liberties of others are inevitable, what is to be
done? A Bill of Rights, Madison believed, might be helpful, but it was not
sufficient. “My own opinion,” he wrote in his letter to
Jefferson in 1788, “has always been in favor of a bill of rights
… At the same time I have never thought the omission a material
defect, nor been anxious to supply it even by subsequent amendment, for
any reason other than that it is anxiously desired by others. I have
favored it because I supposed it might be of use, and if properly executed
could not be of disservice.” He was lukewarm about its necessity and
doubtful about its effectiveness because “experience proves the
inefficiency of a bill of rights on those occasions when it is most
needed…. Repeated violations of these parchment barriers …
have been committed by overbearing majorities in every state.”22
Padover 1953, 254.
At the Virginia Ratifying Convention in June, 1788, Patrick Henry gave a
lengthy and passionate criticism of the Constitution for, among other
things, its omission of a Bill of Rights that would protect the freedom of
religion, trial by jury, and “the other great rights of
mankind” that were, he noted, preserved by “our own
Constitution” (i.e., the Constitution of the Commonwealth of
Virginia). In his reply, Madison argued, “If there were a majority
of one sect, a Bill of Rights would be a poor protection for liberty.
Happily for the States, they enjoy the utmost freedom of religion. This
freedom arises from a multiplicity of sects, which pervades America, and
which is the best and only security for religious liberty in any
society” (Bailyn 1993, 678,
690).
Was Madison's early fear of majorities influenced by the
possibility that they might threaten the one form of
property—slavery—that was essential to his livelihood?
Whatever the reasons, in his earlier years Madison clearly feared that
government by majorities might seriously endanger the rights of
minorities.
So what was to be done? Madison's solution included several
elements: federalism, a constitution of limited enumerated powers, and, as
I have mentioned, the election of representatives.23
I am grateful to Richard Matthews for calling my attention to
the first two of these. In If Men Were Angels, he provides an
excellent account of Madison's views on these and other important
constitutional issues.
But Madison's most original
contribution, the one for which he is probably best known and for which he
has been cited endlessly, was to enlarge the size of a republic.
“Extend the sphere,” he asserted, “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; or if such a common motive exists, it will be more
difficult for all who feel it to discover their own strength and to act in
unison with each other.”
24 Increasing the size of the system,
then, was “a republican remedy for the diseases most incident to
republican government.”
25 Was Madison correct? I'll return to this
question in a moment.
Like everyone else in 1787, Madison confronted a challenge for which
historical experience provided little guidance. Given that a large-scale
representative democracy had never before existed in human history, his
conjectures were probably as well founded as they could possibly have
been.
Yet the constitutional system that Madison and his colleagues had
helped to create would swiftly change in response to the powerful
democratic impulses that soon emerged. Madison himself helped to
strengthen these democratic impulses and their impact. For the three
decades after the convention, he was deeply immersed in political life.
Elected to the new House of Representatives in 1789, he quickly assumed a
major leadership role. Whatever his reservations may have been, he
introduced and quickly gained the passage of the Bill of Rights. In 1788,
shortly after retiring from the House, he wrote the Virginia Resolutions,
attacking the Alien and Sedition Acts, and the following year, after
returning to the Virginia House of Delegates, he defended the Resolutions.
In 1801 he was made secretary of state, where he remained throughout
Jefferson's tenure. On Jefferson's retirement in 1808, he was
elected president, as he was again in 1812. Ten years after retiring from
the presidency he succeeded Jefferson as rector of the University of
Virginia. In 1829 he was a delegate to the Virginia Constitutional
Convention. During his final years he staunchly opposed nullification and
defended the union. He died in 1836 at the age of eighty-five.
Madison's experience from 1790 onward led him, I believe, to
develop somewhat greater trust in majorities—majorities consisting,
of course, exclusively of white males—and a greater distrust of
minorities that, in his view, threatened the interests of the majority.
Put simply, Madison, I believe, rapidly moved toward answers that were
different from, or at least had a much different emphasis than, those he
presented at the convention and in the Federalist. Madison
increasingly emphasized four propositions:
- The greatest threat in the new American republic came from a
minority, not the majority. (By majority I'll continue to mean a
majority of white male citizens.)
- To protect their rights, liberties, and entitlements from minority
factions, a majority needed to organize a political party.
- To ensure that majorities would not threaten property rights, it was
necessary (and perhaps sufficient) that a majority of citizens owned
property. As property owners, they would have an interest in
protecting—not invading—the rights of property.
- In the end, in a democratic republic, majorities must be allowed to
prevail.
I want to illustrate Madison's change in views by noting very
briefly some well-known historical developments bearing on each of these
new propositions. Like his close ally Jefferson, Madison swiftly concluded
that representatives of the Federalist Party were supporting and even
achieving policies harmful to the interests of a majority of citizens.
These included the pernicious Alien and Sedition Acts, the assumption of
state debts, Hamilton's successful effort to establish a national
bank, and his support for Britain in its conflicts with France.
It became obvious that to be effective the opposition needed its own
political organization. Thus Jefferson, Madison, and other like-minded
opponents of the Federalists created the Republican Party, which soon came
to be called the Democratic-Republican Party, and finally, with Andrew
Jackson, simply the Democratic Party. Like virtually all advocates of
democracy, Madison had come to see, as he put it much later, that
“no free Country has ever been without parties, which are a natural
offspring of Freedom.”26
Creating a
political party, however, represented a step away from
Federalist
10. For a political party is a kind of faction, a faction that is
organized by party leaders to win votes in elections. The word party
itself, as Giovanni Sartori emphasized some years ago, derives from the
Latin verb meaning to divide. Though party was sometimes seen as less
derogatory than “faction,” the two terms were often used
interchangeably. A party is but a “part of a political
society,” not the whole.
27 Sartori
(1976, 5ff.), provides an excellent account of
the evolution of the term “party” and its distinction from
“faction.”
In effect, then, organized political
parties competing against one another in elections are important elements
of the solution to the twin problems of faction and the defense of
majority interests.
28 For a carefully
presented view of the evolution of Madison's views on parties, see
Riemer 1968, 173–74.
But competition between political parties would not necessarily
diminish, and might even intensify, the danger to property rights if the
suffrage were extended to those without substantial property, particularly
those without landed property—in Madison's terms, “non
freeholders.” That danger would be reduced, of course, if most
members of the electorate owned or expected to own property, and thus had
an interest in protecting property rights. Though a solution along these
lines was difficult, if not impossible in, say, Britain, in America the
availability of land to the west provided a solution—to be sure, at
the expense of the indigenous population. A westward movement that Madison
had perhaps not clearly foreseen in 1787 was rapidly resulting in a large
population of independent farmers who, as property owners themselves,
would have little interest in threatening property rights.
Although Madison's later views were hardly those of a passionate
supporter of universal suffrage and political equality, a note he wrote in
1821 begins with the comment that his “observations in 1787 do not
convey the speaker's [that is, Madison's] more full
& matured view” of the right to suffrage, which is “a
fundamental Article in Republican Constitutions.” After considering
the alternatives, he concluded that extending the suffrage to those
without (landed) property was preferable, on grounds of feasibility and
justice, to any more restrictive alternative. “In a just & a
free, Government,” he wrote, “… the rights both of
property & persons ought to be effectually guarded. Will the latter be
so in case of a universal & equal suffrage? …. Confining the
right of suffrage to freeholders…violates the vital principle of
free Govt. that those who are to be bound by the laws, ought to have a
voice in making them.” After examining four alternative arrangements
that would deprive or limit the suffrage of those without property,
Madison concluded:
Under every view of the subject, it seems indispensable that
the Mass of Citizens should not be without a voice…. and if the
only alternative be between an equal & universal right of suffrage for
each branch of Govt. and a confinement of the entire right to part of the
Citizens, it is better that those having the greater interest at stake
namely that of property & persons both, should be deprived of half
their share in the Govt.; than those having the lesser interest, that of
personal rights only, should be deprived of the whole.29
Farrand 1987, 3:450–55,
appendix A, punctuation as in original. His continuing concerns for
property are revealed by his unwillingness to reject one alternative:
“Confining the right of electing one Branch of the Legislature to
freeholders, and admitting all others to a common right with holders of
property, in electing the other branch.” He points out that this had
been tried and abandoned in New York but “is still on trial in N.
Carolina … It is certain that the trial, to be satisfactory ought
to be continued for no inconsiderable period; untill [sic] in
fact the nonfreeholders should be a majority” (p.
454).
Political equality means that the majority must be allowed to prevail.
Although Madison may never have fully overcome his worries about the
potential threats to property rights arising from voters with little or no
landed property, as he observed the expansion in property ownership among
his fellow citizens, he seems to have become somewhat more committed to
the fundamental principle of majority rule.
Toward the end of his life, particularly after John C. Calhoun had
begun his attacks on the principle of majority rule, Madison's
defense of the principle was forceful and unambiguous. In a letter written
in 1833, Madison contended:
[W]hatever opinions may be formed on the general
subject of confederal systems, or the interpretation of our own, every
friend to Republican Government ought to raise his voice against the
sweeping denunciation of majority Governments as the most tyrannical and
intolerable of all Governments … .
[T]he general question must be between a republican
government in which the majority rule the minority, and a Government in
which a lesser number or the least number rule the majority…. Those
who denounce majority Governments altogether because they may have an
interest in abusing their power, denounce at the time all Republican
Government and must maintain that minority governments would feel less of
the bias of interest or the seductions of power.30
Madison, Writings, 9:520–28, cited in Meyers 1973, 525.
That same year in a “Memorandum on ‘Majority
Government,’” he wrote:
If majority governments … be the worst of Governments
those who think and say so cannot be within the pale of the republican
faith. They must either join the avowed disciples of aristocracy,
oligarchy or monarchy, or look for a Utopia exhibiting a perfect
homogeneousness of interests, opinions and feelings nowhere yet found in
civilized communities.31
I find it regrettable that Madison is almost entirely known for his
1787 constitutional theory, for there can be little doubt that as he and
the American political system both evolved, he revised his views in ways
that were far more democratic. Yet even Madison's revised
constitutional theory contained at least three serious flaws.
The first is his argument in the Federalist that increased
size reduces the dangers of factionalism. At the convention itself he
had—rightly, I believe—“contended that the States were
divided into different interests not by their differences in size, but by
other circumstances; the most material of which resulted partly from
climate, but principally from (the effects of) their having or not having
slaves. These two causes concurred in forming the great division of
interests in the U. States.”32
His much better known argument in the Federalist (especially
in essays 10 and 51) may well have been useful as a rhetorical point that
would help to reduce fears expressed at the convention, and outside the
convention by Anti-Federalists, that the interests of the people in small
states would suffer in the proposed federal system.33
This is clearly the case in his response to the (ultimately
successful) insistence by delegates of the small states on equal
representation in the Senates. Three large states—Virginia,
Massachusetts, and Pennsylvania—were, he argued, deeply divided by
their different interests. For example, in “staple productions they
were as dissimilar as any three other States in the Union” (Ibid., 447).
But if we consider the latter
argument as an empirical proposition in political science, two comments
seem to me justified. It could not possibly have been tested adequately in
his own time. And two centuries of experience since then flatly contradict
his proposition.
Among the representative democracies of our time, the smaller
countries are no more vulnerable to faction than the larger ones: consider
the three Scandinavian countries, together with Finland, the Netherlands,
Switzerland, and New Zealand. Or consider that among the seventy or so
countries of the world that meet today's standards for
democracy—rather higher standards, by the way, than
Madison's—countries with populations under a million are much
more prevalent than larger countries.34
Or if we move to a much smaller scale, an analysis of town meetings in
Vermont reveals a remarkable combination of vigor, civility,
participation, and respect for the direct democracy. Indeed, the smaller
the town, the more these qualities tend to appear.
35 Madison was right in thinking that diversity tends to increase with
size.36
But he
overlooked the costs of heterogeneity and the advantages of
homogeneity.
37 Alesina and Spolaore (2003) propose that “the sizes of national states
(or countries) are due to the trade-offs between the benefits of size and
the costs of heterogeneity of preferences over public goods and
preferences provided by government…. Our main argument
[is] that democratization, trade liberalization, and reduction
of warfare are associated with the formation of small countries, whereas
historically the collapse of free trade, dictatorships, and wars are
associated with large countries” (pp. 6, 15).
For example,
until immigration recently created new cultural diversities in Sweden, its
extraordinary homogeneity enabled Swedes to negotiate national policies
with a very high degree of consensus in the cabinet, the parliament, and
the entire country.
38 At the other
extreme, consider the difficulties the European Union now faces in
creating a constitution, given the diverse and conflicting interests,
views, values, and political cultures that continue to exist among
Europeans.
It is difficult, even impossible, to reconcile Madison's seeming
optimism about the beneficial affects of size with his clear recognition
of the crucial difference in interests among property owners in different
states stemming “from (the effects of) their having or not having
slaves.” Didn't the framers make the Civil War virtually
inevitable by incorporating into the union the Southern states with
economies, social systems, and cultures based on slavery? Whether
separation rather than union would have been more desirable in the long
run is a question too complex to examine here. My point simply is that
enlarging the sphere might just set the stage for irresoluble
conflict.
I have sometimes wondered whether Madison stressed the advantages of
size in order to counter the objections of the Anti-Federalists, perhaps
the most vigorous opponents of the new federal system. If so, it was a
shrewd move. But that does not make his conjecture empirically valid.
The second major flaw that remained in Madison's revised
constitutional theory is the tacit exclusion from full citizenship of an
enormous share of the adult population. Like other men of his time,
Madison seems to have taken for granted that suffrage should be restricted
to men, and that there was no question of the right to vote, as well as
many other fundamental rights, being extended to women. And while women
had few rights as citizens, slaves had no rights at all. Like Washington,
Jefferson, and many other eminent Virginians, Madison owned slaves, which
he had inherited from his father. Like Washington and Jefferson, he
believed that slavery was an evil,39
Rakove 1996, 337. Ralph Ketcham (1990) writes: “Though brought up among slaves
and dependent on their labor, he abhorred the institution of slavery and
sought to have as little as possible to do with it” (p.
148).
and he seems to have treated humanely those he possessed.
Like his fellow Virginians, however, he chose not to free his slaves
during his own lifetime or to contest the institution publicly.
40 An exception was one Billey. “In 1783,
as Madison prepared to return to Virginia from Philadelphia, he discovered
that, after nearly four years in the company of free servants, Billey was
‘too thoroughly tainted to be fit companion for fellow slaves in
Virginia.’ … Why, Madison asked his father, should Billey be
punished ‘merely for coveting the liberty for which we have paid the
price of so much blood, and have proclaimed so often to be right, and
worthy the pursuit, of every human being’” (Ketcham 1990, 148). All of Madison's
pronouncements about the evils of slavery are in private letters or
documents.
Nor did he follow Washington's example and
emancipate them at his death. Instead, no doubt fearing his wife's
impoverishment, he willed them to her.
41 “[I]n his will Madison said of his slaves
merely that none of them should be sold without the slave's consent
as well as Dolley Madison's. A lifetime of opposition to slavery had
thus been reduced in Madison's will to a gesture, likely to be
ineffectual, not of freedom, but only of decent treatment. As happened
again and again in slave states, the demands of creditors and estate
legatees subverted Madison's intentions” (Ketcham 1990, 629).
Like Jefferson, he
supported schemes of gradual emancipation “and the colonization of
freedmen in Africa or some other remote region.” In 1819 he even
proposed that money obtained from the sale of western lands be used to
purchase enslaved persons from their masters—after which they would
be shipped to Africa.
42 Of course, the scheme went
nowhere.
The third major flaw in his post-1787 constitutional theory had been
mainly overlooked by biographers, historians, political scientists, and
constitutional lawyers until Garry Wills called it forcefully to our
attention.43
This was the infamous two-fifths rule, according to
which, in the words of Section 3, Article I: “Representatives and
direct Taxes shall be apportioned among the several states …
according to their respective Numbers, which shall be determined by adding
to the whole Number of free Persons …. three fifths of all other
Persons.” Who were these “other Persons”? Slaves, of
course.
44 When Madison discussed the
conflict of interests between property owners in free and slave states
early in the Convention, he had proposed that instead of the two-fifths
rule, slaves “should be represented in one branch according to the
number of free inhabitants only; and in the other according to the whole
no. counting the slaves as (if) free. By this arrangement the Southern
Scale (sic—States?) would have the advantage in the House, and the
Northern in the other. He had been restrained from proposing this
expedient by two considerations: one was his unwillingness to urge any
diversity of interests on an occasion when it is but too apt to arise of
itself—the other was the inequality of powers that must be vested in
the two branches, and which wd. destroy the equilibrium of
interests” (Farrand 1987,
1:486–87).
Wills argues, rightly, I believe, that the extra
seats in the House—and therefore in the electoral college—had,
in Wills's words, “a great deal to do with the fact that for
over half a century, right up to the Civil War, the management of the
government was disproportionately controlled by the South.”
45 It even “undermined the very possibility of debating or
changing the status of slaves—as the gag rules of the 1830s and
1840s would demonstrate.”
46 Although Madison seems not to have
played a big part in the adoption of this constitutional provision, he
supported it at the convention and throughout his life.
Madison was limited in important ways by his time and place, yet he
helped to launch the world's first experiment in what would later
come to be called representative democracy. The political institutions,
practices, and ideas about popular government to which he contributed
contained dynamic—even revolutionary—elements that, once set
in motion, would continue to evolve, sometimes quite rapidly.
Madison was a part of that evolution. In his 1787 constitutional
theory, a fear of majorities required that barriers to their power be
imposed by constitutional and other means. In his post-1787 theory, he
came to defend majorities. Yet many of the crucial elements of the
constitutional system that reflected his earlier, and not his later, views
have remained in place to the present day.
I sometimes wonder what further revisions Madison would make in his
constitutional theory if he were alive today. I'm inclined to think
that after he had reflected at length on the changes since his time in
democratic ideas and practices, both in his own country and elsewhere, he
might well prove to be a vigorous contemporary critic of the Constitution
he helped so much to create.
